2020 WL 7334240
Not Officially Published
(Cal. Rules of Court, Rules 8.1105 and 8.1110, 8.1115)
Only the Westlaw citation is currently available.
California Rules of Court, rule 8.1115, restricts citation of unpublished opinions in California courts.
Court of Appeal, Fifth District, California.
IN RE I.G. et al., Persons Coming Under the Juvenile Court Law.
Kings County Human Services Agency, Plaintiff and Respondent,
v.
M.M., Defendant and Appellant.
F081337
|
Filed 12/14/2020
APPEAL from an order of the Superior Court of Kings County. Jennifer Lee Giuliani, Judge. (Super. Ct. Nos. 19JD0067, 19JD0068)

OPINION
THE COURT*
M.M. (mother) appeals from the juvenile court’s order terminating her parental rights as to her now 15-year-old son, I.G., and four-year-old daughter, T.T. (Welf. & Inst. Code, § 366.26.)1 Mother contends the Kings County Human Services Agency (Agency) and juvenile court failed to comply with the notice and inquiry requirements of the Indian Child Welfare Act (ICWA) (25 U.S.C., § 1901 et seq.). The Agency concedes there were inadvertent omissions in the inquiry and notices. We agree with the parties and will conditionally remand the case.

 

FACTUAL AND PROCEDURAL BACKGROUND
Dependency proceedings began in March 2019, when the Agency filed a petition alleging then 13-year-old I.G., two-year-old T.T., and their six-year-old half brother, H.J., came within the provisions of section 300, subdivision (b), because mother failed to provide the children with adequate shelter and the family had a chronic history of neglect.2 After mother was arrested on an outstanding warrant and the children were detained, H.J. was released to his father, while I.G. and T.T. were placed in a tribe-certified foster home.

At the outset of the case, mother told the Agency H.J. and T.T. were or may be eligible for membership in the Santa Rosa Rancheria Tachi-Yokut Tribe through their respective fathers and provided the fathers’ roll numbers. Mother filed an ICWA-020 form “Parental Notification of Indian Status” (unnecessary capitalization omitted) stating she may have Hopi, Navajo, and Arapaho Indian ancestry. In March 2019, the Agency received confirmation from the Santa Rosa Rancheria Tachi-Yokut Tribe that H.J. was a tribal member and had an application on file, but T.T. was not a tribal member and did not have an application on file. The tribe further advised that their fathers were tribal members and had applications on file.

At the April 2019 detention hearing, mother testified she had Native American ancestry on maternal grandfather’s side and named the Navajo, Hopi and Arapaho tribes. She did not know if he was enrolled but she believed his parents were enrolled members; their names were Daniel M. and Susie C. The juvenile court found ICWA may apply to I.G. and T.T., and did apply to H.J.

On May 3, 2019, the Agency mailed ICWA-030 form “Notice of Child Custody Proceeding for Indian Child” (unnecessary capitalization omitted) for I.G. and T.T. to six registered tribes (the Northern Arapaho Tribe of the Wind River Reservation, The Hopi Tribe, the Cheyenne-Arapaho Tribes of Oklahoma, the Colorado River Indian Tribes, the Navajo Nation, and the Ramah Navajo School Board, Inc.) and the Bureau of Indian Affairs (BIA). The notice included ancestral information, including the name of maternal great-grandfather Daniel M., but did not list the name of maternal great-grandmother, Susie C. T.T.’s ICWA-030 form also was sent to the Santa Rosa Rancheria Tachi-Yokut Tribe. On May 29, 2019, a second ICWA-030 form for I.G. and T.T. was sent to the prior-noticed tribes, except for the Navajo Nation, as the tribe responded they were unable to verify the children’s eligibility for tribal membership based on the ancestry provided.

