Opinion
E081317
10-25-2023
In re E.W., a Person Coming Under the Juvenile Court Law. v. A.J., Defendant and Appellant. SAN BERNARDINO COUNTY CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent,
Jacob I. Olson, under appointment by the Court of Appeal, for Defendant and Appellant. Tom Bunton, County Counsel and Dawn M. Martin, Deputy County Counsel for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from the Superior Court of San Bernardino County No. J287436, Steven A. Mapes, Judge. Affirmed.
Jacob I. Olson, under appointment by the Court of Appeal, for Defendant and Appellant.
Tom Bunton, County Counsel and Dawn M. Martin, Deputy County Counsel for Plaintiff and Respondent.
OPINION
RAPHAEL, J.
Mother appeals the order terminating her parental rights and argues that Children and Family Services did not fulfill its duty of further inquiry when it learned information giving reason to believe her child had Cherokee ancestry. Children and Family Services informed the court it had filed the form used to provide formal notice of child custody proceedings for Indian children when there is reason to know the child is an Indian child (Form ICWA-030), but the record in the juvenile court does not contain the form. However, the record contains email correspondence between Children and Family Services and three Cherokee tribes, which includes a substantial amount of the sort of information needed to assist the tribes in determining whether the child is an Indian child, as defined by the Indian Child Welfare Act of 1978 (ICWA). (25 U.S.C. § 1901 et seq.)
Mother argues the absence of form ICWA-030 means the juvenile court judge did not have substantial evidence to support finding the provisions of ICWA do not apply to the child. We conclude formal notice was not required and the informal communications between Children and Family Services and the tribes provided an adequate basis for the judge's finding. We therefore affirm the order terminating mother's parental rights. Father is not a party to the appeal and did not appeal the termination of his parental rights.
I FACTS
On December 6, 2020, mother was involved in a domestic dispute with her boyfriend, which led to her arrest for domestic violence. San Bernardino County Children and Family Services (the department) placed E.W., who was two years old, in protective custody and filed a section 300 petition. Attempts at reunification and family maintenance failed, and at a contested section 366.26 hearing on May 15, 2023, the juvenile court judge found E.W. adoptable and terminated mother's parental rights. At the same hearing, the judge found the provisions of ICWA do not apply to E.W.
Mother appeals from the order terminating her rights. The only ground she offers for overturning the decision is that the determination that ICWA does not apply was not adequately supported because the department did not include in the record forms showing what information it provided to tribes to which E.W. may have had a connection.
At the outset of the dependency there was no indication E.W. might be an Indian child. On December 6, 2020, the maternal grandmother told the investigating social worker her family did not have any native ancestry, though she noted she intended to take a commercial ancestry test to be sure. The social worker also asked mother's boyfriend and his sister and mother, and they all said they did not have native ancestry. The next day, the child's biological father said he did not have native ancestry. The social worker was unable to ask mother, who was incarcerated. But on December 9, mother completed an ICWA-020 form indicating she had no native ancestry. On March 23, 2021, the juvenile court judge found ICWA did not apply.
The department continued to inquire. On June 29 and July 27, 2022, social workers asked mother about any potential native heritage, and she denied they had any. However, on July 27, 2022, E.W.'s maternal grandmother told the department her parents had been adopted and said she did not know anything about her mother's biological family. She said, "My brother told me that my father told him that he had American Indian heritage, but he did not know what tribe and he was also adopted." She reported her family does not have any connection with her parents' biological relatives. She provided the contact information for her brother, who lived in Tennessee, and the department attempted to contact him by phone several times without success. The brother's voicemail was full, so the department could not leave a voice message. Instead, it sent a text message asking him to contact the department. At a November 28, 2022 contested jurisdiction/disposition hearing, the juvenile judge again found E.W. did not come under the provisions of ICWA.
Then, on March 7, 2023, the maternal grandmother's brother-E.W.'s greatuncle-sent a text message to the department indicating the family may have Cherokee ancestry. He reported the maternal great-grandfather had told him the maternal greatgreat-grandmother, named Verley Martin or Verley Greer, was of Cherokee descent. The great-uncle reported the maternal great-grandfather and the maternal great-greatgrandmother were deceased and he did not know any relatives who would know about the family's history. He said the great-grandfather had passed away in 2019 and was the last person alive from that side of his family who would have been able to provide family information.
