Opinion
A164785
11-09-2022
In re M.G., a Person Coming Under the Juvenile Court Law. v. M.G. et al., Defendants and Appellants. NAPA COUNTY HEALTH AND HUMAN SERVICES, Plaintiff and Respondent,
NOT TO BE PUBLISHED
(Napa County Super. Ct. No. 20JD000060)
FUJISAKI, J.
M.G. (Father) and A.Y. (Mother) appeal from the order terminating their parental rights to their son, M.G. (Minor), pursuant to Welfare and Institutions Code section 366.26. In urging reversal of the order, parents contend the juvenile court's findings under the federal Indian Child Welfare Act of 1978 (ICWA) (25 U.S.C. § 1901 et seq.) were unsupported by substantial evidence because the Napa County Health and Human Services, Child Welfare Services Department (Department) failed to comply with ICWA inquiry and notice provisions. Parents also contend that the court abused its discretion by failing to provide "[c]ritical [o]versight" of the Department. Without substantively responding to any of parents' claims of error and prejudice, the Department requests a limited remand so it can create a record concerning post-appeal events that allegedly extinguish any doubt about the adequacy of its efforts under ICWA.
All further statutory references are to the Welfare and Institutions Code unless otherwise specified.
Based largely on the Department's failure to argue the absence of error and prejudice on the record before us, we conditionally reverse the order terminating parental rights and remand the matter for full compliance with the inquiry and notice provisions of ICWA. On remand, the Department may present evidence of its compliance with ICWA, including evidence of post-appeal events.
Factual and Procedural Background
A. The Proceedings Through the Prior Appeal
The facts of the case from inception up to the disposition hearing are set out in our prior opinion concerning consolidated case numbers A161940 and A162302. We need not reiterate all of those facts here, but for the sake of providing context and for efficiency, we will recount some of the facts set out in that prior opinion regarding the Department's efforts to comply with ICWA.
This case returns to us after a prior appeal in which Father and J.B. (Minor's "godmother and first cousin twice removed") appealed from the juvenile court's disposition order. (In re M.G. (Sept. 28, 2021, A161940 &A162302), pp. *1, *24-*25 (M.G. I).) As relevant here, at the detention hearing in September 2020, J.H. (Minor's maternal grandfather) told the court there was Cherokee ancestry on Mother's side through himself and A.L. (Minor's maternal grandmother). (Id. at pp. *4-*5.) J.H. provided "his name and birthdate, the name and birthdate of his mother, C.B. ([Minor]'s maternal great-grandmother), and the name of his father, R.H. ([Minor]'s maternal great-grandfather). Mother provided the court with the name of her mother, A.L., and J.H. provided a partial birthdate for A.L. but said he was unsure of its accuracy. As to A.L.'s birthdate, the Department informed the court, 'I believe we have that at the Department.'" (Id. at p. *5.)
Three days after the hearing, the Department "served Judicial Council Forms, form ICWA-030, Notice of Child Custody Proceeding for Indian Child (hereafter ICWA notice) by certified mail to the Secretary of the United States Department of the Interior, the Sacramento Area Director of the Bureau of Indian Affairs, and to representatives of the Cherokee Nation, the Eastern Band of Cherokee Indians, and the United Keetoowah Band of Cherokee." (M.G. I, supra, at p. *6.) The ICWA notices included Minor's "name, birthdate, and place of birth; Mother's legal and maiden names and birthdate; Father's name and birthdate; maternal grandmother A.L.'s name and the partial birthdate given by J.H. at the detention hearing; the names and birthdates of maternal grandfather J.H. and maternal great-grandmother C.B.; and the name of maternal great-grandfather R.H." (Ibid.) But "the spelling of J.H. and R.H.'s shared last name in the [ICWA] notices did not match the spelling that J.H. gave at the detention hearing." (Id. at p. *6, fn. 5.) "The spaces for information on [Minor]'s other great-grandparents (i.e., A.L.'s parents) were designated 'Unknown.' Under 'Other relative information,' the [ICWA] notices listed the names of maternal great aunt, Ad.L., and 'second cousin[s]' J.B. and C.C." (Id. at pp. *6-*7.)