An ICWA-qualified expert witness’s declaration was filed for the jurisdiction hearing. The expert stated ICWA did not apply to I.G. With respect to T.T., the expert referred to the March 2019 letter from the Santa Rosa Rancheria that stated T.T. was not a tribal member. The expert further stated tribal representative Pepper Barron, a case manager with the Tribal Social Services Department for the Santa Rosa Rancheria, “added additional enrollment information regarding” T.T., namely, that she is considered “a Lineal Descendent because she does not meet the tribal membership requirement.” The expert concluded that while T.T. “does not meet the definition of Indian Child; however, because of the enrollment of her father, Albert T[.], through the spirit of ICWA (emphasis added) to keep Indian families together, ICWA applies to him.”

At the June 2019 jurisdiction and disposition hearing, mother and T.T.’s father, Albert, submitted on the petition, which the juvenile court found true. Albert testified at the hearing about paternity and Native American ancestry. Albert said he is an enrolled member of the Tachi-Yokut tribe. When asked if T.T. was an eligible member, Albert responded “no” but “[s]he’s a linea[l] descendant.” The tribe required genetic testing so T.T. could be placed on Albert’s insurance through the tribe and receive tribal services, as well as for tribal enrollment. County counsel told the juvenile court he asked for a genetic testing order so the Agency could assist with further enrolling T.T. in the tribe; the juvenile court acknowledged it had signed the order for genetic testing.

The juvenile court found ICWA may apply to I.G. and did apply to T.T. and the Santa Rosa Rancheria Tachi-Yokut Tribe was her tribe. The juvenile court removed the children from mother’s custody, left H.J. with his father, who was provided family maintenance services, and ordered reunification services for mother and, at a later paternity review hearing, for Albert.

In August 2019, I.G. and T.T. were moved to another foster home, where they adjusted well; their foster parents were willing to adopt them. The Santa Rosa Rancheria Tachi-Yokut Tribe approved of T.T.’s placement and did not oppose adoption by the foster parents. The Agency received a letter from The Hopi Tribe in May 2019 stating the children and their parents were not enrolled members or eligible for enrollment. The following month, the Agency received a letter from the Northern Arapaho Tribe stating neither the children nor their parents were enrolled members, as well as a call from Carmella Lambert, the tribe’s ICWA program assistant, stating the children were not eligible for enrollment.

Mother did not comply with her court-ordered case plan and Albert did not engage in his services. Accordingly, the Agency recommended termination of their reunification services and a section 366.26 hearing be set on behalf of I.G. and T.T. In December 2019, the juvenile court terminated mother’s and Albert’s reunification services and set a section 366.26 hearing as to I.G. and T.T.3

In an addendum report for the section 366.26 hearing, the Agency reported that in February 2020, Santa Rosa Rancheria Tachi-Yokut Tribe Interim Director Virginia Tolento reported the tribe was not representing T.T., since she was not a tribal member and did not meet the blood quantum requirements to become a member. On March 31, 2020, Tolento provided a letter from the Santa Rosa Rancheria membership department stating T.T. was not a member and did not have an application on file. Tolento confirmed T.T. was a lineal descendant of the tribe, but she was not eligible for membership since she did not meet the tribe’s blood quantum requirements. The Agency had received responses from four of the seven tribes.

In an ICWA review report, the social worker stated mother reported her Native American ancestry came through her father’s side of the family and his parents were enrolled members of a Navajo tribe. On three occasions in April and May 2020, the social worker attempted to contact mother and the fathers of I.G. and T.T. to obtain further information about their Native American ancestry, but never received a response. The social worker texted mother and Albert because the social worker was unable to leave a voicemail for them. The Agency had not received any further responses from the tribes that were noticed in May 2019. Specifically, the Agency had not received a response from the Cheyenne-Arapaho Tribes of Oklahoma, the Colorado River Indian Tribes, and the Ramah Navajo School Board, Inc.

The Agency stated that because additional information had not been provided to suggest the children are or may be Native American, no new inquiry was necessary and there was no supporting evidence the children may be subject to ICWA. The Agency therefore requested a finding that ICWA did not apply to I.G. or T.T.

At the conclusion of the June 2020 section 366.26 hearing, the juvenile court found that notice had been given as required by ICWA and there was no information either I.G. or T.T. were Indian children. The juvenile court clarified with respect to T.T. that while she appeared to be a descendant of a member of the Santa Rosa Rancheria Tachi-Yokut Tribe, she did not meet the blood quantum requirements to be a tribal member. Therefore, the juvenile court found ICWA did not apply to either child. The juvenile court selected adoption as the children’s permanent plan and terminated parental rights.