On the March 16, 2023, the department informed the juvenile court it had submitted ICWA-030 notice of child custody proceeding forms to three Cherokee tribes, identifying E.W. as a possible tribe member. However, the forms are not included in the record. The next month, on April 14, 2023, the social worker emailed the Eastern Band of Cherokee Indians, the United Keetoowah Band of Cherokee Indians in Oklahoma, and the Cherokee Nation asking them to check E.W.'s eligibility. On April 18, 2023, the Cherokee Nation responded, asking that the department use a different email address, and the department complied. On April 19, the ICWA Eligibility Unit for the Cherokee Nation responded that E.W. is not an Indian child. The other two Cherokee tribes did not respond.
On May 11, 2023, the department provided the juvenile court with a written update on the ICWA inquiry. The department attached the emails from the social worker to the tribes and the attachment containing information about E.W.'s family. These documents show the department communicated the full name for E.W., the child's parents, the maternal grandmother and grandfather, the maternal great-grandmother and great-grandfather. It provided dates of birth for E.W., the child's parents, the maternal grandmother, and the maternal great-grandmother, and a partial date of birth for the maternal great-grandfather. The documents also include, under the heading "other lineal biological ancestors," the maiden and married names of maternal great-greatgrandmother, Verley Greer (nee Martin), the ancestor thought to have Cherokee heritage. They listed her date of birth as unknown.
On May 15, 2023, at a contested section 366.26 hearing, having the benefit of these communications but not the missing ICWA-030 forms, the juvenile court judge found ICWA was inapplicable. At the same hearing, the juvenile court judge found E.W. adoptable and terminated mother's parental rights.
Mother filed a timely notice of appeal from the order terminating her parental rights.
II ANALYSIS
Mother argues the juvenile court judge erred by determining the department fulfilled its duty of inquiry and ICWA did not apply without reviewing the ICWA-030 notice forms the department says it submitted but which are not in the juvenile court record. We review for substantial evidence the juvenile court judge's finding that ICWA does not apply, as well as the findings-which are implied-that formal notice was not required and that the department fulfilled its duty of further inquiry. (In re Austin J. (2020) 47 Cal.App.5th 870, 885, 887 (Austin J.).)
"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 that a state court, except in emergencies, must follow before removing an Indian child from his or her family." (Austin J., supra, 47 Cal.App.5th at pp. 881-882; see also 25 U.S.C. § 1902.)
"Central to ICWA is the determination that a child in the dependency system is an Indian child," which "[t]he statute defines an 'Indian child' as an unmarried person under 18 years of age who is either '(a) a member of an Indian tribe or (b) is eligible for membership in an Indian tribe and is the biological child of a member of an Indian tribe.' [Citations.] 'Being an "Indian child" is thus not necessarily determined by the child's race, ancestry, or "blood quantum," but depends rather "on the child's political affiliation with a federally recognized Indian Tribe." '" (In re S.R. (2021) 64 Cal.App.5th 303, 312313 (In re S.R.).) Ultimately, that determination belongs to the tribes (In re Isaiah W. (2016) 1 Cal.5th 1, 15 [" '[t]he relevant question is not whether the evidence . . . supports a finding that the minor[ ] [is an] Indian child[ ]; it is whether the evidence triggers the notice requirement of ICWA so that the tribes themselves may make that determination' "].)
"In addition to the initial duty of inquiry, which applies from the outset of the [dependency] proceedings, the Legislature has imposed a duty of further inquiry if information becomes available suggesting a child may have an affiliation with a tribe." (In re S.R., supra, 64 Cal.App.5th at p. 314.) "If the court, social worker, or probation officer has reason to believe that an Indian child is involved in a proceeding, but does not have sufficient information to determine that there is reason to know that the child is an Indian child, the court, social worker, or probation officer shall make further inquiry regarding the possible Indian status of the child, and shall make that inquiry as soon as practicable." (Welf. &Inst. Code, § 224.2, subd (e), italics added, unlabeled statutory citations refer to this code; see also In re I.F. (2022) 77 Cal.App.5th 152, 163.)
There is "reason to believe" a child in a dependency is an Indian child when "the court, social worker, or probation officer has information suggesting that either the parent of the child or the child is a member or may be eligible for membership in an Indian tribe." (§ 224.2, subd. (e)(1), italics added; see also Cal. Rules of Court, rule 5.481(a)(4).) The statute specifies, "Information suggesting membership or eligibility for membership includes, but is not limited to, information that indicates, but does not establish, the existence of one or more of the grounds for reason to know enumerated in paragraphs (1) to (6), inclusive, of subdivision (d)." (§ 224.2, subd. (e)(1), italics added.)
