Opinion
E080940
08-30-2023
In re J.N., a Person Coming Under the Juvenile Court Law. v. R.D., Defendant and Appellant. SAN BERNARDINO COUNTY CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent,
Michelle D. Pena, under appointment by the Court of Appeal, for Defendant and Appellant. Tom Bunton, County Counsel, and David Guardado, County Counsel, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from the Superior Court of San Bernardino County No. J292979. Lynn M. Poncin, Judge. Affirmed in part, reversed in part with directions.
Michelle D. Pena, under appointment by the Court of Appeal, for Defendant and Appellant.
Tom Bunton, County Counsel, and David Guardado, County Counsel, for Plaintiff and Respondent.
OPINION
CODRINGTON J.
I.
Because ICWA uses the term "Indian," we do so on occasion as well, not out of disrespect, but because of the need for clarity and consistency, even though we recognize that other terms, such as "Native American" or "indigenous" are preferable.
R.D. (Mother) appeals from the juvenile court's order terminating parental rights to her son, J.N., under Welfare and Institutions Code, section 366.26. Mother contends the juvenile court prematurely found the Indian Child Welfare Act (ICWA; 25 U.S.C. § 1901 et seq.; §§ 224.2, 224.3) did not apply. Mother argues San Bernardino County Children and Family Services (CFS) did not complete initial and further inquiries or provide proper notice required under ICWA.
Unless otherwise noted, all statutory references are to the Welfare and Institutions Code.
We conclude that, even assuming there was ICWA inquiry error, it was harmless, with the exception of CFS not contacting Iroquois-affiliated tribes. There also was no notice error because it was not required. We further conclude CFS erred in not contacting the Iroquios-affiliated tribes to determine whether J.N. is a Native American child.
In the interest of limiting any further delay, we conditionally reverse and remand the case with instructions that CFS conduct an inquiry immediately by contacting the Iroquois-affiliated tribes and that the juvenile court likewise resolves the issue as soon as possible. If the inquiry reveals no Native American heritage, then the order terminating Mother's parental rights to J.N. shall be reinstated forthwith. We conditionally affirm the order in all other regards.
II.
FACTS AND PROCEDURAL BACKGROUND
A. Summary of General Background Facts and Proceedings
Six-month-old J.N. came to the attention of CFS on April 26, 2022, at 4:50 a.m., when law enforcement responded to multiple calls that his parents were engaging in domestic violence. During the domestic abuse, Mother and Father (Parents) sustained multiple injuries and appeared to be under the influence of methamphetamines. Parents were arrested and incarcerated for committing domestic violence in J.N.'s presence. CFS took J.N. into protective custody without a warrant based upon exigent circumstances.
Later that day, maternal grandmother (MGM) told CFS that Parents suffered from mental health illness, abused drugs, and had been engaging in domestic violence during the past week. L.D., the wife of maternal uncle, M.D., told CFS they were unable to care for J.N. long-term, but suggested placement of J.N. with a non-related extended family member, M.M. On April 26, 2022, J.N. was placed in M.M.'s care and remained there throughout the juvenile dependency proceedings.
CFS filed a juvenile dependency petition on J.N.'s behalf, alleging under section 300, subdivision (b), that Parents failed to adequately protect and supervise J.N. At the detention hearing on April 29, 2022, the juvenile court ordered J.N. removed from Parents and detained in M.M.'s care.
During the jurisdiction/disposition hearing in May 2022, the court found jurisdiction over J.N. and ordered him removed from Parents and placed in the custody of CFS, with J.N. remaining in the care of M.M. During the six-month review hearing in November 2022, the juvenile court terminated Parents' reunification services and set a section 366.26 hearing.
At the section 366.26 hearing in March 2023, the juvenile court found that Parents had failed to consistently visit J.N., they were unable to adequately and appropriately parent J.N., J.N. and his prospective adoptive family were closely bonded, and J.N. was adoptable. The court also found there was insufficient evidence to support the parental benefit exception to adoption, primarily because Parents had not consistently visited J.N. The juvenile court, therefore, terminated Parents' parental rights.
B. ICWA Facts and ICWA Procedural History
On April 26, 2022, CFS contacted MGM and inquired regarding J.N.'s Native American ancestry. CFS reported in the juvenile dependency petition and Indian Child Inquiry Attachment ICWA-010(A) that CFS asked MGM about J.N.'s Native American status. MGM gave CFS no reason to believe J.N. is or may be a Native American child. CFS also reported in the detention report that ICWA did not apply based on (1) form ICWA-010(A), and (2) on April 26, 2022, MGM denied Native American ancestry. On April 26, 2022, CFS was unable to contact Parents regarding Native American ancestry because they were incarcerated.
On April 29, 2022, Parents each filled out a "Family Find and ICWA Inquiry" form, CFS 030(A). They stated on their forms that their first preference for placement of J.N. was with Mother's brother and sister-in-law, M.D. and L.D. Parents' second preference was to place J.N. with Aunt R.H. Parents provided R.H.'s phone number. In the section entitled, "Additional Family Contact Information," Mother listed aunt L.D. and MGM, and provided their phone numbers. Father listed M.D. and L.D. Parents also listed aunt L.S. but did not provide a phone number or any other contact information. In the form section entitled "Native American Ancestry Information," Parents stated that they did not "have/may have Native American Ancestry."
