Opinion
NOT TO BE PUBLISHED
Monterey County Super. Ct. No. J43192
McAdams, J.
The mother of a dependent child appeals the juvenile court order terminating her parental rights, asserting failure to comply with the Indian Child Welfare Act. We agree that the case must be remanded to secure compliance with the Act.
FACTUAL AND PROCEDURAL BACKGROUND
This appeal involves S.T. (the child). She was born in May 2008 to appellant L.A. (the mother). As revealed by paternity testing and determined by the juvenile court, the child’s father is P.D. (the father). He is not a party to this appeal.
Petition; Detention
This dependency proceeding began in May 2008, when the child was placed in protective custody as a newborn. She was born “six weeks premature” with “a positive toxicological screen for opiates and cocaine.”
On May 8, 2008, a petition was filed on the child’s behalf by the Monterey County Department of Social & Employment Services (the Department). The petition sought dependency jurisdiction over the child pursuant to Welfare and Institutions Code, section 300, subdivision (b). As alleged in the petition: “The mother has a 25-year substance abuse history that began when she was 10 years old and an extensive criminal history dating back to 1991 that impairs her ability to care for her child.” The mother “acknowledged intravenous use of heroin throughout the pregnancy with S[].” The mother has three older children, all in the care of others.
Further unspecified statutory references are to the Welfare and Institutions Code.
On May 9, 2008, the child was detained.
Paternity
J.T. was listed as the child’s father on her birth certificate. In June 2008, at the Department’s request, the court ordered paternity testing for J.T. The test results excluded J.T. as the child’s biological father. The court therefore found that J.T. was not the child’s father, and it dismissed him from the case.
P.D. was identified by the mother as possibly having fathered the child. He requested paternity testing, the Department recommended it, and the court ordered it. According to the test results, there is a 99.98% probability that P.D. is the child’s biological father. In August 2008, the juvenile court declared P.D. the child’s biological father.
Jurisdiction, Disposition, Review Hearings
A combined jurisdiction and disposition hearing was held on August 15, 2008. At the conclusion of that hearing, the court adopted the findings recommended by the Department. The court declared S.T. a dependent child, assumed jurisdiction over her, removed her from parental custody, and ordered family reunification services for both parents. Among the Department’s recommended findings was one concerning the Indian Child Welfare Act (ICWA). Though titled “ICWA does not apply,” the proposed finding states: “It has been suggested to the court or the Department that the child may be an Indian child affiliated with one or more tribes on the father’s side. The Department is in the process of obtaining the necessary information in order to give proper notice to all the tribes in which the child might be a member or eligible for membership.”
The court held two review hearings: a three-month review in November 2008 and a six-month review in February 2009. At the conclusion of the second hearing, the court adopted the findings recommended by the Department, including that the father “has informed the social worker or the court that he does not have Indian heritage” and thus that “the Indian Child Welfare Act does not apply.” The court terminated family reunification services to the parents, and it set a permanency planning hearing.
Permanency Planning
The permanency planning hearing was held on July 10, 2009, as to the father, and on August 14, 2009, as to the mother. The court terminated all parental rights and selected adoption as the child’s permanent plan. The prospective adoptive parent is the paternal grandmother, with whom the child has resided since December 30, 2008.
Appeal
This appeal by the mother ensued. As noted above, the mother asserts lack of compliance with the Indian Child Welfare Act. She seeks reversal and remand for a new hearing under section 366.26.
The Department defends the order.
DISCUSSION
To establish the proper framework for our discussion of the mother’s claims, we begin by summarizing the legal principles that inform our analysis.
I. Indian Child Welfare Act
The Indian Child Welfare Act (ICWA) is a federal law, which is recognized and applied in California. (See, e.g., In re Alice M. (2008) 161 Cal.App.4th 1189, 1197.) Congress enacted the ICWA in 1978. (See 25 U.S.C.A. § 1901 et seq.) Its purpose is to protect the interests of Indian children and to promote the stability and security of Indian tribes and families. (25 U.S.C. § 1902; see, e.g., In re Elizabeth W. (2004) 120 Cal.App.4th 900, 906.)
