In re T.G. ( 2020 )

Filed 12/8/20
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SEVEN
In re T.G. et al., Persons Coming B303987
Under the Juvenile Court Law. (Los Angeles County
Super. Ct.
Nos. 17CCJP02322B-D)
LOS ANGELES COUNTY
DEPARTMENT OF CHILDREN
AND FAMILY SERVICES,
Plaintiff and Respondent,
v.
TAMARA S.,
Defendant and Appellant.
In re JAZMINE H., a Person B304055
Coming Under the Juvenile (Los Angeles County Super.
Court Law. Ct. No. 17CCJP02322A)
LOS ANGELES COUNTY
DEPARTMENT OF CHILDREN
AND FAMILY SERVICES,
Plaintiff and Respondent,
v.
JASON H.,
Defendant and Appellant.
APPEALS from orders of the Superior Court of Los Angeles
County, Emma Castro, Juvenile Court Referee. The
section 366.26 orders are conditionally reversed. The matters are
remanded with directions.
Pamela Deavours, under appointment by the Court of
Appeal, for Defendant and Appellant Tamara S.
Marissa Coffey, under appointment by the Court of Appeal,
for Defendant and Appellant Jason H.
Mary C. Wickham, County Counsel, Kim Nemoy, Acting
Assistant County Counsel, and William D. Thetford, Principal
Deputy County Counsel, for Plaintiff and Respondent.
________________
Tamara S. is the mother of four children, 16-year-old
Jazmine H., 14-year-old T.G., 12-year-old N.G. and eight-year-old
P.G. Jason H. is the biological father of Jazmine. Shaka G. is the
presumed father of T.G., N.G. and P.G. All four children were
declared dependents of the juvenile court, removed from parental
custody and placed with the same nonrelated extended family
members who were subsequently appointed their legal guardians.
In separate appeals Jason H. challenges the juvenile court’s order
pursuant to Welfare and Institutions Code section 366.261
granting a guardianship, appointing legal guardians and
terminating its jurisdiction as to Jazmine (B304055), and Tamara
challenges the section 366.26 orders granting guardianships,
appointing legal guardians and terminating jurisdiction as to
T.G., N.G. and P.G. (B303987).
The sole issue in both appeals is whether the juvenile court
and the Los Angeles County Department of Children and Family
1 Statutory references are to this code unless otherwise
stated.
2
Services (Department) complied with their duties of inquiry and
notice under the Indian Child Welfare Act of 1978 (25 U.S.C.
§ 1901 et seq.) (ICWA) and related California law. We agree the
Department failed to adequately investigate Tamara’s claim of
Indian ancestry and the juvenile court failed to ensure an
appropriate inquiry had been conducted before concluding, if it
ever actually did, ICWA did not apply to these proceedings.
In reaching this result, we disagree with the holding in In re
Austin J. (2020) 47 Cal.App.5th 870, 888-889 (Austin J.) that
amendments enacted by Assembly Bill No. 3176 (2017-2018
Reg. Sess.) (Assembly Bill 3176) were intended to limit the
Department’s robust duty of inquiry. Accordingly, we
conditionally reverse the orders for legal guardianship and
remand the matters to allow the Department and the juvenile
court to rectify their errors and to take all other necessary
corrective actions.
FACTUAL AND PROCEDURAL BACKGROUND
1. The Dependency Proceedings
The children were initially removed from parental custody
on December 1, 2017. Jazmine and P.G. were placed with
nonrelated extended family members Bridget L. and her
husband, Eric L.2 T.G. and N.G. were initially placed with their
maternal grandmother, Loretta S., but in July 2018 joined
Jazmine and P.G. at Bridget and Eric’s home.
On December 7, 2017 the Department filed a petition on
behalf of the children pursuant to section 300, subdivisions (a)
and (b)(1), alleging Tamara and Shaka had a history of domestic
2 Bridget is the godmother for some of the children. She and
Eric have known Tamara and her family for years and had been
neighbors in the past.
3
violence in the presence of the children; Tamara had a history of
mental and emotional problems; and Tamara allowed the
children to reside with Jazmine’s paternal grandmother, who
Tamara knew was an abuser of marijuana. At the initial
detention hearing on December 8, 2017 the court found a prima
facie case for detaining the children.
In February 2018 the juvenile court ordered a paternity
test be conducted for Jason and Jazmine. In March 2018 the
court found Jason was Jazmine’s biological father based on the
DNA test results.
On March 28, 2018 the Department filed a first amended
petition adding allegations concerning Tamara’s history of abuse
of prescription drugs and Jason’s criminal history. In addition,
the first amended petition alleged Tamara had neglected
Jazmine’s medical needs.
The court sustained in part the first amended petition, as
further amended by interlineation, at a jurisdiction hearing on
April 20, 2018.3 The children were declared dependents of the
juvenile court and suitably placed under the supervision of the
Department. The court ordered family reunification services for
Tamara and Shaka. No services were ordered for Jason, who was
3 The court sustained under section 300, subdivisions (a) and
(b)(1), counts alleging Tamara and Shaka had a history of
domestic violence and engaged in violent altercations in front of
the children; under subdivision (b)(1) counts alleging Tamara had
a history of mental and emotional problems and failed to
regularly participate in mental health services, and Tamara
failed to obtain necessary medical care for Jazmine; and under
subdivision (j) a count alleging Tamara’s medical neglect of
Jazmine endangered the other children. The remaining counts
were dismissed. Jason was nonoffending.
4
a biological father only and was incarcerated with an estimated
release date at least one year away.4
At the six-month review hearing (§ 366.21, subd. (e)) in
October 2018, the court found Tamara and Shaka had
participated only minimally in their case plans. Further
reunification services were ordered. At the 12-month review
hearing (§ 366.21, subd. (f)) in February 2019, the court found
Tamara’s and Shaka’s participation in services had been
“nonexistent.” The court terminated reunification services and
set the matter for a selection and implementation hearing
pursuant to section 366.26.