On April 29, 2022, Parents also each filled out a "Parental Notification of Indian Status" form, ICWA-020(A). Mother stated on her form that "[t]he child is or may be a member of, or eligible for membership in a federally recognized tribe." Mother listed the following tribes: "Cherokee-through MGF, Blackfoot-through MGM." Mother further stated that neither she, her parents, her grandparents, or other lineal ancestors is or was a member of a federally recognized tribe. Father stated on his form that J.N. is not "a member of a federally recognized tribe." Father, however, stated that one or more of his "parents, grandparents, or other lineal ancestors is or was a member of a federally recognized tribe," which Father listed as "Cherokee-through PGGM-on Father's side." Both Parents also stated that neither they nor J.N. are residents of or domiciled on a reservation, J.N. has not been a ward of a tribal court, and neither parent possesses an Indian identification card.
CFS stated in the jurisdiction/disposition report filed in May 2022, that J.N. may come under the provisions of ICWA, and noticing requirements under ICWA have been initiated. In May 2022, CFS interviewed Parents regarding their Native American ancestry claims. Father stated that both his parents had Cherokee ancestry from Oklahoma. Father's unnamed "siblings" informed CFS, "'I don't think we . . . actually have any ties to Native Americans. It was hearsay in our family.'" The siblings said they do not share the same father as Father. Mother stated she has Cherokee and Blackfoot ancestry, but none of her known family members have tribal enrollment numbers. Mother also said she has Iroquois ancestry.
CFS further reported that it called maternal uncle, M.D., to inquire regarding J.N.'s Native American ancestry, but was unable to contact him. CFS also called MGM regarding Native American ancestry. MGM said, "'I'm told that we are, but I have no proof. It was always hearsay. No one in my family has ever been enrolled in a tribe. Now, for [Mother's] father's side: [M.D.] was adopted at age two. His biological father was registered to the Cherokee Nation. But because he was adopted before the age of three, he was raised without his biological father and didn't establish a relationship with him until he was 18.'"
CFS called and emailed the ICWA director of the Cherokee Nation and left a voicemail with contact information. CFS also called and emailed the ICWA director of the Blackfeet Tribe. Upon calling, CFS received a voicemail message stating the mailbox was full. CFS also called the Blackfeet Enrollment Office but there was no option to leave a voicemail message. CFS reported it was unable to find information regarding the Iroquois Nation in the ICWA Federal Register, and did not find any information on the National Occupational Licensing Meeting website on the list of Federally recognized tribes. Iroquois was not listed as a Federally recognized tribe.
CFS stated in its jurisdiction/disposition report that, based upon the above summarized information, on May 16, 2022, CFS submitted an ICWA-030 form, entitled "Notice of Child Custody Proceeding for Indian Child." However, the ICWA-030 form report is not included in the record on appeal.
On May 19, 2022, CFS filed an "Additional Information to the Court" report and attached copies of correspondence. The CFS report and attached correspondence stated that on May 16, CFS emailed the ICWA coordinators for the Cherokee Nation and Blackfeet tribe a request for a determination as to whether J.N. is eligible to be a tribal member based on the information provided in the attached ICWA-030 form.
In May 2022, CFS received an email response from the Blackfeet ICWA Coordinator who requested CFS send by certified mail the child and parent names and dates of birth. CFS complied with this request, as reflected by a copy of the certified mail receipt.
In May 2022, CFS received an email response from the Cherokee Nation, noting that the ICWA-030 form, which CFS attached to its email, was blank. The Cherokee Nation requested CFS email "the child's name and date of birth along with BOTH biological parent's names and dates of birth. Any other information regarding the Cherokee family, i.e.: grandparents, great grandparents, etc. is greatly appreciated but is not a necessity. With this information I can send an official response as to the applicability of the Federal Indian Child Welfare Act and our involvement." CFS responded with an email stating that attached was another copy of the ICWA-030 form. CFS also provided the requested information, which included the names and dates of birth of Parents and J.N.
In response, the Cherokee Nation ICWA eligibility supervisor sent CFS an email in May 2022, stating that Parents and J.N. are not registered as Cherokee Nation tribal citizens, and the Cherokee Nation would not be involved in the proceedings based on the information provided. It was further noted that certified mail notice was not necessary because there was no Cherokee Nation child and ICWA does not apply. Therefore the email was intended to serve as the Cherokee Nation's official response.
At the jurisdiction/disposition hearing in May 2022, the court stated that it appeared that the ICWA inquiry was ongoing. CFS agreed and requested the court not to make a final ICWA finding yet. The court agreed not to do so but then later in the hearing stated that J.N. "may come under ICWA, noticing and requirements have been initiated."