A. Requirements
“Among the procedural safeguards imposed by the Act is the provision of notice to various parties.” (In re Levi U. (2000) 78 Cal.App.4th 191, 196; accord, In re O.K. (2003) 106 Cal.App.4th 152, 156.) “Notice is a key component of the congressional goal to protect and preserve Indian tribes and Indian families. Notice ensures the tribe will be afforded the opportunity to assert its rights under the Act irrespective of the position of the parents, Indian custodian or state agencies.” (In re Kahlen W. (1991) 233 Cal.App.3d 1414, 1421; accord, In re Alice M., supra, 161 Cal.App.4th at p. 1195.) “A host of subsidiary requirements have been adopted to implement, interpret, and enlarge upon [the ICWA’s] statutory language.” (In re S.B. (2005) 130 Cal.App.4th 1148, 1157.) “These requirements are embodied in” various materials, including binding federal regulations and non-binding federal guidelines. (Ibid.) California implements the ICWA’s notice requirements in statutes and in court rules. (§§ 224-224.6, 290.1-297; Cal. Rules of Court, rules 5.480-5.487.)
In broad brush, the ICWA requires notice “where the court knows or has reason to know that an Indian child is involved” in the dependency proceeding. (25 U.S.C.A. § 1912 (a).) Our state’s statute similarly provides: “If the court, a social worker, or probation officer knows or has reason to know that an Indian child is involved” in the dependency proceeding, notice is required. (§ 224.2, subd. (a); In re Alice M., supra, 161 Cal.App.4th at p. 1197.) “The Indian status of the child need not be certain to invoke the notice requirement.” (In re Desiree F. (2000) 83 Cal.App.4th 460, 471; In re Alice M., supra, 161 Cal.App.4th at p. 1198.) “The determination of a child’s Indian status is up to the tribe; therefore, the juvenile court needs only a suggestion of Indian ancestry to trigger the notice requirement.” (In re Nikki R. (2003) 106 Cal.App.4th 844, 848.)
As a prelude to notice, the law also imposes a duty of inquiry. Pursuant to California law, both the court and the agency “have an affirmative and continuing duty to inquire whether a child... is or may be an Indian child” for ICWA purposes. (§ 224.3, subd. (a); Cal. Rules of Court, rule 5.481(a); In re K.M. (2009) 172 Cal.App.4th 115, 118-119.) According to the federal guidelines, the court is required to “ ‘make inquiries to determine if the child involved is a member of an Indian tribe or if a parent of the child is a member of an Indian tribe and the child is eligible for membership in an Indian tribe.’ ” (In re S.B., supra, 130 Cal.App.4th at p. 1158, quoting 44 Fed.Reg. 67588 (Nov. 26, 1979), italics omitted.)
“ICWA’s notice provisions open the door to the identification of a dependent child as an Indian child and to the tribe’s right to intervene in the proceedings. Furthermore, if the juvenile court has reason to believe the child is an Indian child, it must conduct the proceedings in accordance with ICWA. It is axiomatic that the earlier these issues are resolved, the better.” (In re Nikki R., supra, 106 Cal.App.4th at pp. 852-853.) “While the petitioning agency may have the duty to provide ICWA notice, it is the role of the juvenile court, not the agency, to determine whether the ICWA notice is proper.” (Id. at p. 852.)
B. Appellate Review
“The juvenile court must determine whether proper notice was given under ICWA and whether ICWA applies to the proceedings.” (In re E.W. (2009) 170 Cal.App.4th 396, 403.) “We review the trial court’s findings for substantial evidence.” (Id. at p. 404.)
