In re Saul A. CA2/2 ( 2021 )

Filed 10/6/21 In re Saul A. CA2/2
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION TWO
In re SAUL A., a Person Coming B309200
Under the Juvenile Court Law. (Los Angeles County
Super. Ct. No. 19CCJP07245)
LOS ANGELES COUNTY
DEPARTMENT OF CHILDREN
AND FAMILY SERVICES,
Plaintiff and Respondent,
v.
A.M.,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los
Angeles County, Stephen Marpet, Juvenile Court Referree.
Conditionally reversed.
Elizabeth Klippi, under appointment by the Court of
Appeal, for Defendant and Appellant.
Rodrigo A. Castro-Silva, County Counsel, Kim Nemoy,
Assistant County Counsel, and David Michael Miller, Deputy
County Counsel, for Plaintiff and Respondent.
******
Appellant A.M. (mother) appeals from the juvenile court’s
orders summarily denying her Welfare and Institutions Code1
section 388 petition requesting family reunification services with
her child, Saul A. (born 2019), and denying her request for a
contested section 366.26 hearing. Mother also challenges the
juvenile court’s findings under the Indian Child Welfare Act of
1978 (25 U.S.C. § 1901 et seq.) (ICWA) and related California
law. She contends the juvenile court and the Los Angeles County
Department of Children and Family Services (the Department)
failed to comply with their statutory duties of inquiry and notice.
The juvenile court did not abuse its discretion by
summarily denying mother’s section 388 petition and her request
for a contested section 366.26 hearing. The Department failed,
however, to adequately investigate Saul’s father’s claim2
regarding possible Indian ancestry, and the juvenile court failed
to ensure an appropriate inquiry had been conducted before
concluding ICWA did not apply to these proceedings. We
therefore conditionally reverse the juvenile court’s section 366.26
orders and remand the matter for the limited purpose of directing
the juvenile court to conduct an inquiry into Saul’s possible
1 All further statutory references are to the Welfare and
Institutions Code.
2 Saul’s father is not a party to this appeal.
2
Indian status, and if warranted, to provide proper notice under
ICWA.
BACKGROUND
Child welfare history
Mother’s child welfare history included three prior cases in
which she failed to reunify with her children, resulting in
termination of her parental rights.
In 2006, mother’s mental and emotional problems resulted
in dependency jurisdiction over minor D.W. Mother failed to
reunify with D.W., and her parental rights were terminated in
2007.
In 2011, mother’s substance abuse and mental and
emotional problems led to dependency jurisdiction over minor
M.M. The juvenile court denied mother reunification services
pursuant to section 361.5, subdivision (b)(10) and (11), and
terminated her parental rights in 2013.
In 2014, mother’s mental and emotional problems and her
failure to take prescribed psychotropic medication resulted in
dependency jurisdiction over minor Xavier M. Mother was
granted reunification services but failed to reunify with Xavier.
Her parental rights were terminated in 2015.
Current case
The Department received a referral in 2019 that mother’s
mental health issues, history of substance abuse, and
homelessness placed newborn Saul at risk of harm. The referral
noted that mother was exhibiting mental health problems,
including rambling and incoherent speech.
Mother told the Department’s responding social worker
that she was homeless but planned to live with Saul at the Union
3
Rescue Mission when discharged from the hospital. She said
Saul’s father was a musician and was currently out of town and
could not be contacted.
Mother said she had been diagnosed with schizoaffective
personality disorder, was under the care of a psychiatrist, and
took prescribed medication. She experienced mental health
relapses in six-month intervals and was last hospitalized a year
ago. Mother told the social worker she had completed a dual
diagnosis program for mental health and substance abuse and
had last used methamphetamine a year ago. She hoped to find
another dual diagnosis program.
The Department confirmed that mother had completed a
dual diagnosis program in September 2019; however, the
program staff said mother had not been invited to stay because of
her behavioral issues. The staff said mother was not compliant
with her medication and engaged in “somewhat violent behavior.”
She fought with staff and other residents, broke things, and acted
out in the presence of children. The program staff further
reported that mother had been homeless for 15 years and that
Saul’s father was a chronic substance abuser and currently
incarcerated.
Mother’s psychiatrist reported that she had last seen
mother on August 28, 2019. Mother was experiencing auditory
hallucinations that “tell her negative stuff.” She failed to attend
two subsequent psychiatric appointments. The psychiatrist
expressed concerns about mother’s ability to care for newborn
Saul, as mother’s psychotropic medication had a sedating effect.