The six-month hearing report filed in November 2022, stated that both Parents stated possible Native American heritage. Correspondence attached to the report from the Blackfeet, United Keetoowah Band of Cherokee Indians, and Eastern Band of Cherokee Indian tribes, stated that J.N. does not fall within ICWA. The letter from the Eastern Band of Cherokee Indian tribe, sent in June 2022, stated that J.N. is neither registered nor eligible to register as a member of the tribe; he is not considered an "Indian Child" of the tribe as defined by ICWA (25 U.S.C., section 1903(4)); and the tribe therefore is not empowered to intervene in the case. The letter from the Blackfeet tribe, sent in July 2022, stated that J.N. is not listed on the tribal rolls; is not eligible for enrollment; is not domiciled on the Blackfeet Indian reservation; does not fall under the provisions of ICWA; and therefore is not an "Indian Child" of the tribe as defined by ICWA. The letter from the United Keetoowah Band of Cherokee Indians, sent in July 2022, likewise states that J.N. is not eligible and/or is not recognized as a member of the tribe; J.N. is not an "Indian Child" of the tribe under ICWA; and therefore the tribe is not empowered to intervene in the case.
In December 2022, CFS filed an additional information report, stating that CFS contacted J.N.'s caregiver, M.M., to inquire regarding possible Native American ancestry regarding J.N. M.M. stated, "'I don't know.'" M.M. provided CFS with contact information for Mother's half-brother, M.D. He stated he was Cherokee and Choctaw. CFS reported it previously received correspondence sent in November 2022, from the Cherokee tribe that J.N. was ineligible to be a member. CFS emailed the Choctaw tribe to further inquire about J.N.'s possible Native American eligibility. At the time of CFS's December 2022, additional information report, the Choctaw tribe had not responded.
M.M. also gave CFS the phone number of M.D.'s wife, L.D., who said she did not know anything regarding whether J.N. has Native American ancestry. She referred CFS to M.D., who stated he had Cherokee and Choctaw ancestry. CFS reported it had spoken to all available relatives regarding Native American ancestry and recommended the court find that ICWA did not apply. CFS said it would continue to assess any possible relatives regarding Native American ancestry.
In January 2023, the juvenile court held a hearing to obtain further information regarding CFS's efforts to comply with ICWA inquiry requirements. During the hearing, CFS's attorney stated that it appeared that everyone had been contacted for purposes of ICWA inquiry. Counsel noted that the detention report mentioned a paternal aunt who has guardianship of a sibling. Counsel stated that CFS still needed to interview the aunt. Counsel therefore requested another ICWA notice review so that CFS could contact the aunt and provide an update to the court. The juvenile court set a further ICWA notice review hearing.
In February 2023, CFS filed an additional information report, stating that the Mississippi Choctaw tribe sent CFS correspondence indicating that neither J.N. nor Parents are enrolled or eligible for enrollment with the tribe. CFS attached a copy of the correspondence to its report.
At the subsequent ICWA notice review hearing in February 2023, CFS's attorney stated that CFS still needed to interview the aunt. Counsel therefore requested, and the court ordered, another ICWA notice review hearing, set on the date of the section 366.26 hearing.
CFS stated in its section 366.26 report, filed in March 2023, that ICWA does not apply; that J.N. is not an Indian Child of the Choctaw tribe or eligible to be a member of the tribe; CFS interviewed all known relatives in compliance with ICWA; and CFS received notification that J.N. is not eligible for enrollment. CFS further reported that it inquired regarding an "Aunt Pat," listed on page 7 of the April 2022, detention report. J.N.'s caretaker, M.M., M.D., and his wife, L.D., all stated they were unaware of such a person but noted there was a grandmother named Patricia. M.M. believed she was deceased. L.D. confirmed there were two grandmothers, both deceased, named Patricia with surnames of Davis and Sailor. CFS reported that it had interviewed all known relatives and therefore was recommending a finding that ICWA did not apply.
Before the section 366.26 hearing on March 21, 2023, the court held a further hearing on ICWA inquiry and notice. CFS's attorney, Ms. Lohmann, explained that the ICWA notice review hearing was previously continued to allow CFS to attempt to determine the identity of a paternal aunt mentioned in the detention report. Lohmann told the court she believed that the detention report had erroneously referred to the aunt as Father's paternal aunt because no one in the family knew of such a person. The family members contacted by CFS thought the detention report might actually be referring to paternal grandmother Patricia, but she was deceased. Therefore CFS requested the court to find that it complied with the ICWA duty of inquiry. In response, the court stated it found that CFS had complied with its duty of inquiry and there was no reason to know or believe that J.N. is a Native American child. The juvenile court, therefore, found ICWA did not apply.
III.
APPLICABLE LAW
Under section 306, a county welfare department is authorized to take children into temporary custody without a warrant in certain circumstances. (§ 306, subd. (a)(2); In re Robert F. (2023) 90 Cal.App.5th 492, 497 (Robert F.), review granted July 26, 2023, S279743.) When a department takes a child into protective custody pursuant to a warrant, it does so under section 340, not section 306.
As we explain in Robert F., "[t]o implement ICWA, the county welfare department and the juvenile court must determine whether a case involves an Indian child. The department and the court thus have an '" affirmative and continuing duty to inquire" whether a child in a dependency proceeding "is or may be an Indian child."' [Citations.] 'The duty to inquire consists of two phases-the duty of initial inquiry and the duty of further inquiry.' (Ibid.)" (Robert F., supra, 90 Cal.App.5th at p. 499, quoting In re Ricky R. (2022) 82 Cal.App.5th 671, 678 (Ricky R.) and § 224.2, subd. (a).)