“A parent in a dependency proceeding is permitted to raise ICWA notice issues not only in the juvenile court, but also on appeal even where, as here, no mention was made of the issue in the juvenile court.” (In re Justin S. (2007) 150 Cal.App.4th 1426, 1435; accord, In re Alice M., supra, 161 Cal.App.4th at p. 1195.) This is true even if the appellant is not the parent claiming Indian heritage. (In re B.R. (2009) 176 Cal.App.4th 773, 779.) “A parent is permitted to litigate the ICWA notice issue to protect the tribe’s interest in the proceedings and because it is in the best interest of the child [who] is the subject of the dependency.” (In re Justin S., at p. 1435.)
Failure to comply with ICWA does not necessarily warrant automatic reversal. As in other areas of the law, a juvenile court order generally cannot be disturbed without a showing of prejudice from the claimed error. (Cal. Const., art. VI, § 13; In re S.B., supra, 130 Cal.App.4th at p. 1162.) “Deficiencies in an ICWA notice are generally prejudicial but may be deemed harmless under some circumstances.” (In re E.W., supra, 170 Cal.App.4th at p. 402.) “An ICWA notice violation may be held harmless... when, even if notice had been given, the child would not have been found to be an Indian child, and hence the substantive provisions would not have applied [citations].” (In re S.B.,at p. 1162.) “Where there is reason to believe a dependent child may be an Indian child, defective ICWA notice is ‘usually prejudicial’ [citation], resulting in reversal and remand to the juvenile court so proper notice can be given.” (In re Nikki R., supra, 106 Cal.App.4th at p. 850.) In such cases, the reviewing court may order reversal with a limited remand to permit proper ICWA notice. (In re Veronica G. (2007) 157 Cal.App.4th 179, 187; In re Alice M., supra, 161 Cal.App.4th at p. 1203.)
II. Application
A. Pertinent Facts
1. ICWA Information at Detention
At the detention hearing held May 9, 2008, the mother and J.T. both completed forms entitled Parental Notification of Indian Status. On the form signed by J.T., an X appears in the box next to the statement “I have no Indian ancestry as far as I know.” On the mother’s form, no boxes are marked.
Formerly, the Parental Notification of Indian Status form was designated numerically as Judicial Council Form JV-130. In 2007, that form was replaced by Judicial Council Form ICWA-020.
2. ICWA Information at Jurisdiction/Disposition
In July 2008, the Department filed a jurisdiction/disposition report. A section entitled “Indian Child Welfare Act Status” reports that the mother “was provided with a [] Parental Notification of Indian Status form in which she indicated that she does not have any Indian Ancestry. Therefore the Indian Child Welfare Act is not applicable as to the mother.” The report also mentions the form completed by J.T., but observes that “paternity testing results conclude that he is not the biological father to S[.]” Finally, that section of the report states: “The mother has named P[.] D[.] as a possible father. The Department is in the process of making efforts to contact him.”
Also contained in the July 2008 jurisdiction/disposition report are recommended findings, including three listed under the heading “ICWA does not apply,” which read: “The mother has appeared in this case. She has completed and filed form ICWA-020 (‘Parental Notification of Indian Status’) and has denied that she has any Indian heritage. [¶] The father has not appeared in the case. The social worker has made reasonable inquiry as to the father’s ethnic heritage and no person has suggested that the father has any Indian heritage. [¶] Therefore, the Indian Child Welfare Act does not apply.”
The Department filed an addendum report filed in August 2008, which again includes a section entitled “Indian Child Welfare Act Status.” That section of the report states: “On August 11, 2008, the undersigned [social worker] spoke to JoEllen D[.], a half-sibling to [the father] Mr. D[.], who stated that Mr. D[.] does in fact have Indian Ancestry. She further stated that her sister Billie Jo J[.] and Mr. D[.] have the same father who is reportedly ‘living on a reservation.’ She provided the undersigned with Ms. J[.]’s phone number; however this number is ‘no longer in service.’ The undersigned mailed a [] Parental Notification of Indian Status and a [] Notification of Mailing Address to Mr. D[.]. These forms will be filed with the Court upon receipt. At this time, it is unknown as to whether the Indian Child Welfare Act is applicable in this case.” As indicated later in the report, the father was then “currently incarcerated at Santa Rita County Jail in California due to a parole violation.”