The Department initially recommended adoption as the
permanent plan for the children. However, Bridget and Eric L.
stated their preference for legal guardianships, and the
Department modified its recommendation accordingly.
At a continued section 366.26 hearing on January 7, 2020,
applying section 366.26, subdivision (c)(1)(A)’s exception to the
legislative preference for adoption as the permanent plan, the
court found by clear and convincing evidence that the children
were adoptable but were living with relatives who were unable or
unwilling to adopt the children and were able to provide stability
and permanency through legal guardianship. The court further
found it would be detrimental to remove the children from their
relatives’ home and would be detrimental to return them to their
parents.5 Legal guardianship was ordered as the children’s
4 Jason was apparently released from prison in April 2019.
5 In addition to the court’s findings pursuant to
section 366.26, subdivision (c)(1)(A), the minute orders for the
January 7, 2020 hearing state the court found by clear and
convincing evidence that the children were not likely to be
5
permanent plan, and Bridget and Eric L. were appointed the
legal guardians of each child. Jurisdiction was terminated as to
Jazmine. The matter was continued as to T.G., N.G. and P.G. to
January 24, 2020 to resolve an issue of visitation. Jurisdiction
was terminated as to those three children on that date.
2. ICWA Information and Inquiry
a. The initial ICWA forms and the detention hearing
Judicial Council form ICWA-010(A), prepared by the
Department and attached to the original dependency petition
filed on December 7, 2017, stated the children may have Indian
ancestry. The form indicated Tamara had been questioned in
person on November 22, 2017 and reported her father (that is,
the children’s maternal grandfather) had Indian ancestry, “but no
connection to a tribe. No additional information was given.” The
detention report filed December 7, 2017 contained the same
information.
On Tamara’s ICWA-020 form with Jazmine’s name and
case designation, 17CCJP02322A, filed at the time of the
detention hearing on December 8, 2017, the preparer checked the
box for “I may have Indian ancestry,” inserted Cherokee as the
name of the band or tribe on Tamara’s maternal side, and
additionally indicated possible Indian ancestry on Tamara’s
paternal side through her great-grandfather, Theodore S. The
date “7-4-30” was written below the paternal great-grandfather’s
name. On the ICWA-020 forms filed at the same time for the
other three children, with case designations 17CCJP02322B-D,
the preparer simply checked the box for “I may have Indian
adopted. The reporter’s transcript of the January 7, 2020 hearing
does not include any such finding.
6
ancestry,” omitting the additional details provided to the court on
Jazmine’s form.6
At the December 8, 2017 detention hearing for all
four children, the court stated Tamara’s ICWA-020 indicated she
may have American Indian ancestry. The court asked Loretta S.,
who had been identified on the record as the maternal
grandmother, if she had American Indian ancestry on her side of
the family. Loretta S. answered, “Yes.” The court inquired, “And
what tribe?” Loretta S. answered, “Cherokee.” The following
colloquy then occurred:
“The Maternal Grandmother: Well, that’s what—from my
understanding from what my mother told me.
“The Court: From family history, you’ve been told that you
have Cherokee Nation Heritage?
“The Maternal Grandmother: Yes.
“The Court: Ms. S[.], Mother, is that where you’re claiming
heritage is through your mother?
“The Mother: On my father’s side.
“The Court: Your mother and your father’s side. All right.
So do you know—would it be fair to say you don’t know the
ancestor through which you claim Cherokee heritage?
“The Maternal Grandmother: No, I don’t.
“The Court: And on your father’s side Ms. S[.], Mother,
who do you claim heritage through?
“The Mother: I don’t know
“The Court: So, what do you know about American Indian
heritage through your father’s side, if you can tell me?
6 It appears counsel, not Tamara, may have prepared the
ICWA-020 forms.
7
“The Mother: Through my grandfather. He’s deceased
now. He told us about my background.
“The Court: So that’s your father’s father?
“The Mother: Yes.
“The Court: And what was his name?
“The Mother: Theodore S[.]. [¶] . . . [¶]
“The Court: Okay. And is there anyone still living that
knows the birth date for Theodore S[.]?
“The Mother: My aunt.
“The Court: So you’d be able to contact your aunt and find
out more information about what relative claimed heritage and/or
your grandfather’s birth date?
“The Mother: Yes.
“The Court: And if you’ll be kind enough to do that and
report to the social worker by the end of next week.
“The Mother: Yes. [¶] . . . [¶]
“The Maternal Grandmother: I know the birth day.
“The Court: Okay. For Theodore S[.]?
“The Maternal Grandmother: Yes. 7-4-30.
“The Court: Did they advise you what tribe was the Native
American heritage?
“The Mother: No.”
The court then made the following order, the meaning and
significance of which is disputed by the parties: “So, Cherokee on
the maternal grandmother’s side. And unknown— The
Department is to send notice to the Department of the Interior,
the Bureau of Indian Affairs, and the Cherokee Nation. As to the
Cherokee Nation, first, the Department—strike that. As to a
specific tribe, on Mother’s statement that her paternal
grandfather had American Indian heritage, once the mother
8
contacts her aunt, if there is a specific tribe that is identified, the
Department is to provide notice to that tribe as well. Right now
all we know from the maternal grandmother, Loretta S[.], who’s
present in court, is that she believes it was the Cherokee Nation
tribe on her side of the family. Correct?” Loretta S. responded,
“Correct.”
The reporter’s transcript from the detention hearing does
not include any other ICWA discussion or ICWA finding by the
court. Despite that, and notwithstanding the exchange among
the court, Tamara and Loretta S. just quoted, the minute order
for the December 8, 2017 detention hearing recited, “The Court
does not have a reason to know that this is an Indian Child, as
defined under ICWA, and does not order notice to any tribe or the
BIA. Parents are to keep the Department, their Attorney and the
Court aware of any new information relating to possible ICWA
status.” The minute order additionally stated, “The
determination of ICWA status is deferred for father’s
appearance.”
b. Further ICWA inquiry, the jurisdiction/disposition
report and the jurisdiction hearing
According to the Department’s February 6, 2018
jurisdiction/disposition report, Tamara had advised the
Department on January 18, 2018 that the paternal side of her
family had “Khalifian Native American Ancestry.”7 She was
unable to provide additional information, Tamara explained,
because her paternal relatives did not talk about their
background.
