Opinion
B331285
04-04-2024
In re SAVANAH H. et al., Persons Coming Under the Juvenile Court Law. v. K.B., Defendant and Appellant. LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent,
Maryann M. Goode, under appointment by the Court of Appeal, for Defendant and Appellant. Dawyn R. Harrison, County Counsel, Kim Nemoy, Assistant County Counsel, and Peter Ferrera, Principal Deputy County Counsel, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Los Angeles County, No. DK05739 Craig S. Barnes, Judge. Affirmed.
Maryann M. Goode, under appointment by the Court of Appeal, for Defendant and Appellant.
Dawyn R. Harrison, County Counsel, Kim Nemoy, Assistant County Counsel, and Peter Ferrera, Principal Deputy County Counsel, for Plaintiff and Respondent.
KIM, J.
I. INTRODUCTION
In a prior appeal in this matter (In re Savanah H., et al. (June 24, 2022, B316015), K.B. (mother) contended the juvenile court and the Los Angeles County Department of Children and Family Services (Department) failed to satisfy their inquiry duties under the federal Indian Child Welfare Act of 1978 (ICWA, 25 U.S.C. § 1901 et seq.) and related California statutes (Welf. & Inst. Code § 224 et seq.). The panel majority agreed and conditionally reversed the court's order terminating mother's parental rights pursuant to section 366.26 and remanded for ICWA compliance. Following further proceedings on remand, the court reinstated its termination order. Mother appeals, claiming ICWA error. We affirm.
On our own motion, we take judicial notice of the prior opinion. (Evid. Code, § 452, subd. (d).)
All further statutory references are to the Welfare and Institutions Code unless otherwise noted.
Justice Baker dissented from the panel majority's ICWA holding.
II. BACKGROUND
A. Prior Appeal
The following background facts are taken from the panel majority's prior opinion in this matter, In re Savanah H., et al., supra, B316015:
"On July 11, 2014, the Department filed an amended section 300 petition that alleged, as later amended and sustained, that father M.M.[fn. omitted] physically abused then two-year-old Savanah and threatened to kill her, and mother failed to protect the child from father's abuse. The petition further alleged mother and father had a history of engaging in violent altercations in Savanah's presence-all of the identified conduct concerned father's domestic abuse of mother-and mother failed to protect the child from the domestic abuse. Finally, the petition alleged that father had a history of mental and emotional problems that rendered him incapable of providing Savanah with regular care and supervision and mother knew of father's condition but failed to protect the child.
"The Department's May 27, 2014, Detention Report stated, 'The Indian Child Welfare Act does not apply per . . . mother . . . on 05/09/14.' Mother had 'mild retardation with complications of a brain disorder.'
"Maternal stepgrandmother C.B. told a social worker that mother had special needs and had always been placed outside of her parents' home. Maternal great-grandparents raised mother and had a guardianship over her to help her with her special needs. When mother reach[ed] the age of majority, maternal great-grandparents obtained a conservatorship over her. After maternal great-grandparents died, maternal great-aunt A.B. assumed the role of mother's conservator.
"According to maternal stepgrandmother, maternal grandmother E.K. lived in another state and had mental health issues-'"she is crazy."' Mother had several brothers and sisters, 'but none of them have contact with her.'
"On June 13, 2014, mother filed a Parental Notification of Indian Status form stating she might have Indian ancestry. She wrote, 'Tribe unknown, on my birth-mother's side. I do not have her contact number. She told me we have "Indian in me".'
"At a hearing on June 13, 2014, mother's counsel stated that mother knew someone who 'might be able to get in touch with [maternal grandmother].' The juvenile court ordered the Department to investigate mother's claimed Indian ancestry and ordered mother to continue to provide the Department with information to enable it to conduct an appropriate ICWA investigation.
"The same day, father filed a Parental Notification of Indian Status form stating he had no Indian ancestry as far as he knew. The juvenile court found ICWA did not apply as to father.