The August 2008 addendum report contains recommended findings, including two under the heading “ICWA does not apply.” The first repeats the information concerning the mother’s asserted denial of Indian heritage. The second states: “It has been suggested to the court or the Department that the child may be an Indian child affiliated with one or more tribes on the father’s side. The Department is in the process of obtaining the necessary information in order to give proper notice to all the tribes in which the child might be a member of eligible for membership.”
At the hearing on August 15, 2008, without any discussion of the Indian Child Welfare Act, the court adopted all of the findings recommended by the Department.
3. ICWA Information at Six-Month Review
In January 2009, the Department filed a status review report for the 6-month review hearing. Like the Department’s previous reports, it contains a section entitled “Indian Child Welfare Act Status.” That section begins by reasserting the mother’s denial of Indian heritage and reiterating the conclusion that the ICWA is inapplicable as to her. It then continues: “On January 21, 2009, the father, Mr. D[.], stated that he had been led to believe that he had Chippewa Heritage, but that upon independently researching the matter through the tribe in 2007, he was advised that he was not eligible for membership. Mr. D[.] has not completed a JV-130 form to date, but one was mailed to him on January 16, 2009. As such, the Indian Child Welfare Act is not applicable as to the father.”
The status review report contains recommended findings, including three under the heading “ICWA does not apply.” The first again repeats the information concerning the mother’s asserted denial of Indian heritage. The second recommended finding is this: “The father has appeared in the case and has been ordered to file form JV-130/ICWA-020 (‘Parental Notification of Indian Status’). He has not filed the form. However, the father, in person or through his counsel, has informed the social worker or the court that he does not have Indian heritage.” The third states: “Therefore, the Indian Child Welfare Act does not apply.”
At the hearing on February 13, 2009, without any discussion of the Indian Child Welfare Act, the court adopted the findings recommended by the Department.
4. ICWA Information at Permanency Planning
In May 2009, the Department filed its report for the following month’s section 366.26 permanency planning (selection and implementation) hearing. The report states: “During the May 9, 2008, Detention Hearing, [the mother] documented that she did not have Native American ancestry. [The father] no longer considers himself a descendent of a Chippewa Tribe, as his recent personal research determined that he was ineligible for membership. Therefore the Indian Child Welfare Act does not apply to [the child].”
The report recommends that the court make various findings, including three under the heading “ICWA does not apply.” The three recommendations are worded identically to those adopted by the court in February 2009.
The juvenile court conducted the permanency planning hearing over two dates: July 10, 2009 for the father and August 14, 2009 for the mother. The Indian Child Welfare Act was not mentioned at either hearing. At the conclusion of the August 2009 hearing, the court adopted the findings recommended by the Department, including the findings concerning ICWA.
B. Legal Standards
The Indian Child Welfare Act’s notice requirements are set forth in federal statutory provisions, complemented by federal regulations and guidelines and by state statutory provisions and court rules, all as interpreted in case law. Within these authorities, there are some semantic differences in articulating what circumstances trigger the ICWA’s notice requirements.
Under the federal statute’s “notice provisions, if ‘the court knows or has reason to know that an Indian child is involved,’ the social services agency must ‘notify... the Indian child’s tribe, by registered mail with return receipt requested, of the pending proceedings and of their right of intervention.’ [Citation.] ‘If the identity or location of... the tribe cannot be determined,’ the notice need only be given to the BIA [Bureau of Indian Affairs].” (In re S.B., supra, 130 Cal.App.4th at p. 1157, quoting 25 U.S.C.A. § 1912(a).) The applicable state statute likewise requires notice where the court or agency “knows or has reason to know that an Indian child is involved....” (§ 224.2, subd. (a).)
“The ICWA does not define ‘reason to know.’ Neither do the controlling federal regulations.” (In re S.B., supra, 130 Cal.App.4th at p. 1158.) Other authorities offer guidance, however.