In October 2019, the social worker interviewed the paternal
grandmother, who reported that father had been homeless for 10
years. She expressed concerns about mother’s mental health but
4
was unaware of any diagnosis. The paternal grandmother was
also concerned about mother’s continued association with father
because of his ongoing homelessness and drug use.
In November 2019, the Department executed a removal
warrant for Saul and filed a petition under section 300,
subdivisions (b)(1) and (j). The petition alleged that mother’s
mental health issues and both parents’ substance abuse issues
placed Saul at risk of serious physical harm.
Mother was present at the November 2019 detention
hearing when the juvenile court ordered Saul detained from both
parents. Father appeared in custody at a hearing held on
November 18, 2019, at which the juvenile court found him to be
Saul’s alleged father and granted father’s request for a DNA test
to determine paternity.
Subsequent DNA testing confirmed that father was Saul’s
biological father. Father was released from custody in March
2020. His whereabouts thereafter became unknown.
Father’s ICWA claim
On November 18, 2019, father filed an ICWA-020 parental
notification of Indian status form. He checked the box on the
form indicating Saul may be a member of, or eligible for
membership in, a federally recognized Indian tribe. He identified
the tribe as Blackfoot. Father also provided the name and
telephone number of the paternal grandmother and indicated she
had additional information.
The juvenile court acknowledged father’s ICWA filing and
asked father if he knew whether the paternal grandmother was
registered with any tribe. Father responded, “I don’t. I was just
told when I was young that.” Father then stated: “Cherokee.”
The juvenile court found it had no reason to know that Saul was
5
an Indian child but instructed the Department “to follow up with
the paternal grandmother . . . [¶] . . . [¶] . . . And address
whether she has any additional information. If she does, the
Department needs to walk it on and we’ll address those issues
when we come—they need to walk it on to get authorization by
the court to notice any tribes.”
Jurisdiction and disposition
Mother told the Department she was diagnosed with
schizoaffective disorder in 2010 and that she took psychotropic
medication and participated in mental health services off and on
since her diagnosis. Mother admitted using marijuana since age
20 and said she sometimes used methamphetamine in lieu of
psychotropic medication. Mother said she had been involuntarily
hospitalized seven times.
The Department reported that mother had completed a
residential drug treatment program in February 2020 and was
participating in an outpatient program. Mother’s on-demand
drug tests in April, May, and June 2020 were all negative.
On March 6, 2020, mother had an in-person with visit with
Saul, who was placed with a paternal aunt in San Diego. Mother
was appropriate, and there were no reported concerns. Because
of COVID-19, mother’s visits were changed to video or telephonic
visits at the end of March 2020.
The Department learned in May 2020 that mother was not
under the care of a psychiatrist but was obtaining her prescribed
psychotropic medication at an urgent care facility. The
Department encouraged mother to seek regular psychiatric care
at a mental health clinic.
On May 8, 2020, the dependency investigator received a
telephone call from mother, who was agitated and upset. Mother
6
became hostile, “went on a disorganized tangent,” and yelled at
the investigator, causing the investigator to suspect that mother
had ceased taking her psychotropic medication.
In June 2020, the paternal aunt reported that mother’s
telephonic visits had become inconsistent. During the visits,
mother seemed more interested in talking about father and their
relationship issues. The paternal aunt stated that father was
homeless and living in a tent, but that he and mother were often
together.
Mother was present at the contested jurisdictional hearing
held in June 2020. Father was absent. The juvenile court
sustained the section 300 petition as to all counts, finding that
mother’s history of mental health and substance abuse issues,
mother’s failure to reunify with Saul’s half-siblings because of
those issues, and father’s substance abuse placed Saul at risk of
harm. The court continued the disposition hearing to determine
whether the parents would receive family reunification services.
In a July 2020 telephone call, mother screamed at the
Department’s social worker and demanded transportation funds
for visits with Saul, despite the fact that mother had received
funds for four visits but had visited Saul only once. The social
worker arranged to meet with mother at a nearby coffee shop at
3:00 p.m. Mother arrived at 7:00 a.m., waited a few hours, and
then said she had to leave because it was raining.
The paternal aunt informed the social worker in July 2020
that mother’s telephonic visits with Saul remained inconsistent.
