In re Gizelle D. CA2/2 ( 2021 )


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  • Filed 9/9/21 In re Gizelle D. CA2/2
    NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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    has not been certified for publication or ordered published for purposes of rule 8.1115.
    IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
    SECOND APPELLATE DISTRICT
    DIVISION TWO
    In re Gizelle D. et al., Persons                                      B308580, consolidated with
    Coming Under the Juvenile Court                                       B309967
    Law.                                                                  (Los Angeles County
    Super. Ct. No.
    20CCJP01942A-D)
    LOS ANGELES COUNTY
    DEPARTMENT OF CHILDREN
    AND FAMILY SERVICES,
    Plaintiff and Respondent,
    v.
    Jermaine D. et al.,
    Defendants and Appellants.
    APPEAL from orders of the Superior Court of Los Angeles
    County. Jean M. Nelson, Judge. Affirmed, but conditionally
    remanded.
    John L. Dodd, under appointment by the Court of Appeal,
    for Defendant and Appellant Nicole D.
    Andre F.F. Toscano, under appointment by the Court of
    Appeal, for Defendant and Appellant Jermaine D.
    Rodrigo A. Castro-Silva, County Counsel, Kim Nemoy,
    Assistant County Counsel, and Tracey M. Blount, Deputy County
    Counsel, for Plaintiff and Respondent.
    ******
    In this consolidated appeal, Jermaine D. (father) and Nicole
    D. (mother) together challenge the juvenile court’s exertion of
    dependency jurisdiction over the three children they have
    together, its initial removal of those children from their custody,
    and its compliance with the Indian Child Welfare Act, or ICWA.
    (25 U.S.C. § 1901 et seq.) We conclude that the juvenile court
    properly exerted jurisdiction over the children and that its
    removal order is moot as to two of the children but still proper as
    to all three, but that the court’s ICWA findings are not supported
    by substantial evidence. Accordingly, we affirm in part and
    remand with directions to comply with ICWA.
    FACTS AND PROCEDURAL BACKGROUND
    I.     Facts
    Father and mother have three children together: Gizelle
    (born January 2005), and twins Danielle and Denzel (born
    October 2006). Mother has two older children with other men:
    2
    Kierra (November 2002) and an adult son Jonathan.
    While “consider[ing] Jonathan and Kierra” to be “[his]
    children,” father subjected each of them to sexual abuse for years
    1
    on end. From when Kierra was age 10 to 17 (that is, between
    approximately 2012 and 2019), father forcefully kissed Kierra
    with his tongue; he touched, caressed, squeezed, and tried to suck
    her breasts nearly every day under the pretense that he was
    “touching them for breast cancer”; he regularly forced Kierra to
    grab his penis and masturbate him; he orally copulated her
    (sometimes starting while she was asleep); and he “dry humped”
    her (that is, he simulated vaginal sex while clothed). During
    much of this time period (that is, between approximately 2008
    and 2014), father also repeatedly molested Jonathan by making
    Jonathan watch pornography while simultaneously masturbating
    father; by making Jonathan orally copulate him; and, on one
    occasion, by attempting to anally penetrate Jonathan.
    Over the years, both Kierra and Jonathan reported father’s
    sexual abuse of them to mother—either directly to mother or
    indirectly to family relatives who then told mother. When
    mother confronted father, he denied the abuse. Thereafter,
    whenever Kierra, Jonathan, or any family member would report
    abuse, mother refused to believe them, choosing instead to
    believe that father was “a good dad” and “a great man of God”
    and that Kierra and Jonathan were “liars” who “d[id] drugs.”
    1    This was not father’s first time sexually abusing children:
    When father was a minor, his younger sister reported that father
    would make her sit on his lap and rub her back and buttocks.