Various California authorities shed light on this point, including section 224.3, which provides in pertinent part: “The circumstances that may provide reason to know the child is an Indian child include, but are not limited to, the following: [¶] (1) A person having an interest in the child, including... a member of the child’s extended family provides information suggesting the child is a member of a tribe or eligible for membership in a tribe....” (§ 224.3, subd. (b)(1).) A similar provision appears in the governing state court rule. The federal guidelines likewise contain similar provisions: “The circumstances under which a juvenile court has reason to believe that a child is an Indian child include, but are not limited to, the following: ‘(i) Any party to the case, Indian tribe, Indian organization or public or private agency informs the court that the child is an Indian child. [¶] (ii) Any public or state-licensed agency involved in child protection services or family support has discovered information which suggests that the child is an Indian child.’ ” (In re O.K., supra, 106 Cal.App.4th at p. 156, quoting 44 Fed.Reg. 67584, 67586 (Nov. 26, 1979); see also, Dwayne P. v. Superior Court (2002) 103 Cal.App.4th 247, 255.) Thus, there are “circumstances under which information from a close relative concerning a child’s Indian ancestry would be sufficient to trigger the notice requirements of the ICWA.” (In re O.K., at p. 157.)
That rule is California Rules of Court, rule 5.481, which provides in relevant part: “The circumstances that may provide reason to know the child is an Indian child include the following: [¶] (A) The child or a person having an interest in the child,... or a member of the child’s extended family, informs or otherwise provides information suggesting that the child is an Indian child to the court, the county welfare agency,” or to other enumerated persons. (Cal. Rules of Court, rule 5.481(a)(5).)
California case law “has consistently held that a ‘suggestion’ that the child is an Indian child is sufficient to invoke notice.” (In re Alice M., supra, 161 Cal.App.4th at p. 1198, citing In re Merrick V. (2004) 122 Cal.App.4th 235, 246; In re Nikki R., supra, 106 Cal.App.4th at p. 848; Dwayne P. v. Superior Court, supra, 103 Cal.App.4th at pp. 256-258; but see In re Jeremiah G. (2009) 172 Cal.App.4th 1514, 1520 [“both the federal regulations and the California Welfare & Institutions Code require more than a bare suggestion that a child might be an Indian child”].) “Synonyms for the term suggest include ‘imply,’ ‘hint,’ ‘intimate’ and ‘insinuate.’ ” (Dwayne P., at p. 258, quoting American Heritage Dict. (college ed. 1981) p. 1287.) “The showing required to trigger the statutory notice provisions is minimal; it is less than the showing needed to establish a child is an Indian child within the meaning of ICWA. A hint may suffice for this minimal showing.” (In re Miguel E. (2004) 120 Cal.App.4th 521, 549, citations omitted.)
The juvenile court and the child welfare agency thus have reason to know that a dependent minor may be an Indian child when information suggesting that status is presented by extended family members or others with an interest in the child. In such cases, “the social worker must further inquire regarding the child’s possible Indian status. Further inquiry includes interviewing the parents, Indian custodian, extended family members or any other person who can reasonably be expected to have information concerning the child’s membership status or eligibility. (§ 224.3, subd. (c).) If the inquiry leads the social worker or the court to know or have reason to know an Indian child is involved, the social worker must provide notice. (§§ 224.3, subd. (d), 224.2, subd. (a)(5)(A)-(G).)” (In re Shane G. (2008) 166 Cal.App.4th 1532, 1539.)
C. Analysis
Applying those standards to the facts of this case, we conclude that the Department failed to satisfy its obligations under the Indian Child Welfare Act. As we explain, (1) the initial information provided to the Department triggered a duty of further inquiry and a duty to give ICWA notices; (2) nothing in the subsequent information provided by the father effectively rebutted the suggestion that S.T. is or may be an Indian child; and (3) the court thus erred in finding the ICWA inapplicable.
