Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. CK 70391, Stanley Genser, Commissioner.
Anne E. Fragasso, under appointment by the Court of Appeal, for Defendant and Appellant.
Richard E. Kalunian, Acting County Counsel, James M. Owens, Assistant County Counsel, and Frank J. DaVanzo, Deputy County Counsel, for Respondent.
Judge of the Los Angeles Superior Court assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.
In this appeal from a judgment terminating father E.W.’s (Father) parental rights with regard to his daughter J.W., Father contends the judgment must be reversed because the Los Angeles County Department of Children and Family Services (DCFS) and the juvenile court failed to comply with the Indian Child Welfare Act of 1978 (ICWA) (25 U.S.C. § 1901 et seq.), despite the Father’s claim of Indian ancestry. In particular, Father alleges DCFS failed to investigate and DCFS and the court failed to give notice of Father’s claimed Indian ancestry as required under ICWA. In addition, Father claims the court never made a finding regarding ICWA when it terminated Father’s parental rights. DCFS concedes in the Respondent’s Brief that there was no investigation whatsoever regarding J.W.’s possible American Indian ancestry after Father stated that his “mother was part Indian,” but argues that a recent statement by Father that he is not a member, or eligible for membership, in any American Indian tribe renders the failure to investigate harmless error. As we conclude that Father’s statement has been misconstrued, we disagree with DCFS. We also conclude that the court erred as alleged.
Therefore the order terminating parental rights is reversed and remanded for the sole purpose of securing compliance with ICWA as provided below.
BACKGROUND
We need not recite the underlying circumstances except for those that concern compliance with ICWA, as compliance therewith is the sole issue presented on appeal.
J.W. came to the attention of DCFS when she was born in September 2007. J.W. came to the attention of DCFS again on October 13, 2007 through an anonymous referral. A DCFS social worker spoke with J.W.’s father on that date. In an October 17, 2007 Detention Report, the social worker reported that Father stated “My mother was part Indian and I may be 1% or 2% Indian.”
In an Addendum Report filed on October 17, 2007, another DCFS social worker indicated that “[f]urther investigation is needed as to the child having Indian Heritage.”
Father’s Parental Notification of Indian Status (Form JV-130) was filed the same day. The form contains a box stating “I may have Indian ancestry.” Father checked that box. The words “Maternal grandmother of father” and the name and phone number of that person were handwritten on the form. The form purported to bear Father’s signature, signed under penalty of perjury.
At a hearing on October 17th, the court inquired of Father as to his Indian ancestry and Father provided the name and phone number of his maternal grandmother, who the court identified as J.W.’s paternal great-grandmother. When the court asked, “Do you have a clue as to what tribe?” Father said he did not.
The court found Father to be J.W.’s presumed father.
The court ordered J.W. be detained pending the outcome of the pre-release investigation. The minute order stated, “As to the mother, the court makes inquiries of parent(s) present and finds parent(s) are not members of any American Indian tribe.”
This finding may be the source of later confusion. Although it was only as to the mother, it used the plural “parents” and might have led the court and DCFS to believe later that there had been a determination that neither parent had American Indian ancestry.
The November 7, 2007 pre-release investigation report stated: “The Indian Child Welfare Act does or may apply. The undersigned will investigate ICWA with the paternal great grandmother, [A.B.].”
On November 26, 2007, DCFS submitted its jurisdiction/disposition report, which stated without explanation or evidence of investigation that ICWA did not apply.
On November 27, 2007, a social worker received a referral regarding Father’s son, A.W., who had a different mother. The report concerned suspected domestic violence by Father against J.W.’s mother. DCFS filed a detention report in December 2007 regarding A.W. in which it stated, “[t]he court has previously found that [ICWA] does not apply.”
At a hearing on December 11, 2007, the court noted that A.W.’s case had been transferred to the court to be consolidated with J.W.’s matter for purposes of trial. The court sustained the allegations in the petition concerning J.W.
At a joint hearing on the petitions regarding both A.W. and J.W. on February 22, 2008, the court mentioned “there was an ICWA issue raised on both cases....”
A June 2008 DCFS status review report stated, again without explanation or evidence of investigation, that ICWA did not apply.
The contested six-month hearing (Welf. & Inst. Code, § 366.21, subd. (e)) was held on July 29, 2008. The court terminated family reunification services and set the matter for a hearing on November 18, 2008 pursuant to section 366.26.