7 The Khalifian (or Califian) is not a federally recognized
tribe.
9
The jurisdiction/disposition report and subsequent court
filings by the Department reflect ongoing contact between the
Department and Loretta S., as well as with other maternal
relatives, but no indication of any efforts to develop additional
information concerning Indian ancestry through that side of
Tamara’s family. The February 6, 2018 report stated ICWA
“does or may apply.”
The jurisdiction hearing was continued from February 6,
2018 to April 12, 2018. At the February 6, 2018 hearing,
however, in addition to formal detention findings as to Shaka and
discussion of T.G., N.G. and P.G.’s possible American Indian
ancestry through him, the Department’s counsel observed, “I also
saw that the court ordered notice to Cherokee. Mother had
alleged, I guess, Native American.” The court8 inquired, “Do we
have that notice?” Counsel responded, “I don’t see it.” The court
then ordered, “For the R.O.R. [a March 29, 2018 nonappearance
receipt-of-report date], Notice to the Cherokee Nation. Also, if it
was to the Cherokee Nation, it’s the Bureau of Indian Affairs and
the Department of the Interior. I see that on the detention
report.”
The minute order for the February 6, 2018 hearing
indicates the Department was ordered to investigate Shaka’s
claim of possible American Indian ancestry and to include details
regarding that investigation in its next report to the court. It
also states, “DCFS is to send notice to appropriate tribe(s), the
bureau of Indian affairs and the secretary of the interior,” but
does not include the court’s express direction to provide notice to
8 Juvenile Court Referee Emma Castro was the bench officer
at both the detention hearing and the February 6, 2018 hearing.
10
the Cherokee Nation. There is no dispute that no ICWA notice of
any sort was ever sent in these proceedings.
c. Subsequent reports concerning ICWA status
As had the February 2018 jurisdiction/disposition report,
an interim review report dated April 12, 2018 and prepared for
the continued jurisdiction hearing stated ICWA does or may
apply.9 However, the interim review report filed the following
month on May 11, 2018 simply stated ICWA does not apply; no
explanation was provided. A status review report dated
February 7, 2019, prepared for the 12-month review hearing,
again stated ICWA does not apply and asserted the court had
found ICWA did not apply at the detention hearing on
December 8, 2017. That same statement was thereafter repeated
in all subsequent reports, including the report for the
section 366.26 selection and implementation hearings at issue in
9 The April 12, 2018 report also stated Shaka had disclaimed
any Indian ancestry during a February 21, 2018 telephone
interview with one of the Department’s dependency investigators.
Presumably, therefore, the continuing comment that ICWA may
apply was based on Tamara’s statements.
At the jurisdiction hearing on April 12, 2018 the court
admitted exhibits presented by the parties, heard argument and
then continued the hearing to April 20, 2018. The reporter’s
transcript contains no mention of ICWA. The minute orders from
that date state, “No Indian Ancestry is declared on [Shaka’s]
ICWA-020 form.” The minute order contains no other reference
to ICWA, and the minute orders from the continued jurisdiction
hearing on April 20, 2018 do not mention ICWA. In subsequent
reports the Department noted the reference in the April 12, 2018
minute order to Shaka’s ICWA-020 form.
11
these appeals. None of the court’s subsequent orders includes
ICWA findings.
DISCUSSION
1. ICWA and the Duties of Inquiry and Notice
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 a state court 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 (Isaiah W.); In re W.B. (2012)
55 Cal.4th 30, 47.)10 As the Supreme Court explained in
Isaiah W., “Congress enacted ICWA in 1978 in response to ‘rising
concern in the mid-1970’s over the consequences to Indian
children, Indian families, and Indian tribes of abusive
child welfare practices that resulted in the separation of large
numbers of Indian children from their families and tribes
through adoption or foster care placement, usually in non-Indian
homes.’” (Isaiah W., at p. 7.)11
10 For purposes of ICWA, an “Indian child” is an unmarried
individual under age 18 who is either a member of a federally
recognized Indian tribe or is eligible for membership in a
federally recognized tribe and is the biological child of a member
of a federally recognized tribe. (See 25 U.S.C. § 1903(4)
[definition of “‘Indian child’”] & (8) [definition of “‘Indian tribe’”];
see also Welf. & Inst. Code, § 224.1, subd. (a) [adopting federal
definitions].)
11 In its executive summary to the federal regulations adopted
in 2016 to promote ICWA compliance, the Bureau of Indian
Affairs provided a further description of the tragic conditions that
led to enactment of ICWA: “The empirical and anecdotal
evidence showed that Indian children were separated from their
12
ICWA significantly limits state court actions concerning
out-of-family placements for Indian children. “When ICWA
applies, a state court may not, for example, make a foster care
placement of an Indian child or terminate parental rights to an
Indian child unless the court is satisfied ‘that active efforts have
been made to provide remedial services and rehabilitative
programs designed to prevent the breakup of the Indian family
and that these efforts have proved unsuccessful.’ [Citations.]
Prior to placing an Indian child in foster care, the court must also
make ‘a determination, supported by clear and convincing
evidence, including testimony of qualified expert witnesses, that
the continued custody of the child by the parent or Indian
custodian is likely to result in serious emotional or physical
damage to the child.’” (Austin J., supra, 47 Cal.App.5th at
p. 882.) ICWA and the controlling federal regulations
(see 25 C.F.R. pt. 23 (2020)) simply set a floor for minimal
procedural protections for Indian children, their families and
their tribes; the statute authorizes states to provide “a higher
families at significantly higher rates than non-Indian children.
In some States, between 25 and 35 percent of Indian children
were living in foster care, adoptive care, or institutions.
[Citation.] Indian children removed from their homes were most
often placed in non-Indian foster care and adoptive homes.