In October 2020, the Department filed documents showing the Secretary of the United States Department of the Interior, the Sacramento Area Director of the Bureau of Indian Affairs, and the relevant tribes received the ICWA notices and a jurisdiction report stating ICWA may apply because of reported Cherokee ancestry on Mother's side, but Father reported no known Native American ancestry. (M.G. I, supra, at p. *7.) The Department provided additional ICWA notice of the continued jurisdiction hearing to the relevant tribes; the information in these notices remained unchanged from the prior notice. (Id. at pp. *14-*15.) In November 2020, the Department filed an ICWA compliance document with a letter from the United Keetoowah Band of Cherokee Indians stating, based on the information provided, that Minor was ineligible for membership and was not a recognized member of the tribe. (Id. at p. *15.)
The jurisdiction hearing was again continued. The Department gave notice of that continued hearing date to the Cherokee Nation and the Eastern Band of Cherokee Indians, and later filed ICWA compliance documents showing receipt of this third set of ICWA notices. (M.G. I, supra, at p. *16.) "The ICWA notices contained mostly the same family information as before, except that the birthdate for maternal grandmother, A.L., was now designated 'Unknown.' There was still no information on A.L.'s parents, and J.H. and R.H.'s last names were still spelled differently than as indicated at the detention hearing." (Ibid.) The Department filed an ICWA compliance document with a letter from the Eastern Band of Cherokee Indians stating, based on the information provided, Minor was neither registered nor eligible to be registered as a member of the tribe. (Ibid.) The Department also filed an ICWA compliance document with an email from the Cherokee Nation stating, unofficially, that neither Minor nor his parents were registered tribal members. (Id. at pp. *16-* 17.)
At the jurisdiction hearing, the juvenile court indicated there was no reason to believe Minor was an Indian child and it would proceed as if ICWA did not apply. (M.G. I, supra, at p. *19.) At the January 2021 disposition hearing, the court ruled that Minor was not an Indian child and ICWA did not apply. (Id. at pp. *21, *24.) Father and maternal cousin J.B. filed appeals following disposition. (Ibid.) As relevant here, Father argued the court's ICWA finding must be reversed because the Department did not adequately investigate Minor's possible Indian ancestry. (Id. at pp. *41-*42; see AOB in A161940 pp. 98-103.)
In August 2021, while the initial appeal was pending, the juvenile court held the six-month review hearing, at which it terminated reunification services and ordered the setting of a hearing under section 366.26. In its orders after hearing, the court reiterated its finding that Minor was not an Indian child and that ICWA did not apply. The section 366.26 hearing was set for mid-November 2021.
In late-September 2021, we issued our opinion in the prior appeal. With regard to the ICWA issue, we concluded there was no substantial evidence supporting the juvenile court's findings that the Department conducted a proper and adequate further inquiry under ICWA and that ICWA did not apply. (M.G. I, supra, at pp. *49-*50.) We also concluded the error was prejudicial and conditionally reversed the disposition order with directions to the court to order the Department to investigate and obtain complete and accurate information, if possible, about Minor's maternal relatives (specifically A.L.'s parents), and to provide corrected ICWA notices to the relevant tribes. (Ibid.) We instructed that if a tribe intervened after receiving proper notice, the court should proceed in accord with ICWA, but if there was no tribal intervention or response to proper notice, then the disposition order should be reinstated. (Id. at p. *50.)
B. Post-remand Proceedings
1. The section 366.26 report and additional ICWA notices
In early-November 2021, the Department filed a section 366.26 report, noting the disposition in the appeal and stating it was "attempting to make contact with maternal relatives to do further Native American Ancestry inquiry."
In mid-December 2021, after the section 366.26 hearing was continued, the Department provided ICWA notices regarding the continued hearing date to representatives of the Cherokee Nation and the United Keetoowah Band of Cherokee (but not the Eastern Band of Cherokee Indians). These initial postremand ICWA notices contained mostly the same family information as provided before, except the Department: provided Mother's middle name and an alias, and listed her place of birth as California rather than "[u]nknown"; listed Father's place of birth as California rather than "[u]nknown"; changed the maternal grandmother's name from A.L. to C.B.; provided the maternal grandfather J.H.'s middle name, spelled his last name differently, and provided his current address and place of birth; changed the maternal great-grandmother's name from C.B. to C.H., and provided her maiden name, current address, and a new birth date; and provided the maternal great-grandfather R.H.'s middle name, spelled his last name differently, and provided his date and place of birth and the year of his death.