 

DISCUSSION
Mother raises the following ICWA errors: (1) the Agency’s and juvenile court’s failure to inquire; (2) all of the tribes were provided defective notice because the ICWA-030 form did not include the name of mother’s paternal grandmother; and (3) the notices to the Colorado River Indian Tribes and Ramah Navajo School Board, Inc., were sent to the wrong address and wrong addressee, and the notice to the Cheyenne-Arapaho Tribes of Oklahoma was sent to the wrong addressee. Mother also contends the record does not affirmatively establish T.T. is ineligible for membership in the Santa Rose Rancheria Tachi-Yokut Tribe. The Agency concedes there were errors in inquiry and notice. We accept the concession.

 

ICWA Inquiry and Notice Requirements
ICWA requires notice to Indian tribes “in any involuntary proceeding in state court to place a child in foster care or to terminate parental rights ‘where the court [or social worker] knows or has reason to know that an Indian child is involved.’ ” (In re Isaiah W. (2016) 1 Cal.5th 1, 8, quoting 25 U.S.C. § 1912(a); accord, § 224.3, subd. (a).) Under ICWA, an “Indian child” is “any unmarried person who is under age eighteen and is either (a) a member of an Indian tribe or (b) 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); see § 224.1, subd. (a) [adopting federal definition of “Indian child”].) The tribe to which the child belongs, or in which the child may be eligible for membership, must receive “notice of the pending proceedings and its right to intervene.” (In re H.B. (2008) 161 Cal.App.4th 115, 120; accord, § 224.3, subd. (a)(3)(A).)

“[T]he burden of coming forward with information to determine whether an Indian child may be involved and [the extent of] ICWA notice required in a dependency proceeding does not rest entirely—or even primarily—on the child and his or her family.” (In re Michael V. (2016) 3 Cal.App.5th 225, 233.) The juvenile court and the Agency have an “affirmative and continuing duty to inquire” whether a child in dependency proceedings “is or may be an Indian child.” (§ 224.2, subd. (a).)4

The Agency’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).) At each party’s first court appearance, the juvenile court must ask each participant “whether the participant knows or has reason to know that the child is an Indian child” (§ 224.2, subd. (c)), and “[o]rder the parent ... to complete [an ICWA-020 form].” (Cal. Rules of Court, rule 5.481(a)(2)(C), italics omitted.)5

If the juvenile court or social worker has “reason to believe”6 an Indian child is involved, but does not have sufficient information to determine there is “reason to know” the child is an Indian child, section 224.2, subdivision (e) requires “further inquiry regarding the possible Indian status of the child.” (§ 224.2, subd. (e).) “Further inquiry” includes: (1) interviewing the parents and extended family members; (2) contacting the BIA and State Department of Social Services; and (3) contacting the tribes the child may be affiliated with, and anyone else, that might have information regarding the child’s membership or eligibility in the tribe. (§ 224.2, subd. (e)(2).)

When interviewing parents and extended family members, the Agency is to gather the following information, if known: (1) the name, birth date and birthplace of the Indian child; (2) the name of the Indian tribe in which the child is a member or may be eligible for membership; and (3) all names known of the Indian child’s biological parents, grandparents, and great-grandparents, or Indian custodians, including maiden, married, and former names or aliases, as well as their current and former addresses, birth dates, places of birth and death, tribal enrollment information of the child’s other direct lineal ancestors, and any other identifying information. (§§ 224.3, subd. (a)(5), 224.2, subd. (e)(2)(A).)

The Agency “has the obligation to make a meaningful effort to locate and interview extended family members to obtain whatever information they may have as to the child’s possible Indian status.” (In re K.R. (2018) 20 Cal.App.5th 701, 709.)