"The duty of initial inquiry applies in every dependency proceeding." (Ricky R., supra, 82 Cal.App.5th at p. 678.) "The department's 'duty to inquire begins with the initial contact, including, but not limited to, asking the party reporting child abuse or neglect whether the party has any information that the child may be an Indian child.' (§ 224, subd. (a).) In addition, '[f]ederal regulations require state courts to ask each participant "at the commencement" of a child custody proceeding "whether the participant knows or has reason to know that the child is an Indian child." (25 C.F.R. § 23.107(a) (2022).)' (Ricky R.[, supra,] at pp. 678-679.) Similarly, '[s]tate law requires the court to pursue an inquiry "[a]t the first appearance in court of each party" by asking "each participant present in the hearing whether the participant knows or has reason to know that the child is an Indian child." (§ 224.2, subd. (c).)' (Ricky R.[, supra,] at p. 679.)" (Robert F., supra, 90 Cal.App.5th at pp. 499-500.)
"In some cases, California law requires the county welfare department to do more at the initial inquiry stage." (Robert F., supra, 90 Cal.App.5th at p. 500.) Specifically, under subdivision (b) of section 224.2, "[i]f a child is placed into the temporary custody of a county welfare department pursuant to [s]ection 306," the department is required to ask the "extended family members" and "others who have an interest in the child" about the child's Indian status. (§ 224.2, subd. (b).) "'[E]xtended family member' shall be as defined by the law or custom of the Indian child's tribe or, in the absence of such law or custom, shall be a person who has reached the age of eighteen and who is the Indian child's grandparent, aunt or uncle, brother or sister, brother-in-law or sister-in-law, niece or nephew, first or second cousin, or stepparent." (25 U.S.C. § 1903(2); § 224.1, subd. (c).)
In addition, by state court rule, "[t]he party seeking a foster-care placement [or] termination of parental rights . . . must ask the child, if the child is old enough, and the parents, . . . extended family members, [and] others who have an interest in the child, . . . whether the child is or may be an Indian child ...." (Cal. Rules of Court, rule 5.481(a)(5).)
Then, "[i]f the court [or] social worker . . . has reason to believe that an Indian child is involved in a proceeding, but does not have sufficient information to determine that there is reason to know that the child is an Indian child, the court [or] social worker . . . shall make further inquiry regarding the possible Indian status of the child." (§ 224.2, subd. (e).) "[T]he requisite 'further inquiry' 'includes: (1) interviewing the parents and extended family members; (2) contacting the Bureau of Indian Affairs and State Department of Social Services; and (3) contacting tribes the child may be affiliated with, and anyone else, that might have information regarding the child's membership or eligibility in a tribe.' [Citation.]" (In re Austin J. (2020) 47 Cal.App.5th 870, 883.)
Where the dependency proceedings could result in foster care placement or termination of parental rights, if there is "reason to know, as described in subdivision (d) of [s]ection 224.2, that an Indian child is involved," notice of the proceedings must be given to the relevant tribe or tribes. (§ 224.3, subd. (a); 25 U.S.C. § 1912(a); 25 C.F.R. §§ 23.11(a), 23.111; Cal. Rules of Court, rule 5.481(c)(1).)
"If the court makes a finding that proper and adequate further inquiry and due diligence . . . have been conducted and there is no reason to know whether the child is an Indian child, the court may make a finding that [ICWA] does not apply to the proceedings. (§ 224.2, subd. (i)(2).) "In the absence of any evidence the Department complied with its section 224.2, subdivision (b) duty to inquire of extended family members, the juvenile court's finding that ICWA does not apply is error. [Citation.] However, we can reverse only if the error was prejudicial. (In re Benjamin M. (2021) 70 Cal.App.5th 735, 742 (Benjamin M.), citing Cal. Const., art. VI, § 13.)" (In re M.M. (2022) 81 Ca1.App.5th 61, 71, review granted Oct. 12, 2022, S276099.)
A parent may raise failure to comply with ICWA on appeal, "even if the issue was not raised in the trial court, because '[t]he parent is in effect acting as a surrogate for the tribe in raising compliance issues on appeal.' [Citation.]" (In re A.R. (2022) 77 Cal.App.5th 197, 204.)
IV.
ICWA INQUIRY COMPLIANCE
Because CFS took emergency custody of J.N. without a warrant, it is undisputed that CFS was required under section 224.2 (b) to inquire of "extended family members" and "others who have an interest in the child" regarding J.N.'s Native American status. Regardless of whether CFS failed to comply with its ICWA duty of inquiry, any failure to do so is harmless error.
As mentioned, rule 5.481(a)(5) requires an initial inquiry of extended relatives, regardless of whether the child has been placed into temporary custody pursuant to section 306 or section 307. Arguably, however, to the extent that the rule requires a broader inquiry than the Legislature intended to require under section 224.2, subdivision (b), it is invalid. (See In re Abbigail A. (2016) 1 Ca1.5th 83, 91-93.) However, we express no opinion on this question.