All further statutory references are to the Welfare and Institutions Code unless otherwise indicated.
The DCFS “366.26 WIC Report” stated erroneously: “On 10/17/07 the court found that the Indian Child Welfare Act does not apply to the child, [J.W.].”
On November 14, 2008, J.W.’s half-brother, A.W., was detained and Father appeared for arraignment on the new petition. Father’s counsel represented that Father was A.W.’s presumed father and that Father “previously declared no ICWA.” The court then made an ICWA inquiry at County Counsel’s request:
“THE COURT: He just represented that he has no American Indian ancestry; is that correct, sir?
“MINOR’S FATHER: What’s that, Your Honor?
“THE COURT: Are you a member of or eligible for membership in any American Indian tribe?
“MINOR’s FATHER: No.
“THE COURT: Like Cherokee or anything?
“MINOR’S FATHER: No.
“MS. ZIMBLER: Thank you.
“THE COURT: There are no ICWA issues. The court has no reason
“MS. ZIMBLER: Only as to the father.
“THE COURT: —to know that through father the child is not a member of or eligible for membership in any American Indian tribe.”
Four days later, at a hearing concerning J.W. on November 18, 2008 before the same bench officer, Father appeared and through counsel argued that the allegations against him were false, that he had not had an opportunity to contest the allegations, that adoption would not be in the best interests of the child, and that he was not given due process rights. The court found it would be detrimental for J.W. to be returned to her parents. The court also found by clear and convincing evidence that J.W. was adoptable. The court added that “there’s no evidence to indicate it would not be in the best interest of the child to proceed with termination of parental rights and adoption.” The court made no express findings regarding ICWA when it terminated Father’s parental rights. Notice was never given to any of the parties designated in ICWA as to any of the proceedings concerning J.W.
This appeal followed.
DISCUSSION
A. Applicable legal standards
We review the juvenile court’s findings made pursuant to ICWA, including its finding that ICWA does not apply, for substantial evidence. (In re Michael G. (1998) 63 Cal.App.4th 700, 715; In re Aaliyah G. (2003) 109 Cal.App.4th 939, 941–943 [sufficient evidence in record that proper inquiry was made regarding child’s Native American ancestry].) Similarly, we review the record to determine whether substantial evidence supports the juvenile court’s finding that the duty to inquire into Father’s Native American heritage was satisfied. (In re Rebecca R. (2006) 143 Cal.App.4th 1426, 1430.) The adequacy of notice under ICWA is also reviewed to determine if it is supported by substantial evidence. (In re Aaliyah G., supra, 109 Cal.App.4th 939, 941–943.) Finally, we review the juvenile court’s finding as to the adequacy of notice for substantial evidence, as well. (In re Asia L. (2003) 107 Cal.App.4th 498, 506.)
We review the record in a light most favorable to the order and uphold the finding unless it can be said that no rational factfinder could reach the same conclusion. (In re Michael G., supra, 63 Cal.App.4th 700 at pp. 715–716.) As the party challenging the order, father bears “the burden of showing there is no evidence of a sufficiently substantial nature to support the court’s finding or order.” (In re Barbara R. (2006) 137 Cal.App.4th 941, 950.)
ICWA is “codified in various sections of the California Family, Probate and Welfare and Institutions Codes....” (Cal. Rules of Court, rule 5.480.) The purposes of ICWA are to protect the interests of Indian children and tribes and to promote the stability and security of Indian tribes and families. (§ 224; In re Kahlen W. (1991) 233 Cal.App.3d 1414, 1421.) DCFS and the court “have an affirmative and continuing duty to inquire whether a [dependent] child is or may be an Indian child.” (Cal. Rules of Court, rule 5.481(a).) If DCFS “knows or has reason to know that an Indian child is or may be involved, that... entity must make further inquiry as soon as practicable by: [¶] (A) [i]nterviewing... ‘extended family members’...; [¶] (B) [c]ontacting the Bureau of Indian Affairs...; and [¶] (C) [c]ontacting the tribes....” (Id., rule 5.481(a)(4).)
The duty to give notice arises when “the court knows or has reason to know that an Indian child is involved” in the proceeding. (25 U.S.C. § 1912(a); see also § 224.2 and Cal. Rules of Court, rule 5.481(b).) The court is prohibited from proceeding until after notice is given. (§ 224.2, subd. (d); Cal. Rules of Court, rule 5.482.)