Mother often cancelled, claiming she was doing laundry, praying,
or forgot to call.
Mother was present and testified at the July 29, 2020
dispositional hearing. Father was absent. The juvenile court
7
ordered Saul removed from parental custody and denied mother
family reunification services pursuant to section 361.5,
subdivision (b)(10) and (11). The court accorded mother
monitored visitation.
Status review reports
In November 2020, the Department reported that Saul
remained placed with his paternal relatives and was very
attached to them. The paternal relatives said they wanted to
adopt Saul.
During an in-person visit with mother on September 13,
2020, Saul cried and refused to go to mother. The caregivers
reported that mother did not know how to engage Saul and that
she was on her phone during the entire visit. The caregivers told
the social worker they were not comfortable monitoring mother’s
future visits with Saul. According to the caregivers, mother
frequently criticized their parenting style and attempted to
dictate what they could and could not give the child. The
caregivers further reported that Saul often woke up crying after
his visits with mother.
During an in-person visit with mother on October 18, 2020,
Saul would not allow mother to touch him or hold him. Mother
stated, “you know what he’s telling me, he’s telling me he made
his decision he wants to stay with his auntie.” Mother was upset
that Saul refused to interact with her and ended the visit 40
minutes early.
During an October 21, 2020 virtual visit, Saul cried as soon
as he saw mother’s face. Mother repeatedly yelled at Saul,
“[L]ook at me!” “Look at me when I’m talking to you . . . !”
(Capitalization omitted.) Mother missed 20 telephonic visits with
Saul between August and October 2020.
8
Section 388 petition
On November 22, 2020, mother filed a section 388 petition
requesting family reunification services. Mother’s petition stated
that her changed circumstances included consistent participation
in mental health services, attending 35 sessions; enrollment in an
outpatient drug rehabilitation program in August 2020 and eight
negative drug tests; and consistent, positive visits with Saul.
Mother’s petition further stated that it was in Saul’s best
interests “to be raised and cared for by his mother who gave birth
to him.”
The juvenile court summarily denied mother’s section 388
petition on November 24, 2020, finding an insufficient change of
circumstances to warrant an evidentiary hearing.
Section 366.26 hearing
At a November 24, 2020 hearing, mother’s counsel asked
the court to set a contested section 366.26 hearing. When asked
for an offer of proof, counsel stated, “Mother has been actively
involved in her mental health services. She is—she is, as well,
visiting the minor. She’s having in person visits now with her
child and they do appear to be going well. Mother—there has
been some issues, overall the visits have been consistent. I’m
asking that this matter be set for contest so mother can testify as
to the child sibling bond.”
The juvenile court denied the request for a contested
hearing, finding “based on the reports, that the visits have been
virtual and/or monitored and infrequent, at best, and I am
finding that—I’m denying the request for a hearing as it doesn’t
rise to the level of the applicable statutes with regard to a
mother/child bond.”
9
After finding no exception existed, the juvenile court
terminated parental rights and designated the paternal aunt and
her husband as the prospective adoptive parents.
This appeal followed.
DISCUSSION
I. Section 388 petition
Section 388 provides in pertinent part: “(a)(1) Any parent or
other person having an interest in a child who is a dependent
child of the juvenile court . . . may, upon grounds of change of
circumstance or new evidence, petition the court in the same
action in which the child was found to be a dependent child of the
juvenile court or in which a guardianship was ordered pursuant
to Section 360 for a hearing to change, modify, or set aside any
order of court previously made or to terminate the jurisdiction of
the court. The petition . . . shall set forth in concise language any
change of circumstance or new evidence that is alleged to require
the change of order or termination of jurisdiction. [¶] . . . [¶] (d)
If it appears that the best interests of the child ... may be
promoted by the proposed change of order . . . , the court shall
order that a hearing be held . . . .”
Although section 388 does not explicitly so provide, courts
have long held that the right to a hearing is triggered only if the
petition makes a prima facie showing, consisting of facts
demonstrating a genuine change of circumstances. (In re C.J.W.
(2007) 157 Cal.App.4th 1075, 1079.) To require a hearing a
parent must show changed, not merely changing, circumstances.
