In re B.B. CA1/1 ( 2021 )

Filed 10/22/21 In re B.B. CA1/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or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
FIRST APPELLATE DISTRICT
DIVISION ONE
In re B.B., a Person Coming Under
the Juvenile Court Law.
HUMBOLDT COUNTY A162025
DEPARTMENT OF HEALTH &
HUMAN SERVICES, (Humboldt County
Super. Ct. No. JV190126)
Plaintiff and Respondent,
v.
A.C.,
Defendant and Appellant.
A.C. (mother) appeals from a Welfare and Institutions Code1
section 366.26 order terminating her parental rights. Mother’s sole
contention on appeal is that the Humboldt Department of Health & Human
Services (Department) and juvenile court failed to comply with the inquiry
provisions of the Indian Child Welfare Act of 1978 (25 U.S.C. § 1901 et seq.;
ICWA). We conditionally reverse the order as to B.B. (minor) and remand
the matter to allow the Department and court to take all necessary corrective
actions.
1 All statutory references are to the Welfare and Institutions Code.
1
BACKGROUND2
In July 2019, the Department filed a section 300 petition alleging
minor B.B. and her half sibling G.C.3 had suffered or were at substantial risk
of suffering serious physical harm and/or illness (§ 300, subd. (a)) and failure
to protect (§ 300, subd. (b)) due to domestic violence between mother and
father and to mother’s “unresolved substance abuse and mental health
issues.” Attached to the petition was California Judicial Council form ICWA-
010A. A box was checked indicating an “Indian child inquiry” had not been
made.
In its detention report, the Department noted it was unsure whether
ICWA applied and that parents needed to “fill out an[ ] ICWA 020 and do
further inquiry.” The Department requested an absent parent search for
father, as his whereabouts were unknown. At the detention hearing, the
court ordered parents to complete an ICWA-020 form.4
In its jurisdiction report, the Department again noted it was unsure
whether ICWA applied. The parents had not given “any information of
possible Native Ancestry for the children,” but the Department would do
“further inquiry with the family.” At the jurisdiction hearing, the court made
no ICWA finding and set the matter for a disposition hearing.5
2 We summarize only those facts relevant to the issue on appeal.
3 G.C. has a different father than minor and is not a party to this
appeal.
4 The court ruled that a prima facie showing had been made that
minors were children described by section 300, and ordered reunification
services and visitation for parents and set the matter for a jurisdiction
hearing.
5 The court sustained the section 300 petition, finding by a
preponderance of the evidence that detention was proper under subdivisions
(a) and (b).
2
In its disposition report, the Department requested the court make a
finding that ICWA did not apply. Mother identified as White and reported
“she knew of no Native American ancestry.” Father identified as Black and
had “not said that he has any Native American ancestry.”
At the disposition hearing,6 the court elevated father to presumed
father status. Father indicated he may have “Inuit ancestry” through his
mother (paternal grandmother). Father stated he did not know if paternal
grandmother was enrolled in any tribe, and that he “didn’t get to know her
much” but provided the court with paternal grandmother’s full name. The
court then asked, “But as far as you know, you’re not enrolled in any Tribe?
‘No’? Shaking his head ‘no.’ All right.” The court continued the disposition
hearing and directed father to complete an ICWA-020 form. On the ICWA-
020 form, father checked the box indicating he “may have Indian ancestry”
and stated “Inuit.” The form contains no other information regarding father’s
ancestry.
In an addendum to its disposition report prepared for the continued
hearing, the Department stated father reported paternal grandmother, who
was deceased, had “Eskimo Indian ancestry, but [father] was unsure if he or
the paternal grandmother were ever enrolled in a tribe.” The Department
was “sending out ICWA 030 [notices] to all Eskimo tribes to determine if
father and [minor] are eligible or enrolled members of any Eskimo Indian
tribe.” At the uncontested hearing, the court found ICWA did not apply and
set the matter for a six-month review hearing.7
6We grant the Department’s request for judicial notice of the
September 19, 2019 reporter’s transcript and the “Department’s Delivered
Service Log.” (Evid. Code, §§ 452, 453, 459.)