"The Department's June 13, 2014, Jurisdiction/Disposition Report stated that ICWA did not apply. It reported that '[o]n 06/04/2014, [a dependency investigator] inquired with . . . mother as to any American Indian [h]eritage. [M]other denied American Indian heritage.'
"On June 21, 2014, the dependency investigator contacted maternal stepgrandmother [about] her effort to speak with maternal grandfather R.B. about the family's Indian ancestry. Maternal grandfather was not home. Maternal stepgrandmother stated that maternal grandfather was German and English and had no '"Indian blood from his mom or dad's side of the family."'
"Maternal stepgrandmother was unsure, but believed maternal grandmother's family did not have Indian ancestry. Maternal stepgrandmother reported that she had Indian ancestry and suggested that mother might have gotten confused because she considered maternal stepgrandmother to be a mother figure. Maternal stepgrandmother was not a blood relation to mother or Savanah.
"On June 21, 2014, the dependency investigator contacted maternal great-aunt A.B. to inquire about mother or Samantha's Indian ancestry. Maternal great-aunt stated that she could 'confirm with certainty that there [was] "no blood line of American Indian on either side of [mother's] family."'
"At the July 10, 2014, jurisdiction hearing, the juvenile court found it did not have a reason to know that Savanah was an Indian child. It ordered mother and father to keep the Department and their attorneys aware of any new information relating to possible ICWA status.
"The Department's September 15, 2015, Status Review Report stated that mother and father 'continued to deny any American Indian [h]eritage.'
"On June 13, 2016, the Department filed a section 300 petition on behalf of three-week-old Emma that alleged, as later amended and sustained, that mother and father had a history of domestic disputes and physical altercations in Savanah's presence; father had struck mother, inflicting injuries; and mother demonstrated an inability to protect Savanah.
Mother and father pleaded no contest to the petition.
"The Department's June 10, 2016, Detention Report stated that during interviews on May 19, 2016, mother and father denied having American Indian ancestry.
"On June 13, 2016, mother and father filed Parental Notification of Indian Status forms stating that they did not have Indian ancestry as far as they knew. At the June 13, 2016, detention hearing, the juvenile court found ICWA did not apply.
"On August 10, 2016, mother and father informed the dependency investigator in Emma's case that they did not have American Indian ancestry.
"On August 31, 2016, father filed a Parental Notification of Indian Status form with respect to Savanah and Emma stating that he might have Indian ancestry. Father wrote, 'Cherokee, my cousin [B.C.] just informed me . . . it is through my mother who is deceased.' Father provided B.C.'s telephone number.
"In its August 31, 2016, Jurisdiction/Disposition Report, the Department stated that maternal grandmother and maternal grandfather separated when mother was a baby. Maternal grandfather married maternal stepgrandmother when mother was three years old. Maternal grandmother remarried and currently resided in Arkansas. Mother had eight half siblings, seven of whom were alive. Mother stated she had a distant relationship with maternal grandmother and her half siblings. She had not spoken to maternal grandmother since 2012 or 2013.
"Father reported paternal grandfather cheated on paternal grandmother multiple times and, as a result, father had 11 half siblings. Father did not have a relationship with his half siblings and did not know their names.
"In its August 31, 2016, minute order, the juvenile court noted that father was 'claiming possible Native American heritage.' (Emphasis omitted.) It found that it had no reason to know that 'the child [Emma]' fell under ICWA. (Emphasis omitted.) It ordered the Department to investigate father's claim and provide the court with a report on its investigation that included the persons interviewed and dates and places of birth of relatives as far back as could be ascertained. The court would then determine whether that information triggered notice requirements.
"In its October 27, 2016, Addendum Report in response to the juvenile court's order that it further investigate father's claimed Indian ancestry, the Department reported that father told a dependency investigator on September 7, 2016, '"I don't have any information to give you. My cousin told me that I was 1/2 German, 1/2 Italian, and 65% Cherokee."' Father did not know if his Cherokee ancestry was his father's or mother's side.
