Opinion
B296029
10-15-2019
In re A.L., a Person Coming Under the Juvenile Court Law. LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent, v. PAULA J. et al., Defendants and Appellants.
Julie E. Braden, under appointment by the Court of Appeal, for Defendant and Appellant Paula J. Judy Weissberg-Ortiz, under appointment by the Court of Appeal, for Defendant and Appellant Devin L. Mary C. Wickham, County Counsel, Kristine P. Miles, Assistant County Counsel, and William D. Thetford, Deputy County Counsel, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Los Angeles County Super. Ct. Nos. DK15616/DK15616A) APPEAL from an order of the Superior Court of Los Angeles County, Daniel Zeke Zeidler, Judge. Remanded in part and affirmed in part. Julie E. Braden, under appointment by the Court of Appeal, for Defendant and Appellant Paula J. Judy Weissberg-Ortiz, under appointment by the Court of Appeal, for Defendant and Appellant Devin L. Mary C. Wickham, County Counsel, Kristine P. Miles, Assistant County Counsel, and William D. Thetford, Deputy County Counsel, for Plaintiff and Respondent.
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The juvenile court terminated mother Paula J. and father Devin L.'s parental rights to their daughter, A.L., pursuant to Welfare and Institutions Code section 366.26. Mother and father both contend the matter must be remanded for further proceedings because the Los Angeles County Department of Children and Family Services (DCFS) and the court failed to comply with the inquiry and notice requirements of the Indian Child Welfare Act (ICWA) (25 U.S.C. § 1901, et seq.) and related state statutes (§§ 224-226). DCFS agrees, as do we, that the legal requirements imposed by these federal and state statutes were not satisfied. We further conclude that the errors largely were not harmless. Accordingly, we remand the matter solely to ensure compliance with the ICWA and related state statutes. The remainder of the order is conditionally affirmed.
All further statutory references are to the Welfare and Institutions Code unless otherwise indicated.
FACTUAL AND PROCEDURAL BACKGROUND
Because the sole issue on appeal is compliance with the ICWA and related state statutes, our summary of the factual and procedural background is limited.
Seven-year-old A.L. came to the attention of DCFS on February 11, 2016, when mother was placed on a section 5150 hold after engaging in erratic behavior in and near a hospital. Though A.L. appeared well cared for, she told a responding social worker that mother "whoops" her with a belt and that mother previously had engaged in bouts of domestic violence with father, who no longer lived with A.L. and mother. On February 17, 2016, DCFS filed a juvenile dependency petition under section 300, subdivisions (a) and (b).
Father, paternal grandmother, and the maternal aunt with whom A.L. had been placed all appeared at the February 17, 2016 detention hearing; mother was still hospitalized and did not appear. Father, whom the court found to be A.L.'s presumed father, completed a Form ICWA-010 indicating that he had "no Indian ancestry as far as I know." Paternal grandmother told the court that her family was "supposed to have some Indian blood in us," possibly "Blackfoot." Mother's attorney told the court that mother thought she might have some Indian heritage. The court asked the maternal aunt if she had any additional information, but she stated that she did not. The court ordered DCFS to "further investigate possible Native American heritage including interviews of any relatives," and to "commence ICWA notice proceedings to the Bureau of Indian Affairs, the Secretary of the Interior, and appropriate tribe(s) with return receipts to the court, if appropriate." The court found a prima facie case for detaining A.L. and ordered that she remain with maternal aunt.
Paternal grandmother said "Blackfoot." As we discuss later, DCFS provided notice to the "Blackfeet" tribe, and DCFS and the court used "Blackfoot" and "Blackfeet" interchangeably. Other courts have observed "that there is frequently confusion between the Blackfeet tribe, which is federally recognized, and the related Blackfoot tribe which is found in Canada and thus not entitled to notice of dependency proceedings. When Blackfoot heritage is claimed, part of the Agency's duty of inquiry is to clarify whether the parent is actually claiming Blackfoot or Blackfeet heritage so that it can discharge its additional duty to notice the relevant tribes." (In re L.S. (2014) 230 Cal.App.4th 1183, 1198.) Such clarification should be made on remand.