[Citation.] These separations contributed to a number of
problems, including the erosion of a generation of Indians from
Tribal communities, loss of Indian traditions and culture, and
long-term emotional effects on Indian children caused by loss of
their Indian identity. [Citation.] [¶] Congress found that
removal of children and unnecessary termination of parental
rights were utilized to separate Indian children from their Indian
communities.” (81 Fed.Reg. 38780 (June 14, 2016).)
13
standard of protection to the rights of the parent or Indian
custodian of an Indian child than the rights provided under”
ICWA. (25 U.S.C. § 1921; see In re Abbigail A. (2016) 1 Cal.5th
83, 93; Austin J., at p. 883.)
a. Notice when there is “reason to know”
Notice to Indian tribes is central to effectuating ICWA’s
purpose, enabling a tribe to determine whether the child involved
in a dependency proceeding is an Indian child and, if so, whether
to intervene in, or exercise jurisdiction over, the matter.
(Isaiah W., supra, 1 Cal.5th at p. 8.) Notice to the parent or
Indian custodian and the Indian child’s tribe is required
by ICWA in state court proceedings seeking foster care placement
or termination of parental rights “where the court knows or has
reason to know that an Indian child is involved.” (25 U.S.C.
§ 1912(a).) Similarly, California law requires notice to the
parent, legal guardian or Indian custodian and the Indian child’s
tribe if the child protective agency or court “knows or has reason
to know . . . that an Indian child is involved” in the proceedings.
(Welf & Inst. Code, § 224.3, subds. (a), (b); see Austin J., supra,
47 Cal.App.5th at pp. 884-885; In re D.S. (2020) 46 Cal.App.5th
1041, 1050; see also Cal. Rules of Court, rule 5.481(c)(1) [notice is
required “[i]f it is known or there is reason to know that an
Indian child is involved in a proceeding listed in rule 5.480,”
which includes all dependency cases filed under Welfare and
Institutions Code section 300].)12
With respect to the notice requirement, in language
substantially the same as that of the controlling federal
regulation (25 C.F.R. § 23.107(c) (2020)), Welfare and Institutions
12 References to rules are to the California Rules of Court.
14
Code section 224.2, subdivision (d), provides, “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 possess an
identification card indicating membership or citizenship in an
Indian tribe.”13 (See also rule 5.481(b)(1).)
13 As explained in Austin J., supra, 47 Cal.App.5th at
pages 884-885, “In 2018, the Legislature enacted changes to the
state’s ICWA-related statutes for the purpose of conforming state
law to recent changes in federal ICWA regulations. [Citations.]
The changes included a redefinition of the ‘reason to know’
requirement that triggers the duty to give notice of the
proceedings to Indian tribes. . . . . [¶] This definition . . . replaced
a definition under which the court would have a ‘reason to know’
that a ‘child is an Indian child’ based merely upon ‘information
suggesting the child is a member of a tribe or eligible for
membership in a tribe or one or more of the child’s biological
parents, grandparents, or great-grandparents are or were a
member of a tribe.’”
15
b. The initial inquiry and the duty of further inquiry
Oral transmission of relevant information from generation
to generation and the vagaries of translating from Indian
languages to English combine to create the very real possibility
that a parent’s or other relative’s identification of the family’s
tribal affiliation is not accurate. Accordingly, just as proper
notice to Indian tribes is central to effectuating ICWA’s purpose,
an adequate investigation of a family member’s belief a child may
have Indian ancestry is essential to ensuring a tribe entitled to
ICWA notice will receive it. (See In re Elizabeth M. (2018)
19 Cal.App.5th 768, 787.) Yet neither ICWA itself nor the
implementing federal regulations in effect prior to 2016 imposed
a duty on courts or child protective agencies to inquire whether a
child involved in a dependency proceeding was an Indian child.
(See In re A.B. (2008) 164 Cal.App.4th 832, 838; In re H.B. (2008)
161 Cal.App.4th 115, 120.)
Notwithstanding this gap in federal law, long-standing,
albeit nonbinding, federal guidelines urged states to “make
inquiries to determine if the child involved is a member of an
The parties agree the law in effect in January 2020 when
the section 366.26 hearings were held applies to these appeals.
(See In re A.M. (2020) 47 Cal.App.5th 303, 321 [“[s]ince Mother is
appealing from the findings made at the September 6, 2019
section 366.26 hearing and not those in 2017 or 2018, the current
ICWA statutes apply”]; see also Isaiah W., supra, 1 Cal.5th at
p. 10 [“Properly understood, Ashlee’s present appeal does not
seek to challenge the juvenile court’s finding of ICWA’s
inapplicability underlying the January 2012 dispositional order.
It instead seeks to challenge the juvenile court’s finding of
ICWA’s inapplicability underlying the April 2013 order
terminating her parental rights”].)
16
Indian tribe or if a parent of the child is a member of an Indian
tribe and the child is eligible for membership in an Indian tribe.”
(Guidelines for State Courts; Indian Child Custody Proceedings,
44 Fed.Reg. 67584, 67588, § B.5(a) (Nov. 26, 1979); see In re H.B.,
supra, 161 Cal.App.4th at p. 121.) Exercising its authority to
provide a higher standard of protection to Indian families, the
Legislature incorporated many of the Guideline’s best-practice
recommendations into California law in 2006 with the passage of
Senate Bill No. 678 (2005-2006 Reg. Sess.) (Stats. 2006, ch. 838,
§ 1, p. 6536), including enactment of former section 224.3,
subdivision (a), which provided that courts and county welfare
departments “have an affirmative and continuing duty to inquire
whether a child for whom a petition under Section 300 . . . is to
be, or has been, filed is or may be an Indian child in all
dependency proceedings and in any juvenile wardship
proceedings if the child is at risk of entering foster care or is in
foster care.” (See Isaiah W., supra, 1 Cal.5th at p. 9.)