"Father told the dependency investigator that because paternal grandmother passed away in December 2015 and paternal grandfather passed away in 1993, he was unable to obtain any further information. Father said he recently came into contact with his cousin B.C. who said he had Cherokee ancestry. Father provided B.C.'s telephone number to the Department. Father did not have contact information for any other relatives.
"The same day, the dependency investigator spoke with B.C. B.C. stated that his mother, S.J., and father's mother were sisters. S.J. was born in 1959-B.C. did not know the exact date. He believed she was born in Fontana, California. B.C. had not had contact with S.J. in about 12 years and did not know her contact information or whereabouts. B.C. was unsure if his family had Indian ancestry, but had been told his mother was Cherokee, Irish, and Italian. He did not know if his family was registered with the Cherokee tribe. B.C. provided the names of his deceased maternal grandparents. He did not know their dates of birth. He was not close to his family and did not have contact information for any other relatives.
"The dependency investigator asked father if he had S.J.'s contact information. He did not, but said he would notify the investigator if he obtained further information.
"On June 5, 2017, the Department filed a section 342 petition that alleged, as later amended and sustained, that father physically abused Savanah and mother and father had an unresolved history of engaging in physical altercations. At the November 1, 2017, adjudication and review hearing, the juvenile court set the matter for a section 366.26 permanency planning hearing on February 28, 2018, as to Savanah and Emma.
"In its February 13, 2018, section 366.26 report, the Department reviewed the ICWA information previously presented to the juvenile court. As to father's claimed Indian ancestry, it stated, '[F]ather was unable to provide concrete information regarding his American Indian heritage. Thus, no additional notices were required by the [c]ourt.'
"At the February 28, 2018, section 366.26 hearing, the juvenile court noted that the information concerning father's claimed Indian ancestry was 'pretty vague,' but 'in [an] abundance of caution,' it ordered the Department to send ICWA notices to the Cherokee tribes, the Bureau of Indian Affairs, and the Secretary of the Interior concerning father's claimed Indian ancestry. The Department was to submit all notices, return receipts, and any responses to the court. The court continued the matter to May 30, 2018.
"On May 2, 2018, the juvenile court ordered all counsel to 'to investigate any previous ICWA findings in this matter.'
"At the May 30, 2018, section 366.26 hearing, the juvenile court continued the matter to September 24, 2018, because the Department had not yet sent the ICWA notices.
"In a Last Minute Information for the Court for a hearing on September 24, 2018, the Department reported that it mailed ICWA notices to mother, father, and the Eastern Band of Cherokee Indians on May 24, 2018. The Eastern Band of Cherokee Indians responded that neither Savanah nor Emma was registered or eligible to register as a member of the tribe.
"The same day, the Department mailed ICWA notices to the United Keetoowah Band of Cherokee Indians, the Cherokee Nation, the Secretary of the Interior, and the Bureau of Indian Affairs. The Department received signed proofs of service for each of these notices, but no responses as to Savanah's or Emma's ICWA eligibility or possible registration.
"The Department's ICWA notices are not contained in the juvenile court's file.
"On September 7, 2018, a social worker sent e-mails to the United Keetoowah Band of Cherokee Indians and the Cherokee Nation following up on the Department's earlier IWCA notices. The Department did not receive responses to the e-mails and concluded that it was 'probable that neither child is ICWA eligible' as more than 90 days had passed since the tribes received the ICWA notices.
"At the September 24, 2018, section 366.26 hearing, the juvenile court found that ICWA notice was proper and that ICWA did not apply with respect to either child.
"At the August 28, 2019, permanency planning review hearing, mother's counsel stated that maternal grandmother, who lived in Arkansas, expressed a desire to have Samantha and Emma placed with her and asked that maternal grandmother be assessed for placement.
"On October 15, 2021, the juvenile court terminated mother's and father's parental rights to Savanah and Emma."
