Opinion
F081068
12-15-2020
In re JOSHUA H. et al., Persons Coming Under the Juvenile Court Law. TULARE COUNTY HEALTH AND HUMAN SERVICES AGENCY, Plaintiff and Respondent, v. JOSHUA H., Defendant and Appellant.
Elizabeth Klippi, under appointment by the Court of Appeal, for Defendant and Appellant. Deanne H. Peterson, County Counsel, John A. Rozum and Carol E. Helding, Deputy County Counsel, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. Nos. JJV059327B & JJV059327C)
OPINION
THE COURT APPEAL from an order of the Superior Court of Tulare County. Robin L. Wolfe, Judge. Elizabeth Klippi, under appointment by the Court of Appeal, for Defendant and Appellant. Deanne H. Peterson, County Counsel, John A. Rozum and Carol E. Helding, Deputy County Counsel, for Plaintiff and Respondent.
Before Detjen, Acting P.J., Smith, J. and De Santos, J.
-ooOoo-
Joshua H., Sr. (father), presumed father of minors, Joshua H. and Charlie H., appeals from the juvenile court's order terminating parental rights pursuant to Welfare and Institutions Code section 366.26, arguing the juvenile court's order that the Indian Child Welfare Act of 1978 (ICWA; 25 U.S.C. § 1901 et seq.) did not apply was not supported by sufficient evidence and must be reversed. Specifically, father contends (1) the Child Welfare Services of Tulare County Health and Human Services Agency's (agency) inquiry into the paternal side of minors' family was inadequate because they failed to interview extended family members, and (2) the agency's investigation into mother's and minor's affiliation with the Cherokee Nation was inadequate because they did not help enroll the minors in the tribe. We conditionally reverse the order and remand for the limited purpose for the agency to comply with adequate ICWA inquiry into the children's paternal side of the family.
Further undesignated statutory references are to the Welfare and Institutions Code.
FACTUAL AND PROCEDURAL BACKGROUND
Because the issues on appeal concern compliance with ICWA, we only briefly discuss the underlying circumstances of the dependency proceedings.
In 2018, the agency filed a petition on behalf of then nine-year-old Joshua and then seven-year-old Charlie, alleging they came within the juvenile court's jurisdiction under section 300, subdivision (a) (serious physical harm), (b)(1) (failure to protect) and (j) (abuse of sibling). It was alleged that father had hit Charlie with a wire and belt, and as a result, Charlie and Joshua were at substantial risk of suffering physical harm. It was further alleged that father's substance abuse; domestic violence with his live-in girlfriend; unsuitable living conditions characterized by no electricity or running water, and the presence of firearms, drugs and drug sale paraphernalia; and father's mental illness put the children at substantial risk of harm. It was further alleged noncustodial parent Katherine H.'s (mother) substance abuse, mental illness, and failure to protect the children from father put the children at substantial risk of harm. It was finally alleged that the children's sibling, Jacob H., had been previously declared a dependent of the juvenile court as a result of mother's substance abuse and neglect and that mother's family reunification services had been terminated.
It was also alleged pursuant to section 300, subdivision (g) that father left the children with no provision for support because he was incarcerated. This allegation was dismissed at the time of the jurisdictional hearing because father had been released from custody.
The agency's detention report indicated that ICWA "does or may apply." The report indicated that in May 2005, Jacob was found in his previous dependency proceeding to be eligible for membership by the "Cherokee Tribe."
On April 30, 2018, the maternal grandmother reported to the social worker that the maternal great-grandmother was a registered member of the Cherokee Nation, but neither she nor mother were registered tribal members. The social worker subsequently contacted the Cherokee Nation ICWA representative, who reported to the social worker that neither mother nor father were registered members of the tribe but both were eligible for enrollment. The Cherokee Nation representative reported ICWA did not apply at that time but that the tribe would need to be notified of the proceedings and would need to be provided with a "Notice of Child Custody Proceeding for Indian Child" (unnecessary capitalization omitted) form (ICWA-030 form).