Now found in section 224.2, subdivision (a), following
enactment of Assembly Bill 3176, the court and child protective
agencies remain under “an affirmative and continuing duty to
inquire whether a child . . . is or may be an Indian child.” That
duty to inquire begins with initial contact (§ 224.2, subd. (a)) and
obligates the juvenile court and child protective agencies to ask
all relevant involved individuals whether the child may be an
Indian child. (§ 224.2, subds. (a)-(c); see In re D.F. (2020)
55 Cal.App.5th 558, 566.)
In addition to the court’s and agency’s responsibilities at
the outset of the proceedings, section 224.2, subdivision (e), in
effect in January 2020 when the section 366.26 hearings took
place in these proceedings, imposed a duty of further inquiry
17
regarding the possible Indian status of the child “[i]f the court,
social worker, or probation officer has reason to believe that an
Indian child is involved in a proceeding.”14 That duty of further
inquiry requires interviewing, “as soon as practicable,” extended
family members, contacting the Bureau of Indian Affairs and
“[c]ontacting 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.” (§ 224.2,
subd. (e)(1)-(3).) This informal contact with the tribe must
include “sharing information identified by the tribe as necessary
for the tribe to make a membership or eligibility determination.”
(§ 224.2, subd. (e)(3); see In re D.F., supra, 55 Cal.App.5th at
p. 567.)
In addition, rule 5.481(a)(4) mandates further inquiry if a
social worker or investigator “knows or has reason to know or
believe that an Indian child is or may be involved.” Significantly,
14 As several recent court of appeal decisions have observed,
in requiring further inquiry when there is a reason to believe an
Indian child is involved in the proceedings, the Legislature in
Assembly Bill 3176 did not define the phrase “reason to believe.”
(See, e.g., In re D.F., supra, 55 Cal.App.5th at p. 566; Austin J.,
supra, 47 Cal.App.5th at p. 883.) To remedy that omission the
Legislature in urgency legislation effective September 18, 2020
amended section 224.2, subdivision (e), to provide, “There is
reason to believe a child involved in a proceeding is an Indian
child whenever the court, social worker, or probation officer 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.” (Assem. Bill No. 2944 (2019-2020 Reg. Sess.); Stats. 2020,
ch. 104, § 15.) Notwithstanding this amendment, we refer in our
opinion to section 224.2, subdivision (e), as it read in January
2020 when the section 366.26 hearings took place.
18
this rule, which is entitled to judicial deference (see In re Abbigail
A., supra, 1 Cal.5th at p. 92), was amended by the Judicial
Council, effective January 1, 2020, in conformity with Assembly
Bill 3176 to add “or believe” to the triggering requirement that an
Indian child “is or may be involved.” (See Judicial Council of
Cal., Tribal Ct.– State Ct. Forum, and Family and Juvenile Law
Advisory Com. Rep., Indian Child Welfare Act (ICWA):
Implementation of AB 3176 for Indian Children, Sept. 5, 2019,
p. 11.)15
15 The California Constitution directs the Judicial Council to
“adopt rules for court administration, practice and procedure.”
(Cal. Const., art. VI, § 6, subd. (d); see Welf. & Inst. Code, § 265
[concerning rules for juvenile courts].) Rules adopted by the
Judicial Council “are entitled to a measure of judicial deference.”
(Sara M. v. Superior Court (2005) 36 Cal.4th 998, 1014; accord,
In re Abbigail A., supra, 1 Cal.5th at p. 92.) The Judicial Council,
however, may not adopt rules that are inconsistent with the
governing statutes. (See In re W.B., supra, 55 Cal.4th at p. 58,
fn. 17; In re Richard S. (1991) 54 Cal.3d 857, 863.) “‘In this
context, a rule is inconsistent with a statute if it conflicts with
either the statute’s express language or its underlying legislative
intent.’” (Abbigail A., at p. 92.) Here, the amendment’s inclusion
of the phrase “reason to know or believe” simply parallels
Assembly Bill 3176’s use of “reason to believe” in section 224.2,
subdivision (e), and is fully consistent with the statute’s express
language, as well as with legislative intent as reflected not only
in Assembly Bill 3176 but also in the recent amendment to
section 224.2, subdivision (e), discussed in the preceding footnote.
19
2. Jason Has Standing To Appeal as a “Parent” Under
ICWA
Describing Jason as “a mere biological father” and citing
In re Joseph G. (2000) 83 Cal.App.4th 712, 716, which held an
alleged biological father who is not a party of record in the
juvenile court has no standing to appeal an order terminating
parental rights, the Department urges us to dismiss Jason’s
appeal for lack of standing. It argues, because Jason never
appeared and asserted a position in Jazmine’s dependency case,
he was not a party of record and is not “aggrieved” by the order
for legal guardianship, a requirement for standing to appeal.
(See Code Civ. Proc., § 902 [“[a]ny party aggrieved may appeal in
the cases prescribed in this title”]; Welf. & Inst. Code, § 395,
subd. (a)(1) [“[a] judgment in a proceeding under Section 300 may
be appealed in the same manner as any final judgment”].)
Whatever merit the Department’s standing argument
regarding a “mere biological parent” may have in other contexts,
it fails here. Non-Indian parents have standing to raise issues of
ICWA compliance on appeal. (In re A.W. (2019) 38 Cal.App.5th
655, 663; In re B.R. (2009) 176 Cal.App.4th 773, 779-780.) ICWA
defines a “‘parent’” to include “any biological parent,” while
excluding “the unwed father where paternity has not been
acknowledged or established.” (25 U.S.C. § 1903(9).) As
discussed, Jason’s status as Jazmine’s biological father was
established by DNA testing and confirmed by the juvenile court.
Accordingly, Jason is entitled to appeal the order for legal
guardianship, challenging the Department’s and the court’s
compliance with ICWA inquiry and notice requirements.
20
3. The Department Did Not Adequately Investigate
Tamara’s Claim of Indian Ancestry
Tamara filed an ICWA-020 form at the time of the
detention hearing declaring her belief she had Cherokee ancestry
on her maternal side and indicating possible Indian ancestry
through her paternal grandfather, Theodore S., without
identifying a tribe. That information was confirmed during the
detention hearing by both Tamara and Loretta S. Tamara stated
an aunt might have information about the family’s ancestry on
the paternal side, and the court asked her to contact the aunt and
report any additional details she learned. Loretta S., replying to
the court, said she did not know the ancestor through whom the
family’s Cherokee ancestry could be traced. The court did not ask
either Tamara or Loretta S. if other relatives might have
additional information about the family’s Cherokee ancestry or
whether anyone other than Tamara’s aunt might have
information about Indian ancestry on her paternal side.