The prior panel majority of this court held there was ICWA error. It conditionally reversed the order terminating mother's parental rights and remanded the case to the juvenile court to order the Department to interview maternal grandmother-to the extent she was still available-about the possibility of Indian ancestry through mother and to report on the results of the Department's investigation. Based on the information presented, if the juvenile court determined that no additional inquiry or notice to tribes was necessary, the order terminating mother's parental rights was to be reinstated. If additional inquiry or notice was warranted, the court was to make orders consistent with ensuring compliance with ICWA and related California law.
Because the potential Indian ancestry of mother's family was the focus of our direction on remand and mother's appeal, our background primarily addresses mother's family and not father's.
On September 6, 2022, the juvenile court ordered the Department to interview maternal grandmother regarding any possible "Native American Heritage." It was to prepare a Last Minute Information for the Court (LMI) report addressing maternal grandmother's ICWA interview. The court set the matter for an October 26, 2022, progress hearing to address the Department's ICWA investigation.
The Department's October 25, 2022, LMI report stated that a social worker interviewed mother on July 8, 2022, regarding ICWA. Mother stated she was "mixed Cherokee Nation and Apache." Maternal great-grandfather, W.J.W., Sr., was from Oklahoma, but she did not know his date of birth. Mother did not have any other "knowledge of tribes, any relatives who lived on tribal land or reservation[s], [or] any other individuals that may have such knowledge." Mother gave the social worker maternal grandmother E.K.'s name, telephone number, and address.
On July 8, 2022, the social worker spoke with maternal grandmother. Maternal grandmother reported she was "Cherokee Nation and [a] tiny bit of Apache." Maternal greatgrandfather "was a member" and chief in the Cherokee Nation who lived on tribal lands or a reservation. She did not know maternal great-grandfather's date of birth but believed he was about 90 years old. Maternal grandmother "was unable to provide any further information as to anyone who might know additional information."
On July 27, 2022, the social worker interviewed maternal grandmother about ICWA. Maternal grandmother provided her date of birth, birth location, and birth name. She stated she was adopted when she was 15 months old by P.S. and L.S., both of whom were deceased. Maternal grandmother had one adopted sibling, L.S., Jr. L.S., Jr. was "from Texas," but she did not have any contact information for him.
Maternal grandmother stated mother's father, maternal grandfather, G.S., passed away five years earlier. She did not know maternal grandfather's date of birth or death. Maternal grandmother identified by name and date of birth seven of her other children, but did not provide any contact information. She stated no one had information about her father.
As noted in the prior opinion, and as the record otherwise reflects, maternal grandfather was R.B.
Maternal grandmother learned of maternal greatgrandfather on ancestry.com. He currently lived in Modesto, California. He was "Indian America[n]-Cherokee."
On October 11, 2022, the social worker spoke with mother. Mother did not have any additional ICWA information.
On October 18, 2022, concerning Emma's possible membership in the Cherokee Nation, the Department sent ICWA notices to the Bureau of Indian Affairs, the Secretary of the Interior, and the Cherokee Nation. The notice included mother's name, current address, former addresses, and date of birth; maternal grandmother's name, current address, and date of birth; and maternal great-grandfather's name, whom it listed as maternal grandfather.
On October 21, 2022, the social worker spoke with maternal stepgrandmother. Maternal stepgrandmother stated she had raised mother since the age of three and had no ICWA information. Maternal grandfather R.B. had no Indian ancestry. The social worker attempted to speak with maternal grandfather, but he was not home.
On October 21, 2022, the social worker spoke with maternal grandmother. Maternal grandmother "did not have any information and did not provide any other relatives information."
At the October 26, 2022, progress hearing, the juvenile court ordered the Department to interview the parents and relatives about ICWA and to prepare a report for a hearing on January 10, 2023.