7The court also ordered no reunification services to father who had
been elevated to “presumed father” and who was in custody.
3
In its six-month status review report, the Department noted ICWA did
not apply. At the six-month review hearing, the court ordered minors to
remain dependents of the court and set the matter for a 12-month review
hearing. It made no further ICWA determinations.
In its 12-month status review report, the Department continued to
state ICWA did not apply. The Department had “not had any contact from
[father],” and he had “not engaged in any services to make changes in his
life.” After his initial appearance, father had refused to appear at any
subsequent hearing. At the 12-month review hearing, the court terminated
services and set a section 366.26 hearing.
Before the section 366.26 hearing, and a year after it had found ICWA
did not apply, the court held a hearing specifically to address the application
of ICWA. It had come to the court’s attention that ICWA “may not have been
adequately addressed” because “in hindsight, the Court should have required
the information obtained from the ICWA-030 forms be included” in the
Department’s report. The court therefore ordered the Department to prepare
a new report that included, “in detail, their efforts in this matter.”
In its addendum report, the Department recited that father had
reported at the jurisdiction hearing that paternal grandmother had “native
ancestry with the Inuit/Eskimo Tribe in Alaska” but was unable to provide
any other information. Father had subsequently passed away in November
2020. The year prior to his death, in October 2019, the Department had sent
ICWA-030 notices “to all Eskimo tribes to determine if father and [minor] are
eligible or enrolled members” but received no responses. None of these
notices were included in the record. The social worker had also contacted five
tribes and those tribal databases had no enrolled members with paternal
4
grandmother’s last name and no other “Inupiaq Eskimo Tribes” had
responded.
At the ICWA hearing, county counsel, joined by minor’s counsel,
requested that the court find ICWA did not apply. Father’s counsel had no
information to add. He explained father had appeared at the initial hearing
but “declined to be transported for all future appearances,” and counsel had
had “limited contact” with father before he died. Mother’s counsel, in turn,
had no “direction” from mother as to whether she agreed or disagreed with
the Department’s ICWA determination, and counsel submitted on the matter.
The court found the Department “made every effort” to obtain information
from father before he passed away and ruled ICWA did not apply.
In the meantime, however, the Department had served ICWA-030
notices informing 122 tribes, the Bureau of Indian Affairs, and the Secretary
of the Interior of the section 366.26 hearing. The notices contained father’s
information and the available information of paternal grandparents. These
notices were not mentioned in the addendum report that had been prepared
for the ICWA hearing, nor were they filed with the court until three weeks
after that hearing.
In its section 366.26 report, the Department recommended termination
of mother’s parental rights and at the section 366.26 hearing the court
ordered adoption as the permanent plan. The court terminated mother’s
parental rights, stated minor and G.C. were not Indian children, and set the
matter for a postpermanency planning hearing.
DISCUSSION
“Congress enacted ICWA in 1978 to address concerns regarding the
separation of Indian children from their tribes through adoption or foster
care placement, usually in non-Indian homes. [Citation.] ICWA established
5
minimum standards for state courts to follow before removing Indian
children from their families and placing them in foster care or adoptive
homes. [Citations.] In 2006, California adopted various procedural and
substantive provisions of ICWA. [Citation.] In 2016, new federal regulations
were adopted concerning ICWA compliance. [Citation.] Following the
enactment of the federal regulations, California made conforming
amendments to its statutes, including portions of the Welfare and
Institutions Code related to ICWA notice and inquiry requirements.
[Citations.] Those changes became effective January 1, 2109 [citation], and
govern here.” (In re D.S. (2020) 46 Cal.App.5th 1041, 1048 (D.S.).)
