Filed 6/1/22 In re Ernesto D. CA2/4

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION FOUR

APPEAL from an order of the Superior Court of Los Angeles County, Victor G. Viramontes and Michael D. Abzug, Judges. Conditionally affirmed and remanded.

Jesse McGowan, under appointment by the Court of Appeal, for Defendant and Appellant.

Rodrigo A. Castro-Silva, County Counsel, Kim Nemoy, Assistant County Counsel, Aileen Wong, Deputy County Counsel, for Plaintiff and Respondent.

Ernesto D. III (father) appeals from the juvenile court’s order terminating his parental rights over his five children, Ernesto IV, Damian, Darlene, Ruby, and Ryder, under Welfare and Institutions Code section 366.26.[1] Father’s sole contention on appeal is that the juvenile court and the Los Angeles County Department of Family and Children Services (DCFS) failed to comply with the inquiry requirements of the Indian Child Welfare Act (25 U.S.C. § 1901 et seq.) (ICWA). We agree and conditionally affirm the order terminating his parental rights, and remand the matter with directions to ensure DCFS complies with the provisions of ICWA and related state law.

FACTUAL AND PROCEDURAL BACKGROUND

Father and mother (Lisette S.), parents of the five children subject to this appeal, have an extensive dependency history for issues arising out of substance abuse and criminality leading to the termination of parental rights. Because the sole issue on appeal relates to compliance with ICWA, we omit a summary of the facts leading to the termination of parental rights, and focus instead on the proceedings relevant to compliance with ICWA.

In May 2018, parents filed separate Parental Notification of Indian Status (ICWA-020) forms. In her form, mother denied having Indian ancestry; in his, father reported that he was a member of, or eligible for membership in, the Blackfoot Tribe through his ancestor, Maria Rosalia M.[2] Father also provided a relative information sheet with the name, address, and phone number for paternal grandmother, Adelaida M.

Present at the first detention hearing were parents, the four eldest children, Adelaida M., and maternal grandparents, Lorena S. and Marco S. When the court inquired into father’s Indian heritage, his appointed counsel responded that father’s family could trace its roots directly to the Blackfoot Tribe, and that “it is [father’s] understanding that he is at least a quarter Blackfoot.” Adelaida M. verified that paternal grandfather (later identified as Ernesto Jr.), had Indian heritage. Adelaida M. was not asked, and did not specify, whether she or anyone on father’s maternal side had Indian heritage. The court ordered DCFS to investigate father’s claim of possible Indian ancestry.

In June 2018, a DCFS investigator interviewed father and paternal great-grandmother, Maria Rosalia M. (whom father had identified in his ICWA-020 form). Maria Rosalia M. reported that she had Blackfeet heritage through her father, Jose Garcia M. Father reported that Maria Rosalia M. and paternal great-grandfather had raised him as a child. Recently, father had grown closer to paternal grandfather, Ernesto Jr., who worked as a pastor in Sacramento. In its reports, DCFS provided the names, addresses, and phone numbers of maternal grandparents (Lorena S. and Marco S.) and maternal aunt (Desiree S.), and summarized several interviews with Marco S. and Adelaida M.

Also in June 2018, DCFS sent four sets of Notices of Child Custody Proceedings (ICWA-030) notices to the Bureau of Indian Affairs (BIA), Secretary of the Interior, and Blackfeet Tribe of Montana. The ICWA-030 notices named Ernesto IV, Damian, Darlene, and Ruby as possible tribal members. The notices listed the name, current address, and date and place of birth of father (Ernesto III); name and current address of paternal grandmother (Adelaida M.); name of paternal grandfather (Ernesto Jr.); name, and date and place of birth of paternal great-grandmother (Maria Rosalia M.); and name of paternal great-grandfather (Ernesto D.). The notices also identified paternal great-great-grandfather (Jose Garcia M.) as the children’s paternal great-grandmother.[3] The notices did not list mother’s birthdate or any information on the children’s maternal relatives.

