In re Alliyah F. CA2/7 ( 2022 )

Filed 4/19/22 In re Alliyah F. CA2/7
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SEVEN
In re ALLIYAH F. et al., B314323
Persons Coming Under the
Juvenile Court Law. (Los Angeles County
Super. Ct. No.
18LJJP0313A-B)
LOS ANGELES COUNTY
DEPARTMENT OF
CHILDREN AND FAMILY
SERVICES,
Plaintiff and Respondent,
v.
GRADY F., JR.,
Defendant and Appellant.
APPEAL from an order of the Superior Court of
Los Angeles County, Stephanie M. Davis, Juvenile Court Referee.
Conditionally reversed and remanded with directions.
Jack A. Love, under appointment by the Court of Appeal,
for Defendant and Appellant.
Rodrigo A. Castro-Silva, County Counsel, Kim Nemoy,
Assistant County Counsel, and Brian Mahler, Deputy County
Counsel, for Plaintiff and Respondent.
_________________________
Grady F., Jr., the father of nine-year-old Alliyah F. and
seven-year-old Caden F., appeals the August 12, 2021 order
terminating his parental rights, contending the Los Angeles
County Department of Children and Family Services
(Department) failed to adequately investigate his claim of Indian
ancestry and the juvenile court failed to ensure an appropriate
inquiry had been conducted before concluding the Indian Child
Welfare Act of 1978 (ICWA) (25 U.S.C. § 1901 et seq.) did not
apply to these proceedings.
The obligation to conduct such an investigation is clear:
When there is reason to believe a child involved in a dependency
proceeding is or may be an Indian child within the meaning of
ICWA, the child protective agency filing the dependency
petition—here, the Department—has a duty to make further
inquiry regarding the possible Indian status of the child as soon
as practicable. (Welf. & Inst. Code, § 224.2, subd. (e) [duty of
further inquiry if there is reason to believe an Indian child is
involved];1 Cal. Rules of Court, rule 5.481(a)(4) [duty of further
inquiry if the social worker “knows or has reason to know or
believe that an Indian child is or may be involved”].)
1 Statutory references are to this code unless otherwise
stated.
2
Although the existence of this duty is undisputed and its
importance for protecting the rights of Indian children and
Indian tribes repeatedly stated, we have too often been required
to correct the Department’s cramped interpretation of its proper
scope. (See, e.g., In re Y.W. (2021) 70 Cal.App.5th 542; In re T.G.
(2020) 58 Cal.App.5th 275; In re Elizabeth M. (2018)
19 Cal.App.5th 768; In re Breanna S. (2017) 8 Cal.App.5th 636(Breanna S.), disapproved on another ground in In re Caden C.
(2021) 11 Cal.5th 614, 637, fn. 6.) This is another such case.
After Grady advised the court he may have Blackfeet
ancestry through his grandfather LeeRoy H. (the children’s
paternal great-grandfather), the juvenile court ordered the
Department to investigate the children’s possible Indian
ancestry. However, other than conducting a limited interview of
Grady, the Department made no effort to determine whether
Alliyah and Caden may be Indian children. No one asked Grady
for the names of paternal relatives other than his parents who
might have pertinent information, reviewed the Department’s
own files from Grady’s involvement with the dependency system
as a minor or requested information about LeeRoy from the
United States Department of Veterans Affairs despite knowing
he was a veteran and buried in a national cemetery.
The Department’s perfunctory nod toward its obligation to
make further inquiry was wholly inadequate, as was the juvenile
court’s minimal oversight of that process before finding ICWA did
not apply to these children. We conditionally reverse the order
terminating Grady’s parental rights and remand the matter for
full compliance with the inquiry and notice provisions of ICWA
and related California law.
3
FACTUAL AND PROCEDURAL BACKGROUND
1. The Dependency Proceedings
The Department filed a petition pursuant to section 300,
subdivision (b)(1), on May 18, 2018 alleging that Alliyah and
Caden’s mother, Misty H., had a history of substance abuse and
was a current user of amphetamine and marijuana and that
Misty and her baby, Emma, had testified positive for
amphetamine at Emma’s birth. A separate subdivision (b)(1)
count alleged Emma’s father, Raymond B., was unwilling and
unable to care for Emma. Grady, who was ultimately found to be
the presumed father of Alliyah and Caden, was not named in the
petition.
