Opinion
E072248
10-18-2019
In re M.T. et al., Persons Coming Under the Juvenile Court Law. RIVERSIDE COUNTY DEPARTMENT OF PUBLIC SOCIAL SERVICES, Plaintiff and Respondent, v. N.D., Defendant and Appellant.
Elizabeth A. Klippi, under appointment by the Court of Appeal, for Defendant and Appellant. Gregory P. Priamos, County Counsel, James E. Brown, Anna M. Marchand, and Prabhath D. Shettigar, Deputy County Counsels, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super.Ct.No. RIJ1600467) OPINION APPEAL from the Superior Court of Riverside County. Matthew Perantoni, Judge. Conditionally reversed and remanded with directions. Elizabeth A. Klippi, under appointment by the Court of Appeal, for Defendant and Appellant. Gregory P. Priamos, County Counsel, James E. Brown, Anna M. Marchand, and Prabhath D. Shettigar, Deputy County Counsels, for Plaintiff and Respondent.
I
INTRODUCTION
N.D. (Mother) appeals from the juvenile court's order terminating her parental rights as to her two children, eight-year-old M.T. and four-year-old O.T. Mother's sole contention on appeal is that the order must be reversed because the Riverside County Department of Public Social Services (DPSS) failed to comply with the inquiry and notice requirements of the Indian Child Welfare Act (ICWA) (25 U.S.C. § 1901 et seq.) and with Welfare and Institutions Code section 224 et seq. For the reasons explained herein, we conditionally reverse the judgment terminating parental rights and remand the matter with directions DPSS comply with the current ICWA statutes. If after such compliance the juvenile court finds M.T. and O.T. are not Indian children, the judgment terminating parental rights shall be reinstated.
E.T. (Father) is not a party to this appeal.
All future statutory references are to the Welfare and Institutions Code unless otherwise stated.
II
FACTUAL AND PROCEDURAL BACKGROUND
Because the sole issue raised by Mother is related to the ICWA inquiry and notice, a brief synopsis of the factual and procedural background will suffice. Detailed facts relevant to the ICWA issue will be provided.
On June 6, 2016, a petition was filed on behalf of the children pursuant to section 300, subdivisions (b)(1) (failure to protect), (d) (sexual abuse), (g) (no provision for support), and (j) (abuse of sibling). The petition indicated that the children, M.T. and O.T., who were five and one years old, respectively, may have Indian ancestry. The children were removed from parental custody due to allegations of sexual abuse of M.T. by Mother's male acquaintances, drug abuse, mental health concerns, domestic violence, and the parents' criminal histories.
On April 20 and June 2, 2016, Mother reported that she may have Cherokee Indian ancestry on her side of the family. She also reported that the children may have "Blackfoot" or "Navajo Indian" ancestry from their father's side of the family. The social worker spoke with the maternal grandfather on April 20 and June 2, 2016. He denied having Native American ancestry.
On June 3, 2016, Father stated that his father (the children's paternal grandfather), who was deceased, had been a registered "Blackfoot" Tribe member. Father also stated that he was the children's biological father and is listed on their birth certificates.
In a detention report dated June 7, 2016, the social worker reported that ICWA "does or may apply."
The detention hearing was held on June 7, 2016. The juvenile court formally detained the children from parental custody and found that there was reason to believe the children may be of Indian ancestry. The court ordered the parents to complete a Parental Notification of Indian Status (Judicial Council Forms, form ICWA-020 (hereafter ICWA-020 form)). The court also ordered DPSS to provide notice of the proceedings to the Bureau of Indian Affairs (BIA) as required by law.
On June 8, 2016, the juvenile court found Father to be the children's presumed father. At that time, the court confirmed the orders detaining the children from parental custody and set a jurisdictional hearing.
On his ICWA-020 form, Father checked the box indicating that he may have Indian ancestry and wrote "Blackfeet through my father." Father also provided his father's name, A.L.T. On her ICWA-020 form, Mother wrote "Cherokee, Navajo" beside an unchecked box stating membership or eligibility for membership in a federally recognized tribe. Mother checked the box indicating that the maternal grandfather is or was a member of a federally recognized tribe and provided the maternal grandfather's name and date of birth.
On June 22, 2016, the social worker spoke with Mother regarding her Native American ancestry. Mother "claimed she has Native American ancestry (Cherokee) and stated that she is not a registered member." She also said Father has "Native American ancestry (Blackfoot) and stated that she thinks he may be a registered member."
On June 24, 2016, the social worker spoke with Father concerning his Native American ancestry. Father reported that he has "Native American ancestry (Blackfoot) on the paternal side of his family. When asked if he is a registered member, [Father] said that he did not think so." When the social worker requested information for the paternal grandfather and the paternal great-grandparents, Father stated that they were deceased. Father, however, provided the social worker with the paternal grandmother's name, L.T., and stated that he did not know her contact information. Father also reported that the paternal grandmother lived out of the state.
In the jurisdiction/disposition report, the social worker reported that the children may have "Cherokee" and "Blackfoot" ancestry and that ICWA "does or may apply."