These preliminary responses from the mother and
maternal grandmother of Jazmine, T.G., N.G. and P.G.
unquestionably provided reason to believe Indian children might
be involved in these dependency proceedings and triggered the
Department’s duty to make further inquiry, as mandated by
section 224.2, subdivision (e), and rule 5.481(a)(4). (See In re
A.M. (2020) 47 Cal.App.5th 303, 322 [mother’s statement she had
been told she may have Indian ancestry with Blackfeet and
Cherokee tribes and identification of her grandfather as having
possible Indian ancestry, while not requiring ICWA notice, were
sufficient to require further inquiry under section 224.2,
subdivision (e), as amended by Assembly Bill 3176]; see also In re
Elizabeth M., supra, 19 Cal.App.5th at pp. 786-787.) The
21
Department’s breach of that duty and the juvenile court’s failure
to ensure compliance require a conditional reversal of the orders
made at the section 366.26 hearings and a remand for an
adequate investigation of the children’s Indian ancestry.
The Department’s arguments that no duty of further
inquiry existed in this case fail. First, it notes Tamara’s
ICWA-020 forms for T.G., N.G. and P.G., although reflecting a
checked box for the statement she may have American Indian
ancestry, did not include any additional detail regarding the
children’s possible tribal membership. By that omission, the
Department contends, Tamara “affirmatively communicated to
the juvenile court that neither she nor the children were
members of any Indian tribe.” This argument, which can only be
described as disingenuous, ignores that Tamara’s ICWA-020 form
for Jazmine, submitted to the court at the same time as the other
three forms and before the court at the detention hearing,
contained the information she knew regarding her maternal and
paternal relatives. It also fails to acknowledge that Tamara
again provided this information to the court at the hearing.16
Tamara affirmatively, and repeatedly, provided the information
the Department now claims was missing.
Moreover, even if the additional information had not been
provided in the ICWA-020 forms, the absence of information
regarding possible Indian ancestry does not relieve the court of
its affirmative responsibility to inquire at the first appearance of
each party whether he or she has reason to know that the
16 As discussed, the Department’s detention report also
included information from a November 22, 2017 interview with
Tamara concerning possible Indian ancestry on the paternal side
of her family.
22
children involved are Indian children. As this court has
observed, “[T]he burden of coming forward with information to
determine whether an Indian child may be involved and ICWA
notice required in a dependency proceeding does not rest
entirely—or even primarily—on the child and his or her family.”
(In re Michael V. (2016) 3 Cal.App.5th 225, 233.) The court here
fulfilled its initial obligation to ask about Tamara’s possible
Indian ancestry; it failed, however, to ensure the Department
complied with its duty of further inquiry based on the responses
the court had received from Tamara and Loretta S.
Second, relying on Austin J., supra, 47 Cal.App.5th 870, the
Department argues the information provided suggested a “mere
possibility of Indian ancestry” that was insufficient to trigger the
need for further inquiry. Austin J. concerned ICWA compliance
in connection with jurisdiction/disposition hearings held in July
2019 at which the juvenile court held ICWA did not apply. The
children’s mother and a maternal great aunt had stated their
family may have Cherokee ancestry. After observing “[t]ribal
ancestry is not among the criteria for having a reason to know
the child is an Indian child” under ICWA or California law after
the Assembly Bill 3176 amendments (Austin J., at p. 885), the
court of appeal rejected the mother’s argument the Department
was required to provide ICWA notice to the children. (Id. at
p. 887.) The court additionally held the juvenile court had
satisfied its initial duty of inquiry and no duty of further inquiry
existed based on the mother’s and a maternal great aunt’s
statements. (Id. at p. 889.)
Explaining that “[i]nformation about a tribal connection
that ‘is too vague, attenuated and speculative’ will not support a
‘reason to believe the children might be Indian children,’” the
23
Austin J. court held the mother’s statement she may have Indian
ancestry and had been told her mother had Cherokee ancestry
and similar statements by the great aunt did not establish a
reason to believe the children were Indian children as defined in
ICWA. “At most, they suggest a mere possibility of Indian
ancestry. Indian ancestry, heritage, or blood quantum, however,
is not the test; being an Indian child requires that the child be
either a member of a tribe or a biological child of a member. . . .
Indian ancestry, without more, does not provide a reason to
believe that a child is a member of a tribe or is the biological child
of a member. Here, there is nothing more.” (Austin J., supra,
47 Cal.App.5th at pp. 888-889.) Even if a claim of Indian
ancestry suggested the possibility of Indian tribal membership,
the Austin J. court continued, “that bare suggestion is
insufficient by itself to establish a reason to believe a child is an
Indian child.” (Id. at p. 889.)
We do not agree with Austin J.’s narrow reading of the
nature and quality of information sufficient to trigger the duty of
further inquiry.17 In particular, that court’s insistence a parent’s
express statement of Indian ancestry does not constitute a reason
to believe an Indian child may be involved is fundamentally at
odds with well-established ICWA law. To be sure, an “Indian
child” is defined in terms of tribal membership, not ancestry. But
the question of membership is determined by the tribes, not the
17 Although Austin J., supra, 47 Cal.App.5th 870 was decided
in 2020, because it was reviewing ICWA findings from hearings
in 2019, the court of appeal did not consider the January 1, 2020
amendment to rule 5.481(a)(4), which applies in this case and
requires further inquiry whenever a social worker has reason to
believe an Indian child may be involved in the proceeding.
24
courts or child protective agencies. (See Santa Clara Pueblo v.