The Department's January 6, 2023, LMI report stated it had received a response letter from the Cherokee Nation. The letter, dated November 15, 2022, stated, "The child is/children are NOT an 'Indian child/children' in relation to the Cherokee Nation as defined in the Federal Indian Child Welfare Act, 25 U.S.C. Section 1903(4). Therefore, the Cherokee Nation does not have legal standing to intervene based on the information exactly as provided by you. Any incorrect or omitted information could invalidate this determination." The tribe's letter identified both children.
On December 28, 2022, the social worker spoke with mother who stated she did not have any updates and did not have any other relative contact information. The same day, the social worker spoke with maternal grandmother who stated she did not have any updates. Maternal grandmother also stated she did not have any other relative contact information. She said another deceased relative, B.R.W., had lived on the Cherokee Nation reservation. She did not have B.R.W.'s date of birth.
On January 5, 2023, the social worker again asked mother if she had any updates. Mother did not. The social worker also spoke with father who denied any knowledge of "ICWA" in the family. He said maternal grandmother had "made up stories in the past as she used to struggle with substance abuse." He advised the Department not to trust "the information" as it was false.
Finally, the social worker spoke with maternal grandmother who said she had no additional information about her Indian "heritage" or additional relatives with such information. She would call the social worker if she received any updates. The social worker asked maternal grandmother how she learned about the information concerning B.R.W. as she had not previously reported it. Maternal grandmother said she would find out that day and call the social worker.
At the January 10, 2023, progress hearing, the juvenile court expressed concern about the qualifying language in the Cherokee Nation's response letter and wondered if further efforts were necessary. In "an abundance of caution," the Department's counsel agreed, appearing to state the tribe had not been given information about B.R.W. The court ordered the Department to notice all the Cherokee tribes, contact the Cherokee Nation to clarify what it meant when it stated its response was based on the information the Department provided, and interview mother to obtain further information about any relatives who had not previously been identified. It set the matter for a progress hearing on April 11, 2023.
According to the Department's progress report for the April 11, 2023, hearing, the social worker spoke with mother on March 21, 2023, about the children's ICWA status. Mother reported she had no updates regarding the children's "heritage." The same day, the social worker called maternal grandmother to inquire about any ICWA updates. Maternal grandmother did not answer.
On March 22, 2023, the social worker spoke with the Cherokee Nation's eligibility unit supervisor to clarify the tribe's November 15, 2022, response letter. The supervisor "reported that regarding the information gathered and provided the children Savanah . . . and Emma . . . are not in the tribal registry and are not considered 'Indian children' as the [(sic)] defined by federal law."
The Department further reported it had sent notices to the Cherokee Nation, the Eastern Band of Cherokee Indians, and the United Keetoowah Band of Cherokee Indians in Oklahoma (the three Cherokee tribes), the Bureau of Indian Affairs, and the Secretary of the Interior.
The Department's March 2, 2023, ICWA notices stated the children were or might be eligible for membership in the three Cherokee tribes. The Department sent Savanah's notice to the Bureau of Indian Affairs, the Secretary of the Interior, and the three Cherokee tribes. It sent Emma's notice to the Bureau of Indian Affairs, the Secretary of the Interior, and the Cherokee Nation.
Savanah's notice provided mother's name, current and former addresses, and date of birth; maternal grandmother's name, alias, current address, and date of birth; and maternal great-grandfather's name, whom it listed as maternal grandfather. It also listed, under "Other relative information," B.R.W., whose last name it misspelled. Emma's notice included the same information as Savanah's notice, but did not include maternal grandmother's date of birth or maternal greatgrandfather's name.
On March 8, 2023, the Eastern Band of Cherokee Indians sent a letter to the Department stating that Savanah was not considered an Indian child as to the tribe and was neither registered nor eligible to register as a member of the tribe.
At the April 11, 2023, progress hearing, the juvenile court stated the Department sent notice to all three Cherokee tribes and had received responses from the Cherokee Nation and Eastern Band of Cherokee Indians who indicated the children were not eligible for membership. The court stated it would continue the hearing to wait for a response from the United Keetoowah Band of Cherokee Indians in Oklahoma.