We recognize there is disagreement as to whether a county welfare department is also required to inquire of extended relatives under section 224.2, subdivision (b) if the child is taken into temporary custody with a warrant. (See Robert F., supra, 90 Cal.App.5th at p. 497; In re Adrian L. (2022) 86 Cal.App.5th 342, 357-358 (conc. opn. of Kelley, J.); In re Ja.O. (2023) 91 Cal.App.5th 672, 677-678, review granted May 17, 2023, S280572.) ["CFS must ask extended family members and others who have an interest in the child about the possible Indian status of a child only if that child has been placed into CFS's temporary custody pursuant to section 306"]; but see In re Delila D. (2023) 2023 WL 4677720, at p. 10 [rejecting Robert F.'s interpretation of section 224.2(b) as "crafting [a] narrow inquiry duty" that applies only to children initially taken into temporary custody without a warrant and holds "instead that the Legislature enacted section 224.2(b) to impose on departments a broad duty to inquire that applies regardless of how a child is initially removed from home"; Ricky R., supra, 82 Cal.App.5th at p. 678; Benjamin M., supra, 70 Cal.App.5th 735 [same]].) We need not address the issue because J.N. was taken into temporary custody without a warrant and the issue is not raised here.
Only state law is involved in the duty of initial inquiry. (Benjamin M., supra, 70 Cal.App.5th at p. 742.) "Where a violation is of only state law, we may not reverse unless we find that the error was prejudicial. (Cal. Const., art. VI, § 13 ['No judgment shall be set aside . . . unless, after an examination of the entire cause, including the evidence, the court shall be of the opinion that the error complained of has resulted in a miscarriage of justice']; People v. Watson (1956) 46 Cal.2d 818, 836 ['a "miscarriage of justice" should be declared only when the court, "after an examination of the entire cause, including the evidence," is of the "opinion" that it is reasonably probable that a result more favorable to the appealing party would have been reached in the absence of the error'].)" (Benjamin M., supra, 70 Cal.App.5th at p. 742.)
The California courts are currently divided regarding the standard by which harmlessness is to be assessed. (See In re Y.W. (2021) 70 Cal.App.5th 542, 556; Benjamin M., supra, 70 Cal.App.5th at pp. 743-744; In re A.C., supra, 75 Cal.App.5th at p. 1069; In re A.R., supra, 77 Cal.App.5th at pp. 205-206; In re Dezi C. (2022) 79 Cal.App.5th 769, 774; In re Adrian L., supra, 86 Cal.App.5th at pp. 350-351.) We continue to adhere to the prejudicial error standard stated in Benjamin M., which is applicable to violations of the initial duty of inquiry. We concluded in Benjamin M. that when determining whether there is prejudicial error, the reviewing court "must reverse where the record demonstrates that the agency has not only failed in its duty of initial inquiry but where the record indicates that there was readily obtainable information that was likely to bear meaningfully upon whether the child is an Indian child." (Benjamin M., supra, 70 Cal.App.5th at p. 744.)
In Benjamin M., the juvenile court conditionally reversed an order terminating the mother's parental rights. Her children did not all have the same father. On appeal, she argued the juvenile court erred in finding ICWA did not apply to one of her children because the child welfare agency did not interview the brother of that child's father about potential Native American ancestry. (Benjamin M., supra, 70 Cal.App.5th at p. 740.) The father never appeared in the proceeding. In concluding there was prejudicial error, we reasoned in Benjamin M. that "Father's brother's knowledge of his own Indian status would be suggestive of Father's status. While we cannot know how Father's brother would answer the inquiry, his answer is likely to bear meaningfully on the determination at issue about his brother." (Id. at p. 745.)
Applying the Benjamin M. prejudicial error standard, the court in In re Darian R. (2022) 75 Cal.App.5th 502, concluded the failure of initial inquiry was harmless because readily obtainable information from extended family members was not likely to bear meaningfully on whether the child was a Native American child. In In re Darian R., supra, at pages 508-510, the court concluded the mother failed to show prejudice from the agency's failure to inquire of extended maternal family members with whom the mother lived. Also, the juvenile court in previous dependency proceedings had determined ICWA did not apply to two of the three biological siblings. The In re Darian R. court concluded additional interviews of the mother's father and sister would not have "meaningfully elucidated the children's Indian ancestry." (In re Darian R., supra, at p. 510; see also In re S.S. (2022) 75 Cal.App.5th 575, 582.)
As in In re Darian R., here there is no evidence in the record that inquiry or further inquiry of any of J.N.'s extended family members or others with an interest in J.N. would have revealed any information that would have shed meaningful light on, or reason to believe, J.N. is a Native American child. As we noted in Benjamin M., "'Reason to believe' is broadly defined as 'information suggesting that either the parent of the child or the child is a member or may be eligible for membership in an Indian tribe.' (§ 224.2, subd. (e)(1), italics added.)" (Benjamin M., supra, 70 Cal.App.5th at pp. 744-745.) Therefore, as discussed below, any failure of inquiry of J.N.'s extended relatives and others was harmless because readily obtainable information from extended family members and others was not likely to bear meaningfully on whether J.N. was a Native American child.
Mother argues CFS failed to adequately inquire of the following extended relatives and others: (1) paternal aunt PCT; (2) Father's paternal aunt; (3) paternal uncle, M.D.; and (4) Father's sisters, R.H., R.L.J., and V.H.; (5) others who had an interest in J.N., including MGM, N.M., the father of J.N.'s half-sibling, E.M., L.D., and PCT. We conclude that any failure to inquire of these individuals is harmless error.