The Department filed ICWA compliance documents showing that this set of ICWA notices had been received by the Cherokee Nation and the United Keetoowah Band of Cherokee. On January 12, 2022, the Department filed an ICWA compliance document attaching an email from the Indian Child Welfare Eligibility Unit for the Cherokee Nation stating Minor was determined not to be an Indian child in a prior inquiry, the tribe would not send duplicative responses, and if a family truly believed they had Cherokee heritage, they could submit a tribal application and try to enroll themselves.
In mid-January 2022, the Department provided updated ICWA notices to representatives of the Cherokee Nation, the Eastern Band of Cherokee Indians, and the United Keetoowah Band of Cherokee. This second set of post-remand ICWA notices differed from the December 2021 ICWA notices in that the Department: corrected the maternal grandmother's name by changing C.B. back to A.L., provided an alias, a current address and birth date, and listed her tribe as Cherokee; provided the maternal great-grandmother's name, T.E., as well as a current city of residence; corrected the other maternal great-grandmother's name by changing C.H. back to C.B., with no other information; provided the maternal great-grandfather's name, D.E., along with a current city of residence and the fact that he is not deceased; and listed C.H. amongst "other" relatives as a maternal great-great-grandmother, along with her maiden name, current address, and date and place of birth.
In late-January and early-February 2022, the Department filed ICWA compliance documents showing that the mid-January ICWA notices had been received by each of the tribes, and also attaching letters from the Indian Child Welfare Specialist for the United Keetowah Band of Cherokee Indians stating Minor was determined not to be eligible nor a member of the tribe based on the information provided.
In the meantime, the section 366.26 hearing was continued to March 10, 2022. On February 1, 2022, the Department provided another updated ICWA notice of that continued hearing date to the Cherokee Nation. The information in the ICWA notice was materially identical to the information provided in the mid-January 2022 notices. Around mid-February 2022, the Department filed ICWA compliance documents showing the Cherokee Nation received this most recent ICWA notice, as well as a letter from the Cherokee Nation and another letter from the United Keetowah Band of Cherokee Indians stating, in essence, that Minor was determined not to be an Indian child as to the tribes.
2. Addendum report and section 366.26 hearing
In early March 2022, the Department filed an addendum report (hereafter "the addendum report") detailing its efforts to comply with this court's remand order and with ICWA. The Department indicated that it did not have any valid contact information for Mother's mother, A.L.
The Department called Mother and inquired about her belief that she had Native American ancestry. Mother responded she heard she had Native American/Cherokee Ancestry, she did not know which side of the family it was on, and she did not know any relatives who belonged to a tribe, received services from a tribe, or resided on a reservation. Mother could not provide any information about her mother, A.L., aside from her name, and said they had no contact. Mother confirmed information about her father and his side of the family. Mother told the social worker," 'All I know is I am Irish.' "
The Department spoke to maternal cousin, C.C., who said the family has confirmed Irish and Scottish ancestry, that her family is" 'white as white can be,'" and she believed Mother was lying about having Native American ancestry to "buy time . . . in hopes of getting the child back." C.C., however, also said there was a rumor a great-great-grandparent might have had Cherokee ancestry and she believed there might be Native American ancestry on R.H.'s side (Mother's grandfather). The Department also spoke to C.C.'s mother, Ad.L., who C.C. said kept the family's genealogy records. Ad.L. reported having records regarding some of Mother's family-the H.s and B.s-dating back to the Civil War, and reported there was no Native American ancestry among this part of Mother's family, but she had no records concerning A.L. and her side of the family.
The Department spoke to Mother's father, J.H., who said he "heard his ancestors had Cherokee ancestry 'way back.'" C.H. (J.H.'s grandmother/Mother's great-grandmother) told the Department that her family has links to the Cherokee tribe "many generations back" and she believed she was 1/16 Cherokee, but denied that she, her parents, or grandparents were members of a tribe.