Between August and September 2018, DCFS reported that its attempts to follow up with the Blackfeet Tribe telephonically and through email were unsuccessful. At the adjudication hearing on the first dependency petition, the court found no reason to believe that Ernesto IV, Damian, Darlene, and Ruby were Indian children.

During a permanency planning hearing for Ryder in March 2021, the court ordered DCFS to provide proof of ICWA investigation. In June 2021, DCFS reported that it had provided ICWA notices to the Blackfeet Tribe of Montana, BIA, and the Secretary of the Interior, and had received a response from the Tribe. In its ICWA-030 notice as to Ryder, DCFS provided the name, current address, and birth date of Ernesto III and the name of Maria Rosalia M. The notice also provided the name of Jose Garcia M. as “[o]ther relative information (e.g., aunts, uncles, siblings, first and second cousins, stepparents, etc.).” In July 2021, the Blackfeet Tribe responded to the ICWA-030 notice, and informed DCFS that Ryder was neither a tribal member nor eligible for enrollment, as the Tribe’s “blood quantum requirement for enrollment is 1/4 Blackfeet blood.” The Tribe welcomed additional information on the child in the event it became available.

At the combined section 366.26 hearing, the court did not discuss or enter any order with respect to ICWA.

DISCUSSION

1. ICWA Requirements and Standard of Review

“ICWA reflects a congressional determination to protect Indian children and to promote the stability and security of Indian tribes and families by establishing minimum federal standards a state court must follow before removing an Indian child from his or her family.” (In re T.G. (2020) 58 Cal.App.5th 275, 287 (T.G.), citing 25 U.S.C. § 1902; In re Isaiah W. (2016) 1 Cal.5th 1, 7–8; In re W.B. (2012) 55 Cal.4th 30, 47.) “[P]ersistent noncompliance with ICWA led [our] Legislature in 2006 to ‘incorporate[] ICWA’s requirements into California statutory law.’ [Citations.]” (In re Abbigail A. (2016) 1 Cal.5th 83, 91.) Both ICWA and California law define an “Indian child” as a child who is either a member of an Indian tribe or is eligible for membership in an Indian tribe and is the biological child of a member of an Indian tribe. (25 U.S.C. § 1903(4); accord, § 224.1, subds. (a)‑(b).)

California law implementing ICWA imposes on the court and county welfare department “an affirmative and continuing duty to inquire whether a child,” who is the subject of a juvenile dependency petition, “is or may be an Indian child.” (§ 224.2, subd. (a); Cal. Rules of Court, rule 5.481(a).)[4] The child welfare department’s initial duty of inquiry includes “‘“asking the child, parents, legal guardian, Indian custodian, extended family members, others who have an interest in the child, and the party reporting child abuse or neglect, whether the child is, or may be, an Indian child and where the child, the parents, or Indian custodian is domiciled.” (§ 224.2, subd. (b).)’ [Citations.]” (In re J.S. (2021) 62 Cal.App.5th 678, 686 (J.S.).)

If the court or child welfare department “has reason to believe that an Indian child is involved in a proceeding, but does not have sufficient information to determine that there is reason to know that the child is an Indian child,” the court or welfare department “shall make further inquiry” into the child’s possible Indian status as soon as practicable. (§ 224.2, subd. (e); see rule 5.481(a)(4); J.S., supra, 62 Cal.App.5th at p. 686; T.G., supra, 58 Cal.App.5th at p. 290.)[5] “Further inquiry” requires interviewing the parents and extended family members to obtain every name (maiden, married, and former names or aliases), current and former address, birth date, place of birth and death, and tribal enrollment information of the child’s parents, grandparents, and great-grandparents or Indian custodian. (§§ 224.2, subd. (e)(2)(A), 224.3, subd. (a)(5); rule 5.481(a)(4).) Further inquiry also requires “[c]ontacting the tribe . . . and any other person that may reasonably be expected to have information regarding the child’s membership, citizenship status, or eligibility. . . . Contact with a tribe shall include sharing information identified by the tribe as necessary for the tribe to make a membership or eligibility determination.” (§ 224.2, subd. (e)(2)(C).)