(See In re Casey D. (1999) 70 Cal.App.4th 38, 47, disapproved on
another ground in In re Caden C. (2021) 11 Cal.5th 614, 636,
fn. 5.) In addition, the parent must present new evidence and
10
facts showing that the requested modification will promote the
child’s best interests. (C.J.W., supra, at p. 1079.) The petition
must state facts that, if found to be true, would sustain a
favorable decision. (In re Anthony W. (2001) 87 Cal.App.4th 246,
250.)
We review the summary denial of a hearing on a section
388 petition for abuse of discretion. (In re A.S. (2009) 180
Cal.App.4th 351, 358.) Under that standard, we will not disturb
the decision of the juvenile court unless it was arbitrary,
capricious, or patently absurd. (Ibid.)
The trial court did not abuse its discretion by summarily
denying mother’s section 388 petition. Mother’s alleged change of
circumstance was her enrollment in a drug treatment program
three months before filing her section 388 petition, and her
enrollment and participation in mental health services six
months before the filing of her petition. Mother had a long
history of mental health and substance abuse issues, resulting in
chronic homelessness and her failure to reunify with three of
Saul’s half-siblings. The trial court did not in err concluding that
mother’s recent enrollment and participation in a drug treatment
program and mental health services show changing, not changed,
circumstances. “A petition which alleges merely changing
circumstances and would mean delaying the selection of a
permanent home for a child to see if a parent, who has repeatedly
failed to reunify with the child, might be able to reunify at some
future point, does not promote stability for the child or the child’s
best interests.” (In re Casey D., supra, 70 Cal.App.4th at p. 47.)
Mother’s assertions that her visits with Saul had been consistent
and positive is unsupported by any evidence and contradicted by
the record.
11
Mother also failed to show that the change of order would
be in Saul’s best interests. Her petition merely states that it is in
Saul’s best interest to be raised and cared for by mother and that
he should be given the opportunity to reunify with her. This is
insufficient. Saul has lived with his paternal aunt for the
majority of his short life. He is bonded to his caregivers, who
wish to provide a permanent home for him through adoption.
Mother’s visits with Saul were inconsistent, and during two in-
person visits, Saul refused to allow mother to touch or hold him.
Mother failed to make a prima facie showing of changed
circumstances or that a change of order would be in Saul’s best
interests. The juvenile court did not err by summarily denying
mother’s section 388 petition.
II. Section 366.26 hearing
“‘The selection and implementation hearing under section
366.26 takes place after the juvenile court finds that the parents
are unfit and the child cannot be returned to them.’” (In re
Grace P. (2017) 8 Cal.App.5th 605, 611 (Grace P.).) When a
parent fails to reunify with the child, and the juvenile court finds
the child likely to be adopted, the burden shifts to the parent to
show exceptional circumstances exist such that termination of
parental rights would be detrimental to the child. (Ibid.) One
such circumstance is when the parent has maintained regular
visitation and contact with the child and the child would benefit
from the parent-child relationship. (§ 366.26, subd. (c)(1)(B)(i).)
A juvenile court may require an offer of proof before
allowing a contested hearing on the beneficial parental
relationship exception to termination of parental rights. (In re
Tamika T. (2002) 97 Cal.App.4th 1114, 1122.) “The offer of proof
must be specific, setting forth the actual evidence to be produced,
12
not merely the facts or issues to be addressed and argued.” (Id.
at p. 1124.) “[F]or example, an offer of proof containing the
assertion of the fact that the parent had a close parent-child bond
with the minor—without identification of a witness or witnesses
who would so testify to that fact—would not be sufficient.
[Citation.] Similarly, a proffer identifying a witness who would
testify to a close parent-child bond, without including enough
specifics of the substance of that testimony to establish both that
the witness has evidence to offer and that he or she is competent
to so testify, would also not meet the threshold of a valid offer of
proof.” (In re A.G. (2020) 58 Cal.App.5th 973, 1007 (A.G.).)
We review mother’s challenge to the juvenile court’s denial
of her request for contested section 366.26 hearing under the
abuse of discretion standard. (Grace P., supra, 8 Cal.App.5th at
p. 611.) The record discloses no abuse of discretion. Mother’s
offer of proof failed to meet the applicable legal standards. It
failed to set forth the actual evidence to be produced and
identified no witnesses who could attest to a parent-child bond
between mother and Saul. To the extent mother claims she
herself was to be that witness, she failed to set forth the specifics
and substance of her proposed testimony.