"When there is reason to believe the child is an Indian child, further inquiry is necessary to help the court, social worker, or probation officer determine whether there is reason to know a child is an Indian child." (§ 224.2, subd. (e)(2).) "[T]he required inquiry is reasonably substantial. It must include interviewing the parents and extended family members, contacting the Bureau of Indian Affairs and State Department of Social Services, and '[c]ontacting the tribe or tribes and any other person that may reasonably be expected to have information regarding the child's membership, citizenship status, or eligibility.'" [Citation.] The informal contact with the tribe must "at a minimum, include telephone, facsimile, or electronic mail contact to each tribe's designated agent for receipt of notices . . . [and] include sharing information identified by the tribe as necessary for the tribe to make a membership or eligibility determination, as well as information on the current status of the child and the case." (In re S.R., supra, 64 Cal.App.5th at p. 315, quoting § 224.2, subd. (e)(2)(C).)
The stakes are higher when there is not just reason to believe but "reason to know" a child in a dependency is an Indian child. In such a case, "the party seeking foster care placement shall provide notice in accordance with paragraph (5) of subdivision (a) of Section 224.3." (§ 224.2, subd (f).) Section 224.3, subdivision (a), specifies the form, recipients, and content of formal notices, where required. It must include, among other things, the names, birth dates, places of birth and death, and addresses of the biological parents, grandparents, and great-grandparents, as well as a copy of the dependency petition the child's birth certificate, and specified information about the dependency proceedings. (§ 224.3, subd. (a)(1), (3)(A)-(C).) Judicial Council form ICWA-030, entitled Notice of Child Custody Proceeding for Indian Child, has fields for this required information. California Rule of Court 5.481(c) specifies where the department or the court have reason to know a child in dependency is an Indian child, it must send form ICWA-030 to, among others, the relevant tribal representatives.
However, there is no requirement to send form ICWA-030 when the available evidence suggests there is reason to believe a child in dependency may be an Indian child, but the evidence is not so strong as to give the department or the court reason to know the child is an Indian child. (See In re Benjamin M. (2021) 70 Cal.App.5th 735, 742 ["If the initial inquiry gives the juvenile court or the agency 'reason to believe' that an Indian child is involved, then the juvenile court and the agency have a duty to conduct 'further inquiry' [citation], and if the court or the agency has 'reason to know' an Indian child is involved, ICWA notices must be sent to the relevant tribes"]; Austin J., supra, 47 Cal.App.5th at pp. 886-887.)
This reflects a change in state law. In 2018, the Legislature redefined the "reason to know" and "reason to believe" requirements so "information suggesting" membership or eligibility provides only reason to believe the child is an Indian child. (§ 224.2, subd. (e)(1).) Before that, information suggesting the child was a member of a tribe or eligible for membership was sufficient to give the department or the court reason to know a child was an Indian child. (Austin J., supra, 47 Cal.App.5th at pp. 884-885; see also former § 224.3, subd. (b)(1); see Stats. 2018, ch. 833, §§ 5-6, [repealing § 224.3 and enacting § 224.2].)
In this case, the evidence established a reason to believe E.W. might be an Indian child. Our facts are similar to those of In re I.F., supra, 77 Cal.App.5th at p. 164, where the Court of Appeal "conclude[d] as a matter of law that mother's statements that she had been told by her paternal grandmother that she had native ancestry through her paternal grandfather, coupled with the maternal grandfather's statements that his father told him the family had native ancestry in Minnesota, established a reason to believe [the children] are Indian children and thus triggered the duty of further inquiry." Here, E.W.'s maternal grandmother told the department her parents had been adopted and said her brother told her their father said he had native heritage. The department followed up on this initial clue by attempting to call the maternal great-uncle. Though it took several months, the great-uncle eventually reported the maternal great-grandfather had told him the maternal great-great-grandmother was of Cherokee descent. That information was sufficient to trigger in the department a duty of further inquiry. (See also In re S.R., supra, 64 Cal.App.5th at pp. 315-316 ["grandparents' revelation about [the children's] maternal great-grandmother gave the department reason to believe [the children] may be Indian children and triggered a duty for the department to inquire further, including by contacting the Yaqui tribe of Arizona"].)