If further inquiry results in a “reason to know the child is an Indian child,” then the welfare department must provide formal notice to the parents, Indian custodian (if any), and the child’s tribe with detailed information. (§ 224.3, subd. (a); accord, 25 C.F.R. §§ 23.11(a), 23.111(e).)

We review a juvenile court’s ICWA findings for substantial evidence. (In re Josiah T. (2021) 71 Cal.App.5th 388, 401; In re S.R. (2021) 64 Cal.App.5th 303, 312.)

2. Analysis

Here, the parties do not dispute that the information provided by father and his family members triggered the duty of further inquiry. (See In re A.M. (2020) 47 Cal.App.5th 303, 322 [statement by the mother that she “believed that she may have Indian ancestry,” and listing her grandfather “as having possible Indian heritage,” triggered duty of further inquiry].)

Rather, the parties dispute whether substantial evidence demonstrates that DCFS adequately discharged its duty to further inquire into the children’s possible Indian ancestry. DCFS asserts that it properly discharged its duty of further inquiry by identifying the children’s paternal relatives and attempting to follow up with the Blackfeet Tribe. DCFS also contends that any deficiency in the notices it provided the Blackfeet Tribe was harmless, as the “children would be unable to meet the blood quantum requirement for enrollment and would not have been found Indian children.” We agree with father’s contention that DCFS did not adequately discharge its duty of further inquiry, and reject DCFS’s contentions for several reasons.

First, there is no evidence that DCFS attempted to interview extended family members (Ernesto Jr.; Ernesto D.; Lorena S. and Marco S.; and Desiree S.) to gather available familial and tribal information, as was required under the duty of further inquiry. (§§ 224.2, subd. (e)(2)(A), 224.3, subd. (a)(5); rule 5.481(a)(4).)

Second, there is no evidence that DCFS attempted to verify or dispel father’s claim of having “at least a quarter Blackfoot” blood. The Blackfeet Tribe informed DCFS that it required a certain blood quantum for a child’s eligibility for enrollment in the Tribe. Although DCFS interviewed Adelaida M. and Maria Rosalia M. about father’s possible Indian heritage, it is unclear whether DCFS asked them about their own possible Indian heritage, blood quantum, tribal enrollment information, and maiden name and addresses. It is equally unclear whether DCFS inquired of any family member as to paternal grandfather’s or paternal great-great-grandfather’s Indian heritage or tribal enrollment information. Without this information, it remains possible that father’s blood quantum contains more than a quarter Blackfeet blood, such that each children would be eligible for enrollment in the Blackfeet Tribe.

Third, DCFS did not establish whether eligibility for enrollment in the Blackfeet Tribe is a prerequisite for tribal membership. (See § 224.2, subd. (h) [“nformation that the child is not enrolled, or is not eligible for enrollment in, the tribe is not determinative of the child’s membership status unless the tribe also confirms in writing that enrollment is a prerequisite for membership under tribal law or custom”].) While the Blackfeet Tribe informed DCFS that it required a certain blood quantum for enrollment, it did not indicate whether eligibility for enrollment is a prerequisite for membership. (See [i]ibid.)

Fourth, the notices DCFS sent to the Blackfeet Tribe omitted information in its possession and mistakenly identified lineal ancestors. None of the ICWA-030 notices included information pertaining to Lorena S., Marco S., and Desiree S. Adelaida M.’s name is misspelled in the notices and does not appear in Darlene’s notice. Maria Rosalia M.’s date and place of birth is omitted in Ryder’s notice. Finally, Jose Garcia M. is identified as paternal great-grandmother, paternal great-grandfather, or “[o]ther relative.” These errors or omission “violated federal and state law.” (In re Y.W. (2021) 70 Cal.App.5th 542, 557; see also J.S., supra, 62 Cal.App.5th at p. 688 [ICWA notice “‘must include enough information for the tribe to “conduct a meaningful review of its records to determine the child’s eligibility membership”’”].)