After the juvenile court ordered DPSS to assess the maternal grandfather for placement of the children, a relative assessment referral was submitted on June 7, 2016. However, the assessment was not completed, because Mother lived in the maternal grandfather's home. On June 22, 2016, DPSS submitted a referral to assess the maternal uncle and his wife for placement of the children.
On July 6, 2016, DPSS filed a Judicial Council ICWA-030 Notice of Child Custody Proceeding for Indian Child (hereafter ICWA-030 notices) with the court for each child. These ICWA-030 notices were also re-sent for a later proceeding. The ICWA-030 notices included the following: (1) the children's names and their place and date of birth; (2) Mother's names, former and current addresses, place and date of birth, and her tribal affiliations with the Cherokee and Navajo Tribes; (3) Father's names, former and current addresses, place and date of birth, tribal affiliations with the Blackfeet Tribe; (4) the maternal grandmother's names, current address, and date and place of birth; (5) the maternal grandfather's names, current address, birth dates of "12/06/1955" or "12/23/1956," and tribal affiliations with the Cherokee and Navajo Tribes; (6) the paternal grandfather's names, former address, birth date, tribal affiliation with the Blackfeet Tribe, and an indication that he was deceased; (7) the children's paternal great- grandmother's names, last known address, birth date, and tribal affiliations with the Blackfeet Tribe; and (8) the children's paternal great-grandfather's names, last known address, date of birth, and tribal affiliation with the Blackfeet Tribe.
The following information was listed as "Unknown" or "No information available" in the ICWA-030 notices: (1) the tribal membership or enrollment number for Mother, Father, the maternal and paternal grandparents, and the maternal and paternal great-grandparents; (2) the parents' place of birth; (3) the maternal grandmother's former address, place of birth and tribal information; (4) the paternal grandmother's names, address, birth date, place of birth, tribal information, and whether she was deceased; (5) the maternal grandfather's former address and place of birth; (6) the paternal grandfather's place of birth and date and place of death; (7) the children's maternal great-grandparents' names, addresses, birth date, places of birth, tribal information, and whether they were deceased; (8) one of the children's paternal great-grandmother's names, addresses, birth date, place of birth, tribal information, and whether she was deceased; (9) one of the children's paternal great-grandfather's name, addresses, birth date, place of birth, tribal information, and whether he was deceased; (10) the children's other paternal great-grandmother's former address, place of birth, and whether she was deceased; and (11) the children's other paternal great-grandfather's former address, place of birth, and whether he was deceased.
The ICWA-030 notices noted that no information was available as to an Indian custodian. Under additional information, the ICWA-030 notices provided that the biological birth father was named on the birth certificate and had acknowledged paternity. The ICWA-030 notices also indicated that it was unknown whether the children or any members of their family had ever attended an Indian school, received medical treatment at an Indian health clinic or U.S. Public Health Service hospital, and lived on federal trust land, a reservation or rancheria, or an allotment. Under other relative information, the ICWA-030 notices did not provide any information.
DPSS mailed the ICWA-030 notices by certified mail to the BIA, the Secretary of the Interior, the parents, the Blackfeet Tribe, Cherokee Nation of Oklahoma, Colorado River Indian Tribes, Eastern Band of Cherokee Indians, Navajo Nation, and United Keetoowah Band of Cherokee Indians. In addition, DPSS attached its original section 300 petition to the ICWA-030 notices.
DPSS filed response letters from three of the tribes. The Blackfeet Tribe indicated that the children were not eligible for enrollment and were not domiciled with their tribe. The United Keetoowah Band of Cherokee Indians in Oklahoma stated that, based on the information supplied to them, the children were not descendants from anyone in their tribal roll, and therefore, the tribe would not intervene. The Eastern Band of Cherokee Indians stated that, "based on the information exactly as provided," the children were neither registered nor eligible to register as a member of their tribe. The Eastern Band of Cherokee Indians also noted that the children were not considered Indian children and the tribe would not intervene.
The contested jurisdictional/dispositional hearing was held on July 11, 2016. At that time, the juvenile court found true the allegations in the first amended section 300 petition. The court struck the g-1, "no provision for support," allegation relating to Mother's incarceration. Thereafter, the court declared the children dependents of the court and ordered reunification services for both parents. Father's counsel requested that the paternal grandmother, who lived in the state of Mississippi, be assessed for placement. Accordingly, the court ordered an Interstate Compact on the Placement of Children (ICPC) in Mississippi to assess the paternal grandmother for placement of the children.
Regarding ICWA, the juvenile court noted ICWA may apply and that DPSS must provide notice to all identified tribes and/or BIA, as required by law. The court also indicated that proof of ICWA notice must be filed with the court. The court found ICWA did not apply to the Blackfeet Indian Tribe, the United Keetoowah Band of Cherokee Indians or the Eastern Band of Cherokee Indians.
On January 5, 2017, DPSS filed another set of ICWA-030 notices for the six-month review hearing for each child. The information in these set of ICWA-030 notices included all the same information as previously noted in the July 6, 2016 ICWA-030 notices but added additional information pertaining to the parents' place of birth, updated information regarding the parents' former and current addresses, the maternal grandmother's place of birth, and the maternal grandfather's "AKA" names.