The department does not contest the duty of further inquiry applied but argues it complied with the duty and gave the juvenile court judge information sufficient to conclude that it had complied. We agree. On March 7, 2023, the maternal great-uncle made contact with the department and reported that the maternal great-grandfather had told him the maternal great-great-grandmother, named Verley Martin or Verley Greer, was of Cherokee descent. He told them the great-great-grandmother was deceased, the great-grandfather had passed away in 2019, and he was the last person who would have been able to provide family information. The department quickly followed up on this information by locating three potential tribes and contacting them. According to a court filing, it sent an ICWA-030 notice of child custody proceeding forms to the tribes, identifying E.W. as a child who may be a member or eligible for membership. On April 14, 2023, the social worker emailed the three tribes asking them to check E.W.'s eligibility and communicated the full name for E.W., the biological parents, the maternal grandmother and grandfather, and the maternal great-grandmother and great-grandfather. The emails provided dates of birth for E.W., the child's parents, the maternal grandmother, and the maternal great-grandmother, and a partial date of birth for the maternal great-grandfather. It also identified the great-great-grandmother, Verley Greer (nee Martin), as an "other lineal biological ancestor," but said the department did not know her date of birth.
This inquiry was sufficient where there was reason to believe E.W. might be an Indian child, but not reason to know she was. Absent reason to know a child is an Indian child, the department is not required to send formal notice by sending form ICWA-030. Informal notice is sufficient, and that includes contacting the tribal representatives through email. (In re S.R., supra, 64 Cal.5th at p. 315 ["information that is far less conclusive than what would trigger formal notice may trigger the obligation to conduct further inquiry, including informal notice to any relevant tribes"].) The informal notice does not need to contain everything required of formal notice but requires "sharing information identified by the tribe as necessary for the tribe to make a membership or eligibility determination, as well as information on the current status of the child and the case." (Ibid., quoting § 224.2, subd. (e)(2)(C).) There was no need to conduct further relative interviews, since the department had already interviewed numerous family members and the great-uncle said the only relative who might have additional information had passed away a few years earlier. The obvious next step was to identify potential tribes and provide them with the information about E.W.'s relatives and ancestors.
That's exactly what the department did. Only one tribe responded. The Cherokee Nation initially asked the department to use a different email address and then responded that E.W. is not an Indian child. The other two Cherokee tribes did not respond. Nothing in the record suggests the department failed to provide important information to the tribes, the tribes did not request more information, and E.W.'s mother does not identify any deficiency except for the absence of the ICWA-030 form. On May 11, 2023, the department provided the juvenile court with a written update on the ICWA inquiry, summarized its inquiry, and included these communications. It may be advisable for the department to include more information even when engaging in informal communications with tribes, perhaps including the location and stage of proceedings, addresses of relatives, and other information typically contained in ICWA-030 forms. However, the department's efforts were sufficient under the circumstances of this case, where the key information was the adopted great-great-grandmother's identity and relatives were unable to provide the department with more information about her. We therefore conclude the department's efforts were sufficient to fulfill the duty of further inquiry, and its submissions gave the juvenile court judge an adequate basis for finding it had done so and that ICWA does not apply.
Mother argues we cannot make this determination without seeing the ICWA-030 forms the department said it submitted. We disagree. The report by E.W.'s relatives that she may have had a great-great-grandmother with Cherokee ancestry is nowhere near to providing a reason to know E.W. is an Indian child, which is what would trigger the duty to notify the tribes of the information required by section 224.3. E.W.'s great-uncle informed the department that E.W. might have Cherokee heritage, but his report did not relay that E.W. is an Indian child. It follows that the department was not under any duty to send form ICWA-030 to the tribes. Mother does not argue otherwise. The bottom line is the department complied with its duty of further inquiry by seeking out relevant tribes and sending them the information it had gathered about E.W.'s adopted relative who may have had Native American ancestry. It does not matter that it may have provided additional information in a missing form ICWA-030, since the information provided in the informal notices was adequate to comply with its duty to inquire.
There is reason to know a child is an Indian child when "(1) A person having an interest in the child"-including a tribe or member of the child's extended family- "informs the court that the child is an Indian child. [¶] (2) The residence or domicile of the child, the child's parents, or Indian custodian is on a reservation or in an Alaska Native village. [¶] (3) Any participant in the proceeding, officer of the court, Indian tribe, Indian organization, or agency informs the court that it has discovered information indicating that the child is an Indian child. [¶] (4) The child who is the subject of the proceeding gives the court reason to know that the child is an Indian child. [¶] (5) The court is informed that the child is or has been a ward of a tribal court. [or] [¶] (6) The court is informed that either parent or the child possess an identification card indicating membership or citizenship in an Indian tribe." (§ 224.2, subd. (d).)
III
DISPOSITION
We affirm the section 366.26 order.
We concur: McKINSTER Acting P. J. FIELDS J.