1. Initial Information Suggesting Indian Heritage
As explained above, the agency has “reason to know the child is an Indian child” when “a member of the child’s extended family provides information suggesting the child is a member of a tribe or eligible for membership in a tribe....” (§ 224.3, subd. (b)(1); see also Cal. Rules of Court, rule 5.481(a)(5)(A).)
Such information was provided in this case, based on the father’s possible Indian ancestry. The August 2008 addendum report reflects statements by the father’s half-sibling, Jo-Ellen D., that the father “does in fact have Indian Ancestry” and that his father (the paternal grandfather) “is reportedly ‘living on a reservation.’ ” At the very least, this information is sufficient to trigger further inquiry. As this court recently confirmed, “the duty to inquire is triggered by a lesser standard of certainty regarding the minor’s Indian child status (‘is or may be involved’) than is the duty to send formal notice to the Indian tribes (‘is involved’).” (In re Alice M., supra, 161 Cal.App.4th at p. 1200.) But the “distinction between inquiry and notice is intended only to provide additional guidance regarding the affirmative duty to inquire set forth in section 224.3.” (Ibid.) In cases where “vague or ambiguous information is provided regarding Indian heritage or association..., inquiry is necessary before any attempt at notice to a specific tribe even can be made.” (Ibid.)
Concerning the mother, the Department’s reports indicate that she denied any Indian ancestry. But in fact, her ICWA-020 form makes no affirmative statement concerning her ancestry; no boxes are marked. Given the lack of any objection below, however, it may be “fairly inferable” that the mother in fact disclaimed any Indian ancestry for herself. (In re S.B., supra, 130 Cal.App.4th at p. 1161.) In any event, the mother makes no appellate claim that she has Indian ancestry. (See In re Rebecca R. (2006) 143 Cal.App.4th 1426, 1431.) We therefore address only the father’s possible Indian ancestry here.
The concrete nature of the information presented here distinguishes this case from In re O.K., supra, 106 Cal.App.4th 152. In that case, the paternal grandmother’s statement “that the father ‘may have Indian in him’ was not based on any known Indian ancestors but on the nebulous assertion that ‘where were [sic] from is that section....’ This information was too vague and speculative to give the juvenile court any reason to believe the minors might be Indian children.” (Id. at p. 157; accord, In re Aaron R. (2005) 130 Cal.App.4th 697, 707 [“grandmother’s brief allusion to her own membership in an historical association falls far short of giving the court reason to know that Aaron may be an Indian child”].) In our case, by contrast, the father’s half-sibling affirmatively stated both that the family had Indian ancestry and that the paternal grandfather resided on a reservation.
Given the available information here, the Department was under a duty to send ICWA notices or, at a minimum, to effectively inquire further into the matter.
a. Duty of Further Inquiry
“ICWA does not require further inquiry based on mere supposition.” (In re K.M., supra, 172 Cal.App.4th at p. 119 [speculation that “maternal great-grandmother might have provided information about possible heritage in some other Indian tribe”].) But more than mere supposition is at play here. In this case, concrete information from an extended family member suggests that S.T. is or may be an Indian child. Given this information, the Department was under a duty to “further inquire regarding the child’s possible Indian status” by “interviewing the parents, Indian custodian, extended family members or any other person who can reasonably be expected to have information concerning the child’s membership status or eligibility.” (In re Shane G., supra, 166 Cal.App.4th at p. 1539; cf. In re S.B., supra, 130 Cal.App.4th at p. 1161 [“initial inquiry need only be made to the parents”].)
Here, the Department’s efforts at further inquiry consisted of (1) sending the father ICWA forms to complete and (2) making a single unsuccessful attempt to contact another family member, Billie Jo J., whose number was no longer in service. There is no indication that the Department sought further information from other paternal relatives – even those actively involved in the case, which included the paternal grandmother and two aunts, Melissa D. and Jo-Ellen D. As stated in the Department’s January 2009 status review report: “The aunts frequently visited, along with the grandmother, at the Department’s offices.”