On March 2, 2016, mother, father, and their respective counsel appeared for "arraignment of the mother and pre-release investigation of the father." Mother submitted a Form ICWA-010 indicating that she "may have Indian heritage," but did not include any further information. When the court inquired, mother stated that she was "still trying to figure out" if she had Indian ancestry. According to mother, her great uncle told her that she might have Canadian Indian heritage because her mother's side of the family was from the Bahamas. The court again ordered DCFS to "include an investigation regarding Indian ancestry" in its social study report, and remarked, "I already ordered that."
At a hearing on April 22, 2016, the court stated that it had received DCFS's jurisdiction/disposition report. In that report, dated April 13, 2016 and file-stamped May 2, 2016, DCFS reported that a dependency investigator spoke with mother about her Indian heritage on March 7, 2016. "Mother stated she might have some Native American Heritage, but she did not know which tribe. DI Moreno asked mother if there was anyone in her family that would know more information and she stated no. The mother stated she did not want it investigated further and then stated she did not have any Native American Heritage and declines ICWA." DCFS "respectfully recommend[ed] that the Court find that the Indian Child Welfare Act does not apply and no notices are required."
The court remarked, "The ICWA investigation is not complete. The Department interviewed the mother, who said no one in her family would know more about Indian ancestry, but they didn't interview the maternal grandmother who we've been interviewing for placement issues. [¶] The father indicated that he has Indian ancestry or the paternal grandmother indicated that, or he indicated he has it through the paternal grandmother. The ICWA investigation did not even include an interview of any - - of the father or anyone on the paternal side." The court ordered a social worker to be present at the May 2, 2016 adjudication hearing "with the further ICWA investigation."
DCFS filed a last-minute information on May 2, 2016, before the adjudication hearing. DCFS reported that its investigator attempted to contact maternal grandmother about the ICWA issues on April 25, April 27, and April 28. On two of those occasions, DCFS left voicemails; on the third, DCFS was unable to leave a message because the voicemail box was full. DCFS spoke with father on April 27. He told the investigator, "I have no clue. I don't know nothing." However, paternal grandmother told DCFS on April 26 that "her father's grandmother," S.B., was "Blackfoot." Paternal grandmother also spoke to other relatives and provided DCFS with "additional information which [the investigator] recorded on the ICWA forms." The last-minute information stated that the investigator "provided the ICWA Forms to DIA to initiate the ICWA notices."
The last-minute information states that the investigator contacted paternal grandmother "and gathered information from her. She stated that her father's grandmother, [S.B.], is Blackfoot." If the "her" in the second sentence refers to paternal grandmother, as context suggests, that would make S.B. A.L.'s paternal great- great- great- great-grandmother. For reasons unclear from the record, DCFS apparently treated "her" as a reference to A.L. and entered S.B.'s name into the space for "Father's Biological Grandmother (Child's Paternal Great Great-Grandmother)" on the Form ICWA-030 notice form.
The record contains a copy of Judicial Council Form ICWA-030 dated April 28, 2016. On that form, DCFS provided information about A.L. and several of her relatives to the Blackfeet Tribe of Montana, the Bureau of Indian Affairs, and the Secretary of the Interior. The form identified mother as A.L.'s biological mother and provided her full name and birthdate. It listed an incorrect street address for mother and stated that all other information about her—former address, birthplace, and possible tribal information—was unknown. The only other maternal relative identified was mother's mother, maternal grandmother. The only information provided about her was her name.
The form provided the names of father, father's biological parents, and three of father's four grandparents (A.L.'s paternal great-grandparents). The form stated that both paternal grandparents may have "Blackfeet" heritage. It listed S.B., the relative identified by paternal grandmother as "her father's grandmother," as A.L.'s paternal great- great-grandmother, and stated that she might have "Blackfoot" heritage. The other paternal relatives identified on the form, including the other great- great-grandparents, were listed as "Blackfeet." Some additional information, such as birthplaces and death places, was provided for each of the identified paternal relatives.