“The new statute specifies the steps the Agency and the juvenile court
are required to take in determining a child’s possible status as an Indian
child. An ‘Indian child is defined in the same manner as under federal law,
i.e., as ‘any unmarried person who is under age eighteen and is either (a) a
member of an Indian tribe or (b) 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); accord, Welf. & Inst. Code, § 224.1, subd. (a) [adopting the federal
definition].) The Agency and the juvenile court have ‘an affirmative and
continuing duty’ in every dependency proceeding to determine whether ICWA
applies.” (D.S., supra, 46 Cal.App.5th at p. 1048.)
“[S]ection 224.2 creates three distinct duties regarding ICWA in
dependency proceedings. First, from the Agency’s initial contact with a
minor and his [or her] family, the statute imposes a duty of inquiry to ask all
involved persons whether the child may be an Indian child. (§ 224.2,
subds. (a), (b).) Second, if that initial inquiry creates a ‘reason to believe’ the
child is an Indian child, then the Agency ‘shall make further inquiry
regarding the possible Indian status of the child, and shall make that inquiry
6
as soon as practicable.’ (Id., subd. (e), italics added.) Third, if that further
inquiry results in a reason to know the child is an Indian child, then the
formal notice requirements of section 224.3 apply.” (D.S., supra,
46 Cal.App.5th at p. 1052.)
“The juvenile court may . . . make a finding that ICWA does not apply
because the Agency’s further inquiry and due diligence was ‘proper and
adequate’ but no ‘reason to know’ whether the child is an Indian child was
discovered. (§ 224.2, subds. (i)(2), (g).) Even if the court makes this finding,
the Agency and the court have a continuing duty under ICWA, and the court
‘shall reverse its determination if it subsequently receives information
providing reason to believe that the child is an Indian child and order the
social worker or probation officer to conduct further inquiry.’ (§ 224.2,
subd. (i)(2).)” (D.S., supra, 46 Cal.App.5th at p. 1050.)
“On appeal, we review the juvenile court’s ICWA findings for
substantial evidence. [Citations.] But where the facts are undisputed, we
independently determine whether ICWA’s requirements have been satisfied.”
(D.S., supra, 46 Cal.App.5th at p. 1051.)
Before we turn to mother’s contention that the Department failed to
comply with the second duty—the duty of further inquiry under
section 224.2, subdivision (e)—as to father’s Indian ancestry, we first address
the Department’s contention that it had no duty to conduct a further inquiry
“based on father’s limited . . . disclosures.”
As we have recited, father filled out an ICWA-020 form indicating he
“may have Indian ancestry.” He then listed “Inuit.” The rest of the form is
devoid of any information. Father subsequently reported paternal
grandmother “has Eskimo Indian ancestry, but was unsure if he or the
paternal grandmother were ever enrolled in a tribe.”
7
The Department, relying on In re Austin J. (2020) 47 Cal.App.5th 870(Austin J.), claims this was not enough information to require “further
inquiry.” Mother, relying on In re T.G. (2020) 58 Cal.App.5th 275 (T.G.),
claims it was.
In Austin J., the mother informed the juvenile court her “ ‘mother had
Cherokee,’ and said her ‘family in Little Rock, Arkansas’ would have more
information.” (Austin J., supra, 47 Cal.App.5th at p. 878.) When filling out
the ICWA-020 form, the mother left blank the box indicating whether she
was or may be eligible for membership in a tribe but stated “the child ‘may
have Indian ancestry’; namely, Cherokee, through her grandmother, who is
deceased.” (Ibid.) When the mother spoke with the social worker, she
explained she “ ‘may have [a] connection to the Cherokee tribe or other tribes
as well as having Creole heritage,’ ” but that she “ ‘did not know if she was
registered with any tribe,’ ” and the “possible Cherokee heritage was on her
mother’s side of the family through her maternal grandmother and maternal
grandfather,” and that her maternal aunt “might have additional
information.” (Ibid.) The maternal aunt, in turn, said the maternal
grandmother “ ‘may have had Cherokee heritage,’ ” the maternal grandfather
“ ‘possibly had heritage but that she did not know what tribe,’ ” and she was
unaware if anyone in the family attended an Indian school, lived on a
reservation or had been treated in an Indian clinic. (Ibid.) The juvenile court
found ICWA did not apply. (Id. at p. 887.)