Mother’s reliance on Grace P. and A.G. as support for her
position is misplaced, as the offers of proof presented by the
parents in those cases, unlike mother’s, were specific and set
forth the evidence to be produced. In Grace P., the father offered
to testify that during his regular visits with the children, he
talked to them about school, redirected their behavioral issues,
brought food for them, played with them, and told them he loved
them. The father further stated that his child Grace would
testify that she enjoyed the visits, that she wanted the visits to
13
continue, and that she saw father as a parental figure. (Grace P.,
supra, 8 Cal.App.5th at p. 610.)
In A.G., the mother’s offer of proof identified nine potential
witnesses, including the minor’s siblings and maternal
grandparents, who would testify regarding the mother’s
continuous contact with the child, her relationship with him from
his birth until detention, and the activities they engaged in
during visits. The mother also offered to produce photographs
and videotapes as evidence of the closeness of the parent-child
bond. (A.G., supra, 58 Cal.App.5th at p. 1013.)
Mother’s offer of proof in this case sets forth no evidence,
identifies no witnesses, and includes no specifics concerning the
substance of her proposed testimony. The juvenile court did not
abuse its discretion by finding mother’s offer of proof insufficient
to warrant a contested section 366.26 hearing.
III. ICWA
A. Statutory framework
Section 224.2, former subdivision (e), in effect at the time
father filed his ICWA parental notification of Indian status form
and when the juvenile court made its section 366.26 findings and
rulings,3 provided in relevant part: “If the court, social worker, or
probation officer has reason to believe that an Indian child is
involved in a proceeding, the court, social worker, or probation
officer shall make further inquiry regarding the possible Indian
status of the child, and shall make that inquiry as soon as
practicable. Further inquiry includes, but is not limited to, all of
the following: [¶] (1) Interviewing the parents, Indian custodian,
3 Section 224.2, subdivision (e) was amended in 2020. That
amendment became effective on September 18, 2020. (Stats.
2020, ch. 104, § 15.)
14
and extended family members to gather the information required
in paragraph (5) of subdivision (a) of Section 224.3.[4] [¶] (2)
Contacting the Bureau of Indian Affairs and the State
Department of Social Services for assistance in identifying the
names and contact information of the tribes in which the child
may be a member, or eligible for membership in, and contacting
the tribes and any other person that may reasonably be expected
to have information regarding the child’s membership status or
eligibility. [¶] (3) 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. Contact with a tribe shall, at a minimum, include
telephone, facsimile, or electronic mail contact to each tribe’s
designated agent for receipt of notices under the federal Indian
Child Welfare Act of 1978 (25 U.S.C. Sec. 1901 et seq.). Contact
with a tribe shall include sharing information identified by the
tribe as necessary for the tribe to make a membership or
eligibility determination, as well as information on the current
status of the child and the case.” (§ 224.2, former subd. (e).)
Appellate courts are divided as to the applicable standard
for determining when the duty of inquiry arises under section
4 Section 224.3, subdivision (a)(5) lists the information that
must be included in notices that must be sent to the minor’s
parents, Indian custodian, and tribe, when the court or social
worker knows or has reason to know that an Indian child is
involved. That information includes the child’s name, date and
birthplace, the name of the tribe in which the child may be
eligible for membership, names of the child’s biological parents,
grandparents, and great-grandparents, a copy of the section 300
petition, and information regarding the time, date, and location
of any scheduled hearings. (§ 224.3, subd. (a)(5).)
15
224.2, former subdivision (e). (Compare In re Austin J. (2020) 47
Cal.App.5th 870 (Austin J.) with In re S.R. (2021) 64 Cal.App.5th
303 (S.R.) and In re T.G. (2020) 58 Cal.App.5th 275 (T.G.).)
B. Austin J.
In Austin J., the mother filed a parental notification of
Indian status form stating that one of her children “‘may have
Indian ancestry,’” Cherokee, through a deceased maternal great-
grandmother. The court concluded that the mother’s statement
that she “‘may have Indian ancestry’” and had been told that the
maternal grandmother “‘had Cherokee [ancestry],’” together with
a similar claim by a maternal great-aunt of possible “‘Cherokee
heritage’” were “insufficient to support a reason to believe” the
subject minors were Indian children under ICWA. (Austin J.,
supra, 47 Cal.App.5th at p. 888.) The court noted that the
mother “conspicuously did not check the boxes on her parental
notification of Indian status forms that would have indicated that
she or any of the children is or may be a member of, or eligible for
membership in, an Indian tribe” (id. at p. 889), and held that
section 224.2 imposed no duty to inquire further into the subject
minors’ status as possible Indian children (Austin J., at p. 889).