“If the court, a social worker, or probation officer knows or has reason to know ... an Indian child is involved,” notice shall be sent to the child’s parents or legal guardian, Indian custodian, if any, and the child’s tribe for any hearing that may culminate in an order for foster care placement, termination of parental rights, preadoptive placement, or adoptive placement. (§ 224.3, subd. (a); see 25 U.S.C. § 1912(a); Cal. Rules of Court, rule 5.481(c)(1) [notice must be provided where “it is known or there is reason to know an Indian child is involved in a proceeding listed in rule 5.480,” including any dependency cases filed under section 300].)

ICWA notice requirements are not onerous. We emphasized the importance of ICWA compliance in In re H.A. (2002) 103 Cal.App.4th 1206, specifically requiring the agency to complete and serve the SOC 319 (“ ‘NOTICE OF INVOLUNTARY CHILD CUSTODY PROCEEDING INVOLVING AN INDIAN CHILD’ ” [currently the ICWA-030 form] ), along with a copy of the dependency petition, and file the completed form with the juvenile court along with copies of the proof of the registered mail or certified mail and the return receipt(s). (Id. at p. 1215.) In addition, we advised social service agencies for future reference that the BIA periodically publishes a list of designated tribal agents for service of notice, along with the appropriate mailing addresses in the Federal Register. (Id. at p. 1213.)

ICWA notices “shall include,” among other things, the identifying information for the child’s biological parents, grandparents, and great-grandparents, to the extent known. (§ 224.3, subd. (a)(5)(C).) It is essential that the Agency provide the Indian tribe with as much information as is known about the child’s ancestors, especially the one with the alleged Indian heritage. (In re Louis S. (2004) 117 Cal.App.4th 622, 631.) While all identifying information may not be available, even with an inquiry of available relatives, the Agency has an ongoing duty to interview the child’s parents and extended family, if known, concerning the child’s membership status or eligibility. (§ 224.2, subds. (a) & (c); Cal. Rules of Court, rule 5.481(a)(4)(A).)

The Agency must send notice for every hearing that may culminate in an order for foster care placement, termination of parental rights, or preadoptive or adoptive placement, unless it is determined ICWA does not apply. (§ 224.3, subd. (b).) When there is reason to know the child is an Indian child, the juvenile court is required to treat the child as an Indian child unless and until the juvenile court reviews the Agency’s due diligence efforts, including further inquiry, and copies of notices and the tribe’s responses, and determines on the record the child does not meet the definition of an Indian child. (§ 224.2, subd. (i)(1).) The juvenile court may find ICWA does not apply to the proceedings if it finds the Agency conducted a “proper and adequate further inquiry” and exercised “due diligence to identify and work” with all the pertinent tribes to verify “whether the child is in fact a member or whether a biological parent is a member and the child is eligible for membership.” (§ 224.2, subds. (i)(2) & (g).) The juvenile court’s finding that ICWA does not apply is subject to reversal based on sufficiency of the evidence. (§ 224.2, subd. (i)(2).)

Even if the juvenile court has determined ICWA does not apply, if the court or social worker receives new information that was required to be in the ICWA notice, the social worker shall provide the new information to the pertinent tribes. (§ 224.2, subd. (j).) Failure to comply with the ICWA notice provisions generally constitutes prejudicial error requiring a limited remand. (In re B.H. (2015) 241 Cal.App.4th 603, 608–609; In re Desiree F. (2000) 83 Cal.App.4th 460, 472.)

 

The Agency Failed to Comply with Its Duties Under ICWA
This case requires limited remand for ICWA compliance. The parties do not dispute there was “reason to believe” the children were Indian children based on mother’s claim of possible Native American heritage in the Hopi, Navajo and Arapaho tribes through the maternal grandfather. However, the record reveals no efforts by the Agency to inquire further into the children’s possible status as Indian children. The only documented efforts of further inquiry are that the social worker met with mother on April 30, 2019, to complete the ICWA-030 form, and the Agency called mother three times before the section 366.26 hearing to obtain more information, but could not reach her, and instead sent text messages without a response. Although mother claimed Native American ancestry through maternal grandfather, who had passed away, the Agency did not contact the maternal grandmother, who lived with mother, to see if she had information about his ancestry, or attempt to contact mother’s half siblings. Similarly, the juvenile court did not direct the Agency to inquire further.