The record provides no explanation for the Department’s lack of follow-up. (See In re Nikki R., supra, 106 Cal.App.4th at p. 855 [reviewing court could not determine “whether more and better avenues of information” were available to agency]; cf. In re K.M., supra, 172 Cal.App.4th at p. 119 [“Agency attempted on several occasions to elicit further information from the child’s family, but was unsuccessful due to the family’s hostility toward the Agency”].) Nor did the juvenile court ensure compliance with that duty. (Cf. In re E.H. (2006) 141 Cal.App.4th 1330, 1335 [inquiry duty satisfied given “the trial court’s exhortation at each hearing in this matter that the parents disclose membership in any Indian tribe”]; In re Rebecca R., supra, 143 Cal.App.4th 1430 [inquiry duty satisfied where both “the reporter’s transcript and the court’s minutes reflect the trial court’s order to DCS to inquire whether the child had Indian ancestry”].)
b. Obligation to Send Notices
Even without further inquiry, the initial information given to the Department here provided a sufficient suggestion of Indian ancestry to trigger ICWA’s notice provisions. That conclusion is supported by In re Alice M., supra, 161 Cal.App.4th 1189. There, the mother of the dependent minor Alice “answered ‘American Indian, Navajo-Apache’ in response to the query whether Alice ‘is or may be a member of, or eligible for membership in, a federally recognized Indian tribe.’ Alice’s father denied any Indian heritage.” (Id. at p. 1194.) This court concluded that “the available information regarding Alice’s Indian ancestry suggests that Alice is a member of or is eligible for membership in an identified Indian tribe (one of the federally recognized Apache or Navajo tribes) and, thus, notice was required.” (Id. at p. 1200; see also, e.g., In re Nikki R., supra, 106 Cal.App.4th at p. 852 [“both parents indicated they might have Indian heritage”].) Here, too, the available information – that the family has Indian ancestry and that the paternal grandfather resides on a reservation – suggests the child’s status as an Indian child.
Nor did later information provided by the father serve to refute this initial suggestion of Indian ancestry, as we now explain.
2. Later Information Concerning Indian Heritage
As reflected in the Department’s January 2009 status review report, the father’s research into his possible Chippewa ancestry indicated that he was “was not eligible for membership.” In the recommendations contained in that report, however, the Department transmogrified his lack of eligibility for tribal membership into a statement that the father had “informed the social worker or the court that he does not have Indian heritage.” In a similar vein, the Department’s May 2009 permanency planning report states that the father “no longer considers himself a descendent of a Chippewa Tribe, as his recent personal research determined that he was ineligible for membership. Therefore the Indian Child Welfare Act does not apply to [the child].”
In the first place, the father’s ineligibility for tribal membership does not rule out the possibility that he has Indian ancestry. Employing the words of the Department’s May 2009 report, the father could still be “a descendent of a Chippewa Tribe,” even though “he was ineligible for membership.” That being so, there is no evidentiary basis for the finding that the father “informed the social worker or the court that he does not have Indian heritage.”
The continuing possibility of the father’s Indian ancestry distinguishes this case from In re Jeremiah G., supra, 172 Cal.App.4th 1514. In that case, “paternity was declared on December 6, 2007. On that same day, father was asked if he had any Native American heritage. He answered: ‘That’s a possibility. That needs to be researched. [¶]... [¶]... My great grandfather was Indian. I don’t know if he was part of a tribe or not.’ Thus, the juvenile court asked appointed counsel to assist father in filling out the ‘Parental Notification of Indian Status’ form (JV-130). On the form, father indicated he might have Indian ancestry.” (Id. at p. 1518.) Three weeks later, on December 27th, the father “filled out a second JV-130 form and stated he did not have any Indian heritage.” (Id. at p. 1519.) At a hearing that day, “the juvenile court found that father had no Native American heritage.” (Ibid.) At a later hearing attended by all parties and counsel, the court addressed the issue of the father’s Indian heritage. (Ibid.) “When asked to clarify father’s position, father’s counsel stated: ‘[F]ather is saying... that he did at first claim that there was a possibility, but then that he retracted that and said that he was not and that’s possibly what happened on the 27th when there was – it was discussed that the father does not have Indian heritage.’ At that point, everyone agreed father does not have Native American heritage.” (Ibid.) Rejecting the mother’s appellate claim that the juvenile court failed to comply with the Indian Child Welfare Act, the court held: “Because father retracted his claim of Indian heritage, and because there was no other basis for suspecting that Jeremiah might be an Indian child, the trial court properly proceeded without ICWA notice.” (Id. at p. 1521.)