The juvenile court sustained the petition as to Misty, as
amended by interlineation, finding her substance abuse placed
the children at substantial risk of serious physical harm. At
disposition the children were removed from their parents, and
reunification services were ordered for Misty and Grady.2
Grady’s services, which included participation in on-demand drug
testing and a parenting course, were terminated in November
2019 for lack of compliance. Misty’s services were terminated
two months later.
After several continuances the section 366.26 hearing was
held on August 12, 2021. The court found by clear and
convincing evidence the children were adoptable and found no
exception to termination of parental rights applied. The court
terminated Misty’s and Grady’s parental rights to Alliyah and
Caden and transferred care, custody and control of the children to
2 A May 22, 2019 Department report indicated Grady had
not had any relationship with Alliyah and Caden in three years.
4
the Department for adoptive planning and placement. Alliyah
and Caden’s current caregivers (Mr. and Ms. P.), with whom they
had been placed on April 30, 2020, were identified as their
prospective adoptive parents.
Grady filed a timely notice of appeal from the order
terminating his parental rights.
2. The Department’s ICWA Investigation and the Juvenile
Court’s ICWA Findings
At the initial detention hearing on May 21, 2018 Misty
informed the court she had no Indian ancestry. Grady was not
present, and the court deferred making any ICWA findings until
he appeared.
Grady made his initial appearance on August 13, 2018. He
completed an ICWA-20 form, Parental Notification of Indian
Status, stating he may have Indian ancestry in the Blackfeet
Tribe through his grandfather.3 After reviewing Grady’s form,
the court asked, “Is your grandfather available to discuss this
with you?” Grady responded, “He passed away.” The court then
inquired, “Is there anyone else in your family who has
information about your possible Indian heritage?” Grady replied,
“I can check. I’m not sure. Probably my mom or somebody.” The
court ordered the Department to investigate further the possible
Indian ancestry of Grady and Misty.
3 Grady wrote “Blackfoot.” The Department understood this
to be a reference to the federally recognized Blackfeet Tribe of the
Blackfeet Indian Reservation of Montana. (See Indian Entities
Recognized by and Eligible To Receive Services from the United
States Bureau of Indian Affairs, 86 Fed.Reg. 7554 (Jan. 29,
2021).)
5
During the following three months the Department made a
number of attempts to contact Grady, finally reaching him for a
telephone interview on November 27, 2018. A November 28,
2018 last minute information for the court report stated, without
additional detail, “On 11/27/18 Mr. F[.] returned AA Dickerson’s
phone messages and provided all known family information for
ICWA purposes. Once a new hearing date has been established,
AA Dickerson will mail the ICWA notices to the appropriate
tribes.”
The substance of the Department’s interview with Grady
was described in addenda to the ICWA-30 notices sent to the
Blackfeet Tribe, which were attached to the Department’s
April 30, 2019 last minute information for the court report.
According to the Department’s summary of the conversation,
Grady said his mother, LeeAnne H., had Blackfeet heritage.
Grady told the social worker LeeAnne was homeless and did not
have a phone and said he had not often seen her after he was
nine years old. Grady provided some biographical information
about his father, who died in October 2014. Grady had never met
his father’s parents or his mother’s mother, but he had met his
maternal grandfather, LeeRoy, on one occasion. Grady said he
did not know his grandfather’s dates of birth or death, but he was
a veteran buried in the National Cemetery in Arvin outside of
Bakersfield. Grady told the social worker “the connection to the
Blackfeet tribe comes through him.”
The social worker asked Grady if there were other family
members that could be contacted for more information. Grady
responded that “his family had disowned him and did not
communicate with him and that he did not have any of their
contact numbers.” Rather than ask any follow-up questions (the
6
names of other family members who might have relevant
information, for example), the social worker told Grady if he
(Grady) obtained more information about his ancestry to notify
the worker and Grady’s attorney. The social worker then
terminated the call.
On December 7, 2018 the Department mailed ICWA notices
regarding Caden to the Blackfeet Tribe of Montana, the Bureau
of Indian Affairs and the Secretary of the Interior. The notice
contained only the information Grady had provided during the
November 27, 2018 telephone interview, including the maternal
grandmother’s name (LeeAnne H.) and date and likely place of
birth, but no other information, and the paternal great-
grandfather’s name (LeeRoy H.) and possible place of death
(Bakersfield), but no other information.