DPSS mailed the ICWA-030 notices by certified mail to the BIA, the Secretary of the Interior, the parents, the Blackfeet Tribe, Cherokee Nation of Oklahoma, Colorado River Indian Tribes, Eastern Band of Cherokee Indians, Navajo Nation, and United Keetoowah Band of Cherokee Indians. DPSS attached the first amended and original section 300 petitions to the notices.
In its six-month review report, DPSS recommended continued reunification services to the parents. The children remained in foster care and were adjusting well. Neither the parents nor the maternal grandparents were re-interviewed as to ICWA.
The six-month review hearing was held on January 11, 2017. Mother and the maternal grandfather were present at the hearing. The juvenile court found that ICWA notice had been given and that ICWA may apply to this case. The court continued reunification services for the parents and authorized DPSS to liberalize visitation for the parents.
On January 11, 2017, the Eastern Band of Cherokee Indians submitted a letter for each child stating, "based on the information exactly as provided," the children are "neither registered nor eligible to register as a member" of their tribe. These letters also noted the children were not considered Indian children and that the tribes were not going to intervene in this matter.
On February 15, 2017, DPSS filed tribal response letters from the Navajo Nation and United Keetoowah Band of Cherokee Indians in Oklahoma. The Navajo Nation stated that they were "unable to verify the children's eligibility for tribal membership with the Navajo Nation based on the parent's ancestry provided." The United Keetoowah Band of Cherokee Indians in Oklahoma stated that, with the information provided to them, there was no evidence that the children were descendants of anyone in their tribe and that neither the children nor either of their biological parents were members of their tribe.
On March 7, 2017, DPSS filed a response from the Cherokee Nation. The Cherokee Nation determined that the children were also not Indian children of their tribe and therefore the tribe would not intervene.
By the 12-month review hearing, the parents failed to make substantive progress in their case plan or benefit from the services provided to them. DPSS thus recommended the parents' reunification services be terminated. DPSS also recommended the court find ICWA does not apply. On June 26, 2017, DPSS contacted the ICWA liaison who reported that all the tribes responded in the negative, except for the Blackfeet Tribe who had not responded within the required 60 days since they received their ICWA-030 notices.
On December 30, 2016, the Relative Assessment Unit formally closed the maternal grandparents' request for placement, because they did not submit their exemption packets by the deadline.
The contested 12-month review hearing was held on July 25, 2017. The juvenile court found that ICWA did not apply as to the children. The court also found that the parents failed to make substantive progress or complete their case plan, terminated the parents' reunification services, and set a section 366.26 hearing.
On November 6, 2017, Mother reported that she had Indian ancestry with the Cherokee and Apache Tribes and noted that her children had "Blackfoot" Tribe ancestry. She also stated that neither she nor Father were registered tribe members and that she had no relatives' contact information to provide as additional information.
On February 6, 2018, Mother reported that she had no additional information to provide as to her Indian ancestry. On this same date, Father maintained that he had Indian ancestry with the "Blackfoot" Tribe, but that he had no additional information to provide DPSS and that he would continue to ask family members about his heritage.
On May 8, 2018, Mother again reported that she had Indian ancestry, but did not have additional information to give DPSS.
On May 11, 2018, DPSS left a voicemail with Father requesting an updated statement about his Indian ancestry.
On July 2, 2018, DPSS filed a Declaration of Due Diligence in an unsuccessful attempt to locate Father.
On October 30, 2018, Mother reported that she has Cherokee Indian ancestry, but did not know the history behind it. She did not specify if the ancestry was from her maternal or paternal family's side. She also stated that her children's paternal grandfather is "full Blackfoot Indian and their paternal grandmother is Cherokee Indian, and the children's father" is "Blackfoot Navajo." However, she had no additional information to provide DPSS and Father's whereabouts remained unknown.
On November 1, 2018, the children were placed in a prospective adoptive home.
On December 14, 2018, DPSS filed a preliminary adoption assessment and recommended that parental rights be terminated.
The section 366.26 hearing was held on January 16, 2019. Mother, the maternal grandparents, and the maternal uncle were present. Following oral argument, the juvenile court found the children adoptable and terminated parental rights.
On March 1, 2019, Mother filed a timely notice of appeal.
III
DISCUSSION
Mother contends that DPSS did not adequately investigate the children's Indian heritage, resulting in incomplete ICWA-030 notices. We agree.
The juvenile court's order terminating Mother's parental rights did not specifically mention ICWA, but the order was "necessarily premised on a current finding by the juvenile court that it had no reason to know [the children] [were] [] Indian child[ren] and thus ICWA notice was not required." (In re Isaiah W. (2016) 1 Cal.5th 1, 10, italics omitted (Isaiah W.).)
A. Standard of Review
"The juvenile court must determine whether proper notice was given under ICWA and whether ICWA applies to the proceedings. [Citation.]" (In re Charlotte V. (2016) 6 Cal.App.5th 51, 57.) When, as is the case here, the facts are undisputed, we review independently whether the requirements of ICWA have been satisfied. (In re J.L. (2017) 10 Cal.App.5th 913, 918 (J.L.).) However, we review the juvenile court's ICWA findings under the substantial evidence test, which requires us to determine if reasonable, credible evidence of solid value supports the court's order. (In re Hunter W. (2011) 200 Cal.App.4th 1454, 1467; In re H.B. (2008) 161 Cal.App.4th 115, 119-120.) We must uphold the court's orders and findings if any substantial evidence, contradicted or uncontradicted, supports them, and we resolve all conflicts in favor of affirmance. (In re Alexzander C. (2017) 18 Cal.App.5th 438, 446.)