On May 1, 2018, father reported to the social worker he had Cherokee and Navajo ancestry. Father executed a "Parental Notification of Indian Status" (unnecessary capitalization omitted) form (ICWA-020 form) indicating he was or might be a member of or eligible for membership in Cherokee Nation. Mother executed an ICWA-020 form, indicating she was or might be a member of or eligible for membership in Cherokee Nation.
At the detention hearing in May 2018, the juvenile court asked the parents on the record about their Native American ancestry. Mother stated her grandmother was a registered member with a Cherokee tribe but that she was not registered. Father said he thought he belonged to "Navajo as well as Cherokee" tribes. Father said he did not know who the last registered tribal member in his family was but believed he was qualified to be registered. Father said his first cousin who lived in Utah was a registered member of a tribe, but did not mention which one. The court held there was insufficient evidence ICWA applied at that time but the agency would have to investigate its applicability. The court ordered the children detained from father's physical custody and set a combined jurisdictional and dispositional hearing. The children were placed in a foster home.
Following the detention hearing, the social worker contacted the maternal grandmother and father to further inquire about Native American ancestry. The maternal grandmother provided demographic information regarding herself, maternal grandfather and maternal great-grandparents. Father provided "as much demographic information as he could regarding the paternal grandparents and great[-]grandparents."
The social worker prepared ICWA-030 forms with the information provided by the parents and the maternal grandmother. The forms included father's name, address, and birth date. Under father, the following tribes were listed: Eastern Band of Cherokee Indians; Navajo Nation; Ramah Navajo School Board, Inc.; Colorado River Indian Tribes; United Keetoowah Band of Cherokee; and Cherokee Nation. Paternal grandmother's name and birth and death dates and places were listed. Paternal grandfather's name was listed, and under birth and death dates and places, "unknown" was written. The names for one set of paternal great-grandparents (father's maternal set) were provided as well as places of birth and death. For the other set of great-grandparents (father's paternal set), the form indicated, "No information available." No tribes or tribal membership or enrollment numbers were listed for any of father's relatives. The form was served by mail on the Bureau of Indian Affairs (BIA), the U.S. Department of the Interior, and representatives of all tribes listed on May 24, 2018.
We only summarize the information provided on the ICWA-030 form for the paternal side because father alleges no error with regard to the information obtained for the maternal side.
On June 11, 2018, the social worker received a response from the Eastern Band of Cherokee Indians, indicating Joshua was neither registered nor eligible to register as a member of the tribe and was not an "Indian Child" within the meaning of ICWA.
On the same day, the social worker received a response from the Cherokee Nation, indicating the children could be traced in their tribal records but were not at that time considered "Indian child[ren]" as defined by ICWA. The letter indicated the tribe did not have legal standing to intervene until "the child/children or eligible parent/s receive membership." A courtesy membership application was enclosed, and the social worker forwarded it to mother via mail.
At the jurisdictional hearing on June 12, 2018, the juvenile court found all allegations in the petition true. The matter was continued for disposition in order to wait for further ICWA responses.
At the disposition hearing on August 2, 2018, mother's counsel indicated she received the application to register with the Cherokee Nation and requested to continue the matter to pursue tribal registration for herself and the children. The agency requested the court move forward with the disposition hearing and argued that if mother were to file the application for membership and the children were deemed Indian children as a result, then mother could file a section 388 petition alleging changed circumstances and request services. The court agreed with the agency and proceeded with disposition. The court ordered the parents not be offered reunification services pursuant to the bypass provisions in section 361.5, subdivision (b)(10) (failure to reunify with sibling) and (b)(13) (chronic substance abuse and resistance to prior treatment) and set a section 366.26 hearing.
On September 28, 2018, the social worker received a letter from the Navajo Nation stating the tribe was unable to verify the children's eligibility for tribal membership based on the ancestry provided.
The agency's recommendation leading into the section 366.26 hearing was that the children continue as dependents of the court and the court set a status review hearing. The children had been recently placed with care providers who were not at that time committed to legal guardianship but indicated they may consider legal guardianship or adoption in the future. The agency therefore recommended the children not be found adoptable at that time.