In this case, by contrast, there was no retraction and no agreement that the father lacked Indian ancestry. To the contrary, the father did not deny Indian ancestry; he merely informed the Department that was ineligible for membership in the Chippewa Tribe.
Just as the father’s ineligibility for tribal membership does not rule out his own possible Indian ancestry, it does not necessarily dictate the child’s status under the Indian Child Welfare Act.
The Indian Child Welfare Act “focuses on ‘membership’ rather than racial origins.” (In re B.R., supra, 176 Cal.App.4th at p. 783.) The definition of “Indian child” in the federal statute “does not by its own literal language require either that the child’s biological parents be members of a tribe or that one of the child’s biological parents have tribal ancestry.” (Ibid., discussing 25 U.S.C.A. § 1903(4).) Thus, for example, dependent minors who were “grandchildren by adoption of an ancestor with Indian blood” were not automatically excluded as Indian children. (In re B.R., at p. 783.) “In incorporating the ICWA requirements into state law, the California Legislature explicitly found and declared that tribal membership is a question of political affiliation and that a tribe’s determination of its membership is binding on the state....” (Ibid., citing § 224, subd. (c) .)
For these reasons, the law demands a particularized inquiry into the specific child’s status. “A determination of tribal membership is made on an individual basis, and blood quantum is not determinative.” (In re Desiree F., supra, 83 Cal.App.4th at p. 470 [“letter from the former tribal chairman stating Desiree’s half siblings were not members of the Tribe could not reasonably be relied upon as determinative of Desiree’s status”].) “The juvenile court and the county welfare department have an affirmative duty to inquire whether the child subject to the dependency petition is or may be an Indian child.” (Ibid.) “It follows, therefore, that relying upon a letter predating the birth of the child subject to the dependency petition does not satisfy the affirmative duty to inquire regarding the particular child before the court.” (Ibid.)
3. Failure to Act on the Information
The information in this case at least suggests that S.T. is an Indian child. It thus triggered ICWA’s notice requirements. (In re Alice M., supra, 161 Cal.App.4th at p. 1200; In re Shane G., supra, 166 Cal.App.4th at p. 1539.) Because the Department failed to act on the information by effectively engaging in further inquiry or by providing notice as required by the ICWA, and because the juvenile court failed to secure compliance with the Act’s requirements, “the matter must be remanded for reconsideration after proper statutory notice is given.” (Dwayne P. v. Superior Court, supra, 103 Cal.App.4th at p. 258.)
DISPOSITION
The orders terminating parental rights are reversed. The matter is remanded to the juvenile court, with directions to order the Department to provide notice in accordance with the Indian Child Welfare Act. After proper notice, if the court finds that S.T. is an Indian child, it shall proceed in conformity with the ICWA. After proper notice, if the court finds that S.T. is not an Indian child, the orders terminating parental rights and selecting adoption as the permanent plan shall be immediately reinstated.
WE CONCUR: Premo, Acting P.J. Elia, J.
This rule has been in place since January 1, 2008. It was preceded by rules 1439 and 5.664. “Effective January 1, 2007, the California Rules of Court were renumbered; and rule 1439 became 5.664. Effective January 1, 2008, former rule 5.664 was repealed and replaced, in part, with current rule 5.481.” (In re H.B. (2008) 161 Cal.App.4th 115, 121, fn. 5.)
All further rule references in this opinion are to the California Rules of Court.