The Blackfeet Tribe responded in a letter dated
December 27, 2018 that Caden was not listed on the tribal rolls.
The letter also stated, “As of August 30, 1962, our blood quantum
requirement for enrollment is 1/4 Blackfeet blood. The above
children is/are not eligible for enrollment, and the child(ren)
is/are not domiciled on the Blackfeet Indian reservation.” The
letter, however, added, “If you are able to gather more
information on the ancestry of the parents, please contact me
again and I will review the tribal rolls.”
Because the original notices had omitted Alliyah, the
Department in April 2019 sent a second set of notices containing
the same information. An identical response, dated April 24,
2019, was received from the Blackfeet Tribe. In a last minute
information report for the court filed May 14, 2019 the
Department submitted the response from the Blackfeet Tribe and
7
recommended that the court find ICWA did not apply to Alliyah
or Caden.
At the disposition hearing for Grady on May 22, 2019, after
reviewing the Department’s reports, the court stated on the
record it found no reason to know Alliyah and Caden are Indian
children within the meaning of ICWA and checked the “no” box
on the court-ordered case plan indicating ICWA did not apply.
The minute orders from the May 22, 2019 hearing, however,
contained no ICWA findings.
In a supplemental report for the section 366.26 selection
and implementation hearing scheduled for January 12, 2021, the
Department noted the missing ICWA findings and recommended
the court make ICWA findings at the upcoming hearing based on
the Department’s April 30, 2019 and May 14, 2019 last minute
information reports. The Department provided no new
information regarding the children’s possible Blackfeet ancestry.
The court on January 12, 2021 continued the section 366.26
hearing due to issues with notice but reiterated its finding that
ICWA did not apply to Alliyah or Caden, expressly ruling, “The
previous investigation with respect to Mr. F[.] was a sufficient
inquiry.”4 No further ICWA findings were made at the
section 366.26 hearing on August 12, 2021 at which Grady’s and
Misty’s parental rights were terminated.
4 Counsel for the Department, when requesting the court
again make ICWA findings at the January 12, 2021 hearing,
stated, “The F[.] father did indicate ICWA possible Blackfoot
heritage. However, that was extensively investigated by the
Department and is reflected in the last minute information filed
on May 14, 2020 [sic], which indicated that the children were not
ICWA eligible.”
8
DISCUSSION
1. ICWA and the Duties of Inquiry and Notice
ICWA and governing federal regulations (25 C.F.R.,
§ 23.101 et seq. (2022)) set minimal procedural protections for
state courts to follow before removing Indian children and placing
them in foster care or adoptive homes. (In re Y.W., supra,
70 Cal.App.5th at p. 551.)5 The statute authorizes states to
provide “‘a higher standard of protection’” to Indian children,
their families and their tribes than the rights provided under
ICWA. (In re T.G., supra, 58 Cal.App.5th at pp. 287-288;
see 25 U.S.C. § 1921.) In addition to significantly limiting state
court actions concerning out-of-family placements for Indian
children (see In re T.G., at pp. 287-288), ICWA permits an Indian
child’s tribe to intervene in or, where appropriate, exercise
jurisdiction over a child custody proceeding (see 25 U.S.C.
§ 1911(c); In re Isaiah W. (2016) 1 Cal.5th 1, 8).
To ensure Indian tribes may exercise their rights in
dependency proceedings as guaranteed by ICWA and related
state law, investigation of a family member’s belief a child may
have Indian ancestry must be undertaken and notice provided to
the appropriate tribes. (§ 224.2, subd. (a) [imposing on the court
and child protective services agencies “an affirmative and
5 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].)
9
continuing duty to inquire whether a child . . . is or may be an
Indian child”]; see In re Charles W. (2021) 66 Cal.App.5th 483,
489.) The 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.” (In re T.G., supra, 58 Cal.App.5th
at p. 290; see § 224.2, subds. (a)-(c).)