Per the birth certificate included in the record, A.L.'s last name is different from mother's but also has a slightly different spelling than that of her paternal relatives, including father. The ICWA notice, as DCFS puts it, appears to accurately reflect that "the father's and the child's last names are correctly spelled differently." Numerous other documents in the record, including the section 300 petition, various DCFS reports, and minute orders issued by the court spell A.L.'s last name like father's, differently than it appears on her birth certificate.
At the May 2, 2016 adjudication hearing, mother entered a no contest plea "to her portion of the petition," amended subdivision (b) counts concerning mother's "unresolved mental and emotional problems" and inappropriate physical discipline of A.L. The court additionally sustained an amended subdivision (b) count alleging physical altercations between the parents. It struck the subdivision (a) counts and the remaining subdivision (b) count.
The court also raised the issue of ICWA compliance. Counsel for DCFS requested the disposition hearing be put over "to complete the ICWA investigation" and other tasks. The court set the disposition hearing for July 12, 2016 and ordered DCFS to update "the notices to the Blackfoot tribe or any other tribes in the Bureau." In its minute order, the court ordered DCFS to prepare a supplemental report addressing, among other things, "ICWA notices, return receipts, and responses from tribes."
In a last-minute information dated June 9, 2016, file-stamped July 12, 2016, and notated "ROR 7/5/16," DCFS reported that it had received and attached all three original certified return receipts regarding the Form ICWA-030 it sent to the Blackfeet Tribe of Montana, the Bureau of Indian Affairs, and the Secretary of the Interior. It further reported, "As of this writing, DI Moreno has not received any response letters as to ICWA eligibility. Should they be received by the 7/12/16 hearing date, they will be forwarded to the Court."
In a second last-minute information, dated July 11, 2016 and file stamped July 12, 2016, DCFS stated: "The court is respectfully informed that DI Moreno returned from vacation on 7/11/16. DI Moreno became aware of the Court's order to contact the Blackfoot tribe regarding requesting a written response. The Court is advised that DI Moreno contacted the Blackfoot tribe, enrollment office, on 07/11/16 . . . and left a voicemail message. DI Moreno attempted again a few hours later, however, there was again no answer. [¶] The Court is respectfully informed that this investigator has no information or no way to know when the green certified receipt card was received by DCFS from the Blackfoot tribe. The card was not stamped, nor signed by the Blackfoot tribe indicating receipt, however it was received back by DCFS via US Mail. Unfortunately, the receipts are not dated when DCFS receives them via US Mail. This investigator can only estimate that it was received late June or early July 2016. The original card was sent to the Court attached to the LMI dated ROR 07/5/16, hearing date 07/12/16. DCFS apologizes for any inconvenience this may cause the Court." DCFS attached its Form ICWA-030 and the related return receipts to this last-minute information.
The record does not contain a court order, oral or written, directing DCFS to contact the Blackfoot (or Blackfeet) tribe.
At the outset of the July 12, 2016 disposition hearing, the court remarked: "We had ICWA return receipt from the Blackfoot tribe, but it wasn't dated. The Department indicates when the Department receives the green return receipts back, no one marks on them when they're received by the Department. . . . Well, they gave it to me July 5th, so the tribe is going to have 60 days from July 5th." The court continued the disposition hearing to August 29, 2016 to allow the tribe adequate time to respond to the notice. The court also ordered DCFS to prepare a supplemental report by August 19, 2016.
The version of section 224.3, subdivision (e)(3) in effect at the time of the hearing provided: "If proper and adequate notice has been provided pursuant to section 224.2, and neither a tribe nor the Bureau of Indian Affairs has provided a determinative response within 60 days after receiving that notice, the court may determine that the Indian Child Welfare Act (25 U.S.C. Sec. 1901 et seq.) does not apply to the proceedings, provided that the court shall reverse its determination of the inapplicability of the Indian Child Welfare Act and apply the act prospectively if a tribe or the Bureau of Indian Affairs subsequently confirms that the child is an Indian child."