A. Paternal Aunt PCT
Mother's older daughter, S.D., has been living with PCT since 2021 and is not a party to the instant proceedings. PCT has guardianship over S.D. Mother argues CFS interviewed PCT in this case but did not ask her if J.N. had any Native American ancestry. Mother also argues PCT was involved in juvenile dependency proceedings regarding S.D., during which PCT may have inquired regarding S.D.'s Native American ancestry.
However, PCT is not biologically related to J.N., and S.D. does not share the same father as J.N. PCT is the sister of S.D.'s father, not J.N.'s Father. Therefore PCT is not J.N.'s biological aunt and it is unlikely that PCT has any information or knowledge of whether J.N. has Native American ancestry. There is no evidence in the record that PCT has or might have any knowledge of whether J.N. has Native American ancestry.
B. Father's Paternal Aunt (PGA)
Father reported that J.N. had Cherokee ancestry through his father's mother (PGGM). Mother contends CFS failed to comply with its ICWA inquiry duty by not inquiring of Father's paternal aunt mentioned on one occasion in the detention report. CFS reported in the detention report that, when interviewing MGM on April 26, 2022, "[MGM] said the father left with [J.N.] despite [MGM] telling the father to not take [J.N.]. [MGM] reported the father told her it was none of her business and left. [MGM] said the father's paternal aunt was at the home trying to calm him down as well." (Italics added.)
Mother argues there is no evidence in the record of CFS attempting to inquire of "father's paternal aunt" (J.N.'s paternal great aunt) as to whether J.N. has Native American ancestry. However, the parties are unable to determine the identity of "father's paternal aunt" or whether CFS's reference to the paternal great aunt was made in error. CFS may have actually been referring to J.N.'s paternal or maternal aunt, not his paternal great-aunt.
During the March 21, 2023, hearing on ICWA inquiry and notice, CFS's attorney explained that the ICWA notice review hearing had been continued to allow CFS to attempt to determine the identity of the unnamed paternal great-aunt mentioned in the detention report. CFS's attorney told the court that after investigating the matter, she believed that the detention report erroneously referred to the aunt as Father's paternal great-aunt. No one in the family knew the identity of J.N.'s paternal aunt. The family members contacted by CFS thought the detention report might actually be referring to paternal grandmother Patricia, but she was deceased. Therefore CFS requested the court to find that it had complied with the ICWA duty of inquiry.
We conclude the trial court reasonably found that, even though it was ambiguous as to the identity of "father's paternal aunt," CFS reasonably inquired of all known relatives of J.N., in compliance with ICWA. There is no evidence establishing who the person is, whether she actually exists or is alive, or whether she might have any information regarding J.N.'s Native American ancestry. Under such circumstances, we conclude there is insufficient evidence there exists readily obtainable information from an unnamed great paternal aunt which is likely to bear meaningfully on whether J.N. is a Native American child. Therefore the failure to obtain such information is not prejudicial error because it is unlikely Father's paternal aunt has any additional information to offer as to J.N.'s Native American ancestry.
C. Maternal Uncle M.D.
Mother told CFS that her support system included her half-brother, M.D., and his wife, L.D. CFS reported in the jurisdiction/disposition report that M.D. was adopted at the age of two years. His biological father was registered to the Cherokee Nation but M.D. was raised without his biological father. CFS initially attempted to contact M.D. without success in May 2022, but later contacted him and M.D. said he had Cherokee and Choctaw ancestry. His wife, L.D., stated she was unaware of any "Aunt Pat" and stated that she did not know if J.N. any had Native American ancestry. The record shows that CFS adequately complied with ICWA inquiry of M.D. and L.D., and even if the inquiry was deficient, it is unlikely they have any additional information to offer as to J.N.'s Native American ancestry.
D. Father's Siblings
Mother contends CFS did not comply with ICWA inquiry requirements as to Father's siblings. Father reported having three sisters, R.H., RLJ, and V.H. CFS reported it contacted "father's siblings." They informed CFS that they did not believe they had "'any ties to Native Americans. It was hearsay in our family.'" The siblings also informed CFS that they did not share the same father as Father. Mother argues CFS has not established it adequately inquired of Father's siblings because CFS did not identify which of the siblings were asked and responded to CFS's ICWA inquiry.
We disagree. The record demonstrates that CFS sufficiently complied with its duty to inquire. CFS inquired of all three siblings and they all responded they did not believe they had any Native American ancestry. Mother provides no evidence to the contrary. Furthermore, it is not likely that one of Father's half-siblings would have any meaningful information about Native American ancestry that the other siblings did not have. (In re Rylei S. (2022) 81 Cal.App.5th 309, 325.) Also, there is no showing of prejudice even assuming CFS's inquiry was deficient.
E. Others with an Interest in J.N.
Mother argues CFS failed to comply with its initial and further ICWA inquiry duty by not asking extended relatives about J.N.'s Native American ancestry. Mother asserts that CFS had a duty of inquiry of extended relatives (1) MGM, (2) N.M., the father of J.N.'s half-sibling, E.M., (3) L.D., and (4) Aunt PCT. As discussed above, the record shows that CFS met its duty of initial and further inquiry of L.D. and Aunt PCT regarding J.N.'s Native American ancestry and it is unlikely that they have any additional information as to J.N.'s Native American ancestry.