B. Relevant Law
"Congress enacted ICWA in 1978 in response to 'rising concern in the mid-1970's over the consequences to Indian children, Indian families, and Indian tribes of abusive child welfare practices that resulted in the separation of large numbers of Indian children from their families and tribes through adoption or foster care placement, usually in non-Indian homes.'" (Isaiah W., supra, 1 Cal.5th at pp. 7-8.) "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. [Citations.] For purposes of ICWA, an 'Indian child' is an unmarried individual under age 18 who is either a member of a federally recognized Indian tribe or is eligible for membership in a federally recognized tribe and is the biological child of a member of a federally recognized tribe. [Citations.]" (In re Elizabeth M. (2018) 19 Cal.App.5th 768, 783 (Elizabeth M.).)
There are two separate ICWA requirements which are sometimes conflated: the obligation to give notice to a tribe, and the obligation to conduct further inquiry to determine whether notice is necessary. Notice to a tribe is required, under federal and state law, when the court knows or has reason to know the child is an Indian child. (Elizabeth M., supra, 19 Cal.App.5th at p. 784.) In contrast, prior to January 2019, the department is to make further inquiry if it "knows or has reason to know that an Indian child is or may be involved" in the case. (Cal. Rules of Court, rule 5.481(a)(4), italics added.)
The "'courts and county welfare departments "have 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 in all dependency proceedings . . . if the child is at risk of entering foster care or is in foster care."' [Citation.]" (J.L., supra, 10 Cal.App.5th at p. 918, italics omitted.) "This notice requirement, which is also codified in California law [citation], enables a tribe to determine whether the child is an Indian child and, if so, whether to intervene in or exercise jurisdiction over the proceeding." (Isaiah W., supra, 1 Cal.5th at p. 5.)
Although the notice requirement has always been triggered by a court having "'reason to know'" a child may be an Indian child, for many years the term was undefined under federal law. (See In re Breanna S. (2017) 8 Cal.App.5th 636, 650 (Breanna S.).) It was not until 2016 that the Department of the Interior promulgated regulations defining "'reason to know.'" (Indian Child Welfare Act Proceedings, 81 Fed.Reg. 38778, 38803.)
Under the federal regulations, there is "reason to know" a child is an Indian child if "(1) Any participant in the proceeding, officer of the court involved in the proceeding, Indian Tribe, Indian organization, or agency informs the court that the child is an Indian child; [¶] (2) Any participant in the proceeding, officer of the court involved in the proceeding, Indian Tribe, Indian organization, or agency informs the court that it has discovered information indicating that the child is an Indian child; [¶] (3) The child who is the subject of the proceeding gives the court reason to know he or she is an Indian child; [¶] (4) The court is informed that the domicile or residence of the child, the child's parent, or the child's Indian custodian is on a reservation or in an Alaska Native village; [¶] (5) The court is informed that the child is or has been a ward of a Tribal court; or [¶] (6) The court is informed that either parent or the child possesses an identification card indicating membership in an Indian Tribe." (25 C.F.R. § 23.107(c).)
State law, however, defined "reason to know" in 2006. (Senate Bill No. 678, Stats. 2006, ch. 838, §§ 31, 32 (2005-2006 Reg. Sess.); former § 224.3, subd. (b).) From 2006 until 2018, when Assembly Bill No. 3176 (2017-2018 Reg. Sess.) (AB 3176) amended the definition, a court or agency had "reason to know" a child may be an Indian child if, for instance, a "person having an interest in the child . . . provide[d] 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 biological parents, grandparents, or great-grandparents are or were a member of a tribe." (Former § 224.3, subd. (b)(1), italics added; see In re Shane G. (2008) 166 Cal.App.4th 1532, 1539 ["If . . . circumstances indicate a child may be an Indian child, the social worker must further inquire regarding the child's possible Indian status. Further inquiry includes interviewing the parents, . . . extended family members or any other person who can reasonably be expected to have information concerning the child's membership status or eligibility. [Citation.]"]; see also Cal. Rules of Court, rule 5.481(a)(4) ["If the social worker . . . or petitioner knows or has reason to know that an Indian child is or may be involved, that person or entity must make further inquiry as soon as practicable"].) As cases at the time noted, the former provision did not demand much before requiring ICWA notice. (See Dwayne P. v. Superior Court (2002) 103 Cal.App.4th 247, 258 [mere "minimal showing required to trigger the statutory notice provisions"].)
But now, as amended by AB 3176, which became effective on January 1, 2019, the Welfare and Institutions Code's definition of "reason to know" conforms to the definition provided by federal regulations. (§ 224.2, subd. (d); see Assem. Com. on Human Services, Analysis of Assem. Bill No. 3176 (2017-2018 Reg. Sess.) Aug. 28, 2018, p. 8 [the bill "'simply seeks to change California law to comply with Federal regulations'"].) Under section 224.2, subdivision (d)(1) through (d)(6), the six criteria to determine the definition of "reason to know" are the same as those under the federal regulations. (See § 224.2, subd. (d) & 25 C.F.R. § 23.107(c).)