In January 2022, the Department continued its efforts to contact A.L., and eventually obtained A.L.'s phone number and the contact information for A.L.'s husband, J.A. On January 12, 2022, the social worker spoke to J.A., and explained she needed to talk to A.L. about her Native American ancestry. J.A. said he heard A.L. talk about having Cherokee ancestry, but she is not a member of or involved with the tribe, and she was too busy to return a phone call herself at that time. The social worker conveyed to J.A. the information needed from A.L. The following day, J.A. called back and said A.L. was too busy to talk and was visiting her ill father (D.E.), but J.A. provided information about A.L.'s family. He said that A.L.'s parents were D.E. and T.E.; A.L. did not know their dates of birth, but both reside in a specific city in Nevada; T.E. was the one who allegedly had Cherokee ancestry and T.E.'s mother walked the" 'Trail of Tears' "; T.E.'s maiden name and her parents' names were unknown; T.E.'s mother died about a decade prior; and T.E. and A.L. are not registered members of a tribe. The Department then included some of this information in the mid-January 2022 ICWA notices sent to the relevant tribes, i.e., the notices provided the names T.E. and D.E., their current city and state of residence, and the fact they are not deceased. Notably, however, the notices failed to indicate that T.E.'s mother allegedly walked the Trail of Tears. The addendum report documented that all three tribes responded that Minor is not an eligible child with their tribes. The tribal response letters, however, indicated the tribes' determinations were based on the information provided by the Department and would be subject to invalidation due to incorrect or omitted information.
In his opening brief, Father points out that "the Cherokee Nation is one of the minority of tribes which does not require a certain blood quantum amount to be provided in order to qualify a person to become a member of the tribe. The tribe's website currently states as follows: 'The basic criteria for CDIB/Cherokee Nation tribal citizenship is that an application must be submitted along with documents that directly connect a person to an enrolled lineal ancestor who is listed on the 'Dawes Roll' Final Rolls of Citizens and Freedman of the Five Civilized Tribes." The Department does not contest the veracity of this information.
On March 10, 2022, the juvenile court held an uncontested section 366.26 hearing. In written orders after the hearing, the court found the Department "investigated and obtained complete and accurate information about [Minor]'s maternal relatives (specifically, the maternal grandmother [A.L.] and [A.L.]'s parents) and provided corrected ICWA notices to the relevant tribes." The court also found the Department made an adequate inquiry, "included all requisite names, addresses, birthdates, places of birth and death, tribal enrollment information, and all identifying information it obtained through its thorough investigation," and "sought out and included the names, birthdates, birthplaces, and Tribal enrollment information of all direct lineal ancestors that it found through its investigation in the ICWA notices." Further, the court found the Department provided notice as required by ICWA. Ultimately, the court found Minor is not an Indian child and ICWA did not apply, reinstated its dispositional order, and terminated parents' parental rights. Father and Mother appealed.
Discussion
Father contends the juvenile court's ICWA findings were unsupported by substantial evidence because the Department failed to comply with ICWA inquiry and notice provisions. In making this argument, Father raises numerous challenges largely to statements in the Department's addendum report, to the Department's ICWA notices, and to the tribes' responses to the ICWA notices. Father also contends that the court abused its discretion by failing to provide "[c]ritical [o]versight" of the Department. Mother raises no independent contentions, but joins in Father's arguments.
A. Legal Principles 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.) In addition to federal law, California law implements ICWA. (In re Isaiah W. (2016) 1 Cal.5th 1, 8-9.) Presently, sections 224.2 and 224.3 set forth the state law requirements for ICWA inquiry and notice, respectively.
In short, beginning with the time of initial contact, the court and county welfare department have an affirmative and continuing duty to inquire whether a child for whom a petition under Section 300 may be or has been filed is or may be an Indian child. (§ 224.2, subd. (a).) After an initial inquiry, if a social worker has "reason to believe" an Indian child is involved in a proceeding but does not have enough information to determine that there is reason to know the child is an Indian child, then the court or social worker must make "further" inquiry regarding the possible Indian status of the child. (§ 224.2, subd. (e); see id., subd. (e)(1) ["There is reason to believe a child involved in a proceeding is an Indian child whenever the court [or] . . . social worker . . . 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"].)
Further inquiry includes interviewing extended family members to gather certain information, such as information about grandparents and great-grandparents, "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 other direct lineal ancestors of the child, and any other identifying information, if known." (§§ 224.3, subd. (a)(5)(C) & 224.2, subd. (e)(2)(A) .) An" 'extended family member'" is (absent definition by an Indian child's tribe) an adult who is "the Indian child's grandparent, aunt or uncle, brother or sister, brother-in-law or sister-in-law, niece or nephew, first or second cousin, or stepparent." (25 U.S.C. § 1903(2).) Further inquiry also includes "[c]ontacting . . . any other person that may reasonably be expected to have information regarding the child's membership . . . or eligibility." (§ 224.2, subd. (e)(2)(C).)