Martinez (1978) 436 U.S. 49, 65, fn. 21 [98 S.Ct. 1670, 56 L.Ed.2d
106] [Indian tribe is final arbiter of its membership rights];
§ 224.2, subd. (h) [“A determination by an Indian tribe that a
child is or is not a member of, or eligible for membership in, that
tribe . . . shall be conclusive. Information that the child is not
enrolled, or is not eligible for enrollment in, the tribe, is not
determinative of the child’s membership status unless the tribe
also confirms in writing that enrollment is a prerequisite for
membership under tribal law or custom”].) That determination
often requires providing a tribe with extensive biographical data
(that is, information about ancestors and ancestry), which is why
section 224.3, subdivision (a)(5)(C), prescribes in detail the
information about parents, grandparents and great-grandparents
that must be included in an ICWA notice.18
Indeed, the imposition of a duty to inquire that is
significantly more expansive than the duty to provide ICWA
notice is premised on the common sense understanding that, over
time, Indian families, particularly those living in major urban
centers like Los Angeles, may well have lost the ability to convey
accurate information regarding their tribal status.19 As a result,
18 Section 224.3, subdivision (a)(5), requires that an ICWA
notice contain the names of the 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.”
19 The Indian Relocation Act of 1956 (Pub.L. No. 84-959,
70 Stat. 986), part of the federal government’s Indian termination
25
the information available at the outset of dependency proceedings
will often be inadequate to ensure the necessary protection of the
rights and cultural heritage of Indian children, Indian families
and Indian tribes. (See Cal. ICWA Compliance Task Force, Rep.
to Cal. Atty. Gen.’s Bur. of Children’s Justice (2017) pp. 26-30.)
General information from the family about its ancestry
frequently provides the only available basis to believe an Indian
child may be involved. (Cf. In re A.M., supra, 47 Cal.App.5th at
p. 322.) Additional investigation may not develop further
information establishing the need for ICWA notice, but it is
essential to the enforcement of the court’s and child protective
agency’s “affirmative and continuing duty to inquire” to construe
broadly the duty to make further inquiry. (See Robinson v. Fair
Employment & Housing Com. (1992) 2 Cal.4th 226, 233 [remedial
legislation is to be given a liberal construction to promote its
objective].)
We also reject Austin J.’s related assumption that
Assembly Bill 3176, in addition to conforming language in
California’s ICWA-based statutes to the language in recently
adopted federal regulations, was intended to weaken the robust
requirements for making further inquiry established by then-
existing case law construing former section 224.3, subdivision (c).
Under that former statute, further inquiry was required if a
social worker or court-connected investigator “knows or has
reason to know that an Indian child is involved.” When Assembly
policy, “encouraged” Indians to leave their traditional lands and
to assimilate into the general population in urban areas. (See
Oeser, Avoiding Extinction, Preserving Culture: Sustainable,
Sovereignty-Centered Tribal Citizenship Requirements (2015)
91 N.D. L.Rev. 1, 29 & fn. 146.)
26
Bill 3176 modified the definition of “reason to know” to track the
language in the federal regulations and removed from that
definition “information suggesting the child is a member of a
tribe or eligible for membership in a tribe,” it simultaneously
expanded the language triggering the duty to make further
inquiry from “knows or has reason to know” to “reason to believe
an Indian child is involved.” (§ 224.2, subd. (e).) As the Austin J.
court observed, the phrase “information suggesting” was not
included in the new “reason to believe” standard. (See Austin J.,
supra, 47 Cal.App.5th at p. 889.) Nonetheless, it is difficult to
understand how, as a matter of plain meaning, a parent’s
statement that she has been told she has Indian ancestry
through a particular tribe or a specific relative “suggests” her
child is eligible for tribal membership (see, e.g., In re N.G. (2018)
27 Cal.App.5th 474, 481 [duty to make further inquiry triggered
by initial report that children may have Blackfeet, Navajo or
Cherokee ancestry]; In re K.R. (2018) 20 Cal.App.5th 701, 705-
707 [duty triggered by information children “might have
Cherokee heritage through their father”]), but does not also
provide “a reason to believe” the child may be eligible under the
current statute. (See generally Gund v. County of Trinity (2020)
10 Cal.5th 503, 511 [statutory construction begins by considering
the ordinary meaning of the statutory language].)
The legislative history of Assembly Bill 3176, moreover,
belies any inference the amendments were intended to dilute the
court’s and child protective agency’s affirmative duty of inquiry.
The report of the Assembly Committee on Judiciary for its
April 17, 2018 hearing on the legislation, for example, after
noting the bill codified changes required by the new federal
regulations into the Welfare and Institutions Code, explained, “In
27
this bill, California has a higher standard for determining if a
child may be an Indian child and requires that further inquiry
must be undertaken for those children.” (Assem. Com. on
Judiciary, Rep. on Assem. Bill No. 3176 (2017-2018 Reg. Sess.) as
amended Apr. 11, 2018, p. 10, italics in original.) Similarly, a
report from the Senate Rules Committee discussing the final
version of new section 224.2, subdivision (e), described the
amendments as “revis[ing] the specific steps a social worker,
probation officer, or court is required to take in making an
inquiry of a child’s possible status as an Indian child.” (Sen.
Rules Com., Off. of Sen. Floor Analyses, 3d reading analysis of
Assem. Bill No. 3176 (2017-2018 Reg. Sess.) as amended Aug. 17,
2018, p. 4.) Nothing in that report, or anywhere else in Assembly
Bill 3176’s legislative history, indicates that, in addition to
specifying in greater detail how further inquiry is to be
conducted, the legislation was intended to limit the information
that would trigger the duty to make further inquiry into a child’s
“possible status” as an Indian child.
Finally, the recent amendment to section 224.2,
subdivision (e), although not directly applicable to these appeals,
confirms the Legislature’s view the “reason to believe” standard
requiring further inquiry concerning a child’s possible status as
an Indian child should be broadly interpreted. As noted, in
urgency legislation effective September 18, 2020, the Legislature
amended section 224.2, subdivision (e), to provide in a new
subdivision (e)(1), “There is reason to believe a child involved in a
proceeding is an Indian child whenever the court, social worker,
or probation officer 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. Information suggesting
28
membership or eligibility for membership includes, but is not
limited to, information that indicates, but does not establish, the
existence of one or more of the grounds for reason to know
enumerated in paragraphs (1) to (6), inclusive, of subdivision (d).”