At the section 366.26 hearing on February 21, 2019, mother's counsel stated that mother had applied for tribal membership but had not heard back. The court responded there was insufficient evidence at that time to support a finding ICWA applied. The court told mother that if she obtained membership, she must inform the social worker as soon as possible so that if the tribe determined the children were Indian children, the court could make the appropriate finding and proceed according to ICWA.
The court found there was not clear and convincing evidence the children were likely to be adopted, ordered the children were to continue as dependents of the court, and set a section 366.3 status review hearing.
Shortly after the hearing, the Cherokee Nation sent a letter to the court stating the children were "NOT" Indian children, and the Cherokee Nation did not have legal standing to intervene or participate until the children or "eligible parent/s receive membership." The letter stated: "On 05/31/2018 this office mailed tribal enrollment applications for the children to Tulare County Health and Human Services.... As of this date and to the best of my knowledge, the applications have not been submitted to the Cherokee Nation." The Cherokee Nation sent an identical letter to the court dated March 25, 2019.
In July 2019, the agency filed a status review report requesting the court to set a section 366.26 hearing because it had determined the children were adoptable since the last section 366.26 hearing. The report indicated the children's current care providers, with whom they had been placed since November 2018, wished to adopt them. The children were doing well and reported wanting to stay with their care providers. The children had formed a close relationship with their care providers and called them "dad." Charlie had been receiving mental health services, and it was reported that since being placed with the care providers, the services had been decreased.
At the review hearing on July 25, 2019, the court requested an update on ICWA. The agency's counsel responded the agency had no additional information to provide to the court and was submitting the matter on the documents. Mother was not present and had not been in contact with her counsel. Mother's counsel requested the agency make an additional inquiry with the Cherokee Nation, and the court ordered the agency to do so. At this point in the proceeding, the maternal grandmother, who was present, informed the court the tribe had requested state-issued birth certificates, but mother had sent in county-issued birth certificates. The maternal grandmother said they would need to send in the correct birth certificates in order to complete the application. The court responded, "Out of an abundance of caution, I'm still going to have the Agency follow through with regard to the Cherokee Nation. Because if, in fact, they received some sort of application and it's pending for further information, it would affect the .26." The court set a section 366.26 hearing.
On August 20, 2019, the social worker contacted the Cherokee Nation ICWA representative to inquire about the status of the children's membership. The ICWA representative informed the social worker the tribe needed more information to complete the applications and stated, "At this time, the children will still be considered NOT Indian children and Cherokee Nation is not authorized to intervene or participate where there is no Indian child." The Cherokee Nation's registration office specified that mother had submitted an application for herself and the children but had not submitted the requested state-issued birth certificates.
On November 5, 2019, the maternal grandmother informed the social worker that because she was not a registered member of the Cherokee Nation and mother had not turned in the required documents to register herself to become a member of the tribe, the children would not be eligible to enroll as members.
In its section 366.26 report, prepared in November 2019, the agency recommended the court order a permanent plan of adoption and terminate parental rights.
On January 2, 2020, the social worker attempted to contact mother by phone regarding ICWA. Mother was not home, so the social worker spoke with the maternal grandmother. The social worker asked the maternal grandmother if mother had submitted the required documents in order to become a registered member of the Cherokee Nation. The maternal grandmother reported that neither she, nor mother, have turned in anything that was requested from the Cherokee Nation. The maternal grandmother reported that she was not a registered member of the tribe and did not intend to enroll. The social worker asked the maternal grandmother to have mother contact the social worker so the social worker could follow up with her regarding her application to enroll as a member, but mother did not contact the social worker.
On January 3, 2020, the social worker contacted the Cherokee Nation's registration office, and the social worker was informed that the tribe had not received any new information or the requested documents with regard to mother or the children.
At a hearing on January 6, 2020, the parents were not present but the maternal grandmother was present. The court stated that because mother had not followed through with registering herself or the children with the Cherokee Nation, the court believed ICWA did not apply. The maternal grandmother addressed the court and stated the reason mother had not been able to obtain membership was because maternal grandmother would need to register. The maternal grandmother informed the court she would not be seeking membership, stating "[the process] had stopped with me. It won't go any further." Maternal grandmother expressed she wanted the children to stay with their current care providers whom the children loved and who loved the children and did not want the tribe to intervene. The court found that ICWA did not apply.