    3
    II.   Procedural Background
    A.     Petition
    On April 7, 2020, the Los Angeles Department of Children
    and Family Services (the Department) filed a petition asking the
    juvenile court to exercise dependency jurisdiction over Kierra,
    Gizelle, Danielle, and Denzel. The petition alleged that
    jurisdiction was warranted due to (1) father’s sexual abuse of
    Kierra, and (2) mother’s “failure and unwillingness to protect”
    Kierra from that abuse, which placed all four children “at
    substantial risk of serious harm, damage, danger, sexual abuse,
    and failure to protect” (thus warranting jurisdiction under
    2
    Welfare and Institutions Code section 300, subdivisions (b), (d),
    and (j)).
    B.     Exertion of jurisdiction and removal
    In late October 2000, the juvenile court sustained all of the
    allegations in the Department’s petition and accordingly exerted
    dependency jurisdiction over Kierra, Gizelle, Danielle, and
    Denzel. In so ruling, the court found Kierra and Jonathan to be
    credible regarding the abuse they suffered, and found that
    mother had failed to protect them by disbelieving their repeated
    reports of abuse—a finding further corroborated by mother’s
    postpetition efforts in this case to convince Gizelle, Denzel, and
    Danielle that Kierra was a “liar” and to pressure Kierra to recant
    her reports of abuse. The court further found “the nature of the
    sexual abuse . . . is so persistent and so pervasive and so aberrant
    that [Gizelle, Danielle, and Denzel] are at risk as well.”
    The court ordered all four children removed from mother
    and father. Although father had been charged with committing
    2     All further statutory references are to the Welfare and
    Institutions Code unless otherwise indicated.
    4
    lewd and lascivious acts upon a minor (Pen. Code, § 288) and was
    at that time incarcerated pending trial, he had yet to be tried,
    convicted, or sentenced. The court rejected mother’s argument
    that the children were no longer at risk because father was in
    pretrial detention, reasoning that father had yet to be convicted
    and could be released on bail pending trial due to the pandemic;
    mother’s argument that father would “remain in prison for a long
    time,” the court reasoned, was “speculation.”
    C.     Appeals and Postappeal Developments
    Father and mother filed separate timely appeals from the
    jurisdictional and dispositional findings, and we consolidated
    their appeals.
    On March 22, 2021, the Department filed a supplemental
    3
    petition under section 387 as to the maternal aunt caregiver. On
    June 30, 2021, the juvenile court sustained the supplemental
    petition as to all three children and ordered Danielle and Denzel
    4
    released to the home of mother.
    DISCUSSION
    In her appeal, mother (joined by father) challenges the
    juvenile court’s jurisdictional and removal orders as to the
    youngest three children (as Kierra turned 18 years old during the
    pendency of this appeal). In his appeal, father (joined by mother)
    challenges the juvenile court’s compliance with ICWA.
    3     The record on appeal does not contain the petition nor do
    the parties make any reference to it.
    4     We requested supplemental briefing from the parties to
    ascertain Gizelle’s placement and whether the issue of removal is
    now moot.
    5
    I.      Jurisdictional Findings
    The Department's petition in this case rested on three
    statutory grounds for exerting dependency jurisdiction—namely,
    subdivisions (b), (d) and (j) of section 300. Subdivision (j)
    empowers a juvenile court to assert jurisdiction over a child when
    (1) his or her sibling has been abused or neglected, and (2) there
    is a substantial risk that the child will also be abused or
    neglected. (§ 300, subd. (j); In re I.J. (2013) 
    56 Cal.4th 766
    ,
    774 (I.J.).) “[I]n determining whether there is a substantial risk
    to the child” under subdivision (j), the juvenile court is to
    examine “the totality of the circumstances,” including (1) “the
    circumstances surrounding the abuse or neglect of the sibling,”
    (2) “the age and gender of each child,” (3) “the nature of the abuse
    or neglect of the sibling,” (4) “the mental condition of the parent,”
    and (5) “any other factors the court considers probative.” (§ 300,
    subd. (j); I.J., at pp. 774, 779.) We review a juvenile court’s
    findings exerting jurisdiction over a child for substantial
    evidence. (In re J.S. (2021) 
    62 Cal.App.5th 678
    , 685.)