On appeal, the mother contended the Department “was required to
provide notice to Cherokee tribes because social workers and the court had
‘reason to know an Indian child [was] involved.’ ” (Austin J., supra,
47 Cal.App.5th at p. 886.) The Court of Appeal disagreed. The court held the
mother’s statements “that she ‘may have Indian ancestry’ and had been ‘told
8
that [her] mother had Cherokee [ancestry],’ and the similar statement by
Mother’s aunt that she ‘may have had Cherokee heritage,’ are insufficient to
support a reason to believe the children are Indian children as defined in
ICWA. At most, they suggest a mere possibility of Indian ancestry.” (Id. at
p. 888.) “Even if we assume,” said the court, “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, 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 inquiry. We will not infer its
incorporation into that standard. [¶] In short, the fact disclosed through the
social worker’s initial inquiry regarding the possibility that the children are
Indian children—that Mother may have Cherokee ancestry—is insufficient
by itself to provide a reason to believe that either the children or their
parents are members of, or eligible for membership in, an Indian tribe.
Therefore, the statute imposed no duty to make further inquiry.” (Id. at
p. 889.)
In T.G., the mother reported the maternal grandfather “had Indian
ancestry, ‘but no connection to a tribe.” In filling out an ICWA-020 form, the
mother indicated she “ ‘may have Indian ancestry’ ” and indicated “Cherokee
as the name of the band or tribe.” She “additionally indicated possible Indian
ancestry [through her] paternal side through her great-grandfather.” (T.G.,
supra, 58 Cal.App.5th at p. 283.) At the detention hearing, the maternal
grandmother confirmed “she had American Indian ancestry on her side of the
9
family” through the Cherokee tribe, although she did not know through
which ancestor, she claimed Cherokee heritage. (Id. at pp. 283–284.) The
juvenile court ordered the Los Angeles County Department of Children and
Family Services (department) to send notices to the Department of the
Interior, the Bureau of Indian Affairs, and the Cherokee Nation. (Id. at
p. 285.) However, “no ICWA notice of any sort was ever sent” in the
proceedings. (Id. at p. 286.) Later, and with no explanation, the
department’s status review report stated ICWA does not apply. “That same
statement was thereafter repeated in all subsequent reports, including the
report for the section 366.26 selection and implementation hearings . . . .
None of the court’s subsequent orders includes ICWA findings.” (Id. at
pp. 286– 287.)
On appeal, the mother contended the juvenile court and the
department failed to comply “with their duties of inquiry and notice” under
ICWA. (T.G., supra, 58 Cal.App.5th at p. 280.) The Court of Appeal agreed,
holding the department “failed to adequately investigate [the mother’s] claim
of Indian ancestry and the juvenile court failed to ensure an appropriate
inquiry had been conducted before concluding, if it ever actually did, ICWA
did not apply.” (Ibid.) The court stated the mother and maternal
grandmother’s preliminary responses “unquestionably provided reason to
believe Indian children might be involved in these proceedings.” (Id. at
p. 292.) And while the juvenile court “fulfilled its initial obligation to ask
about [the mother’s] possible Indian ancestry[,] it failed . . . to ensure the
[d]epartment complied with its duty of further inquiry based on the responses
the court received from [the mother] and [the maternal grandmother].” (Id.
at p. 293.)