A contested section 366.26 hearing was held on January 30, 2020. The court found the children were adoptable and that no exception to termination of parental rights applied. ICWA was not discussed at the section 366.26 hearing.
DISCUSSION
Father contends the juvenile court's implied finding that ICWA did not apply at the section 366.26 hearing on January 30, 2020, is not supported by sufficient evidence and must be reversed and the matter remanded for proper ICWA inquiry.
I. General ICWA Law
ICWA reflects a congressional determination to protect Indian children and to promote the stability and security of Indian tribes and families by establishing minimum federal standards that a state court, except in emergencies, must follow before removing an Indian child from his or her family. (25 U.S.C. § 1902; see In re Isaiah W. (2016) 1 Cal.5th 1, 7-8.) The Indian child, the parent, and the Indian child's tribe have the right to intervene in any "proceeding for the foster care placement of, or termination of parental rights to, an Indian child" (25 U.S.C. § 1911(c)), and may petition the court to invalidate any foster care placement of an Indian child made in violation of ICWA (25 U.S.C. § 1914; see § 224, subd. (e)).
For purposes of ICWA, an "Indian child" is an unmarried individual under 18 years of age who is either (1) a member of a federally recognized Indian tribe, or (2) is eligible for membership in a federally recognized tribe and is the biological child of a member of a federally recognized tribe. (25 U.S.C. § 1903(4) & (8); see § 224.1, subd. (a) [adopting federal definitions].) "Being an 'Indian child' is thus not necessarily determined by the child's race, ancestry, or 'blood quantum,' but depends rather 'on the child's political affiliation with a federally recognized Indian Tribe.' " (In re Austin J. (2020) 47 Cal.App.5th 870, 882.)
II. Standard of Review
We review the juvenile court's finding that ICWA is inapplicable for substantial evidence. (In re Rebecca R. (2006) 143 Cal.App.4th 1426, 1430.) We must uphold the court's orders and findings if any substantial evidence, contradicted or uncontradicted, supports them, and we must indulge all legitimate inferences in favor of affirmance. (In re John V. (1992) 5 Cal.App.4th 1201, 1212.) We apply the ICWA statutes that applied at the time of the finding from which father appeals. (In re A.M. (2020) 47 Cal.App.5th 303, 321 (A.M.).)
III. Analysis
A. Alleged Inadequate Inquiry into Father's Indian Ancestry
Father first contends the court's finding that ICWA did not apply was in part not supported by substantial evidence because the agency did not adequately further inquire into the children's Indian ancestry on the children's paternal side by failing to interview extended family members or others who had an interest in the children as to whether the children were Indian children. We conclude the record is inadequate to determine whether proper further inquiry was made.
Under California law, the court and county child welfare agency "have an affirmative and continuing duty to inquire whether a child," who is the subject of a juvenile dependency petition, "is or may be an Indian child." (§ 224.2, subd. (a); see In re Isaiah W., supra, 1 Cal.5th at p. 9; Cal. Rules of Court, rule 5.481(a).)
Further rule references are to the California Rules of Court.
The agency's initial duty of inquiry includes "asking the child, parents, legal guardian, Indian custodian, extended family members, others who have an interest in the child, and the party reporting child abuse or neglect, whether the child is, or may be, an Indian child and where the child, the parents, or Indian custodian is domiciled." (§ 224.2, subd. (b).) The juvenile court must ask the participants in a dependency proceeding upon each party's first appearance "whether the participant knows or has reason to know that the child is an Indian child" (§ 224.2, subd. (c)), and "[o]rder the parent ... to complete [an ICWA-020 form]" (rule 5.481(a)(2)(C), italics omitted).