    Substantial evidence supports the execution of dependency
    jurisdiction over Gizelle, Danielle, and Denzel under subdivision
    (j) of section 300. Based on Kierra’s statements that the juvenile
    court found to be credible, there is substantial evidence that
    Kierra—a sibling of Gizelle, Danielle, and Denzel—was abused,
    thus satisfying the first requirement of jurisdiction under
    subdivision (j). There is also substantial evidence that Gizelle,
    Danielle and Denzel are at “substantial risk” of abuse or neglect,
    thus satisfying the second requirement under subdivision (j).
    That is because a parent’s ““‘aberrant sexual behavior’”” toward
    one child ““‘places [the victim-child’s] siblings who remain in the
    home at risk of [further] aberrant sexual abuse”’” by that parent.
    6
    (Los Angeles County Dept. of Children & Family Services. v.
    Superior Court (2013) 
    215 Cal.App.4th 962
    , 969 (A.C.);
    accord, I.J., supra, 56 Cal.4th at p. 778 [father’s “serious and
    prolonged” sexual abuse of daughter supported finding of
    substantial risk as to all other children].) Such conduct poses a
    risk to all siblings because it constitutes a ‘“fundamental betrayal
    of the appropriate relationship between the generations.’” (I.J.,
    at p. 778; In re Kieshia E. (1993) 
    6 Cal.4th 68
    , 76-77 [“When a
    parent abuses his or her own child, . . . the parent also abandons
    and contravenes the parental role”].) Father’s sexual abuse of his
    stepdaughter Kierra constitutes “aberrant sexual behavior” and
    an abandonment of his parental role that places all the children
    in the household—including Gizelle, Danielle, and Denzel—at
    substantial risk of abuse and neglect. As our Supreme Court
    noted in I.J., the “very uncertainty” of whether a parent’s sexual
    abuse of one child “is likely” to result in future sexual abuse of
    another child “makes it virtually incumbent upon the juvenile
    court to take jurisdiction over the [child’s] siblings.” (I.J., 56
    Cal.4th at p. 779.)
    Mother responds with two arguments.
    First, she argues that father did not pose any risk to the
    children because, at the time of the jurisdictional hearing, he was
    incarcerated pending criminal charges for the sexual abuse of
    Kierra. For support, she cites In re Carlos T. (2009) 
    174 Cal.App.4th 795
     (Carlos T.). Carlos T. all but dictates affirmance
    of the juvenile court’s jurisdictional ruling in this case. In that
    case, a sexually abusive father argued that his incarceration
    following conviction but prior to sentencing ameliorated any risk
    of sexual abuse to the children. (Id. at p. 806.) The court rejected
    this argument, explaining that there was sufficient risk of abuse
    7
    to the children based on “the possibility” that father could be
    “released from custody” if his conviction were reversed on appeal,
    in which case there was “every reason to believe father would
    resume his sexual abuse” and that “mother would not protect the
    children from abuse.” (Ibid.) Here, father has yet to be convicted
    and still enjoys the presumption of innocence. If the possibility of
    release following reversal of a conviction on appeal in Carlos T.
    was sufficient evidence of substantial risk, the far greater
    possibility of acquittal that exists in the pretrial context of this
    case is certainly sufficient.
    Second, mother argues father’s past sexual abuse of Kierra
    does not pose a risk of sexual abuse does not constitute
    substantial evidence of risk of sexual abuse to Kierra’s younger
    siblings. Mother is wrong. Father has demonstrated a penchant
    for sexually abusing children of both genders, and the fact that
    Gizelle, Danielle, and Denzel are his biological children (unlike
    Kierra and Jonathan) is of no consequence, especially where, as
    here, father has said he regarded Kierra and Jonathan as his
    own children. The case law “overwhelmingly hold[s] that sexual
    abuse of one child may constitute substantial evidence of a risk to
    another child in the household—even to a sibling of a different
    sex or age or to a half sibling” because, as noted above,
    molestation of any child may be ‘“so sexually aberrant’” that all
    children in the household are at risk of becoming victims of that
    behavior. (A.C., supra, at p. 968; see also In re I.J., supra, 56
    Cal.4th at p. 778; In re P.A. (2006) 
    144 Cal.App.4th 1339
    , 1345-
    1347; In re Karen R. (2001) 
    95 Cal.App.4th 84
    , 90-91; In re Ricky
    T. (2013) 
    214 Cal.App.4th 515
    , 523; In re Ana C. (2012) 
    204 Cal.App.4th 1317
    , 1331.)