DCFS filed a last-minute information dated August 18, 2016. It informed the court that the investigator "was able to make contact with ICWA tech, Darlene Peterson on 08/10/16" and "requested a written response from the [Blackfeet] tribe regarding the child's eligibility." DCFS attached to the last-minute information a letter dated August 9, 2016 from the Blackfeet Tribe. The letter stated that ICWA tech Peterson had searched Blackfeet Tribal Enrollment records and did not locate A.L. or any of her relatives who were listed on the Form ICWA-030. The letter further stated, "As of August 30, 1962, our blood quantum requirement for enrollment is 1/4 Blackfeet blood. The above children is/are not eligible for enrollment, and the child(ren) is/are not domiciled on the Blackfeet Indian reservation." The letter concluded that A.L. was not an "Indian Child." Based on the letter, DCFS recommended that the court find the ICWA did not apply.
At the August 29, 2016 disposition hearing, the court made the following comments and findings regarding the ICWA: "We previously had ICWA notice sent April 28th. We had return receipts from the Department of the Interior and Bureau of Indian Affairs May 17th and May 2nd. We never received responses, but, one, it's more than 60 days, and two, we knew the tribe, so we really didn't need to notice those two. [¶] The Blackfoot [sic], the Department has now submitted a response from the Blackfoot [sic] tribe attached to the August 19th last-minute indicating not members nor eligible for enrollment. The court finds the ICWA notice proper and complete. The court does not have reason to know or believe that the child is an Indian child as defined by the Indian Child Welfare Act. The Indian Child Welfare Act does not apply." The court declared A.L. to be a dependent of the court and ordered her placed with the maternal aunt. The court ordered reunification services and visitation for mother and father.
The case progressed for the next two years without further mention of the ICWA. On August 17, 2017, the court terminated reunification services for both parents and set the matter for a section 366.26 permanency planning hearing on December 14, 2017. Mother timely filed a petition for extraordinary writ relief from the court's August 17, 2017 order. We denied the petition on October 19, 2017.
DCFS filed a section 366.26 report on November 17, 2017. It noted that maternal aunt and a nonrelative extended family member (NREFM) who had been caring for A.L. wanted to "provide co-legal guardianship." DCFS recommended a permanent plan of legal guardianship for A.L., but requested that the section 366.26 hearing be continued so it could "continue to work" on the plan with maternal aunt and the NREFM and provide proper notice. In a last-minute information dated December 13, 2017, DCFS reported that maternal aunt had changed her mind and wanted A.L. to be placed in a "planned permanent living arrangement" rather than a legal guardianship. DCFS further reported that A.L. was on an "extended visit" with the NREFM, who expressed "100%" willingness to become A.L.'s legal guardian or adoptive parent. The court continued the section 366.26 hearing to June 18, 2018, and then to October 9, 2018, due to a change in DCFS's recommendation from a permanent plan of legal guardianship to termination of parental rights and adoption.
"A 'nonrelative extended family member' is defined as an adult caregiver who has an established familial relationship with a relative of the child, as defined in paragraph (2) of subdivision (c) of Section 361.3, or a familial or mentoring relationship with the child." (§ 362.7.)
At the October 9 hearing, at which the court also issued a temporary restraining order protecting A.L. and the NREFM from mother, A.L. told the court she wanted the NREFM to adopt her. At the next hearing, on October 25, 2018, the court continued the matter again, to January 24, 2019, to ensure that father received proper notice. It also made the restraining order against mother effective through October 25, 2023.
The court held the section 366.26 hearing on January 24, 2019. The court found A.L. to be adoptable and terminated mother's and father's parental rights; it gave the NREFM discretion to permit ongoing contact between A.L. and father. Mother and father timely appealed.
DISCUSSION
The only issue in this case is whether DCFS and the court properly complied with ICWA and related state statutes. Father, whose argument mother entirely adopts and joins, contends that DCFS failed to comply with inquiry and notice requirements, and the court failed to ensure DCFS compliance and render proper ICWA findings. Mother and father seek reversal of the court's ICWA finding and remand for further ICWA compliance.