When the court, social worker, or probation officer has "reason to believe" (but not sufficient evidence to determine there is "reason to know") that an Indian child is involved in a proceeding, section 224.2, subdivision (e) requires "further inquiry regarding the possible Indian status of the child." (§ 224.2, subd. (e), italics added.) "Further inquiry" includes: (1) interviewing the parents and extended family members; (2) contacting the BIA 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. (§ 224.2, subd. (e)(2).)
While interviewing parents and extended family members, the agency is to gather the following information:
"(A) The name, birth date, and birthplace of the Indian child, if known[;]
"(B) The name of the Indian tribe in which the child is a member, or may be eligible for membership, if known[; and]
"(C) All names known of the Indian child's biological parents, grandparents, and great-grandparents, or Indian custodians, including maiden, married, and former names or aliases, as well as their current and former addresses, birth dates, places of birth and death, tribal enrollment information of other direct lineal ancestors of the child, and any other identifying information, if known." (§ 224.3, subd. (a)(5); see § 224.2, subd. (e)(2)(A).)
The agency "has the obligation to make a meaningful effort to locate and interview extended family members to obtain whatever information they may have as to the child's possible Indian status." (In re K.R. (2018) 20 Cal.App.5th 701, 709.)
If, after further inquiry is conducted, "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 shall be sent to the child's parents or legal guardian, Indian custodian, if any, and the child's tribe for any hearing that may culminate in an order for foster care placement, termination of parental rights, preadoptive placement, or adoptive placement so the tribe may exercise its right to intervene. (§ 224.3, subd. (a); see 25 U.S.C. § 1912(a).)
There is "reason to know" a child is an Indian child if "(1) Any participant in the proceeding, officer of the court involved in the proceeding, Indian Tribe, Indian organization, or agency informs the court that the child is an Indian child; [¶] (2) Any participant in the proceeding, officer of the court involved in the proceeding, Indian Tribe, Indian organization, or agency informs the court that it has discovered information indicating that the child is an Indian child; [¶] (3) The child who is the subject of the proceeding gives the court reason to know he or she is an Indian child; [¶] (4) The court is informed that the domicile or residence of the child, the child's parent, or the child's Indian custodian is on a reservation or in an Alaska Native village; [¶] (5) The court is informed that the child is or has been a ward of a Tribal court; or [¶] (6) The court is informed that either parent or the child possesses an identification card indicating membership in an Indian Tribe." (25 C.F.R. § 23.107(c) (2020); see § 224.2, subd. (d).)
Here, the parties do not dispute the court had "reason to believe" the children were Indian children under section 224.2, subdivision (e), and that this "reason to believe" gave rise to the agency's duty to further inquire into the children's possible status as Indian children. The parties disagree, however, as to whether the agency's "further inquiry" was adequate. We conclude, based on the information on this record, it was not.
The record indicates the agency interviewed father, but there is no evidence they interviewed or attempted to locate or interview any extended family members as required by section 224.2 in order to gather information required by section 224.3, subdivision (a)(5), despite father's indication that his first cousin was a registered member of a tribe. This is relevant because the agency was unable to obtain the information required by section 224.3, subdivision (a) by interviewing father alone, as there were omissions in father's biographical information on the ICWA-030 form. The ICWA-030 form included no tribal identifying information listed for father's side of the family and no information at all on father's paternal grandparents (the children's great-grandparents), all information which was required to be gathered during "further inquiry" under sections 224.2 and 224.3. As the social worker who prepared the ICWA-030 form wrote under the omitted information, "No information available" (which indicates father did not know) as opposed to "does not apply" (which would have indicated father expressed the information was not relevant), we cannot ascertain whether the omitted information could have been relevant in determining whether the children were Indian children. We cannot assume that other family members, particularly the cousin father mentioned at the detention hearing, could not have filled in the gaps, and we cannot assume the omitted information, if known, would not have helped the pertinent tribes make a better determination of whether the children were Indian children.