The juvenile court then asked mother if there were any relatives who could shed further light on her or the children's potential membership in the three Cherokee tribes. Mother responded there were not. Mother stated that she believed her biological maternal great-grandmother had Apache ancestry. Mother added, "[N]one of them are living." Mother did not know to which Apache tribe maternal great-grandmother belonged, but would try to obtain that information from her mother-no other relatives had any pertinent information. The court ordered the Department to provide notice to the "various Apache Tribes" and to interview maternal great-grandmother concerning any Apache ancestry. The court continued the matter to June 7, 2023.
According to the Department's progress report for the June 7, 2023, hearing, the social worker spoke with mother on April 27, 2023. Mother stated she had completed an ancestry.com kit. The results showed a mix of ancestries, none of which were Native American. Mother stated she would be "looking at other test[s]."
On April 25, 2023, the Department sent notices to "all Apache tribes," the United Keetoowah Band of Cherokee Indians tribe, the Bureau of Indian Affairs, and the Secretary of the Interior. The notices stated the children were or might be eligible for membership in the Apache tribes or the United Keetoowah Band of Cherokee Indians tribe.
As to Emma, the Department sent notices to the Fort Sill Apache Tribe of Oklahoma; the Jicarilla Apache Nation, New Mexico; the Mescalero Apache Tribe; the San Carlos Apache Tribe; the Tonto Apache Tribe; the White Mountain Apache Tribe of the Fort Apache Reservation; and the Yavapai-Apache Nation. As to Savanah, the Department sent notices to the same tribes, but also sent notice to the Apache Tribe of Oklahoma.
Savanah's notice also included possible membership in the Apache Tribe of Oklahoma.
The notices provided mother's name, current and former addresses, and date of birth; maternal grandmother's name, alias and current address (unlike the March 2, 2023, notices to the Cherokee tribes, her date of birth was not included); and maternal great-grandfather's name. They also listed, under "Other relative information," B.R.W., whose last name it again misspelled.
The Department reported it had not received a response from the United Keetoowah Band of Cherokee Indians. On May 31, 2023, the social worker contacted that tribe's ICWA director who stated she had not sent the response because she had not received a return envelope. The director confirmed Savanah was not a member. As to Emma, the director was unable to find the notice, and stated it was still being processed.
On May 4, 2023, the Department received a response from the Tonto Apache Tribe as to Emma stating, "Based on the information that you have provided, the above named person(s) is not enrolled, and is not eligible for enrollment into the Tonto Apache Tribe. There is no indication of ancestral history with the Tonto Apache Tribe. Therefore, the Tribe does not intend to involve itself in any court proceedings."
On May 11, 2023, the Department received a response from the Jicarilla Apache Nation as to the children and mother stating, "The children are not enrolled or eligible for enrollment with Jicarilla Apache Nation. The mother is not an enrolled member of the Jicarilla Apache Nation." The same day, it also received a letter from the Yavapai Apache Nation as to Emma stating, "Based on the information received, the listed individuals are not members of the Yavapai-Apache Nation. The child/ren Emma . . . is not enrolled, and is not eligible for enrollment into the Yavapai-Apache Nation based on the information provided. Therefore, the Nation does not intend to involve itself in any court proceedings."
On May 16, 2023, the Department received a response from the Fort Sill Apache Tribe of Oklahoma as to the children stating, "'Based upon the information provided in your inquiry into the membership/eligibility of the above child(ren) or person(s) with the Fort Sill Apache Tribe, we have consulted with enrollment staff and found that none of the family members whom you identified can be linked to the Fort Apache Tribe. The above child(ren) or person(s) are not eligible for tribal membership."
On May 31, 2023, the social worker spoke with mother about the children's ICWA status. Mother did not have any updates. The same day, the social worker called maternal grandmother to inquire about any additional Apache information or updates on the children's ICWA status. Maternal grandmother did not answer.