The ICWA-related state statutes were amended effective January 1, 2019. We address DCFS and the court's compliance with the statutes in effect at the time their actions were taken, but note that the current statutes will apply on remand.
DCFS "concedes that further inquiry into mother's possible Native American ancestry is necessary." It argues that any errors regarding its inquiry into and notice of father's heritage were harmless, however, because Blackfeet tribal regulations requiring a "blood quantum" of "1/4 Blackfeet blood" cannot possibly be met on the facts of this case. In the alternative, DCFS "concedes only that further inquiry and additional notice as to father is required"; it asserts that any typographical or omission errors in the notice it sent the Blackfeet Tribe were harmless.
After conducting an independent review of the record (In re J.L. (2017) 10 Cal.App.5th 913, 918), we conclude that further inquiry into both parents' possible Native American heritage is necessary, as is the provision of proper notice to any relevant tribes. We largely reject DCFS's contention that its inquiry and notice errors as to father's heritage were harmless.
A. Notice and Inquiry Requirements
The ICWA was enacted in 1978 to address an "'Indian child welfare crisis'" in which significant percentages of Native American children had been separated from their families and placed in alternative care arrangements. (In re Breanna S. (2017) 8 Cal.App.5th 636, 649 (Breanna S.).) "Congress expressly found that State agencies and courts had often failed to recognize the essential tribal relations of Indian people and the cultural and social standards prevailing in Indian communities and families." (Ibid.) To that end, the ICWA "establishes minimum federal standards a court must follow before removing an Indian child from his or her family." (Ibid.; see also In re Abbigail A. (2016) 1 Cal.5th 83, 88.) The California Legislature incorporated ICWA's requirements into state statutory law in 2006. (In re Abbigail A., supra, 1 Cal.5th at p. 91.)
"[N]otice to Indian tribes is central to effectuating ICWA's purpose, enabling a tribe to determine whether the child involved is an Indian child and, if so, whether to intervene or exercise jurisdiction over the matter." (Breanna S., supra, 8 Cal.App.5th at p. 649.) Thus, "[i]n any involuntary proceeding in a State court, where the court knows or has reason to know that an Indian child is involved, the party seeking the foster care placement of, or termination of parental rights to, an Indian child shall notify the parent or Indian custodian and the Indian child's tribe" of the proceedings and their right to intervene. (25 U.S.C. § 1912(a); see also current § 224.3; former § 224.2.)
The ICWA does not define the phrase "reason to know." "However, California statutory law, which incorporates and enhances ICWA's requirements [citation], provides the circumstances that may provide reason to know the child is an Indian child include, without limitation, when a member of the child's extended family provides information suggesting the child is a member of a tribe or eligible for membership in a tribe or one or more of the child's parents, grandparents, or great-grandparents are or were a member of a tribe." (Breanna S., supra, 8 Cal.App.5th at p. 650; see former 224.3, subd. (b)(1); current 224.2, subd. (d).) "The determination of a child's Indian status is up to the tribe; therefore, the juvenile court needs only a suggestion of Indian ancestry to trigger the notice requirement." (In re Nikki R. (2003) 106 Cal.App.4th 844, 848.)
Former section 224.3, subdivision (a), and current section 224.2, subdivision (a) impose on the "court, county welfare department, and the probation department" an "affirmative and continuing duty to inquire whether a child for whom a petition under Section 300 . . . is to be, or has been, filed is or may be an Indian child." Under former section 224.3, subdivision (a), the inquiry had to be made any time the child "is at risk of entering foster care or is in foster care." (Former § 224.3, subd. (a).) Current section 224.2, subdivision (a) states that the duty to inquire begins "with the initial contact" (§ 224.2, subd. (a)), while current section 224.2, subdivision (b) clarifies that the duty to inquire "includes, but is not limited to, 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).) "[T]he duty to inquire is triggered by a lesser standard of certainty regarding the minor's Indian child status . . . than is the duty to send formal notice to the Indian tribes." (In re Alice M. (2008) 161 Cal.App.4th 1189, 1200.)