In addition, section 224.2, subdivisions (a) through (c), currently provide as follows: "(a) The court, county welfare department, and the probation department have an affirmative and continuing duty to inquire whether a child for whom a petition under Section 300, 601, or 602 may be or has been filed, is or may be an Indian child. The duty to inquire begins with the initial contact, including, but not limited to, asking the party reporting child abuse or neglect whether he or she has any information that the child may be an Indian child. [¶] (b) If a child is placed into the temporary custody of a county welfare department pursuant to Section 306 or county probation department pursuant to Section 307, the county welfare department or county probation department has a duty to inquire whether that child is an Indian child. Inquiry 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. [¶] (c) At the first appearance in court of each party, the court shall ask each participant present in the hearing whether the participant knows or has reason to know that the child is an Indian child. The court shall instruct the parties to inform the court if they subsequently receive information that provides reason to know the child is an Indian child."
Section 224.2, subdivision (e), states, "If the court, social worker, or probation officer has reason to believe that an Indian child is involved in a proceeding, the court, social worker, or probation officer shall make further inquiry regarding the possible
Indian status of the child . . . ." The provision goes on to state that further inquiry includes "[i]nterviewing the . . . extended family members" to gather additional information as well as "[c]ontacting . . . any other person that may reasonably be expected to have information regarding the child's membership status or eligibility." (§ 224.2, subds. (e)(1)-(2), italics added.)
"If the notice duty is triggered under ICWA, the notice to a tribe must include a wide range of information about relatives, including grandparents and great-grandparents, to enable the tribe to properly identify the children's Indian ancestry. [Citation.] Any violation of this policy requires the appellate court to vacate the offending order and remand the matter for further proceedings consistent with ICWA requirements. [Citation.]" (In re J.D. (2010) 189 Cal.App.4th 118, 124.) Federal regulations require that ICWA notices include, "[i]f known, the names, birthdates, birthplaces, and Tribal enrollment information" of parents and "other direct lineal ancestors of the child, such as grandparents." (25 C.F.R. § 23.111(d)(3).) The Welfare and Institutions Code provisions applying ICWA contain similar requirements. Although those provisions were amended while this proceeding was pending, they at all relevant times required that an ICWA notice contain "[a]ll 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 other direct lineal ancestors of the child, and any other identifying information, if known." (§ 224.3, subd. (a)(5)(C); see former § 224.2, subd. (a)(5)(C).)
ICWA provides that a state may provide "a higher standard of protection to the rights of the parent" than the rights provided under ICWA. (25 U.S.C. § 1921.) A court must apply the higher standard whenever it applies. (Ibid.; see § 224, subd. (d).) A violation of any "higher state standard, above and beyond what the ICWA itself requires," however, "must be held harmless unless the appellant can show a reasonable probability that he or she would have enjoyed a more favorable result in the absence of the error." (In re S.B. (2005) 130 Cal.App.4th 1148, 1162 (S.B.); see Nicole K. v. Superior Court (2007) 146 Cal.App.4th 779, 784 [finding error harmless where facts provided "no basis to believe that providing" a parent's correct birth year "would have produced different results concerning the minor's Indian heritage"].)
C. Whether Former or Current ICWA Statutes Apply
In this case, DPSS sent ICWA-030 notices to the relevant tribes in July 2016, December 2016, and January 2017. At the contested 12-month review hearing on July 25, 2017, the juvenile court found that ICWA did not apply and set a section 366.26 hearing. Mother did not challenge that order by filing a writ petition.
In November 2017 and February, May, and October 2018, the social worker continued to inquire of the parents as to their Indian ancestry. Mother reported Indian ancestry with the Cherokee, Apache, and Blackfeet tribes but stated that neither she nor Father were registered members of an Indian tribe. She also repeatedly maintained that she had no additional information to provide as to her Indian ancestry. Mother further asserted that she had no relatives' contact information to provide as additional information concerning her Indian ancestry. However, the maternal grandparents and other extended maternal family members were present at most of the hearings. On January 16, 2019, at the section 366.26 hearing, the juvenile court implicitly found that ICWA did not apply. Mother subsequently appealed, challenging DPSS's investigatory and noticing efforts.
DPSS argues that under Isaiah W., the current ICWA statutes apply because the notice of appeal was filed from the January 16, 2019 order terminating parental rights. Mother responds that DPSS's retroactive application of amended section 224.2 is inappropriate because "no where in this recently amended statute does it state that the amending provisions were to be given retroactive effect." We find DPSS's arguments more persuasive as retroactivity is not at issue under the circumstances. In this regard, Isaiah W., supra, 1 Cal.5th 1 is instructive.
In Isaiah W., supra, 1 Cal.5th 1, the juvenile court found ICWA did not apply at the jurisdictional/dispositional hearing. The mother did not appeal from that order or otherwise object to the court's ICWA finding. (Id. at p. 6.) Nearly one year later, the court terminated the mother's parental rights and again found ICWA did not apply. The mother appealed the court's order terminating her parental rights on the ground that the court had reason to know the minor was an Indian child but failed to order the department to comply with the ICWA notice requirements. (Id. at pp. 6-7.) The Court of Appeal denied relief, finding the mother forfeited her right to appeal from the section 366.26 order due to her failure to appeal from the jurisdictional/dispositional order, which became final 60 days after pronouncement by the court. (Isaiah W., at p. 7.)