10
In conditionally reversing the juvenile court orders, the court 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 stated that although “an ‘Indian child’ is
defined in terms of tribal membership, not ancestry,” “the question of
membership is determined by the tribes, not the courts or child protective
agencies.” (Ibid.)8 On remand, the court ordered the juvenile court to direct
the department to “make a meaningful and thorough inquiry regarding [the
minors’] possible Indian ancestry, including interviews with extended family
members and other persons who may reasonably be expected to have
information regarding the children’s tribal membership and contact with any
tribes that may have such information.” (Id. at p. 297.)
Significantly, Austin J. predated an amendment to section 224.2
defining “reason to believe.” As the appellate court in In re S.R. (2021)
64 Cal.App.5th 303 stated, the amendment “confirms the ‘reason to believe’
standard requiring further inquiry should be broadly interpreted.” (Id. at
p. 317.)
We therefore conclude T.G., rather than Austin J., reflects the proper
approach and further conclude the Department’s duty of further inquiry was
triggered by father’s statements concerning his ancestry.
We therefore turn to whether the Department adequately discharged
its duty of inquiry.
“When [the ‘reason to believe’] threshold is reached, the requisite
‘further inquiry’ ‘includes: (1) interviewing the parents and extended family
8The court also disagreed with the Austin J. court’s holding “that
amendments enacted by Assembly Bill No. 3176 (2017–2018 Reg. Sess.) . . .
were intended to limit the [d]epartment’s robust duty of inquiry.” (T.G.,
supra, 58 Cal.App.5th at pp. 280–281.)
11
members; (2) contacting the Bureau of Indian Affairs and State Department
of Social Services; and (3) contacting tribes the child may be affiliated with,
and anyone else, that might have information regarding the child’s
membership or eligibility in a tribe.’ ” (Austin J., supra, 47 Cal.App.5th at
p. 883.)
The following can be determined on the record before us: First, in its
addendum report for the ICWA hearing, the Department stated that on
October 1, 2019 it sent out ICWA-030 notices to “all Eskimo tribes to
determine if the father and [minor] are eligible or enrolled members of any
Eskimo Indian Tribe” and it received no responses. Second, the social worker
contacted five tribes, and none had “enrolled members” with paternal
grandmother’s name. Third, a week before filing the addendum report, the
Department sent ICWA-030 notices to 122 Native Alaskan tribes, as well as
to the Bureau of Indian Affairs Pacific Region Regional Office and the
Secretary of the Interior. However, the Department did not discuss these
notices in its addendum report. Nor did it file these notices until
December 29, which while prior to the January 27, 2021 section 366.26
hearing, was three weeks after the December 8, 2020 ICWA hearing.
Therefore, no information about the December 2020 ICWA-030 notices was
before the court when it made its ICWA determination, although the notices
were in the file and available to the court at the section 366.26 hearing.
On appeal, mother contends these efforts did not satisfy the
Department’s burden under section 224.2, subdivision (e).
First, she asserts that since the October 2019 notices were never filed
with the juvenile court, the Department “never provided the juvenile court
with the information it shared with the tribes.” Initially, we observe “there is
no express directive to the social services agency to provide a record of the
12
efforts it undertook to comply with ICWA, either in the applicable statutes or
rules of court,” however, “a social services agency has the obligation to make
a meaningful effort” to fulfill its duty of further inquiry. (In re K.R. (2018)
20 Cal.App.5th 701, 709.) With that being said, while it is unclear what
information was conveyed to the tribes in the initial notices, it is clear that
the social worker gave the five tribes she contacted by telephone paternal
grandmother’s name and no one by that name was enrolled in those tribes.
Further, it is clear from the record what information was contained in the
subsequent December 2020 notices. Those notices contained father’s
information, including his dates of birth and death and known addresses,
minor’s information, and paternal grandparents’ information, including
grandmother’s date of birth, and last address.
Mother takes no issue with the accuracy of the information contained
in the December 2020 notices but rather complains they were “never
considered by the juvenile court or discussed at the section 366.26 hearing.”