If a court or social worker "knows or has reason to know" an Indian child is involved in a dependency proceeding, then section 224.3 requires notice be provided to the "minor's parents or legal guardian, Indian custodian, if any, and the child's tribe." (§ 224.3, subd. (a).) There is reason to know an Indian child is involved when "[a] person having an interest in the child, . . . or a member of the child's extended family informs the court that the child is an Indian child" or when "[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); see § 224.3, subd. (a).) As with the information the Department should obtain during its inquiry, this notice must include "[a]ll names known of the Indian child's biological parents, grandparents, and great-grandparents, . . . 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 other direct lineal ancestors of the child, and any other identifying information, if known." (§ 224.3, subd. (a)(5)(C).)
"A determination by an Indian tribe that a child is or is not a member of, or eligible for membership in, that tribe . . . shall be conclusive. Information 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." (§ 224.2, subd. (h).)
A juvenile court's ICWA findings are reviewed for substantial evidence. (§ 224.2, subd. (i)(2) [ICWA finding of proper and adequate further inquiry is "subject to reversal based on sufficiency of the evidence"]; In re D.S. (2020) 46 Cal.App.5th 1041, 1051.)
B. The Duty of Further Inquiry
In this case, as directed by our prior remand order, the Department engaged in further investigation to obtain complete and accurate information concerning Minor's maternal relatives. As noted, starting in November 2021, the Department spoke to multiple people-the prospective adoptive mother, Mother, Mother's cousins C.C. and Ad.L., Mother's great-great-grandmother C.H., and Mother's father J.H. The Department was able to obtain additional information about Minor's maternal relatives, including J.H. and R.H.
The Department also made numerous attempts to contact A.L. through multiple means. Although these attempts were to no avail, the Department was able to obtain A.L.'s phone number and the contact information for A.L.'s husband, J.A. The Department spoke to J.A., and though he said that A.L. was busy visiting her ill father, the Department was able to communicate to him what information it needed from A.L. J.A. then obtained some information from A.L. about her parents: their names were D.E. and T.E.; they were alive and resided in a specific city; T.E. was said to have Cherokee ancestry; and T.E.'s mother (who was deceased) was said to have walked the Trail of Tears. But after being informed that A.L. was visiting D.E., who was ill, the Department never attempted to obtain D.E.'s address or contact information, which presumably would have enabled contact with T.E., whose mother allegedly walked the Trail of Tears. The last two post-remand ICWA notices then listed T.E. and D.E.'s names, their city of current residence, and the fact they are not deceased, but no other information, such as the report connecting T.E.'s mother with the Trail of Tears. This omitted fact appears particularly relevant given Father's uncontested argument that the Cherokee Nation does not require a specific quantum of Indian blood to qualify for membership; rather, membership is determined based on connections to enrolled lineal ancestors who are listed on the" 'Dawes Roll' Final Rolls of Citizens and Freedman of the Five Civilized Tribes."
Though the Department did engage in numerous post-remand inquiries, section 224.2 provides that the duty of further inquiry includes interviewing extended family members-which includes grandparents (25 U.S.C. § 1903(2))-to gather certain information, such as information about "grandparents, and great-grandparents, . . . 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 other direct lineal ancestors of the child, and any other identifying information, if known." (§§ 224.3, subd. (a)(5)(C) &224.2, subd. (e)(2)(A).)
Here, the addendum report shows the social worker spoke to J.A. on January 12 and 13, 2022, and J.A. said that A.L. was unavailable. But there is nothing in the record indicating that A.L. was unavailable for any specific length of time after those two days, or that the social worker made any subsequent attempts to contact A.L., even though the section 366.26 hearing did not take place until March 10, 2022. (§ 224.2, subd. (a) [the duty of inquiry is a continuing one].) Importantly, J.A. conveyed information from A.L. regarding her mother T.E., including the report that T.E.'s mother allegedly walked the Trail of Tears. J.A. also informed the Department that A.L. was in fact with D.E., who was ill. And yet the social worker made no further effort to obtain from A.L. much of the other information required by section 224.2, such as T.E.'s maiden name or her birth place and birth date, the names of T.E.'s parents, or former addresses. (§ 224.2, subd. (e)(2)(A).)