Because the Agency failed to make further inquiry, the juvenile court’s order finding that ICWA did not apply was not supported by substantial evidence. (§ 224.2, subd. (i)(2) [ICWA findings “subject to reversal based on sufficiency of the evidence”]; In re Hunter W. (2011) 200 Cal.App.4th 1454, 1467 [reviewing ICWA findings for substantial evidence].) The court had no facts on which to base an ICWA finding in the absence of information about the Agency’s investigation. (In re L.S. (2014) 230 Cal.App.4th 1183, 1198.)

In addition, to the extent formal notice was required,7 the ICWA-030 notices were deficient because they omitted the name of maternal great-grandmother, Susie C., who mother had identified as being an enrolled member of a tribe. The failure to provide information about maternal great-grandmother was prejudicial error. (See In re S.E. (2013) 217 Cal.App.4th 610, 615–616 [omission of information relating to the child’s maternal great-great-grandfather that pertains to family’s claimed Indian ancestry is prejudicial error under ICWA].) Moreover, while The Hopi Tribe stated birth certificates were needed to verify parentage and Hopi degree, there is no record evidence the Agency provided them.

There also was error with respect to service of the ICWA-030 notices that were sent to the three tribes who did not respond, as they were mailed to the wrong address and/or designated agent. The pertinent BIA list of designated tribal agents for service of notice and their addresses required the Agency to serve the May 3, 2019 notice to “Cheyenne-Arapaho Tribes of Oklahoma, Terra Long, ICW Coordinator, P.O. Box 38, Concho, OK 73022” (83 Fed.Reg. 25685 (June 4, 2018)), and the May 29, 2019 notice to “Rachel Felter, ICW Coordinator” at “P.O. Box 27, Concho, OK 73022” (84 Fed.Reg. 20387 (May 9, 2019)). Although the Agency used the correct address for the May 3, 2019 notice, it did not address the notice to the correct designated agent, instead addressing it to “Katy Towell, ICWA Coordinator.” The May 29, 2019 notice was sent to the wrong address and designated agent. While a return receipt was filed, signed on June 3, 2019 by Jennifer Salmon, there was no indication she was a representative of the tribe.

With respect to the Colorado River Indian Tribes, the BIA required the May 3, 2019 notice to be sent to “Elizabeth Lorina-Mills, Deputy Attorney General” as the tribal agent at “26600 Mohave Road, Parker, AZ 85344” (83 Fed.Reg. 25685 (June 4, 2018)), and the May 29, 2019 notice to “Rebecca Loudbear, Attorney General” at the same address (84 Fed.Reg. 20387 (May 9, 2019)). Instead, the Agency served both notices to the wrong address and designated agent as follows: “Erica Daniels, CNC/ICWA Case Worker, 12302 Kennedy Drive, Parker, Arizona 85344.” A return receipt signed by Rixanne Fisher on or about June 4, 2019 was filed, but there was no indication she is a representative of the tribe.

The BIA required notices to the Ramah Navajo School Board, Inc., be sent to “Loretta Martinez, Social Service Director” at “P.O. Box 250, Pinehill, NM 87357” (83 Fed.Reg. 25685 (June 4, 2018)). Instead, the Agency served both notices to the wrong address and designated agent as follows: “Marlene Martinez, Administrative Services Director” at “PO Box 10, Pine Hill, New Mexico 87357.” A return receipt, signed on June 4, 2019, with an illegible signature was filed; there was no indication that person was a tribal representative.

Because the Agency sent these notices to the wrong addresses and/or designated agents, the Agency failed to notify these tribes of the dependency proceedings as ICWA requires. While return receipts were received with respect to these notices, there is no indication from the return receipts that the correct person and tribe received them.