We reject respondent's argument that the contents of the ICWA-030 form were "irrelevant" because the court did not have "reason to know" the children were Indian children and thus notice to the tribes was not necessary. While formal notice under section 224.3, subdivision (a) is not required unless the court or agency has "reason to know" the children are Indian children, the agency is required as part of its duty of further inquiry to contact tribes with whom the children may be affiliated. (§ 224.2, subd. (e)(2).) Contacting the tribe for this purpose "shall include sharing information identified by the tribe as necessary for the tribe to make a membership or eligibility determination." (§ 224.2, subd. (e)(2)(C).) The tribes require biographical information that is accurate and as complete as possible to make their determinations. Thus, the contents of the ICWA-030 form are relevant to the extent it informs us what information the agency was able to provide to the tribes to help the agency ascertain whether the children were Indian children. Omissions in this document are pertinent to whether the agency fulfilled its duty of further inquiry irrespective of whether the agency was required to formally notice the tribes.
For example, in the letter sent to the agency by the Navajo Nation, the tribe indicated they "have been unable to verify the children's eligibility for tribal membership with the Navajo Nation based on the parents' ancestry provided." (Emphasis added.) The Eastern Band of Cherokee Indians noted in their letter the children were not considered Indian children: "This determination is based on the information exactly as provided by you. Any incorrect or omitted family documentation could invalidate this determination." --------
Respondent's reliance on A.M., supra, 47 Cal.App.5th 303 does not persuade us to come to a different conclusion. In A.M., the appellate court affirmed a juvenile court's finding ICWA did not apply. The court held the mother had not provided sufficient information to give the court the "reason to know" the child was an Indian child but had provided sufficient information to give a "reason to believe," requiring the agency to further inquire by interviewing extended family members. (A.M., at p. 322.) The court concluded, however, that the agency "could not have obtained any further information from any other maternal relatives" because both maternal grandparents were deceased, mother had no contact with any relatives because she was raised in foster care, and mother did not provide the agency with any other relatives. (Id. at p. 323.)
Respondent contends the agency's further inquiry was adequate, like in A.M., pointing out they interviewed father and obtained all the information that he knew, the relatives father provided for the ICWA-030 form were deceased, and the paternal relatives with whom the agency had contacted as possible placements for the children were, according to father, not "native." We conclude the facts of A.M. are distinguishable from the present case as the record here is not clear that the agency could not have obtained any more of father's familial information. Father had mentioned a family member who was affiliated with a tribe (his first cousin, the children's first cousin once removed), and it is unclear from the record whether the agency attempted to ascertain whether this cousin had pertinent information for the tribes to make a determination as to the children's status as Indian children. Respondent makes no mention in their brief of father's cousin in its discussion of whether the agency's further inquiry was adequate.
We conclude a very limited remand is necessary, at a minimum, to give the agency an opportunity to make a record of any efforts made to obtain contact information of extended family members or others who may have pertinent information as required by section 224.3, subdivision (a) including, but not limited to, father's cousin whom father indicated was a registered member of a tribe. A notable deficiency in the record is that it does not disclose the tribe to which the paternal cousin is a registered member. We note that on remand, the agency is not required to further inquire into father's affiliation with the Cherokee Nation tribe, as the Cherokee Nation, based on the information already provided, indicated father was eligible for membership, and despite that fact, still determined the children were not Indian children. Thus, any missing information with regard to father's affiliation with the Cherokee Nation renders any error harmless.
B. Alleged Inadequate Inquiry by Failing to Assist with Enrolling the Children in the Cherokee Nation
Father contends the agency's investigation was "inadequate" because it did not help enroll the children in the Cherokee Nation tribe. Father's contention is based on two authorities, neither of which persuade us there was any error.
Father first argues the agency was required to provide the children's birth certificates to the tribe, citing section 224.2, subdivision (e)(2)(C), which provides "further inquiry" includes "sharing information identified by the tribe as necessary for the tribe to make a membership or eligibility determination." We reject this claim because the record is clear the tribe required state-issued birth certificates, and the agency was only in possession of county-issued birth certificates. Father cites no authority to support his contention the agency was required to obtain state-issued birth certificates for the purpose of assisting with enrolling the children in the tribe.