(Assem. Bill No. 2944 (2019-2020 Reg. Sess.); Stats. 2020,
ch. 104, § 15.)
In sum, further inquiry is required in these cases. As
mandated by section 224.2, subdivision (e), on remand the
juvenile court must promptly direct the Department to make a
meaningful and thorough inquiry regarding Jazmine’s, T.G.’s,
N.G.’s and P.G.’s possible Indian ancestry, including interviews
with extended family members and any other persons who may
reasonably be expected to have information regarding the
children’s tribal membership or eligibility for membership and
contact with any tribes that may have such information. If that
information establishes a reason to know Indian children are
involved, notice in accordance with section 224.3 must be
provided to any tribe that has been identified or, if the tribe could
not be determined, to the Bureau of Indian Affairs. The
Department shall thereafter notify the court of its actions and file
certified mail return receipts for any ICWA notices that were
sent, together with any responses received. The court must
determine, on the record, whether the ICWA inquiry and notice
requirements have been satisfied and whether Jazmine, T.G.,
N.G. and P.G. are Indian children. If the court finds they are
Indian children, it is to conduct new section 366.26 hearings, as
well as all further proceedings, in compliance with ICWA and
related California law. If not, the court’s original section 366.26
orders may be reinstated.
29
4. The Department’s Failure To Comply with the Order To
Provide Notice to the Cherokee Nation and the Court’s
Failure To Make Required ICWA Findings Must Be
Addressed on Remand
In their appeals Tamara and Jason point to two additional
errors that occurred in these proceedings. First, although the
court at the December 8, 2017 detention hearing ordered the
Department to provide ICWA notice to the Cherokee Nation, no
notice was ever given. Second, notwithstanding the statement in
the minute order from the December 8, 2017 hearing, the
reporter’s transcript from that hearing reveals the court did not
make a finding that there was no reason to know Jazmine, T.G.,
N.G. and P.G. were Indian children and that ICWA did not apply
to their case; and the court failed thereafter to make the required
ICWA findings. (See rule 5.482(c) [determination of applicability
of ICWA].) The Department disputes both contentions.
As to the order for notice, as discussed, the court, after
repeating that Tamara had identified Cherokee ancestry on the
maternal grandmother’s side, ordered, “The Department is to
send notice to the Department of the Interior, the Bureau of
Indian Affairs, and the Cherokee Nation.” The court then
continued, “As to the Cherokee Nation, first, the Department—
strike that. As to a specific tribe, on Mother’s statement that her
paternal grandfather had American Indian heritage, once the
mother contacts her aunt, if there is a specific tribe that is
identified, the Department is to provide notice to that tribe as
well.” The Department interprets the court’s statement, “strike
that,” as applying to its order for notice to the Cherokee Nation,
eliminating any requirement that the Department send ICWA
notice at that point. Tamara and Jason argue the court intended
only to restart its order with respect to the paternal grandfather’s
30
potential Indian ancestry, deferring notice concerning that side of
Tamara’s family until there was information about a specific
tribe, but not modifying its order based on the maternal
grandmother’s statement of Cherokee ancestry. Why else, they
ask, would the court have said the phrase “as well”?
Looking only to the court’s December 8, 2017 comments,
the Department’s explanation might be described as unlikely but
plausible.20 But two months later, advised by the Department’s
counsel there did not appear to be evidence that notice had been
given to the Cherokee Nation, the court again ordered notice to
the tribe, the Bureau of Indian Affairs and the Department of the
Interior. That order was explicit and unambiguous. The
Department’s failure to comply was error. Nonetheless, at this
point the error is harmless. Either further inquiry will establish
there is, in fact, reason to know the children are Indian children
and notice as required by section 224.3, subdivisions (a) and (b),
will be provided to the Cherokee Nation and/or other tribes, or it
will not. If notice is given and it is determined the children are
Indian children, the juvenile court will be required to revisit its
prior orders regarding removal and placement in light of the
requirements of ICWA and related state law. If the children are
20 The minute order from the detention hearing states the
court did not order ICWA notice to any tribe or the Bureau of
Indian Affairs. Throughout our review of the record in these
appeals, however, we have encountered minute orders that
include findings that were not made or, on occasion, are in direct
conflict with the statements as reported in the hearing
transcripts. Even under better circumstances the record of the
court’s oral pronouncements prevails over conflicting minute
orders. (See In re Nia A. (2016) 246 Cal.App.4th 1241, 1247,
fn. 1; In re A.C. (2011) 197 Cal.App.4th 796, 799-800.)
31
not found to be Indian children or notice is not required under
section 224.3, the failure to comply with the earlier order will not
have adversely affected the outcome of the proceedings or the
rights of any Indian tribes. (See In re Breanna S. (2017)
8 Cal.App.5th 636, 653.)
We likewise find the juvenile court erred in failing to make
findings regarding the applicability of ICWA to these
proceedings, but leave it to the court to correct that omission on
remand. We recognize the minute orders for the December 8,
2017 detention hearing recite the court found it had no reason to
know that any of the children were Indian children as defined by
ICWA. But that statement is inconsistent with the reporter’s
transcript and is contradicted by the Department’s continued
statement for months after the detention hearing that ICWA does
or may apply to the case. As just noted, “‘When there is a
discrepancy between the minute order and the oral
pronouncement of judgment, the oral pronouncement controls.’”
(In re Nia A. (2016) 246 Cal.App.4th 1241, 1247, fn. 1.)
DISPOSITION
The section 366.26 orders of the juvenile court are
conditionally reversed. The matters are remanded to the juvenile
court for full compliance with the inquiry and notice provisions of
ICWA and related California law and for further proceedings not
inconsistent with this opinion.
PERLUSS, P. J.
We concur:
SEGAL, J. FEUER, J.
32