And despite the obvious potential import of the Trail of Tears information and knowing that A.L. was visiting D.E., there is nothing in the record showing that the social worker made any attempt to locate or contact D.E. and T.E., who could have had further information about Minor's potential Native American ancestry. Although great-grandparents are not listed among those who must be contacted during an ICWA inquiry (In re D.S., supra, 46 Cal.App.5th at p. 1053), section 224.2 also provides that further inquiry does include "[c]ontacting . . . any other person that may reasonably be expected to have information regarding the child's membership. . . or eligibility." (§ 224.2, subd. (e)(2)(C), italics added.) Moreover, the duty of inquiry is a continuing one. (§ 224, subd. (a).) Here, the Department appears to have had multiple weeks before the section 366.26 hearing to fill in informational gaps, but there is no evidence it made any further efforts to close those gaps, either directly through A.L. or indirectly through J.A. (In re N.G. (2018) 27 Cal.App.5th 474, 482 [the court has a duty to ensure the Department conducted an adequate investigation under ICWA].)
The Department offers no argument substantively countering Father's claim of inadequate inquiry and prejudice. For our part, we acknowledge the Department, in fact, made numerous additional inquiries. Nonetheless, the Department's investigation led to important information that a great-great-grandmother of Minor (A.L.'s grandmother/T.E.'s mother) reportedly walked the Trail of Tears, and there is nothing in the record showing that further efforts to contact and interview A.L. or T.E. would have been fruitless. The notices to the tribes omitted any mention of the Trail of Tears connection, and the Department's failure to follow up on the information all but ensured that any additional information regarding T.E. would not be brought to light. Had more complete information been presented to the tribes, their determinations might have changed. Based on the record and the Department's failure to argue the absence of error and prejudice, we do not deem the claim of ICWA error to be harmless.
The record contains copies of letters dated in February 2022 from the United Keetoowah Band of Cherokee Indians and the Cherokee Nation, who received the postremand ICWA notices and determined Minor was not an Indian child based on the information provided. The Department, however, did not include such a letter from the Eastern Band of Cherokee Indians, despite stating in its addendum report that the Eastern Band of Cherokee Indians responded on January 21, 2022 that Minor was not an eligible child with the tribe. Instead, the Department filed an ICWA compliance document attaching a letter dated November 18, 2020 from the Eastern Band of Cherokee Indians stating Minor was determined not to be a registered member nor eligible to register as a member of the tribe, and a handwritten note stating "This is a copy of the letter you requested. The other letter was never returned to us." It is unclear whether the 2020 letter was meant to serve as a response to the recent ICWA notices. In any event, the Department can and should clarify the response from the Eastern Band of Cherokee Indians on remand. (§ 224.3, subd. (c).)
There are numerous standards regarding prejudice that appellate courts have applied to errors concerning ICWA inquiry. (In re S.H. (2022) 82 Cal.App.5th 166, 175.) Given the Department's implicit concession by offering no argument countering Father's claim of prejudice, we need not and so do not take a position as to the correct standard of prejudice.
With regard to the appropriate remedy, Father asks us to conditionally reverse and issue an order resembling the one in In re Ricky R. (2022) 82 Cal.App.5th 671. He also requests that we order "reappointment of a trial counsel . . . to represent him during full-scale remand proceedings where the Department's evidence may be challenged." It is unclear what Father means by "full-scale remand." To the extent he is suggesting the proceedings be remanded for relitigation of issues aside from the ICWA findings, we reject that position as unsupported. We conclude a conditional reversal is appropriate, limited to relitigation of the ICWA issue.
Having decided that a remand is appropriate based on the record before us, we turn to Father's additional contentions concerning the Department's lack of inquiry into his side of the family. We briefly discuss some of Father's arguments below, and reject all remaining contentions not explicitly addressed as either moot, unsupported by authority or by the record, or repetitive of contentions raised and rejected in his prior appeal.
Father argues the Department's post-remand ICWA notices to the tribes were inadequate because: (1) they listed that his current and former addresses were confidential when there was no evidence that he requested confidentiality; and (2) the Department wrongly indicated it was "[u]nknown" whether Father was named on Minor's birth certificate, whether he acknowledged parentage, and whether there had been a judicial declaration of parentage. Father also argues the Department never inquired of his family tree or investigated paternal relatives.
We begin with Father's contention that the Department allegedly failed to conduct an adequate inquiry into his potential Indian heritage. Although Father made a statement to the Department at the beginning of the case that he has no known Native American ancestry on his side of the family, this circumstance appears problematic due to a split in the case law.