Father also contends the agency failed to comply with rule 5.485(c)(3), which reads in pertinent part:
"(c) In addition to any other required findings to place an Indian child with someone other than a parent or Indian custodian, or to terminate parental rights, the court must find that active efforts have been made ... to provide remedial services and rehabilitative programs designed to prevent the breakup of the Indian family, and must find that these efforts were unsuccessful.... [¶] ... [¶] (3) Active efforts to provide services must include pursuit of any steps necessary to secure tribal membership for a child if the child is eligible for membership in a given tribe." (Emphasis added.)Father contends this rule required the agency to register the children with the Cherokee Nation tribe. Father's reliance on rule 5.485(c)(3) is misplaced. In In re Abbigail A. (2016) 1 Cal.5th 83 (Abbigail A.), the California Supreme Court explained that this rule (formerly rule 5.484, renumbered eff. Jan. 1, 2020) by its plain language only applies to cases involving an "Indian child" as defined by law. (Abbigail A., at p. 96.) In the same opinion, the Supreme Court held a rule that required the agency to make active efforts to secure tribal membership for a child in a tribe in which the child was merely eligible for membership but was not determined to be an Indian child was invalid. The court explained: "Nothing in the [] language or history [of the bill incorporating ICWA's requirements and definitional provisions into California statutory law] demonstrates the Legislature intended to apply ICWA's requirements to, or require membership applications be made on behalf of, children who are not Indian children as defined in ICWA." (Id. at p. 93.)
Here, the Cherokee Nation confirmed at multiple points throughout the proceedings the children were not considered Indian children and they would remain at that status until a parent or the children received membership. The tribe indicated they needed more information, namely, state-issued birth certificates, in order to complete the application process. By the time of the section 366.26 hearing, mother had not submitted the requested information to the tribe nor followed up with the agency's attempt to obtain the status of her application, and maternal grandmother informed the court mother would not be completing the application process. As the children were not considered Indian children, the agency had no obligation under rule 5.484 to help enroll the children in the tribe.
Father acknowledges Abbigail A., but argues it does not preclude his argument because "[t]he facts in [the present] record are more nuanced than that—and mother's status was unclear at the time of the section 366.26 hearing in January 2020." He argues the Cherokee Nation representative last characterized the status of mother and the children in August 2019, and in January 2020, simply stated they had not received further information from mother, thus "it is unclear how the Cherokee Nation characterized the minors and mother at that time—whether they were still just eligible for membership, or their membership in the Cherokee Nation was more definitive by then."
We reject father's argument. The tribe at no time indicated the children were Indian children and, in all communications with the agency, stressed the children were not going to be considered Indian children until they or a parent obtained membership. As the tribe indicated they had received no further information and did not indicate the children's status had changed when it communicated with the agency just before the section 366.26 hearing, it follows the children were not considered Indian children at the time of the hearing. Father's argument is in effect requesting us to construe the rule in a way deemed invalid by our high court in Abbigail A. and, accordingly, is without merit.
Because the children were not Indian children within the meaning of ICWA, the agency had no duty to help enroll them in the tribe under rule 5.485(c). We find no error with regard to this claim.
DISPOSITION
The juvenile court's order terminating parental rights is conditionally reversed and the matter is remanded to the juvenile court. Upon remand, the juvenile court shall order the agency to conduct an inquiry which complies with the provisions of sections 224.2 and 224.3 and includes active efforts to interview "extended family members" on father's side of the family, such as the paternal cousin or any other relative or person that father is able to identify as possibly having pertinent information. If the agency's inquiry produces any additional material information regarding father's claim of Indian ancestry, the agency must provide the additional information to the pertinent tribe(s). We note that as father was determined, based on the information presented to Cherokee Nation, that he was eligible for membership, any additional information the children's extended family members may provide with regard to father's or the children's membership in Cherokee Nation will not require any more inquiry to Cherokee Nation. Upon receipt of the tribes' responses, the juvenile court shall then determine whether ICWA-related inquiry and notice requirements have been satisfied and whether the children are Indian children. If the court finds the children are Indian children, the court shall vacate its existing orders and proceed in compliance with ICWA and related California law. If the court finds the children are not Indian children, the section 366.26 orders shall remain in effect.