    8
    Because there is sufficient evidence to support jurisdiction
    under subdivision (j) of section 300, we need not consider the
    other two statutory grounds for jurisdiction. (In re Alexis
    E. (2009) 
    171 Cal.App.4th 438
    , 451; In re Jonathan B. (1992) 
    5 Cal.App.4th 873
    , 875-876.)
    II.    Removal
    A.    Of Danielle and Denzel
    Because the juvenile court vacated its removal order as to
    Danielle and Denzel and has allowed them to live with mother,
    mother’s challenge to the removal order as to those two children
    is now moot. (E.g., In re Raymond G. (1991) 
    230 Cal.App.3d 964
    ,
    967.) Given that father was incarcerated at the time the removal
    order was entered, he does not have a right to have the children
    in his personal custody beyond their return to mother’s custody.
    (Accord, § 361, subd. (c)(5) [child is to be removed from custody of
    parent who is “incarcerated” absent arranging for others to care
    for child].) The parents resist this conclusion, asserting that if
    they succeed in challenging the removal order as to Danielle and
    Denzel, they will be entitled to a longer period of reunification
    services for those children (because the period used up during
    any erroneous removal would no longer count against the
    statutorily mandated maximum period). We need not resolve
    this point because the trial court did not err in removing those
    children, as we explain next.
    B.    Of Gizelle
    As most pertinent here, a juvenile court may remove a child
    from his or her parent if (1) “[t]he [child] or a sibling of the [child]
    has been sexually abused . . . by a parent . . . or member of his or
    her household,” and (2) “there are no reasonable means by which
    the [child] can be protected from further sexual abuse or a
    9
    substantial risk of sexual abuse without removing the [child]
    from his or her parent.” (§ 361, subd. (c)(4).) We review the
    juvenile court’s findings to ascertain whether substantial
    evidence supports the juvenile court’s finding, by clear and
    convincing evidence, that removal was appropriate. (In re V.L.
    (2020) 
    54 Cal.App.5th 147
    , 155.)
    Substantial evidence supports the juvenile court’s finding
    by clear and convincing evidence that Kierra was sexually abused
    by father and that there are no “reasonable means” by which
    Gizelle (or her siblings) can be protected from the “substantial
    risk of sexual abuse” without removal. The jurisdictional finding
    that Kierra was sexually abused, that father poses a substantial
    risk of sexual abuse to her half-siblings notwithstanding his
    pretrial incarceration, and that mother failed to protect Kierra
    from father also constitutes evidence of risk that
    justifies removal of Gizelle (and her siblings) from mother. (See
    In re T.V. (2013) 
    217 Cal.App.4th 126
    , 135 [“The jurisdictional
    findings are prima facie evidence the minor cannot safely remain
    in the home”].) What is more, mother’s conduct in not only
    disbelieving Kierra and demonstrating unbroken fealty to father,
    but also vilifying Kierra to her half-siblings and then engaging in
    a clandestine attempt to get Kierra to recant her statements only
    serves to exacerbate the risk of sexual abuse Gizelle (and her
    siblings) would face should father be released from pretrial
    custody or acquitted at trial.
    Mother again responds with two arguments.