In addition, section 224.2, subdivision (e), imposes a duty of
further inquiry 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, but does
not have sufficient information to determine there is reason to
know that the child is an Indian child.” California Rules of
Court, rule 5.481(a)(4) provides that further inquiry must be
conducted if the social worker “knows or has reason to know or
believe that an Indian child is or may be involved.”6 Further
6 Because Grady challenges the finding of ICWA
inapplicability underlying the order made at the section 366.26
hearing terminating his parental rights, California’s ICWA-
related statutes and rules of court in effect in 2021, when that
hearing was held, apply in this appeal. (See In re T.G., supra,
58 Cal.App.5th at p. 289, fn. 13 [“[t]he parties agree the [state’s
ICWA-related statutes] in effect in January 2020 when the
section 366.26 hearings were held appl[y] to these appeals”]; 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 In re 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
10
inquiry includes, “but is not limited to,” interviewing, as soon as
practicable, extended family members, contacting the Bureau of
Indian Affairs and 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.” (§ 224.2, subd. (e)(2).)
If those inquiries result in reason to know the child is an
Indian child, notice to the relevant tribes is required. (25 U.S.C.
§ 1912(a); Welf. & Inst. Code, § 224.3; see In re J.S. (2021)
62 Cal.App.5th 678, 686; In re T.G., supra, 58 Cal.App.5th at
p. 290; see also In re Josiah T. (2021) 71 Cal.App.5th 388, 402
[“The juvenile court has ‘an affirmative and continuing duty to
inquire’ whether a child subject to a section 300 petition may be
an Indian child. [Citations.] ‘This continuing duty can be divided
into three phases: the initial duty to inquire, the duty of further
inquiry, and the duty to provide formal ICWA notice’”].)
2. The Department Failed To Conduct an Adequate Inquiry
into Alliyah and Caden’s Possible Indian Ancestry
The information Grady provided concerning his maternal
grandfather (the children’s paternal great-grandfather) on the
ICWA-20 form, confirmed during his first court appearance,
triggered the Department’s duty to conduct further inquiry
concerning Alliyah and Caden’s Indian ancestry. The
Department does not contend otherwise, nor could it since the
juvenile court ordered it to investigate the children’s ancestry.
Although a Department social worker thereafter exercised
diligence in reaching out to Grady, finally interviewing him by
telephone after multiple unsuccessful attempts, the Department
inapplicability underlying the April 2013 order terminating her
parental rights”].)
11
made no meaningful effort to contact any of Grady’s extended
family members or anyone else who might reasonably be
expected to have information concerning Alliyah and Caden’s
possible Indian status, as mandated by section 224.2,
subdivision (e)(2)(A) and (C).
As discussed, when asked during the telephone interview
whether there were other family members that could be
contacted for more information, Grady explained his family had
disowned him, he did not communicate with them and he had no
contact numbers for them. There was no follow-up questioning
(or, at the very least, neither the report of this telephone
interview nor any of the Department’s other reports to the court
suggest any follow-up questions were asked)—not even whether
his mother had any siblings or his maternal grandfather any
other grandchildren, and, if so, their names, which would have
allowed the social worker or another Department investigator to
attempt to learn additional information about LeeRoy.
The Department’s feeble defense of this omission is that
neither Grady nor any other party provided contact information.
That surely made the Department’s task more difficult, but it did
not justify the complete lack of effort reflected in this record. As
we have repeatedly reminded the Department, “it was the social
worker’s duty to seek out this information, not the obligation of
family members to volunteer it.” (Breanna S., supra,
8 Cal.App.5th at p. 652; accord, In re Michael V. (2016)
3 Cal.App.5th 225, 236 [“[i]t was not the paternal great-aunt’s
obligation to speak up; it was the Department’s obligation to
inquire”].) With the names and possibly last known addresses of
children or grandchildren of LeeRoy, the Department would
likely have been able to contact at least a few of these relatives
12
and learned additional information to include on the notices to
the Blackfeet Tribe.
The Department’s defense of its failure to review
information from Grady’s history in the dependency system is
equally weak. In bold ipse dixit the Department asserts that
examining its own records is not part of its duty of further
inquiry, ignoring section 224.2, subdivision (e)’s express
statement that the statutory listing of tasks to be undertaken
must not be understood as limiting the nature of the agency’s
obligation to investigate. (See In re T.G., supra, 58 Cal.App.5th
at p. 295 [“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”].)
