In re G.H. CA3 ( 2021 )

Filed 11/19/21 In re G.H. CA3
NOT TO BE PUBLISHED
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 This opinion has not been certified for publication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
THIRD APPELLATE DISTRICT
(Sacramento)
----
In re G.H., a Person Coming Under the Juvenile Court C093882
Law.
SACRAMENTO COUNTY DEPARTMENT OF (Super. Ct. No. JD240602)
CHILD, FAMILY AND ADULT SERVICES,
Plaintiff and Respondent,
v.
M.H. et al.,
Defendants and Appellants.
C.C. (mother) and M.H. (father), parents of the minor, appeal from the juvenile
court’s orders terminating parental rights and ordering the minor be placed for adoption.
(Welf. & Inst. Code, § 366.26.)1 Parents contend the Sacramento County Department of
1 Undesignated statutory references are to the Welfare and Institutions Code.
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Child, Family and Adult Services (Department) and the juvenile court failed to comply
with the inquiry requirements of the Indian Child Welfare Act (ICWA) (25 U.S.C. § 1901et seq.) because the Department did not contact the Bureau of Indian Affairs (BIA) or the
State Department of Social Services (DSS) to determine if any additional information
could be obtained to discover if the minor was an Indian child. We shall affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Because the issue on appeal is limited to ICWA compliance, we dispense with a
detailed recitation of the underlying facts and procedure.
On May 29, 2020, the Department filed a section 300 petition on behalf of minor
G.H. (born in July 2018). In the petition, the Department advised the juvenile court it had
asked the parents about the minor’s Indian status and the parents gave the Department no
reason to believe the child is or may be an Indian child. In the detention report, the
Department represented to the court the mother and father denied any Indian heritage.
On June 8, 2020, mother submitted the “Parental Notification of Indian Status”
form and checked the box that stated: “I am or may be a member of, or eligible for
membership in, [an unknown] federally recognized Indian tribe.”
At the initial hearing on June 12, 2020, the juvenile court found “[t]here is
insufficient evidence before the Court at this time to determine if this child is an Indian
child within the meaning of the Indian Child Welfare Act (ICWA). However,
information having been received that this child may have Indian heritage, the
Department of Child, Family and Adult Services shall notice any federally recognized
tribes and the Bureau of Indian Affairs.”
On June 16, 2020, the Department spoke with the minor’s maternal grandmother,
S.C. S.C. reported the minor’s great-grandfather, Abel G. was born in Arizona where
S.C. reported “there were a lot of Native American Tribes.” She also reported the
minor’s great-great-grandfather was named Omo Bono G., which she reported is an
Indian name. S.C. stated when she was born, both of her grandparents were deceased,
2
but she remembered her mother told her the minor’s great-grandmother was named Sarah
Garcia and she was an Indian woman.2 She said if she found out anything more, she
would notify the Department.
The court held a further hearing on June 23, 2020. At that hearing, counsel
represented that mother may have Indian heritage but did not know what tribe. Mother
filed the same parental notification of Indian status form. Father’s form stated he had no
Indian heritage as far as he knew. At the hearing, the court found “there is no reason to
know” the minor was an Indian child, however, based on mother’s information, “there is
a reason to believe the child may be an Indian child.” The court ordered the Department
to “make further inquiries regarding the possible Indian status of the child. Notice shall
be provided as required by law if there is reason to know the child is an Indian Child.”
The court ordered mother to complete and return the Indian ancestry questionnaire to the
Department within two days.
On July 10, 2021, the Department interviewed mother and father again. Mother
stated she believed the minor’s maternal great-grandfather, Abel G., may have had Native
American heritage, but she was not sure what tribe he was in and he was deceased. She
said she did not know if the maternal great-grandfather was enrolled in a tribe. Mother
directed the Department to the maternal grandmother as she may have more information.
The father denied Indian ancestry.
The Department contacted the maternal grandmother on July 13, 2020. She
repeated the information she had already provided and stated no one else in the family
would have any additional information about the family’s Native American heritage. She
stated she could try to look up more information on Ancestry.com or order the great-
2 In conveying the name of Sarah Garcia, the original report refers to maternal great-
grandmother, in actuality it appears that this was maternal great-great-grandmother.
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great-grandfather’s death certificate. The Department reported this information in its
jurisdiction/disposition hearing report.