    First, as above, she argues that father’s pretrial
    incarceration eliminates all risk. We have already rejected that
    argument. In her reply brief, mother argues that the potential
    risk arising from father’s potential release from pretrial custody
    10
    can be fully eliminated if the juvenile court, pursuant to its
    statutory authority under section 362, simply issues an order
    requiring father to stay away from the child should he be
    released. We reject the argument that a stay away order, as a
    matter of law, eliminates all risk, particularly where, as here,
    substantial evidence supports the finding that mother is more
    concerned with her loyalty to father than protecting her children
    from father’s sexual abuse.
    Second, mother argues that removal is unwarranted
    because the Department did not make reasonable efforts to
    prevent or eliminate the need for removal and did not sufficiently
    document its reasonable efforts in its reports to the juvenile
    court. Although mother is correct that the Department must
    make “reasonable efforts . . . to prevent or eliminate the need for
    removal” as a prerequisite for removal (§ 361, subds. (c)(1) & (e));
    that the Department must in its report include “[a] discussion of
    the reasonable efforts made to prevent or eliminate removal”
    (Cal. Rules of Court, rule 5.690(a)(1)(B)(i)); and that the
    Department’s reports in this case did not contain the necessary
    discussion, this omission is not prejudicial. That is because
    substantial evidence supports the juvenile court’s finding that the
    Department did undertake reasonable efforts to prevent
    removal—namely, mother’s case plan included individual
    counseling, in-person sexual abuse awareness counseling, and
    conjoint family counseling with the children when deemed
    appropriate by the children’s therapist, each of which, if heeded,
    would have avoided the need for removal. “Reasonable efforts”
    are efforts that are “reasonable under the circumstances” and
    “based on the particular circumstances of a case.” (In re
    H.E. (2008) 
    169 Cal.App.4th 710
    , 725; In re Amy M. (1991) 232
    
    11 Cal.App.3d 849
    , 856; Katie V. v. Superior Court (2005) 
    130 Cal.App.4th 586
    , 598-599.) Although mother eventually provided
    the Department with proof of enrollment in internet-based
    programs that offered general information of prevention of sexual
    abuse of children, the juvenile court eventually found that mother
    had failed to make any progress with those programs because she
    continued to disbelieve Kierra’s reports of sexual abuse and urged
    Kierra to recant. Because the Department made reasonable
    efforts, its failure to catalogue those efforts and the juvenile
    court’s explanation about why Gizelle (and her siblings) remained
    at risk leaves no reasonable probability that the court would
    come to a contrary conclusion had the Department included more
    information in its reports. (E.g., In re J.S. (2011) 
    196 Cal.App.4th 1069
    , 1079; In re Jason L. (1990) 
    222 Cal.App.3d 1206
    , 1218.)
    III. ICWA
    Father (joined by mother) argues that the juvenile court
    erred in finding that the Department had complied with ICWA
    when, in fact, the Department violated ICWA’s duties of further
    inquiry and notice. We review the juvenile court’s ICWA findings
    for substantial evidence. (In re J.S. (2021) 
    62 Cal.App.5th 678
    ,
    688; In re Charles W. (2021) 
    66 Cal.App.5th 483
    , 490.)
    A.     Pertinent facts
    Mother has never claimed any American Indian heritage.
    Father has provided inconsistent information about any
    American Indian heritage. Initially, father filled out the ICWA-
    020 form (1) indicating that “[o]ne or more of [his] parents,
    grandparents, or other lineal ancestors is or was a member of a
    federally recognized tribe,” and (2) listing (a) the paternal
    grandfather (PGF), Willie J., as a member of the Blackfoot tribe,
    12
    and (b) the paternal grandmother (PGM), Etta G., as a member of
    the Cherokee tribe. At his initial appearance, father indicated
    the same. At a subsequent appearance, however, father
    disclaimed any Indian heritage.
    After the initial appearance and before the subsequent
    appearance, the Department interviewed PGM; the Department
    could not interview PGF, as he was deceased. PGM reported that
    her father (the paternal great grandfather (PGGF)) was Blackfoot
    and that her grandmother (the paternal great great grandmother
    (PGGGM)) was Cherokee, but stated that she did not have tribal
    enrollment information. PGM supplied the names of some of her
    other ancestors, but no other information (aside from a few dates
    and places of death).