Under ICWA, an “Indian child” is a child 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.” (25 U.S.C. § 1903(4); see also §§ 224–224.1; Cal. Rules of Court, rule 5.481(a)(5).) An “Indian tribe” under ICWA is “any Indian tribe, band, nation, or other organized group or community of Indians recognized as eligible for the services provided to Indians by the Secretary [of the Interior] because of their status as Indians....” (25 U.S.C. § 1903(8).)
A court has reason to know a child might be an Indian child if, among other things, a party informs the court or the welfare agency or provides information suggesting that the child is an Indian child. (§ 224.3; Cal. Rules of Court, rule 5.481(a)(5)(A).) The duty to give notice thus arises when there is information suggesting the child is either a member of a tribe or eligible for membership and is the child of a tribe member. (25 U.S.C. § 1912(a); In re Samuel P. (2002) 99 Cal.App.4th 1259, 1265.) As the determination of a child’s Indian status is up to the tribe, the juvenile court needs only a suggestion of Indian ancestry to trigger the notice requirement. (In re Antoinette S. (2002) 104 Cal.App.4th 1401, 1408.)
The notice requirements of ICWA are mandatory, strictly construed and cannot be waived by the parties. (In re Robert A. (2007) 147 Cal.App.4th 982, 989.) “State law mandates notice to ‘all tribes of which the child may be a member or eligible for membership.’ (§ 224.2, subd. (a)(3).)” (In re J.T. (2007) 154 Cal.App.4th 986, 992.) The 2006 enactment of section 224.2 expressly provides that “heightened state law standards shall prevail over more lenient ICWA requirements.” (In re J.T., supra, 154 Cal.App.4th at p. 993.) Section 224.2, subdivision (a)(4) requires notice to the BIA regardless of whether the identity of the child’s tribe is known.
As for the court’s obligation, it must determine whether proper notice was given and whether ICWA applies. “While the record must reflect that the court considered the issue and decided whether ICWA applies, its finding may be either express or implied.” (In re Asia L., supra, 107 Cal.App.4th at p. 506.) “[A]n implicit ruling suffices, at least as long as the reviewing court can be confident that the juvenile court considered the issue and there is no question but that an explicit ruling would conform to the implicit one.” (In re E.W. (2009) 170 Cal.App.4th 396, 405.)
B. DCFS and the court did not comply with their duties to inquire whether J.W. might be an Indian child and with respect to notice.
DCFS and the court had an affirmative duty to inquire as to whether J.W. might be an Indian child. Initially, DCFS did inquire. At that time, Father told DCFS unequivocally that his mother was “part Indian.” Given this unequivocal statement, his statement that “I may be 1% or 2% Indian” seems to indicate that he was unsure about the “percentage” of his American Indian ancestry, not about whether his mother was “part Indian.” Upon further questioning, Father expressed uncertainty about “which tribe.” Again, his uncertainty about “which tribe” did not indicate uncertainty about the stated fact that his mother was “part Indian.”
When Father filled out the JV-130 form, he checked the box that indicated that “I may have Indian ancestry.” Again, this was not an equivocal statement by Father, showing doubt as to his American Indian ancestry. The word “may” was supplied by the form.
The foregoing certainly gave DCFS and the court “reason to know that an Indian child” might be involved. (§ 224.2; Cal. Rules of Court, rule 5.481(b).) The agency had “reason to know” because it had received “information suggesting that the child is an Indian child.” (§ 224.3; Cal. Rules of Court, rule 5.481(a)(5)(A).)
Father even supplied DCFS with the name and telephone number of his maternal grandmother, who he said might know what tribe was concerned, but no one contacted her or made any other effort to obtain further information. In fact, DCFS concedes that “there was no investigation” whatsoever regarding J.W.’s possible Indian ancestry.
At the very least, DCFS had a duty to contact Father’s grandmother and “extended family members” (Cal. Rules of Court, rule 5.481(a)(4)(A)) to determine if J.W. has Indian ancestry and try to determine if J.W. is associated with a particular tribe. Similarly, since DCFS had reason to know that Father and J.W. might possess Indian ancestry, DCFS had a duty to give notice to the entities identified in ICWA. That duty arises when there is information suggesting the child is eligible for membership in a tribe, even when the name of the tribe is unknown. (25 U.S.C. §1912(a); In re Samuel P., supra,99 Cal.App.4th 1259, 1265; §224.2.)