At the June 7, 2023, progress hearing, the juvenile court stated the Department had received responses from each of the Apache tribes and from the United Keetoowah Band of Cherokee Indians, and each of their responses indicated the children were not eligible for tribal membership. Mother had not provided the identity of any other relatives who might have information about possible Indian ancestry. The court stated mother's ancestry.com analysis did not include Native American ancestry.
The juvenile court asked mother's counsel if there were any relatives who needed to be interviewed about the ICWA issue. Counsel responded, "No, Your Honor. I don't have anything to add. I wasn't aware that this matter was on calendar today; so I've not spoken directly to [mother]. But apparently she has provided information to the Department, and I have nothing to add."
Based on the Department's "due diligence efforts, and the responses from the respective tribes," the juvenile court found it had no reason to believe ICWA applied to the children. Accordingly, it reinstated the order terminating parental rights.
III. DISCUSSION
A. Duty of Notice
We review a juvenile court's ICWA notice findings for substantial evidence. (In re Y.M. (2022) 82 Cal.App.5th 901, 909.)
"ICWA and related California law define an 'Indian child' to include a child who is either a member of an Indian tribe or 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); . . . § 224.1, subds. (a) & (b).)" (In re P.H., Jr. (2024) 98 Cal.App.5th 992, 996.) When there is "reason to know" a child is an Indian child, the Department must give formal notice to the relevant tribes. (Ibid.; § 224.3, subd. (a).)
There is reason to know a child is an Indian child under any of the following circumstances: "(1) A person having an interest in the child, including the child, an officer of the court, a tribe, an Indian organization, a public or private agency, or a 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. [¶] (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).)
Mother contends the Department failed to satisfy its section 224.3, subdivision (a) duty to provide formal notice to the relevant Indian tribes. She argues the notices the Department sent to the tribes were deficient either because they included erroneous information or because they omitted relevant information. Also, the Department failed to conduct adequate follow-up interviews with tribal representatives. Mother's contention fails because there was no reason to know the children were Indian children and thus no duty to provide formal notice.
Nothing in the record establishes the children were Indian children based on the six circumstances in section 224, subdivision (d). Mother argues there was a reason to know the children were Indian children because maternal grandmother "strongly indicated that the children were Native American children through the Cherokee Nation"-apparently through claims she made about maternal grandfather and B.R.W. At most, maternal grandmother's statements suggested the children might have some Indian ancestry. "But 'tribal ancestry is not among the criteria for having a reason to know the child is an Indian child.' (In re Austin J. (2020) 47 Cal.App.5th 870, 885; accord In re D.F. (2020) 55 Cal.App.5th 558, 571 ['A suggestion of Indian ancestry is not sufficient under ICWA or related California law to trigger the notice requirement'].)" (In re P.H., Jr., supra, 98 Cal.App.5th at p. 997.)
We note, however, that mother's ancestry.com results showed no Native American ancestry.
B. Duty of Further Inquiry
"We review claims of inadequate inquiry into a child's Indian ancestry for substantial evidence. [Citation.]" (In re H.V. (2022) 75 Cal.App.5th 433, 438.)
Mother contends the Department failed to satisfy its duty of further inquiry under section 224.2, subdivision (e)(2) because the notices it sent to the three Cherokee tribes were deficient either because they included erroneous information or because they omitted relevant information, and the Department failed to conduct adequate follow-up interviews with tribal representatives.
Mother's contention concerns only the three Cherokee tribes and not the Apache tribes.
"'A party forfeits the right to claim error as grounds for reversal on appeal when he or she fails to raise the objection in the trial court. [Citations.] Forfeiture, also referred to as "waiver," applies in juvenile dependency litigation and is intended to prevent a party from standing by silently until the conclusion of the proceedings.' (In re Dakota H. (2005) 132 Cal.App.4th 212, 221-222 . . . .)" (In re C.M. (2017) 15 Cal.App.5th 376, 385.)