    On the basis of this additional information, the Department
    in writing and through phone calls contacted the Blackfoot tribe,
    two of the three federally registered Cherokee tribes (that is, the
    Cherokee Nation and the Eastern Band of Cherokee Indians), the
    Bureau of Indian Affairs, and the Secretary of the Interior. The
    Department made no effort to contact the third Cheroke tribe,
    but nevertheless informed the juvenile court that it had contacted
    all of the pertinent tribes. On the basis of this information, the
    juvenile court found that it had no reason to know that any of the
    children was an Indian child within the meaning of ICWA.
    B.    Analysis
    ICWA was enacted to curtail “the separation of large
    numbers of Indian children from their families and tribes
    through adoption or foster care placement.” (Miss. Band of
    Choctaw Indians v. Holyfield (1989) 
    490 U.S. 30
    , 32.) Under
    the ICWA and California statutes our Legislature enacted to
    implement it (§§ 224-224.6), as recently amended, a juvenile
    13
    court—and, as its delegate, the Department—have duties all
    aimed at assessing whether a child in a pending dependency case
    is an “Indian child” entitled to the special protections of ICWA. (§
    224.2, added by Stats. 2018, ch. 833, § 5; § 224.3; In re
    A.M. (2020) 
    47 Cal.App.5th 303
    , 320 [applying ICWA law in effect
    at time of order appealed from].) For these purposes, an “‘Indian
    child’” is a child who (1) is “a member of an Indian tribe,” or (2)
    “is eligible for membership in an Indian tribe and is the biological
    child of a member of an Indian tribe.” (25 U.S.C. § 1903(4), italics
    added; § 224.1, subd. (a) [adopting federal law definition].) By its
    terms, this definition turns “‘on the child's political affiliation
    with a federally recognized Indian Tribe,’” not “necessarily” “the
    child’s race, ancestry or ‘blood quantum.’” (Austin J. (2020) 
    47 Cal.App.5th 870
    , 882 (Austin J.), quoting 81 Fed.Reg. 38801-
    38802 (June 14, 2016).)
    Under ICWA as amended, the Department and juvenile
    court have “three distinct duties.” (In re D.S. (2020) 
    46 Cal.App.5th 1041
    , 1052 (D.S.) [noting amendment’s creation of
    three duties]; Austin J., supra, 47 Cal.App.5th at pp. 883-
    884 [same].)
    The first duty is the initial “duty” of the Department and
    the juvenile court “to inquire whether [a] child is an Indian
    child.” (§ 224.2, subds. (a) & (b).) The Department discharges
    this duty chiefly by “asking” family members “whether the child
    is, or may be, an Indian child.” (Id., subd. (b).) For its part, the
    juvenile court is required, “[a]t the first appearance” in a
    dependency case, to “ask each participant present” “whether the
    participant knows or has reason to know that the child is an
    Indian child.” (Id., subd. (c).)
    14
    The second duty is the duty of the Department or the
    juvenile court to “make further inquiry regarding the possible
    Indian status of the child.” (Id., subd. (e).) This duty is triggered
    if the Department or court “has reason to believe that an Indian
    child is involved” (ibid), and, once triggered, obligates the
    Department to conduct further interviews to gather information,
    to contact the Bureau of Indian Affairs and state department of
    social services for assistance, and/or to contact relevant Indian
    tribe(s). (Id., subd. (e)(2); In re D.F. (2020) 
    55 Cal.App.5th 558
    ,
    566-567 (D.F.).) As of September 18, 2020, the Department or
    court “has reason to believe that an Indian child is involved” if
    the Department or court “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,” including information
    “indicat[ing]” but not “establish[ing]” the existence of any of the
    six circumstances satisfying the “reason to know” a child is an
    Indian child, detailed next. (§ 224.2, subd. (e)(1), as amended by
    Stats. 2020, ch. 104, § 15.)