Our Supreme Court reversed and remanded for further ICWA proceedings, finding the mother did not forfeit the ICWA issue by failing to appeal from the dispositional order because ICWA and the corresponding provisions of California law impose an affirmative and continuing duty on the juvenile court to inquire whether the child is an Indian child. (Isaiah W., supra, 1 Cal.5th at pp. 6, 9-12, 14-15.) The court concluded: "In light of this continuing duty, the . . . order terminating [the mother's] parental rights was necessarily premised on a current finding by the juvenile court that it had no reason to know Isaiah was an Indian child and thus ICWA notice was not required. Here, the juvenile court made that finding explicit in the course of the [section 366.26] hearing when it said, 'the Court is once again making a finding [that] I have no reason to know the child would fall under the [ICWA].' Properly understood, [the mother's] present appeal does not seek to challenge the juvenile court's finding of ICWA's inapplicability underlying the . . . dispositional order. It instead seeks to challenge the juvenile court's finding of ICWA's inapplicability underlying the . . . order terminating her parental rights." (Id. at p. 10.)
The Supreme Court explained: "The plain language of [former section 224.3, subdivision (a)]—declaring an 'affirmative and continuing duty' that applies to 'all dependency proceedings' [citation]—means that the juvenile court in this case had a present duty to inquire whether Isaiah was an Indian child at the April 2013 proceeding to terminate [the mother's] parental rights, even though the court had previously found no reason to know Isaiah was an Indian child at the January 2012 proceeding to place Isaiah in foster care. Because the validity of the April 2013 order is necessarily premised on the juvenile court's fulfillment of that duty, there is nothing improper or untimely about [the mother's] contention in this appeal that the juvenile court erred in discharging that duty." (Isaiah W., supra, 1 Cal.5th at p. 11, italics omitted.) The court found that the mother's "present appeal does not seek to challenge the juvenile court's finding of ICWA's inapplicability underlying the January 2012 dispositional order. It instead seeks to challenge the juvenile court's finding of ICWA's inapplicability underlying the April 2013 order terminating her parental rights." (Id. at p. 10.) The court concluded that the "juvenile court's determination of ICWA's inapplicability at the January 2012 hearing had no effect on its ongoing inquiry and notice obligations" (id. at p. 12) and that "[t]he court's April 2013 termination order necessarily subsumed a present determination of ICWA's inapplicability" (id. at p. 15).
While the facts of Isaiah W. differ from those in this case in some respects, it is nonetheless instructive. Here, the juvenile court explicitly found that ICWA did not apply at the contested 12-month review hearing on July 25, 2017. At that hearing, the court also terminated reunification services and set a section 366.26 hearing. Mother did not file a writ petition from that order, nor did she object at the subsequent section 366.26 hearing held on January 16, 2019, when the court implicitly found DPSS complied with the ICWA notice and inquiry requirements and that ICWA did not apply. Like Isaiah W., Mother's challenge is applicable to the juvenile court's finding of ICWA inapplicability underlying the January 16, 2019 order terminating her parental rights, not the July 11, 2016 jurisdictional/dispositional order or the July 25, 2017 order terminating her services. (Isaiah W., supra, 1 Cal.5th at p. 15; J.L., supra, 10 Cal.App.5th at p. 917, fn. 4.)
Therefore, similar to Isaiah W., on January 16, 2019, the juvenile court had a present duty to determine whether the children were Indian children based on the circumstances existing on January 16, 2019, and not based on the facts or law that existed in 2016 and 2017 when the ICWA notices were sent. The determinative factor is not when the ICWA-030 notices were mailed to the relevant tribes, but when the section 366.26 hearing was held. The juvenile court's 2019 termination order "necessarily subsumed a present determination" of ICWA's applicability. (Isaiah W. supra, 1 Cal.5th at p. 15.)
Accordingly, the issue before us then is whether the juvenile court and DPSS complied with the inquiry and notice provisions of the current ICWA statutes. We agree with DPSS that the present statute is not being applied retroactively because the juvenile court has a continuing duty to determine whether ICWA applies. Since Mother is appealing from the findings made at the January 16, 2019 section 366.26 hearing and not those in 2016 and 2017, the current ICWA statutes apply.
D. Duty of Inquiry and Duty to Notice Under Current ICWA Statutes
Mother argues that DPSS's investigation of the children's Indian heritage was inadequate, resulting in incomplete and inadequate ICWA-030 notices. Specifically, she claims the record fails to show that DPSS made further inquiry of the extended family members regarding the children's possible Indian heritage and that DPSS's reports only indicate the social worker continuing to ask the parents about their Indian heritage.