"The notice sent to the Indian tribes must contain enough identifying information to be meaningful." (In re Robert A. (2007) 147 Cal.App.4th 982, 989.) Thus, the duties of notice and inquiry go hand-in-hand; appropriate notice cannot be made if appropriate inquiry is lacking. In addition to identifying the tribe in which the child is a member or may be eligible for membership, federal regulations in effect at the time the court's ICWA determinations were being made required the notice to include the child's name, birthdate, and birthplace, as well as all known names, "including maiden, married and former names or aliases," tribal enrollment numbers, current and former addresses, birthdates, birthplaces, death dates, death places, and "other identifying information" of the "biological mother, biological father, maternal and paternal grandparents and great grandparents." (Former 25 C.F.R. § 23.11(d)(1), (3).) The requirements under California law were (and are) virtually identical. Former section 224.2, subdivision (a)(5)(C) required the notice to contain "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 numbers, and any other identifying information, if known." Current section 224.3, subdivision (a)(5)(C) contains substantially similar requirements.
The federal regulations governing the ICWA were revised effective December 12, 2016. The new regulations apply to any child custody proceeding initiated on or after December 12, 2016, even if the child has been involved in dependency proceedings prior to that date. A "child-custody proceeding" includes, as a separate proceeding, a termination of parental rights, a preadoptive placement or an adoptive placement. (25 U.S.C. § 1903(1); 25 C.F.R. § 23.2.) If any one of those types of proceedings is initiated on or after December 12, 2016, the new regulations apply to that proceeding. (Breanna S., supra, 8 Cal.App.5th at p. 650, fn. 7.) The current version of 25 C.F.R. § 23.11 provides that "Notice must include the requisite information identified in [new] § 23.111." 25 C.F.R. § 23.111(d) identifies similar categories of information, including "If known, the names, birthdates, birthplaces, and Tribal enrollment information of other direct lineal ancestors of the child, such as grandparents." (25 C.F.R. § 23.111(d)(3).) --------
Failure to comply with the ICWA notice requirements generally is prejudicial error. (Breanna S., supra, 8 Cal.App.5th at p. 653.) Strict compliance with the ICWA is necessary "because a violation renders the dependency proceedings, including an adoption following termination of parental rights, vulnerable to collateral attack if the dependent child is, in fact, an Indian child." (Ibid.) Failure to comply with a higher standard imposed by state statute may be harmless, however, unless the appellant can show that he or she was prejudiced by the error. (Ibid.)
B. Analysis
Mother's counsel notified the court at the detention hearing that mother might have Native American heritage. Mother subsequently reiterated this possibility on the Form ICWA-010 she submitted when she first appeared in the case, and referenced a great uncle's comments in open court. The court properly ordered DCFS to further investigate mother's heritage. The maternal aunt with whom A.L. initially was placed said in open court that she did not have further information, but DCFS did not follow up with other maternal relatives who might, such as the maternal grandmother, the great uncle, mother's other siblings, or mother's father. DCFS spoke to mother about the issue, but mother declined to provide further information and said she "decline[d] ICWA."
DCFS concedes its inquiry efforts as to mother's heritage were insufficient, and we agree. Despite its statutory obligations and direct orders from the court, DCFS failed to contact several known maternal relatives. Mother's attempt to "decline" ICWA does not excuse these failings. The ICWA's requirements are in place to serve the interests of the Indian tribes and cannot be waived by parents. (In re Justin S. (2007) 150 Cal.App.4th 1426, 1435.)
DCFS engaged in more extensive and fruitful inquiry efforts with respect to father's heritage. It contacted father, who said he did not have any information. It also contacted paternal grandmother, who provided information about herself and information about other paternal relatives. Yet these efforts still fell short. There is no indication that DCFS attempted to contact any of the living paternal relatives whose contact information paternal grandmother provided. Indeed, DCFS acknowledges in its brief that some of the information it listed as "unknown" on the Form ICWA-030 notice it provided to the Blackfeet Tribe "appears to be information that could be obtained by asking the known living relatives." Additionally, it does not appear that DCFS made any efforts to clarify the degree of relationship between A.L. and S.B., or the paternal grandmother's varying mentions of "Blackfoot" and "Blackfeet" heritage.