    The third duty is the duty to notify the relevant Indian
    tribe(s). (§ 224.3, subd. (a); 25 U.S.C. § 1912(a).) This duty is
    triggered if the Department or the court “knows or has reason to
    know . . . that an Indian child is involved.” (§ 224.3, subd. (a).)
    The Department or juvenile court has “reason to know a child
    involved in a proceeding is an Indian child” in one of six
    statutorily defined circumstances—namely, when (1) “[a] person
    having an interest in the child . . . informs the court that the
    child is an Indian child” (§ 224.2, subd. (d)(1)), (2) “[a]ny
    participant in the proceeding . . . informs the court that it has
    discovered information indicating that the child is an Indian
    child” (id., subd. (d)(3)), (3) “[t]he child . . . gives the court reason
    15
    to know that the child is an Indian child” (id., subd. (d)(4)), (4)
    the child or the parents reside, or are domiciled, “on a reservation
    or in an Alaskan Native village” (id., subd. (d)(2)), (5) “the child is
    or has been a ward of a tribal court” (id., subd. (d)(5)), or (6)
    “either parent or the child possess an identification card
    indicating membership or citizenship in an Indian tribe” (id.,
    subd. (d)(6)).
    Although the Department and the juvenile court
    discharged ICWA’s initial duty of inquiry, they did not discharge
    the duty to make further inquiry under ICWA. Notwithstanding
    father’s waffling on the issue of whether he had any American
    Indian ancestry, the investigative leads father initially provided
    prompted the Department to speak with PGM, who shared her
    belief that she may have Blackfoot and Cherokee heritage.
    Because PGM’s information “suggest[ed] that either [father] or
    the child[ren] . . . may be eligible for membership in an Indian
    tribe,” that information constituted a “reason to believe that an
    Indian child is involved” and hence triggered the Department’s
    duty to inquire further by, among other things, contacting the
    5
    Bureau of Indian Affairs and/or the relevant Indian tribe(s). (§
    224.2, subd. (e)(2); D.F., supra, 55 Cal.App.5th at p. 567.) The
    Department recognized as much by contacting the Bureau of
    Indian Affairs, the Secretary of the Interior, the Blackfoot tribe,
    5     Because this information did not give the Department or
    the juvenile court a reason to know the children were Indian
    children, they were not obligated to give formal notice to the
    pertinent tribes. As a result, the parents’ arguments directed at
    the deficiency of notice are premature. Father’s further
    argument that the Department responded only to the specific
    questions one tribe asked (rather than offering additional
    information) lacks merit for the same reason.
    16
    and two of the three Cherokee tribes to get their information.
    The Department fell short, however, because it did not contact
    the third Cherokee Tribe—that is, the United Keetoowah Band of
    Cherokee Indians in Oklahoma. (86 Fed. Reg. 7554 (2021);
    https://www.doi.gov/tribes/cherokee [as of Sept. 1, 2021], archived
    at https://perma.cc/ZT45-R3GL.) This omission means that the
    Department did not fully discharge its duty of further inquiry.
    Accordingly, we remand to allow the Department to fulfill its
    ICWA-mandated duty. (In re J.T. (2007) 
    154 Cal.App.4th 986
    ,
    992-994.)
    17
    DISPOSITION
    The juvenile court’s order terminating parental rights is
    conditionally remanded, and the court is directed to properly
    comply with the requirements of the ICWA, which require proper
    notice to each of the three Cherokee tribes listed in the Federal
    Register. If, after proper inquiry and notice, the court finds that
    the children have native American ancestry, the court shall
    proceed in conformity with ICWA. Otherwise, the court’s orders
    are affirmed.
    NOT TO BE PUBLISHED IN THE OFFICIAL REPORT.
    ______________________, J.
    HOFFSTADT
    We concur:
    _________________________, P. J.
    LUI
    _____________________, J.
    CHAVEZ
    18
    

Document Info

Docket Number: B308580

Filed Date: 9/9/2021

Precedential Status: Non-Precedential

Modified Date: 9/9/2021