DCFS contends that the deficiencies in the ICWA-030 notices “may be harmless when it can be said that, if proper notice had been given, the child would not have been found to be an Indian child and the ICWA would not have applied.” (Quoting In re I.W. (2009) 180 Cal.App.4th 1517, 1530, overruled on another ground in Conservatorship of O.B. (2020) 9 Cal.5th 989.) This contention appears to suggest that this court can independently determine the children’s eligibility for membership in an Indian tribe. But it is “the Indian tribe, not the juvenile court or the court of appeal, [which] is the sole entity authorized to determine whether a child who may be an Indian child is actually a member or eligible for membership in the tribe.” (In re Breanna S. (2017) 8 Cal.App.5th 636, 654, disapproved on another ground in In re Caden C. (2021) 11 Cal.5th 614.) In any event, even assuming this court were authorized to make such a determination, we could not do so given the absence of necessary information in the record.

In sum, we conclude that the juvenile court’s implied findings on further adequate inquiry and of ICWA’s resultant inapplicability lack support in the record. Because it would also be improper to impute such a finding to the orders entered at the section 366.26 hearing, we must conditionally affirm the order terminating father’s parental rights and remand the matter for ICWA compliance and remand the matter for ICWA compliance.

DISPOSITION

The orders terminating father’s parental rights are conditionally affirmed. We remand to the juvenile court for DCFS and the court to comply with the provisions of ICWA and California law consistent with this opinion, including: (1) attempting to contact Ernesto Jr., Ernesto D., Lorena S., Marco S., and Desiree S. to gather available familial and tribal information; (2) attempting to investigate father’s claim of having at least a quarter Blackfeet blood by obtaining additional familial and tribal information, if available, from Adelaida M., Ernesto D., Maria Rosalia M., and Jose Garcia M.; (3) attempting to confirm with the Blackfeet Tribe that eligibility for enrollment is a prerequisite for membership; and (4) providing the Tribe with all information in its possession as to the children’s possible Indian heritage. Based on any additional information DCFS obtains, it shall conduct any further investigation and provide formal notice as appropriate. If, after DCFS adequately discharges its duty of further inquiry, the court finds that Ernesto IV, Damian, Darlene, Ruby, or Ryder are Indian children, it shall conduct a new section 366.26 hearing as to that particular child, as well as all further proceedings in compliance with ICWA and related California law. If not, the court’s original section 366.26 order(s) will remain in effect.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

WILLHITE, J.

We concur:

MANELLA, P. J.

COLLINS, J.

[1] Undesignated statutory references are to the Welfare and Institutions Code.

[2] Parents filed a subsequent set of ICWA-020 forms in connection with the second dependency petition that provided nearly identical information.

[3] Paternal grandmother’s name is misspelled in each ICWA-030 notice. As to Darlene, the ICWA-030 notice also omitted paternal grandmother’s name and current address. As to Ernesto IV, the ICWA-030 notice identified paternal great-great-grandfather (Jose Garcia M.) as the child’s paternal great-grandfather.

[4] Unspecified references to rules are to the California Rules of Court.

[5] There is “reason to believe” a child is an Indian child whenever the court or welfare department “has information suggesting that either the parent of the child or the child is a member or may be eligible for membership in an Indian tribe,” including any information “that indicates, but does not establish, the existence of one or more of the grounds for reason to know.” (§ 224.2, subd. (e)(1).)

Section 224.2 sets forth six “circumstances” in which a welfare department acquires “reason to know a child involved in a proceeding is an Indian child.” In one circumstance, “[a]ny participant in the proceeding . . . informs the court that it has discovered information indicating that the child is an Indian child.” (§ 224.2, subd. (d)(1) & (3).)