The inadequacy of DCFS's inquiries is manifested in the Form ICWA-030 notice it sent to the Blackfeet Tribe. On that notice, A.L.'s middle name and birthplace are not provided. Mother's and father's birthplaces are listed as "unknown," mother's address is incorrect, and no additional information is provided about mother, such as her possible Bahamian and Canadian Indian ancestry. The only information provided about mother's extended family is her mother's first and last name; everything else is listed as "Unknown." The notice includes more information about father and his extended family. However, it also contains inconsistencies. In the box for "Additional Information" about father, DCFS wrote "PGM states child's great-great grandmother [S.B.] is Blackfeet." In the portion of the notice providing information about S.B., however, the form identifies her as "Blackfoot," which is what DCFS told the court in a last-minute information. Father also points out the discrepancy between the spellings of his and A.L.'s last names, as well as discrepancies between the official Blackfeet tribal name and contact person as published in the Federal Register and as indicated on the notice mailing label.
DCFS concedes that the inquiry and notice errors relating to mother were prejudicial, but argues that the inquiry and notice errors as to father were harmless. It argues that the Blackfeet Tribe found A.L. ineligible based on its "blood quantum" requirement of "1/4 Blackfeet blood," and that even if S.B. were 100 percent Blackfeet, A.L. at most would be 1/8 Blackfeet and thus still ineligible for membership. We are not persuaded.
Like the court in Breanna S., supra, 8 Cal.App.5th at p. 654, we recognize that similar arguments occasionally have prevailed. However, "the Indian tribe, not the juvenile court or the court of appeal, is the sole entity authorized to determine whether a child who may be an Indian child is actually a member or eligible for membership." (Ibid.) We, like the Breanna S. court, are "unwilling to determine in the first instance the tribe's membership eligibility requirements, particularly since we are without the benefit of testimony regarding how that language has been applied by the tribe and whether exceptions have been created by triable custom and practice." (Id. at pp. 654-655.) Moreover, in this case the notice contained virtually no information about mother's biological relatives. If any of them had Blackfeet heritage, A.L.'s "blood quantum" could clear the threshold set by the Blackfeet Tribe. If they had other Native American heritage, which is a possibility in light of mother's statements, other tribes would have been entitled to notice. We are "extremely reluctant" under these circumstances "to foreclose the tribe's prerogative to evaluate a child's membership rights without it first being provided all available information mandated by ICWA." (Id. at p. 655.)
We agree with DCFS, however, that any errors on the mailing label were harmless. The Blackfeet Tribe received and responded to the notice; while the mislabeling may have caused confusion or delay, mother and father have not shown that it caused prejudice here.
We accordingly remand the matter for DCFS and the juvenile court to conduct further investigation into mother's and father's claims of Indian ancestry. DCFS must make—and document—a genuine effort to locate maternal and paternal family members who may have information bearing on this issue. Once that investigation is completed, new notices with complete information must be provided to the Blackfeet Tribe, the Bureau of Indian Affairs, and the Secretary of the Interior, as well as to any other federally recognized tribe that may have an interest in these proceedings. DCFS shall thereafter notify the court of its actions and file certified mail return receipts for the new notices, together with any responses received. The juvenile court shall then determine whether the ICWA and state statutory inquiry and notice requirements have been satisfied, and whether A.L. is an Indian child. If the court finds that A.L. is an Indian child, it shall conduct a new section 366.26 hearing, as well as all further proceedings, in compliance with the ICWA and related state law. If the court finds that A.L. is not an Indian child, its original section 366.26 order shall remain in effect.
DISPOSITION
The juvenile court's January 24, 2019 section 366.26 order is conditionally affirmed. The matter is remanded to the juvenile court for full compliance with the inquiry and notice provisions of the ICWA and related California law and for further proceedings consistent with this opinion.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
COLLINS, J. We concur: MANELLA, P. J. WILLHITE, J.