The court in Austin J. reasoned that the “reason to believe”
standard under section 224.2 requires a logical connection
between facts and belief to trigger the duty to investigate.
(Austin J., supra, 47 Cal.App.5th at p. 889.) “Information about a
tribal connection that ‘is too vague, attenuated and speculative’
will not support a ‘reason to believe’” a child is an Indian child.
(Id. at p. 888.) The court reasoned that ICWA defines “Indian
child” in terms of tribal membership, not Indian ancestry; hence,
“Indian ancestry, without more, does not provide a reason to
16
believe that a child is a member of a tribe or is the biological child
of a member.” (Id. at pp. 888-889.)
The court in Austin J. further reasoned that legislation
enacting section 224.2 (Assembly Bill No. 3176 (2017-2018 Reg.
Sess.)), supported the court’s narrow interpretation of when there
is “reason to believe” a minor is an Indian child: “Even if we
assume that the possibility of Indian ancestry may suggest the
possibility of Indian tribal membership, that bare suggestion is
insufficient by itself to establish a reason to believe a child is an
Indian child. In the recent changes to California’s ICWA-related
law [(Assembly Bill No. 3176)], the Legislature removed the
language, ‘information suggesting the child is a member of a tribe
or eligible for membership in a tribe,’ from the list of
circumstances that provided one with a ‘reason to know’ a child is
an Indian child. Significantly, it did not add that language to a
definition of the newly created ‘reason to believe’ standard for
further inquiry. We will not infer its incorporation into that
standard.” (Austin J., supra, 47 Cal.App.5th at p. 889.)
C. T.G.
The court in T.G. disagreed with the Austin J. court’s
“narrow reading of the nature and quality of information
sufficient to trigger the duty of further inquiry.” (T.G., supra, 58
Cal.App.5th at p. 294.) The court in T.G. acknowledged that
ICWA defines “‘Indian child’ . . . in terms of tribal membership,
not ancestry,” but pointed out that “the question of membership
is determined by the tribes, not the courts or child protective
agencies.” (Ibid.) The court noted that “the imposition of a duty
to inquire that is significantly more expansive than the duty to
provide ICWA notice is premised on the commonsense
understanding that, over time, Indian families, particularly those
17
living in major urban centers like Los Angeles, may well have
lost the ability to convey accurate information regarding their
tribal status. As a result, 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. [Citation.] General
information from the family about its ancestry frequently
provides the only available basis to believe an Indian child may
be involved. [Citation.] 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.” (T.G., supra, 58
Cal.App.5th at p. 295, fn. omitted.)
The court in T.G. rejected the Austin J. court’s suggestion
that Assembly Bill No. 3176 (2017-2018 Reg. Sess.) “was intended
to weaken the robust requirements for making further inquiry
established by then-existing case law.” (T.G., supra, 58
Cal.App.5th at p. 295.) The court acknowledged that Assembly
Bill No. 3176 modified the definition of “‘reason to know’” and
removed from that definition “‘information suggesting the child is
a member of a tribe or eligible for membership in a tribe.’” (Ibid.)
Assembly Bill No. 3176 simultaneously expanded, however, the
statutory language triggering the duty to make further inquiry
from “‘knows or has reason to know’ to ‘reason to believe an
Indian child is involved.’” (T.G., at p. 295.) Although the phrase
“‘“information suggesting”’” was not included in the new “‘reason
to believe’” standard, the T.G. court noted “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
18
through a particular tribe or a specific relative ‘suggests’ her
child is eligible for tribal membership [citations], but does not
also provide ‘a reason to believe’ the child may be eligible under
the current statute.” (Id. at pp. 295-296.)
The court in T.G. further noted that the 2020 amendment
to section 224.2, subdivision (e), although not in effect during the
proceedings at issue, “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.”
(T.G., supra, 58 Cal.App.5th at p. 296.) That amendment, which
became effective on September 18, 2020, provides in a new
subdivision (e)(1) to section 224.2: “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 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).” (Accord, T.G.., at p. 296, citing Assem. Bill
No. 2944 (2019-2020 Reg. Sess.) and Stats. 2020, ch. 104, § 15.)