"The generally accepted rule in dependency cases is that the forfeiture doctrine does not bar consideration of ICWA notice issues on appeal." (In re Alice M. (2008) 161 Cal.App.4th 1189, 1195.) However, "[w]hen a case is remanded to the juvenile court for the purpose of curing ICWA notice defects and the parent is represented by counsel at the postremand compliance hearing and counsel raises no objection to new ICWA notices, an exception to the general rule against forfeiture may apply." (In re Z.W. (2011) 194 Cal.App.4th 54, 64; see also In re Amber F. (2007) 150 Cal.App.4th 1152, 1156; In re X.V. (2005) 132 Cal.App.4th 794, 804.)
It is unclear to what extent these ICWA notice cases apply. After our Legislature amended the state's ICWA-related statutes in 2018, the standard for ICWA notice substantially changed. (See In re Austin J., supra, 47 Cal.App.5th at pp. 884-885.) "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. [Citation.] In contrast . . ., the department was to make further inquiry if it 'knows or has reason to know or believe that an Indian child is or may be involved' in the case. (Cal. Rules of Court, rule 5.481(a)(4), italics added.)" (In re A.M. (2020) 47 Cal.App.5th 303, 315; see also In re Austin J., supra, 47 Cal.App.5th at p. 885 ["[Prior c]ases relying on [reason to know] language are no longer controlling or persuasive on this point"].) Mother's contention here involves further inquiry, not notice. For purposes of our appeal, we will assume In re Alice M., In re Z.W., In re Amber F., and In re X.V. apply to the ICWA inquiry context.
Based on the particular procedural history of this case, we conclude that the forfeiture doctrine applies to bar mother's ICWA inquiry argument on appeal. Here, the prior panel majority remanded the matter to the juvenile court for ICWA inquiry compliance. To comply with that direction, the Department sent notices to some or all of the tribes three separate times: October 18, 2022, March 2, 2023, and April 25, 2023. It also conducted follow-up interviews with tribal representatives. When the Department sent each set of notices, mother's counsel did not raise with the court any claimed deficiencies in the notices. Nor did counsel raise with the court any claimed deficiencies in the Department's follow-up interviews. The failure to raise those issues below forfeits appellate review. (In re Z.W., supra, 194 Cal.App.4th at p. 64; In re Amber F., supra, 150 Cal.App.4th at p. 1156; In re X.V., supra, 132 Cal.App.4th at p. 804.)
In light of this holding, we do not need to rule on the Department's motion to dismiss mother's appeal.
Further, even if we were to consider the merits of mother's contention, we would reject it. Substantial evidence supports the juvenile court's finding that the Department complied with its duty of inquiry. The Department's notices to the three Cherokee tribes provided sufficient information for the tribes to determine if the children were Indian children by providing mother's name, current and former addresses, and date of birth; maternal grandmother's name, alias, current address, and date of birth; and maternal great-grandfather's name.
IV. DISPOSITION
The order is affirmed.
I concur:
LEE, J. [*]
BAKER, Acting P.J, Concurring
I agree the juvenile court's reinstated parental rights termination order should be affirmed. But there was no sound basis to remand this case to the juvenile court when it was last before us, and I accordingly do not need to rely on an application of forfeiture principles to affirm; in my view, the juvenile court cannot have erred in undertaking additional process that was not required in the first place. In fact, the record and the majority opinion show that all this court's prior remand accomplished was to require the juvenile court and the parties to run around in circles for another year-and-a-half on top of the eight-plus years the dependency proceedings had already been pending. That is unfortunate. (In re H.V. (2022) 75 Cal.App.5th 433, 442, fn. 5 (dis. opn. of Baker, J.) ["A conditional reversal (or affirmance) of [parental rights termination] orders inevitably delays an adoption from proceeding, and in some cases, it may throw an adoption off track entirely if the prospective adoptive family cannot tolerate further delay. In both scenarios, the uncertainty caused by California's ICWA-related statutes negatively affects children who deserve permanence without undue delay"].)
[*]Judge of the San Bernardino Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.