She further complains that even though the social worker personally
contacted five recognized tribes in October 2019, that left 224 of the 229
federally recognized Alaskan tribes unnoticed,9 and even though the
Department in December 2020 sent notices to 122 of these tribes, some were
duplicate notices and 73 had incorrect addresses because of address changes
implemented in 2020. In short, mother maintains all 229 federally
recognized tribes in Alaska should have been contacted.
9 We take judicial notice of the relevant pages of the Federal Register,
Notices, 85 Federal Register 24005 et seq. (Apr. 30, 2020). (Evid. Code,
§§ 452, 459.) There are 229 federally recognized Alaskan tribes (or native
villages). (Notices, 85 Fed.Reg. 24005–24013 (Apr. 30, 2020);
[as of Oct. 22, 2021].)
13
Although father identified Eskimo or Inuit heritage through paternal
grandmother, he had no information on any specific tribe. There is, however,
no federally recognized “Inuit” or “Eskimo” tribe. Rather, the term “Eskimo,”
as it pertains to Alaskan indigenous or aboriginal peoples has been replaced
by the term “Inuit.” The term “Inuit” is a collective term (the plural of Inuk)
for a group of “culturally similar indigenous peoples inhabiting the Artic
regions of Alaska, Greenland, Canada, and Siberia.”
( [as of Oct. 22, 2021].) The
Alaskan Inuit comprises, among others, the Alutiiq, Yup’ik (or Yupiat), and
Inupiat tribes. (Degnan, Education: A Lifeline for the Inuit in Transition
(1997) 10 St. Thomas L.Rev. 109.)
The Department maintains that through its further inquiry efforts it
obtained “names, birthdates, and dates of death for the paternal
grandparents—information that was . . . not provided to the Department
from either mother or father” and also “narrow[ed] father’s Inuit ancestry to
the Inupiaq and Yupik Tribes.” In light of this information, the Department
sent the December 2020 ICWA-030 notices to the “122 Inupiaq and/or Yupiat
Tribes and not all 229 federally-recognized tribes in Alaska.”
While it appears imminently reasonable for the Department to have
narrowed the list of tribes that should have been noticed, that winnowing
process is not included in the record on appeal. The Department cites to its
addendum report, which does not state that the department “narrow[ed]”
father’s ancestry to certain tribes. Nor does it explain how and why the
Department did so. Indeed, the report does not even mention that the
Department noticed “Inupiaq and/or Yupiat Tribes,” let alone discuss how the
Department narrowed its focus to only those tribes. “In the absence of an
appellate record affirmatively showing the court’s and the agency’s efforts to
14
comply with ICWA’s inquiry and notice requirements, we will not, as a
general rule, conclude that substantial evidence supports the court’s finding
that proper and adequate ICWA notices were given or that ICWA did not
apply.” (In re N.G. (2018) 27 Cal.App.5th 474, 484.)
The Department asserts it was “not required to definitively ascertain or
refute father’s claim of Inuit ancestry” and that requiring the Department to
“contact the [Bureau of Indian Affairs], the State Department of Social
Services, and all 229 federally recognized tribes in Alaska—where the child’s
deceased father is not an enrolled member of any identifiable tribe and where
the father has provided only vague information regarding his Inuit
ancestry—is not supported by existing case law defining the ICWA inquiry
duties of child protection agencies.” (Fn. omitted.)
While it is true the Department is not required to “ ‘cast about’ for
investigative leads” (In re A.M. (2020) 47 Cal.App.5th 303, 323), statutory
and case law require that an agency contact the Bureau of Indian Affairs and
the State Department of Social Services when there is reason to believe such
ancestry. (§ 224.2, subd. (e)(2); D.S., supra, 46 Cal.App.5th at p. 1049
[“required further inquiry includes . . . contacting the Bureau of Indian
Affairs and State Department of Social Services” (fn. omitted)].) The
requirement that the agency contact the Bureau of Indian Affairs and the
State Department of Social Services is “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.” (§ 224.2, subd. (e)(2)(B).)