1. MGM
The record shows that on April 26, 2022, CFS contacted MGM and inquired regarding J.N.'s Native American ancestry. CFS reported in form ICWA-010(A) that MGM gave no reason to believe J.N. is or may be a Native American child. CFS further reported in the detention report that ICWA did not apply based on (1) form ICWA-010(A), and (2) on April 26, 2022, MGM denied Native American ancestry. However, on April 29, 2022, Mother filled out a Parental Notification of Indian Status form CFS 020(A), stating that "[t]he child is or may be a member of, or eligible for membership in a federally recognized tribe." Mother listed the following tribes: "Cherokee-through MGF, Blackfoot-through MGM." Mother further stated that neither she, her parents, her grandparents, nor other lineal ancestors are or were a member of a federally recognized tribe.
In addition, CFS reported in the jurisdiction/disposition report that it called MGM regarding Native American ancestry. She said, "'I'm told that we are, but I have no proof. It was always hearsay. No one in my family has ever been enrolled in a tribe. Now, for [Mother's] father's side: [M.D.] was adopted at age two. His biological father was registered to the Cherokee Nation. But because he was adopted before the age of three, he was raised without his biological father and didn't establish a relationship with him until he was 18.'"
Mother contends that because MGM contradicted her initial statements, in which she denied any Native American ancestry, CFS's ICWA inquiry is incomplete. Mother argues CFS failed to clarify whether it further inquired of MGM regarding her initial denial of any Native American ancestry or whether her initial statement was erroneous. Although MGM contradicted her initial statements regarding Native American ancestry, the record does not demonstrate CFS failed to comply with its duty of inquiry of MGM. The juvenile court reasonably found that CFS adequately asked MGM whether J.N. had any Native American ancestry and that she did not have any additional meaningful information to provide. Even if CFS had a duty of further inquiry of MGM, we conclude not doing so was not prejudicial because it was unlikely that any further inquiry of MGM would have revealed any additional meaningful information.
2. N.M.
There is no evidence in the record of any probability of CFS obtaining meaningful information regarding J.N.'s Native American ancestry from N.M. N.M. is the father of Mother's older son, E.M. E.M. is J.N.'s half-sibling by a different father. N.M. lives in Missouri with E.M. and has had full, court-ordered custody of E.M. since 2022. The record shows sufficient compliance with CFS's duty to inquire, and any arguable deficiency was harmless. There is no evidence "that there was readily obtainable information that was likely to bear meaningfully upon whether the child is an Indian child." (Benjamin M., supra, 70 Cal.App.5th at p. 744.)
F. Further ICWA Inquiry
Mother contends CFS did not complete further inquiry under ICWA because it did not inquire of relatives or any Iroquois-affiliated tribes regarding J.N.'s Iroquois ancestry.
The duty of further inquiry "arises only if the court or the department has 'reason to believe that an Indian child is involved.' (§ 224.2, subd. (e).)" (Robert F., supra, 90 Cal.App.5th at p. 499.) MGM and Parents reported that J.N. might have Iroquois ancestry through MGM's maternal grandfather (MGGF), thereby requiring further inquiry.
As discussed above, CFS and the court complied with the duty of further inquiry of relatives and those having an interest in J.N. CFS's inquiry was appropriate and complied with section 224.2 as to extended family members or others with an interest in J.N. Mother has not demonstrated there was a viable lead that would require CFS to make a meaningful effort to locate and interview extended family members or others with an interest in J.N., to obtain additional information as to J.N.'s possible Iroquois status. (In re K.R. (2018) 20 Cal.App.5th 701, 709.)
Mother argues CFS also failed to contact any Iroquois-affiliated tribes. CFS reported that it was unable to find information of the Iroquois Nation in the ICWA Federal Register, and did not find any information on the National Occupational Licensing Meeting website on the list of Federally recognized tribes. This is because a tribe named, Iroquois, was not listed as a Federally recognized tribe. CFS reported on its ICWA inquiry efforts and investigation in the jurisdiction/disposition report and ICWA-030 form submitted on May 16, 2022.
The ICWA-030 form report is not included in the record on appeal.
The ICWA-030 form report is not included in the record on appeal.
Mother argues that, although Iroquois is not a tribe recognized on the ICWA Federal Register, CFS violated ICWA inquiry and notice requirements by failing to inquire and notice Iroquois-affiliated tribes designated in the list of Indian tribes published in the Federal Register, which include: (1) Cayuga Nation; (2) Oneida Indian Nation of New York; (3) Onondaga Nation; (4) Saint Regis Band of Mohawk Indians; (5) Seneca Nation of Indians; and (6) Tuscarora Nation of New York. (See Indian Child Welfare Act; Designated Tribal Agents for Service of Notice, 76 FR 30438-01; 76 Fed.Reg. 30438-01; https://www.si.edu/spotlight/collections-naa-si-edu-seneca.) Mother argues further inquiry regarding the Iroquois-affiliated tribes was required and therefore is incomplete. CFS argues it was not required to go on a fishing expedition to determine whether J.N. has Native American ancestry in any of the Iroquois-affiliated tribes, none of which Parents or MGM specified. (In re Levi U. (2000) 78 Cal.App.4th 191, 199 [ICWA does not obligate the court or DPSS "to cast about" for investigative leads.].)