D. S.R.
The court in S.R., supra, 64 Cal.App.5th 303 also disagreed
with “Austin J.’s narrow reading of the kind of information
sufficient to trigger the duty of further inquiry” and agreed
instead with the T.G. court’s reasoning that an Indian child’s
eligibility for membership in a tribe “‘is determined by the tribes,
not the courts or child protective agencies.’” (S.R., supra, at
p. 316.)
19
The parents in S.R. filed ICWA-020 forms at the time of the
detention hearing indicating they did not know of any Indian
ancestry. The children were subsequently placed with the
maternal grandparents, who attended a permanency planning
review hearing and completed a “family find” and ICWA inquiry
form. The grandmother’s form indicated she did not know if she
had Indian ancestry but checked boxes stating the children had
other unidentified relatives with Indian ancestry and had family
members who lived on federal trust land, on a reservation, or on
a rancheria or an allotment. The grandfather checked boxes on
the form indicating ancestry with the Yaqui tribe of Arizona, and
that the children had other relatives with Indian ancestry who
had lived on federal trust land, on a reservation, on a rancheria,
or an allotment. The grandfather also identified the children’s
great-grandmother, Virginia G., who lived with the grandparents,
as a Yaqui ancestor. (S.R., supra, 64 Cal.App.5th at p. 310.) The
court in S.R. concluded that this “very specific evidence of Indian
ancestry . . . does provide reason to believe the children are
Indian children, even if that evidence does not directly establish
the children or their parents are members or eligible for
membership.” (Id. at p. 317.)
The court in S.R. noted that the 2020 amendment to
section 224.2, subdivision (e) “confirms the ‘reason to believe’
standard requiring further inquiry should be broadly interpreted.
[T]he Legislature amended the statute to specify ‘[t]here 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.’ [Citation.] Those plain terms suggest a loose fit between
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the information that requires further inquiry and the specific
kinds of information that constitute ‘reason to know’ a child in
dependency proceedings is an Indian child as defined by statute.
The next sentence in the statute eliminates all doubt:
‘Information suggesting 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).’ [Citation.] That new provision
forecloses the narrow interpretation of what constitutes reason to
believe advanced by the court in Austin J.” (S.R., supra, 64
Cal.App.5th at p. 317.)
E. Further inquiry was required in this case
In this case a parent has identified specific tribes as well as
relatives who may have information about the child’s connection
to those tribes. We agree with the courts’ analysis in T.G. and
S.R. and find that the “reason to believe” standard triggering a
duty of further inquiry under section 224.2 has been met in this
case. Although the 2020 amendment to section 224.2, subdivision
(e) discussed in T.G. and S.R. was not operative during the
proceedings at issue here, that amendment confirms our
conclusion on the facts present here. The Legislature has made
clear that there is “reason to believe” a minor is an Indian child
when there is specific information suggesting eligibility for tribal
membership. (§ 224.2, subd. (e)(1).) That information need only
indicate that a member of the child’s extended family can inform
the court that the minor is an Indian child. (§ 224.2, subds.
(d)(1), (e)(1).)
The information provided by father in this case was
sufficient to trigger a duty of further inquiry by the Department.
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Father submitted an ICWA form that indicated Saul may be
eligible for membership in a federally recognized Indian tribe.
He listed the Blackfoot tribe and later mentioned the Cherokee
tribe, identified the paternal grandmother as a source of further
information, and provided her name and telephone number. The
juvenile court directed the Department to “follow up” with the
paternal grandmother to determine whether she had any
additional information. The record does not indicate that the
Department did so, despite the fact that the Department
interviewed the paternal grandmother before father filed his
ICWA-020 form. Under these circumstances, the Department
was required to further investigate father’s claim regarding
Saul’s possible Indian status. (§ 224.3, subd. (e).) The matter
must accordingly be remanded for compliance with the ICWA
inquiry requirements, and if warranted, to provide notice to the
applicable tribes. (In re J.D. (2010) 189 Cal.App.4th 118, 124.)
DISPOSITION
The section 366.26 orders of the juvenile court are
conditionally reversed. The matter is remanded to the juvenile
court for full compliance with the inquiry, and if warranted,
notice requirements of ICWA and related California law.
______________________
CHAVEZ, J.
We concur:
______________________________ ______________________
ASHMANN-GERST, Acting P. J. HOFFSTADT, J.
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