Finally, mother contends the record does not affirmatively establish T.T. is eligible for membership in the Santa Rosa Rancheria Tachi-Yokut Tribe. The record shows, however, that Tolento, the tribe’s interim director, confirmed to the social worker that while T.T. is a lineal descendent of the tribe, she is not eligible for membership because she was found not to meet the blood quantum requirements for membership. Thus, it appears there is sufficient evidence to support the juvenile court’s finding on this issue. In any event, because we are remanding this matter for ICWA compliance, to the extent there remains a question as to T.T.’s eligibility for membership in the tribe, our disposition includes a direction to the Agency to ensure that determination was properly made.

In sum, we agree with the Agency that a limited remand is necessary so the Agency may fulfill its duty of further inquiry and notice imposed by ICWA. Therefore, we conditionally reverse the order terminating mother’s parental rights and remand the matter to ensure ICWA compliance.

 

DISPOSITION
The juvenile court’s order terminating mother’s parental rights is conditionally reversed. The matter is remanded to the juvenile court for the inquiry required by section 224.2, subdivision (e), and for any further proceedings resulting therefrom. The juvenile court must determine whether further inquiry has been conducted (§ 224.2, subd. (i)(2)) and must make a finding under California Rules of Court, rule 5.481(b)(3)(A)-(C). If the juvenile court finds that ICWA does not apply, it shall reinstate the order terminating mother’s parental rights. If the juvenile court finds I.G. and T.T. are Indian children, it shall conduct a new duly noticed section 366.26 hearing and associated proceedings in compliance with ICWA and related California law.

All Citations
Not Reported in Cal.Rptr., 2020 WL 7334240

Footnotes
*	Before Peña, Acting P.J., Snauffer, J. and De Santos, J.
1	Undesignated statutory references are to the Welfare and Institutions Code.
2	The three children have different fathers: Robert G. is I.G.’s alleged father; Jeffrey J. is H.J.’s presumed father; and Albert T. is T.T.’s presumed father. I.G.’s father did not wish to receive services to reunify with him.
3	The juvenile court continued services for H.J.’s father.
4	We note that “[i]n 2016, new federal regulations were adopted concerning ICWA compliance. [Citation.] Following the enactment of the federal regulations, California made conforming amendments to its statutes, including portions of the Welfare and Institutions Code related to ICWA notice and inquiry requirements. [Citations.] Those changes became effective January 1, 2019 [citation], and govern here.” (In re D.S. (2020) 46 Cal.App.5th 1041, 1048.)
5	There is “reason to know” a child is an Indian child if “(1) A person having an interest in the child, including the child, an officer of the court, a tribe, an Indian organization, a public or private agency, or a member of the child’s extended family informs the court that the child is an Indian child[;] [¶] (2) The residence or domicile of the child, the child’s parents, or Indian custodian is on a reservation or in an Alaska Native village[;] [¶] (3) Any participant in the proceeding, officer of the court, Indian tribe, Indian organization, or agency informs the court that it has discovered information indicating that the child is an Indian child[;] [¶] (4) The child who is the subject of the proceeding gives the court reason to know that the child is an Indian child[;] [¶] (5) The court is informed that the child is or has been a ward of a tribal court[;] [¶] [and] (6) The court is informed that either parent or the child possesses an identification card indicating membership or citizenship in an Indian Tribe.” (§ 224.2, subd. (d); see 25 C.F.R. § 23.107(c) (2020).)
6	The Legislature amended section 224.2, subdivision (e), effective September 18, 2020, to provide the following definition of “reason to believe”: “There is reason to believe a child involved in a proceeding is an Indian child whenever the court, social worker, or probation officer 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. Information suggesting membership or eligibility for membership includes, but is not limited to, information that indicates, but does not establish, the existence of one or more of the grounds for reason to know enumerated in paragraphs (1) to (6), inclusive, of subdivision (d).” (§ 224.2, subd. (e)(1); Stats. 2020, ch. 104, § 15.)
7	As we have explained, formal notice under section 224.3, subdivision (a) is not required unless the juvenile court or Agency has “reason to know” the children are Indian children. Omissions in ICWA-030 notices, however, are pertinent to whether the Agency fulfilled its duty of further inquiry, which requires the Agency to contact the tribe and share “information identified by the tribe as necessary for the tribe to make a membership or eligibility determination.” (§ 224.2, subd. (e)(2)(C).)