We conclude that Parents and MGM's statements that J.N. might have Iroquois ancestry were sufficient to establish a reason to believe J.N. had Native American ancestry in one of the Iroquois-affiliated tribes and thus triggered a duty of inquiry of the Iroquois-affiliated tribes, as was done with the other tribes mentioned by Parents, MGM, and M.D. "'"[R]eason to believe that an Indian child is involved" triggers the duty of further inquiry. (§ 224.2, subd. (e), 1st par.) "[R]eason to believe" exists whenever the court or [the agency] has "information suggesting that either the parent of the child or the child is a member or may be eligible for membership in an Indian tribe." (§ 224.2, subd. (e)(1).) The required further inquiry includes interviewing the parents and extended family members to gather the information necessary for an ICWA notice, contacting the Bureau of Indian Affairs and State Department of Social Services to gather the names and contact information of the pertinent tribes, contacting the tribes, and contacting any other person who may reasonably be expected to have information regarding the child's membership status or eligibility. (§ 224.2, subd. (e)(2)(A)-(C).)'" (In re E.C. (2022) 85 Cal.App.5th 123, 141.) CFS failed to comply with its duty to contact and inquire of the Iroquois-affiliated tribes.
We recognize the courts disagree on the applicable harmless error standard. (In re D.S. (2020) 46 Cal.App.5th 1041, 1052-1054; In re Benjamin M., supra, 70 Cal.App.5th at p. 742; In re K.H. (2022) 84 Cal.App.5th 566, 606-609; In re Ezequiel G. (2022) 81 Cal.App.5th 984, 1014; In re Dezi C., supra, 79 Cal.App.5th at pp. 779-785; In re A.R., supra, 77 Cal.App.5th at pp. 205-206.) Nevertheless, we conclude that under any of the proposed harmless error standards, CFS's failure to inquire of the Iroquois-affiliated tribes regarding J.N. is prejudicial error requiring a conditional remand for the purpose of allowing CFS to comply with the inquiry requirement and contact the Iroquois-affiliated tribes to determine whether J.N. has Native American ancestry. (In re Louis S. (2004) 117 Cal.App.4th 622, 630.)
V.
ICWA NOTICE
Mother contends CFS provided incomplete and improper ICWA notice to the tribes, which constitutes reversible error. We disagree.
The current version of section 224.2 sets forth the requirements and procedures for providing tribes with ICWA notice. Section 224.2 states in relevant part: "(c) At the first appearance in court of each party, the court shall ask each participant present in the hearing whether the participant knows or has reason to know that the child is an Indian child. The court shall instruct the parties to inform the court if they subsequently receive information that provides reason to know the child is an Indian child." (§ 224.2, subd. (c).) This was done and Parents, MGM, and maternal uncle, M.D., stated they believed J.N. might have Native American ancestry. They mentioned several tribes.
Section 224.2, subdivision (d) states in relevant part that "there is reason to know a child involved in a proceeding 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 possesses an identification card indicating membership or citizenship in an Indian tribe."
Here, Parents and MGM informed CFS and the court that J.N. might have Native American ancestry in several specified tribes, but there was no confirmation by any of the tribes. Therefore, CFS and the juvenile court may have had reason to believe, but not a reason to know J.N. was a Native American child.
Section 224.2, subdivision (e)(2) provides that, "When there is reason to believe the child is an Indian child, further inquiry is necessary to help the court, social worker, or probation officer determine whether there is reason to know a child is an Indian child. Further inquiry includes, but is not limited to, all of the following:
"(A) Interviewing the parents, Indian custodian, and extended family members to gather the information required in paragraph (5) of subdivision (a) of [s]ection 224.3.
"(B) Contacting the Bureau of Indian Affairs and the State Department of Social Services for assistance in identifying the names and contact information of the tribes in which the child may be a member, or eligible for membership in, and contacting the tribes and any other person that may reasonably be expected to have information regarding the child's membership status or eligibility.
"(C) Contacting the tribe or tribes and any other person that may reasonably be expected to have information regarding the child's membership, citizenship status, or eligibility."
Section 224.2, subdivision (f) states that, "[i]f there is reason to know, as set forth in subdivision (d), that the child is an Indian child, the party seeking foster care placement shall provide notice in accordance with paragraph (5) of subdivision (a) of [s]ection 224.3."
The record shows that with the exception of the Iroquois, the various tribes mentioned by Parents, MGM, and M.D. were contacted by CFS and responded that J.N. was not a member, he did not qualify as such, and he was thus not a Native American child under ICWA. Because there was no information supporting a reason to know J.N. is a Native American child, CFS was not required to provide formal notice to any of the tribes under section 224.3, subdivision (a)(5). We, therefore, reject Mother's contention CFS provided incomplete and improper notice because CFS was not required to give formal notice.
VI.
DISPOSITION
The finding that ICWA does not apply is vacated. The order terminating parental rights is conditionally reversed, and the case is remanded with instructions, to both CFS and the juvenile court, to conduct a further ICWA inquiry as soon as possible, by contacting the Iroquois-affiliated tribes to determine if J.N. is a Native American child. If that inquiry reveals evidence of Native American heritage, then the additional ICWA requirements must be complied with. If it does not, then the finding that ICWA does not apply and order terminating parental rights shall be reinstated forthwith. We affirm the order terminating parental rights in all other regards.
We concur: RAMIREZ P. J. McKINSTER J.