At the September 23, 2020, hearing, the juvenile court stated it had “read and
considered the social study, filed herein, [and] orders said report(s) admitted into
evidence.” The juvenile court adjudged the minor a dependent child of the court,
bypassed parents for reunification services, and set the matter for a section 366.26
hearing.
The Department’s November 5, 2020, informational memorandum stated: “ ‘The
[Department] is ordered to conduct further inquiry as required by section
224.2[, subdivision] (e) of the Welfare and Institutions Code.’ [¶] Per the 8-14-20 Court
Report Addendum. [¶] . . . [¶] ‘On August 12, 2020, the undersigned spoke with the
maternal grandmother to gather updates as to the [ICWA] information as reported in the
Jurisdiction/Disposition report . . . . The maternal grandmother reported the name of the
maternal great, great grandmother previously reported as Sarah Garcia, should be
Transita Garay. The maternal grandmother did not have any updated information as the
name(s) of the Tribe(s) in which the mother or the children may be eligible for
membership.’ Thus, ICWA notice is not required at this time.” In its minute order, the
juvenile court stated it read and considered this report at the November 13, 2020, hearing.
The only finding the court made was service was accomplished in accordance with the
law.
In the body of its January 15, 2021, selection and implementation report, the
Department reported to the court the ICWA did not apply, but provided the court with no
proposed findings on this subject.
On January 26, 2021, the juvenile court held the 366.26 hearing, terminated
mother and father’s parental rights as to the minor, and referred the minor to DSS for
adoptive placement. The court adopted the proposed findings presented by the
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Department. The court made no explicit finding about the applicability of the ICWA and
none of the boxes related to the ICWA on the Judicial Council form were checked.
DISCUSSION
Mother argues the juvenile court erred because it failed to make findings on the
application of the ICWA in this case. Mother and father further argue the Department
violated the ICWA because it failed to make an adequate inquiry of the BIA and the DSS
to determine if the minor had Indian ancestry, and ultimately to provide notice to any
tribes that may have been discovered in that process. We agree the juvenile court erred
by not making the requisite ICWA findings. We conclude this error was harmless and
affirm the judgment.
I
Applicable Law
Indian Child
“The juvenile court and social services agencies have an affirmative duty to
inquire at the outset of the proceedings whether a child who is subject to the proceedings
is, or may be, an Indian child. [Citation.]” (In re K.M. (2009) 172 Cal.App.4th 115, 118-
119; § 224.2, subd. (c).) An “ ‘Indian child’ ” for purposes of the ICWA is defined in the
same manner as under federal law, i.e., “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);
§ 224.1, subd. (a); In re D.S. (2020) 46 Cal.App.5th 1041, 1048.)
Reason to Know
Section 224.2, subdivision (d) provides a juvenile court has reason to know a child
involved in a proceeding is an Indian child under any of the following circumstances:
“(1) A person having an interest in the child, including the child, an officer of the court, a
tribe, an Indian organization, a public or private agency, or a member of the child’s
extended family informs the court that the child is an Indian child[;] [¶] (2) The residence
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or domicile of the child, the child’s parents, or Indian custodian is on a reservation or in
an Alaska Native village[;] [¶] (3) Any participant in the proceeding, officer of the court,
Indian tribe, Indian organization, or agency informs the court that it has discovered
information indicating that the child is an Indian child[;] [¶] (4) The child who is the
subject of the proceeding gives the court reason to know that the child is an Indian
child[;] [¶] (5) The court is informed that the child is or has been a ward of a tribal
court[;] [¶] (6) The court is informed that either parent or the child possess an
identification card indicating membership or citizenship in an Indian tribe.” (§ 224.2,
subd. (d)(1)-(6).)
When the juvenile court knows or has reason to know a child involved in a
dependency proceeding is an Indian child, the ICWA requires notice of the proceedings
be given to any federally recognized Indian tribe of which the child might be a member
or eligible for membership. (25 U.S.C. §§ 1903(8), 1912(a); In re Robert A. (2007)
147 Cal.App.4th 982, 989.) “At that point, the social worker is required, as soon as
practicable, to interview the child’s parents, extended family members, the Indian
custodian, if any, and any other person who can reasonably be expected to have
information concerning the child’s membership status or eligibility.” (In re Michael V.