The Department then adds that Grady provided identifying
information about his mother and father (the paternal
grandparents), suggesting, again without explanation, that no
other pertinent information would be available in Grady’s
dependency records. This assertion is far from true. Grady
provided only his mother’s name (LeeAnne H.) and the date and
possible place of her birth (Bakersfield), explaining she was
homeless and did have a phone (although how Grady knew this
was not detailed in the Department’s report). Dependency
records may have confirmed her place of birth and disclosed
former addresses, biographical details that must be included in
an ICWA notice if known (see § 224.3, subd. (a)(5)(C)),7 as well as
7 The governing federal regulations require that ICWA
notices include, if known, the names, birthdates, birthplaces and
tribal enrollment information of all direct lineal ancestors of the
child. (25 C.F.R. § 23.111(d)(3) (2022).) State law mandates
inclusion of “[a]ll names known of the Indian child’s biological
13
information that might have led to current contact information.
Moreover, it is likely that information concerning other paternal
relatives (for example, Grady’s aunts or uncles—LeeRoy’s other
children), including potential contact information, would be
revealed had the Department bothered to look, particularly if, as
would seem probable, an ICWA inquiry was made during those
earlier dependency proceedings.
Finally, and perhaps most troubling, although Grady told
the social worker during the telephone interview that LeeRoy
was a veteran buried at a national cemetery in Arvin, California,
no effort was made to contact the United States Department of
Veterans Affairs or to otherwise use that information to obtain
additional details about LeeRoy that should have been included
on the ICWA notice to the Blackfeet Tribe. (See In re Y.W.,
supra, 70 Cal.App. 5th at p. 557 [“ICWA notice requirements are
strictly construed [citation] and must include enough information
for the tribe to conduct a meaningful review of its records to
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)(C);
see former § 224.2, subd. (a)(5)(C)). (See In re A.M., supra,
47 Cal.App.5th at p. 317 [“‘If the notice duty is triggered under
ICWA, the notice to a tribe must include a wide range of
information about relatives, including grandparents and great-
grandparents, to enable the tribe to properly identify the
children’s Indian ancestry. [Citation.] Any violation of this
policy requires the appellate court to vacate the offending order
and remand the matter for further proceedings consistent with
ICWA requirements’”].)
14
determine the child’s eligibility for membership,” internal
quotation marks omitted].) As a result of the Department’s
failure to conduct any meaningful investigation after its
interview with Grady, the only information provided about
LeeRoy on the notices sent, other than the Blackfeet affiliation,
was “Deceased, Unknown Date; Bakersfield?, California.” Yet it
is highly likely with only a limited Internet search the
Department could have accessed publicly available Department
of Veterans Affairs records maintained for individuals buried in
national cemeteries, which would include LeeRoy’s dates of birth
and death. Undoubtedly additional data were obtainable from
the Department of Veterans Affairs that may have helped the
Blackfeet Tribe accurately determine whether his great-
grandchildren were entitled to be members of the tribe.
For its part, the juvenile court failed to ensure the
Department adequately investigated the children’s Indian
ancestry. After ordering the Department on August 13, 2018 to
inquire further based on Grady’s ICWA-20 form and statements
in court, it passively accepted the Department’s report of its
November 27, 2018 interview as fulfilling its statutory
obligations without questioning the lack of follow-up in the
interview itself, let alone the Department’s failure to engage in
any active investigative efforts. Far more is required. (In re K.R.
(2018) 20 Cal.App.5th 701, 709 [“the court has a responsibility to
ascertain that the agency has conducted an adequate
investigation and cannot simply sign off on the notices as legally
adequate without doing so”]; see In re T.G., supra, 58 Cal.App.5th
at p. 293 [“[t]he 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
15
based on the responses the court had received from Tamara and
Loretta S.”]; In re N.G. (2018) 27 Cal.App.5th 474, 482.)
3. The Department’s Blood-quantum Harmless Error
Argument Is Misplaced
Pointing out that the Blackfeet Tribe informed the
Department that it has a one-quarter blood quantum
requirement for enrollment with the tribe, the Department
argues any errors in its ICWA inquiry or notice were harmless
because “the children could have no more than one-eighth
[Blackfeet] blood, at best” and, accordingly, “there is no
reasonable probability that the juvenile court would have found
Alliyah or Caden to be an Indian child based on the paternal
family’s purported affiliation with the tribe and the tribe’s own
enrollment requirements.” The factual basis for the
Department’s argument is somewhat uncertain; its legal premise
fundamentally flawed.