As previously noted, in every dependency proceeding, the agency and the juvenile court have an "affirmative and continuing duty to inquire whether a child is or may be an Indian child . . . ." (Cal. Rules of Court, rule 5.481(a); see § 224.2, subd. (a); In re W.B. (2012) 55 Cal.4th 30, 53; In re Gabriel G. (2012) 206 Cal.App.4th 1160, 1165.) Once the court or the social worker "has reason to believe that an Indian child is involved in a proceeding," the court or the social worker "shall make further inquiry regarding the possible Indian status of the child, and shall make that inquiry as soon as practicable." (§ 224.2, subd. (e), italics added.) The agency's duty of "'further inquiry'" requires "'[i]nterviewing the parents, Indian custodian, and extended family members . . . , contacting the Bureau of Indian Affairs . . . [and contacting] the tribes and any other person that reasonably can be expected to have information regarding the child's membership status or eligibility.'" (Gabriel G., at p. 1165; Cal. Rules of Court, rule 5.481(a)(4); § 224.2, subd. (e).) But "the obligation is only one of inquiry and not an absolute duty to ascertain or refute Native American ancestry." (In re Antoinette S. (2002) 104 Cal.App.4th 1401, 1413.)
Although prior to the 2019 amendments to the ICWA statutes, the duty of further inquiry was triggered once the court or the social worker had "reason to know," under current section 224.2, subdivision (e), the duty of further inquiry is commenced once the court or the social worker has "reason to believe." (§ 224.2, subd. (e), italics added; former § 224.3, subd. (c).) Thus, DPSS's arguments relating to the six circumstances under which there is "reason to know" that a child may be an Indian child are not relevant to the claims raised by Mother.
We find "reason to believe" is a lower threshold than "reason to know." According to the Merriam-Webster Online Dictionary, "believe" is "to consider to be true or honest" or "to hold as an opinion: suppose." (<https://www.merriam-webster.com/dictionary/believe> [as of Oct. 11, 2019].) On the other hand, the definition of "know" is "to perceive directly: have direct cognition of or "to be aware of the truth or factuality of: be convinced or certain of." (<https://www.merriam-webster.com/dictionary/know> [as of Oct. 11, 2019].) The issue therefore is did the court or the social worker have "reason to believe" the children were Indian children requiring further inquiry of the children's possible Indian heritage.
The record here shows that both parents repeatedly claimed Indian heritage, prompting the social worker to mail ICWA notices. The section 300 petition filed in June 2016 indicated Mother may have Cherokee ancestry on her mother's side, and Blackfeet or Navajo ancestry on her father's side. Father stated his father (the paternal grandfather) was a registered member of the Blackfeet Tribe. Mother filed an ICWA-020 form indicating she had Indian ancestry through the maternal grandfather, who was present at the detention hearing. Father filed an ICWA-020 form noting he had Blackfeet heritage through his father, A.L.T. In June 2016 and throughout the proceedings, the social worker questioned the parents about their Native American heritage. Mother stated she had Cherokee heritage, but that she was not a registered member. Father stated he had Blackfeet ancestry on his father's side of the family. Father also reported that his father and grandparents were deceased, but provided his mother's name to the social worker. Therefore, under section 224.2, subdivision (e), the social worker had "reason to believe" Indian children were involved in the proceedings and was thus required to make further inquiry by interviewing extended family members. Once DPSS had reason to believe the children could be Indian children, DPSS had an obligation to make "further inquiry . . . as soon as practicable," by, inter alia, "[i]nterviewing the parents, Indian custodian, and 'extended family members' to gather the information" required to prepare the ICWA notices. (§ 224.2, subd. (e)(1).) The social services agency is obligated "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.) The juvenile court "has a responsibility to ascertain that the agency has conducted an adequate investigation and cannot simply sign off on the notices as legally adequate without doing so." (Ibid.) DPSS did not fulfill this obligation, nor did the juvenile court carry out its duty to ensure ICWA compliance. (See § 224.2, subd. (e); K.R., at p. 709 ["[O]nce there is sufficient information to believe that the children might be Indian children within the meaning of ICWA and the California statutes, 'responsibility for compliance' with those statutes 'falls squarely and affirmatively' on both the social services agency and the court."].)
In In re N.G. (2018) 27 Cal.App.5th 474 (N.G.), the appellate court conditionally reversed a judgment terminating parental rights to correct ICWA inquiry and notice deficiencies. (Id. at p. 486.) In that case, the record did not show what, if any, efforts the social services agency had made to discharge its duty of inquiry. Nor did it show all required notices being given or including all known identifying information. (Id. at p. 484.) Given those deficiencies, the burden of making an adequate record demonstrating compliance with ICWA fell squarely on the social services agency and the court. (Ibid.) Here, although DPSS continued to question the parents about their Indian ancestry and the maternal grandparents attended several hearings with Mother, there is no indication in the record to show that DPSS questioned the maternal grandparents or extended family members about their Indian ancestry. There is nothing in the record also to suggest that DPSS ever attempted to contact the paternal grandmother, who at one time was considered for placement and for whom the court ordered an ICPC evaluation. DPSS therefore failed its duty of inquiry.