Therefore, as it claims to have concluded, the Department may not need to
contact all 229 federally recognized Alaskan tribes. (See In re M.W. (2020)
15
49 Cal.App.5th 1034, 1045 [“With that limited information . . . the
Department contacted the [California Department of Social Services] and the
[Bureau of Indian Affairs] to obtain assistance in identifying the designated
tribal agents for all federally recognized Navajo, Apache, and Cherokee
tribes.”].) Further, although the Department sent an ICWA-030 notice to the
Bureau of Indian Affairs, it sent that notice to the Pacific Region Regional
Office (which consists of California tribes) and not the Alaska Region
Regional Office (which consists of Alaskan native villages and tribes). (See
[as of Oct. 22, 2021].)
The Department also asserts father “was not an enrolled member of
any tribe and [minor] does not meet the definition of an Indian child under
ICWA.” Although the court minutes indicate father stated he was “not
enrolled in any tribe,” the transcript of the hearing indicates father was
unsure whether he was enrolled in a tribe. He shook his head, indicating
“No,” when asked, “as far as you know, you’re not enrolled in any Tribe?”
This response does not mean that father was not enrolled, rather it merely
reflects ignorance on the matter. Additionally, the Department’s October
2019 report states father was “unsure if he or the paternal grandmother were
ever enrolled in a tribe.” In any event, while “an ‘Indian child’ is defined in
terms of tribal membership, not ancestry,” “the question of membership is
determined by the tribes, not the courts or child protective agencies. (See
Santa Clara Pueblo v. Martinez (1978) 436 U.S. 49, 65–66, fn. 21 [Indian
tribe is final arbiter of its membership rights]; § 224.2, subd. (h) [‘A
determination by an Indian tribe that a child is or is not a member of, or
eligible for membership in, that tribe . . . shall be conclusive. Information
that the child is not enrolled, or is not eligible for enrollment in, the tribe is
not determinative of the child’s membership status unless the tribe also
16
confirms in writing that enrollment is a prerequisite for membership under
tribal law or custom’].)” (T.G., supra, 58 Cal.App.5th at p. 294.)
Finally, we cannot say any error was harmless as the Department
urges. The Department asserts mother “cannot demonstrate that there are
any viable leads available to the Department or the juvenile court that would
result in a ‘reason to know’ that [minor] is an Indian child for noticing
purposes, or any evidence that could actually result in a credible
determination that [minor] is an Indian child.” However, we cannot say that
the assistance provided by the Bureau of Indian Affairs or State Department
of Social Services would not have pointed to more accurate tribal information.
Further, the Department does not refute mother’s claim that 73 of the 122
ICWA-030 notices were sent to incorrect addresses. Even assuming the
Department correctly identified the 122 tribes entitled to notice, more than
half of these notices may never have arrived at their intended destination,
and there are no return receipts or responses in the record to confirm the
tribes received any of the notices. “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.)10
10 The Department also contends the doctrine of invited error should
apply due to mother’s “decision to disengage from the dependency, refusal to
participate or attend hearings, and failure to timely notify the Department of
any issues she may have had with the sufficiency of inquiry into father’s
alleged Inuit ancestry effectively amounts to litigation gamesmanship that
should not be rewarded by this court, especially because it unnecessarily
results in [minor’s] prolonged uncertainty in a dependency limbo.” While
certainly frustrating, mother’s refusal to participate in the proceedings
cannot relieve the Department of its duty to comply with ICWA or a juvenile
court’s duty to ensure such compliance. (See In re B.R. (2009)
17
DISPOSITION
The section 366.26 order as to B.B. 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.
176 Cal.App.4th 773, 779 [“ ‘it would be contrary to the terms of the [ICWA]
to conclude . . . that parental inaction could excuse the failure of the juvenile
court [and the Department] to ensure’ ” compliance with ICWA].)
18
BANKE, J.
WE CONCUR:
HUMES, P. J.
SANCHEZ, J.
A162025
In re B.B.
19