Specifically, there is a line of cases holding, in essence, that a child welfare department has no duty of further inquiry when a parent indicates that he or she has no Indian ancestry. In In re Austin J. (2020) 47 Cal.App.5th 870, for instance, the father's in-court statement and parental notification of Indian status declaration indicated that he and his children had no Indian ancestry, and that they were neither members nor eligible for membership in an Indian tribe. (Id. at p. 888.) Under those circumstances, the Court of Appeal concluded, "there was no 'reason to believe' that any of his children are Indian children based on his parentage" and "there was no duty to make a 'further inquiry' as to his side of the family." (Ibid.; see also In re J.L. (2017) 10 Cal.App.5th 913, 922-923 [duty of inquiry not triggered where mother "did not know whether she had American Indian heritage of any kind, did not know the names of the relatives who might have had such heritage, and had heard only a 'general or vague' reference to possible heritage"]; In re Hunter W. (2011) 200 Cal.App.4th 1454, 1467-1468; cf. In re Levi U. (2000) 78 Cal.App.4th 191, 194, 198 [vague information about Indian ancestry did not give rise to the duty of further inquiry], superseded by statute on other grounds as stated in In re B.E. (2020) 46 Cal.App.5th 932, 940.)
More recent cases, however, have reversed orders terminating parental rights on a showing that the child welfare department did not ask extended family members about possible Indian ancestry, even where the parents disclaimed any knowledge of such ancestry. (See, e.g., In re J.C. (2022) 77 Cal.App.5th 70, 75-76, 79-81; In re Antonio R. (2022) 76 Cal.App.5th 421, 431 [finding an "express obligation that section 224.2, subdivision (b), imposes on the Department to inquire of a child's extended family members- regardless of whether the parents deny Indian ancestry"].) And as noted in footnote 5, ante, there is also a split in authority concerning the correct standard for assessing whether a defective ICWA inquiry is harmless, with some courts applying a rule of automatic reversal. (See In re Dezi C. (2022) 79 Cal.App.5th 769, 777-779, review granted Sept. 21, 2022, S275578.)
Here, Father cites to In re J.C., supra, 77 Cal.App.5th 70 in support of his argument that reversal is required because the Department failed to fulfill its duty of inquiry with regard to his side of the family. The Department offers no response to Father's contention and takes no position as to which line of authority should be followed. In light of the Department's silence, which we interpret as an implicit concession of reversible error, we will direct the Department to conduct additional inquiry of Father and his side of the family on remand. We will also direct the Department to make additional corrections as appropriate in response to Father's claims that the current and former addresses listed for Father were improperly designated as confidential, and that information in the ICWA notices did not accurately reflect whether Father was named on Minor's birth certificate, whether he acknowledged parentage, and whether there had been a judicial declaration of parentage.
We reach this resolution in large part as a matter of judicial efficiency, given that we are already remanding the matter for additional inquiry into Mother's side of the family. Moreover, this resolution is intended to forestall further delays in permanency for this very young child, which easily might arise in the event a grant of Supreme Court review is prompted by our weighing in on the split of authority discussed above.
Finally, we turn to the Department's assertions that after parents filed the present appeal, A.L. testified in a proceeding concerning Minor's newborn sibling and provided new information concerning her Native American ancestry causing the Department to send updated ICWA notices for Minor to the relevant tribes. The Department has not yet received responses from all of the tribes, but based on this post-appeal information, the Department seeks a limited remand to create a record showing it has now completed its ICWA inquiry, and to allow the juvenile court to re-evaluate whether Minor is an Indian Child. For the reasons above, we have already concluded that a limited remand is appropriate. The Department may, on remand, present any evidence relevant to the court's ICWA determination.
Disposition
The order terminating parental rights is conditionally reversed. (In re Ricky R., supra, 82 Cal.App.5th at p. 684.) The juvenile court is directed to order the Department to conduct further inquiry (§ 224.2, subd. (e)), particularly, of Father, as to information on his side of the family, and about Minor's maternal relatives A.L., T.E., and D.E., then comply with the duty to provide notice to the relevant tribes (25 U.S.C. § 1912(a); § 224.3). If a tribe intervenes after receiving proper notice, the court shall proceed in accordance with ICWA. If no tribe intervenes or otherwise responds after receiving proper notice, the order terminating parental rights shall be reinstated. All responses from the tribes should be filed in accord with section 224.3, subdivision (c). The Department may, on remand, present any evidence relevant to showing compliance with ICWA.
In all other respects, the orders are affirmed.
WE CONCUR: TUCHER, P.J. PETROU, J.