Moreover, the IWCA-030 notices were inadequate. Notice under ICWA must include, "[i]f known, the names, birthdates, birthplaces, and Tribal enrollment information of other direct lineal ancestors of the child . . . ." (25 C.F.R. § 23.111(d)(3) (2019); see § 224.3, subd. (a)(5)(C) [Notice must include "[a]ll names known of the Indian child's biological parents, grandparents, and great-grandparents, or Indian custodians, . . . 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."].) In July 2016, DPSS sent ICWA-030 notices to the Blackfeet, Navajo, Colorado River Indians, and Cherokee Tribes advising them of the upcoming jurisdictional/dispositional hearing in July 2016. In December 2016, DPSS again served the ICWA-030 notices to the Blackfeet, Navajo, Colorado River Indians, and Cherokee Tribes advising them of the upcoming six-month review hearing in January 2017. However, the ICWA-030 notices contained numerous omissions and errors. The maternal grandmother's name was listed, but her former address and her tribal affiliation were missing. No biographical information, not even a name, was listed for the paternal grandmother, even though Father had provided her name to the social worker. The maternal grandfather's name and alias names were listed, but his former address and birth place were missing. Moreover, two possible birth dates were listed for the maternal grandfather, even though DPSS was in contact with the maternal grandfather and the maternal grandmother. The paternal grandfather's birth place was missing. All information relating to the maternal great-grandparents was omitted, including any names. As to the paternal great-grandparents, the maternal grandmother's name, L.T., was listed in the entry for the maternal great-grandmother, and there was no former address or birth place for her. There was no entry listed for the other paternal great-grandmother, not even a name, and one paternal great-grandfather's name was listed, but his former address and birth place were not.
In addition, in November 2017, Mother informed the social worker she had Apache ancestry, in addition to Cherokee ancestry. Yet, no ICWA-030 notices were sent to the Apache Tribes. None of the three tribes that the ICWA-030 notices were sent to concluded that the children or their relatives were members or eligible for membership.
We find prejudicial error in the failure to comply with federal ICWA notice requirements. The ICWA-030 notices did not contain adequate information DPSS possessed relating to the maternal and paternal grandparents, and information relating to the maternal great-grandparents, despite the federal regulations' requirement that they be provided if known. Although the tribes responded to the deficient ICWA notices, we cannot say that their responses would have been the same had the required information been provided. (See Breanna S., supra, 8 Cal.App.5th at p. 654 ["Although the Pascua Yaqui tribe responded that the children were not members of, or eligible for membership in, the tribe, the tribe's letter explained its assessment was '[b]ased upon the family information provided.' Some of the omitted information pertained directly to the maternal great-grandmother, the ancestor . . . affirmatively identified as a Yaqui Indian. We cannot say with any degree of confidence that additional information concerning that relative . . . would not have altered the tribe's evaluation."].)
The analysis under the Welfare and Institutions Code is much the same. Although a violation of a "higher state standard, above and beyond what the ICWA itself requires" is harmless absent a "reasonable probability that [Mother] would have enjoyed a more favorable result" otherwise (S.B., supra, 130 Cal.App.4th at p. 1162), state law here provides no such higher standard. Both federal regulations and the Welfare and Institutions Code require that an ICWA notice contain known information concerning a child's direct lineal ancestors. (25 C.F.R. § 23.111(d)(3); § 224.3, subd. (a)(5)(C); former § 224.2, subd. (a)(5)(C).) Because the violation here runs afoul of both federal and state law, we need not ask whether there is a reasonable probability Mother would have enjoyed a more favorable result if no ICWA notice violation had occurred.
Based on the foregoing, we reverse the order terminating parental rights and remand for the juvenile court to ensure DPSS has thoroughly investigated whether the children have American Indian ancestry, and based on that investigation, to send complete notices consistent with the requirements of ICWA (25 U.S.C. § 1912(a)), section 224.3, subdivision (a), and California Rules of Court, rule 5.481(b). (N.G., supra, 27 Cal.App.5th at p. 486 [reversing order terminating mother's parental rights and ordering Department to obtain complete information for maternal and paternal relatives and provide corrected ICWA notice to tribes].)
We note at oral argument, counsel for DPSS acknowledged the case should be remanded but on remand the new law should apply. We agree that the current law as amended in January 2019 should apply on remand.
If DPSS sends notices under ICWA, and the juvenile court determines M.T. and O.T. are Indian children and ICWA applies to these proceedings, the juvenile court must conduct a new section 366.26 hearing and any further necessary proceedings, in compliance with ICWA and related current California law. If not, the court shall reinstate the original section 366.26 order. (See N.G., supra, 27 Cal.App.5th at p. 486.)
IV
DISPOSITION
The juvenile court's orders terminating parental rights are conditionally reversed and the matter is remanded for the limited purpose of complying with the inquiry and notice requirements of ICWA under current law. If, after further inquiry and notice by DPSS, including further notice to the relevant tribes previously contacted, the juvenile court determines that the tribes were properly noticed and there either was no response or the tribes determined that the children are not Indian children, the orders terminating parental rights shall be reinstated. However, if a tribe determines the children are Indian children as defined by ICWA and the court determines ICWA applies, the juvenile court is ordered to conduct a new hearing pursuant to section 366.26 and proceed in accordance with ICWA, including considering any petition filed to invalidate prior orders. (25 U.S.C. § 1914; § 224, subd. (e).) In all other respects, the juvenile court's orders are affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
CODRINGTON
J. We concur: McKINSTER
Acting P. J. MENETREZ
J.