As the Department points out, on his ICWA-20 form and
again in his interview with the social worker, Grady stated his
Blackfeet heritage was through his maternal grandfather. From
this, the Department asserts the children could be no more than
one-eighth Blackfeet. During his interview, however, Grady also
said his mother, LeeAnne, had Blackfeet ancestry. Perhaps that
simply meant LeeAnne’s father (LeeRoy) was Blackfeet, as the
Department assumes. But since Grady rarely saw his mother
after he was nine years old and had never met his mother’s
mother (LeeRoy’s wife), it is possible Grady’s maternal
grandmother also had Blackfeet affiliation. If it had conducted a
diligent investigation of Alliyah and Caden’s Indian ancestry, the
Department would have sought background information about
this woman. At the very least, it should have determined her
16
name and included it on the ICWA notices to the Blackfeet Tribe,
rather than simply stating on the form, “Unknown/Information
Not Provided.” Without this additional information, we cannot
know (and the Blackfeet Tribe did not know) whether Alliyah and
Caden may have satisfied the tribe’s blood quantum requirement
for enrollment.
Even if Alliyah and Caden’s Blackfeet ancestry is only
through LeeRoy, as the Department posits, the Department’s
failure to adequately investigate and the juvenile court’s lack of
meaningful oversight were not harmless. The Blackfeet Tribe’s
letter describing its blood quantum requirement concerned
eligibility for enrollment in the tribe. However, section 224.2,
subdivision (h)—a provision not cited in the Department’s brief—
states, “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.” The Blackfeet Tribe provided no such
written confirmation.
In addition, although apparently overlooked by the
Department, we rejected an identical harmless error argument in
Breanna S., supra, 8 Cal.App.5th 636. “[T]he Indian tribe, not
the juvenile court or the court of appeal, is the sole entity
authorized to determine whether a child who may be an Indian
child is actually a member or eligible for membership in the
tribe,” we explained (id. at p. 654), citing Santa Clara Pueblo v.
Martinez (1978) 436 U.S. 49, 72, fn. 21 [Indian tribe is final
arbiter of its membership rights]; former section 224.3,
subdivision (e)(1) [now section 224.2, subdivision (h)] [“[a]
determination by an Indian tribe that a child is or is not a
17
member of or eligible for membership in that tribe . . . shall be
conclusive”]; and several court of appeal decisions confirming that
point. Applying that fundamental principle, we held, “[W]e are
unwilling to determine in the first instance the tribe’s
membership eligibility requirements, particularly since we are
without benefit of testimony regarding how that language has
been applied by the tribe and whether exceptions have been
created by tribal custom and practice. [¶] Moreover, once ICWA
notice is required, as it plainly was in this case, we would be
extremely reluctant under most circumstances to foreclose the
tribe’s prerogative to evaluate a child’s membership rights
without it first being provided all available information
mandated by ICWA.” (Breanna S., at p. 655.)
That reluctance is controlling here, as it was in Breanna S.
Even if no additional information is developed, new ICWA notices
containing LeeRoy’s birth and death dates should be sent to the
Blackfeet Tribe. And further inquiry by the Department may
well develop additional information properly included on the
ICWA notices, biographical data crucial to an accurate
determination by the Blackfeet Tribe of Alliyah and Caden’s
eligibility for tribal membership. (See In re T.G., supra,
58 Cal.App.5th at p. 294 [determination of a child’s membership
status “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”].)8
8 We recognize the Blackfeet Tribe’s letters, in addition to
explaining the blood quantum requirement for enrollment, stated
18
DISPOSITION
The section 366.26 order terminating Grady’s parental
rights is conditionally reversed. The matter is 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.
Alliyah and Caden do not fall within ICWA’s definition of an
Indian child. That assessment is not binding. Although tribal
membership is for the tribe to determine based on tribal law,
once that determination is made, a child’s status as an Indian
child within the meaning of ICWA “is a conclusion of federal and
state law.” (In re Abbigail A. (2016) 1 Cal.5th 83, 95;
see Breanna S., supra, 8 Cal.App.5th 636, 654-655.)
19