DCFS contends that the failure to investigate was harmless error because Father subsequently answered “no” when the court asked, “Are you a member of or eligible for membership in any American Indian tribe?” Unfortunately, the question was not whether Father had any American Indian ancestry. Rather, it asked Father to draw a legal conclusion as to his qualifications for membership in an unknown tribe. The determination of a person’s American Indian status is up to the tribe. (In re Antoinette S., supra, 104 Cal.App.4th at p. 1408.) Since Father did not know what tribe might be involved, it would be logical to assume that he would not have possessed knowledge as to the membership requirements of the tribe. It is not surprising that he answered “no” to the legal question as to his qualifications for membership, given his prior statement that he believed his Indian ancestry was limited to “1% or 2%.” His legal opinion as to whether he is qualified for membership in an Indian tribe appears as likely to be wrong as right, given his lack of information.
This is not a case where Father’s “no” answer can be construed as a waiver of the protections of ICWA. He is not the person whose rights are at issue. The purposes of ICWA are to protect the interests of Indian children and promote the stability and security of Indian tribes and families. (In re Kahlen W., supra, 233 Cal.App.3d at p. 1421.)
Nor should Father’s own failure to investigate play a role in the analysis. The duty to inquire is assigned to DCFS and the court, not to the father. Alternatively, DCFS speculates that Father may have investigated the issue of Indian ancestry between the times that he claimed it and allegedly disclaimed it. DCFS argues that the court should rely on this presumed investigation. However, the duty to inquire is assigned to DCFS and the court and cannot be delegated to Father in the way DCFS suggests.
Father’s possibly incorrect answer to a question seeking a legal conclusion does not make the error harmless here. J.W. may well posses American Indian ancestry and may be entitled to the benefits of ICWA.
The court also failed to comply with the requirements of ICWA. It had an affirmative duty to inquire as to whether J.W. is an Indian child. It did not obtain an adequate answer on that issue from Father and did not require further information from DCFS. Nor did it fulfill its duty to determine whether proper notice was given. We cannot conclude based on the record before us that the court’s error was harmless, as it appears an investigation might well have disclosed Indian ancestry.
C. Whether or not the court made an express or implicit finding that ICWA did not apply, substantial evidence does not support it.
Based on the questions the court asked at the November 14, 2008 hearing concerning A.W., DCFS argues that the court implicitly found ICWA did not apply to A.W.’s half-sister, J.W. Even if it did, the finding was not supported by substantial evidence. At the hearing concerning A.W., the court did not pursue the key question of ancestry, resting its decision instead on the inquiry as to membership in a tribe. The court also failed to ask other relevant questions. Nowhere, for example, did the court inquire whether J.W. or any family member lived on an Indian reservation, rancheria, federal trust property, Alaska Native village, or in any other type of predominantly Indian community. The court did not ask whether J.W. or any family member ever received services or participated in programs primarily directed toward Native Americans. (See Administrative Office of the Courts Center for Families, Children and the Courts, Indian Child Welfare Act Inquiry Interview form (rev. May 2008).)
We do not suggest that every one of these questions must always be asked. But here, where Father stated unequivocally that his mother was “part Indian,” Father’s mere, and possibly erroneous, legal conclusion about eligibility for membership was inadequate to resolve the issue. We conclude that any implicit finding that may have been made by the juvenile court was not based on substantial evidence. (In re Aaliyah G., supra,109 Cal.App.4th at p. 941–943.)
DISPOSITION
The order terminating parental rights is reversed and remanded for the sole purpose of securing compliance with ICWA. The juvenile court is directed to order DCFS to make a proper inquiry regarding J.W.’s Indian ancestry and to provide proper notice to any appropriate tribes, the Bureau of Indian Affairs, and the Secretary of the Interior, pursuant to ICWA, and to submit such notices to the juvenile court. The juvenile court shall thereafter make findings concerning the adequacy of DCFS’s compliance with the ICWA notice provisions and regarding the applicability of ICWA to this case. If no tribe indicates that J.W. is an Indian child, then the juvenile court is ordered to reinstate its order terminating parental rights forthwith. If a tribe indicates J.W. is an Indian child, the juvenile court is ordered to proceed in accordance with ICWA.
We concur: MALLANO, P. J., ROTHSCHILD, J.