(2016) 3 Cal.App.5th 225, 233; see Cal. Rules of Court, rule 5.481(a)(4)(A).)
“If there is reason to know the child is an Indian child, but the court does not have
sufficient evidence to determine that the child is or is not an Indian child, the court shall
confirm, by way of a report, declaration, or testimony included in the record that the
agency or other party used due diligence to identify and work with all of the tribes of
which there is reason to know the child may be a member, or eligible for membership, to
verify whether the child is in fact a member or whether a biological parent is a member
and the child is eligible for membership.” (§ 224.2, subd. (g), italics added.)
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Reason to Believe
If the “court, social worker, or probation officer has reason to believe that an
Indian child is involved in a proceeding, but does not have sufficient information to
determine that there is reason to know that the child is an Indian child, 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.” (§ 224.2,
subd. (e), italics added.) “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” as set forth in
section 224.2, subdivision (d). (§ 224.2, subd. (e)(1), italics added.)
When there is “reason to believe” the child is an Indian child, further inquiry is
necessary to help determine whether there is “reason to know” the child is an Indian
child, including: “(A) Interviewing the parents, Indian custodian, and extended family
members to gather the information required in paragraph (5) of subdivision (a) of Section
224.3[;] [¶] (B) Contacting the [BIA] and the [DSS] 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[;] [¶] (C) 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 [ICWA] [citation]. Contact with a tribe shall include sharing
information identified by the tribe as necessary for the tribe to make a membership or
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eligibility determination, as well as information on the current status of the child and the
case.” (§ 224.2, subd. (e)(2).) Logistically, as written, these steps must be considered in
order. If no tribe is uncovered during the interview of relatives and contact with the BIA
or DSS, then obviously no tribe can be noticed. Similarly, if not enough information is
obtained from the relatives to require the Department to seek additional information from
the BIA or DSS, then no inquiry need be made to those agencies.
The juvenile court may find that the ICWA does not apply when it finds “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).)”
(In re D.S., supra, 46 Cal.App.5th at p. 1050.)
II
Analysis
A. Findings
Mother contends the juvenile court failed to make findings the ICWA did not
apply or about the Department’s satisfaction of their inquiry obligation. Father joins her
argument. We agree.
A juvenile court must make findings as to the applicability of ICWA and its failure
to do so is error. (In re Jennifer A. (2002) 103 Cal.App.4th 692, 704-705, 709.) Findings
may be express or implied, however, when they are implied, the record must “reflect that
the court considered the issue and decided whether ICWA applies.” (In re Asia L. (2003)
107 Cal.App.4th 498, 506.) For example, in In re Asia L., the court concluded the
juvenile court made implicit findings ICWA did not apply when it “expressly found that
‘notice had been given pursuant to ICWA’ and then proceeded to terminate appellants’
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parental rights under the usual rather than the heightened ICWA standards.” (In re Asia
L., at p. 506.)
Another example of implied findings is found in In re A.M. (2020) 47 Cal.App.5th
303, 313, 318, where the court found the juvenile court implicitly found the ICWA did
not apply when it terminated the mother’s parental rights and found the child adoptable.
Importantly, however, the juvenile court made previous express findings the ICWA did
not apply prior to the section 366.26 hearing and the hearing report noted no new
information had been provided.
Here, the record includes the juvenile court’s initial determination on June 12,
2020, there was “insufficient evidence before the Court at this time to determine if this
child is an Indian child within the meaning of the [ICWA].” The court made this finding
after mother submitted her form stating she may be a member of an unknown tribe.
Following that first hearing, the Department spoke with the maternal grandmother and
ascertained the names of the maternal great-grandfather, great-great-grandmother, great-
great-grandfather, and determined the great-grandfather was born in Arizona. After
receiving that information, the juvenile court found: “As to the mother is claiming Indian
heritage; there is no reason to know the child is an Indian child. However, based on the
information provided by the mother there is reason to believe the child may be an Indian
child. The Department shall therefore, make further inquiries regarding the possible
Indian status of the child. Notice shall be provided as required by law if there is reason to
know the child is an Indian child.”
After that, the Department again interviewed the parents, and the maternal
grandmother, but obtained no new information. In another subsequent interview with the
grandmother, the only new information was the true name of the great-great-
grandmother. The juvenile court made no findings as to the adequacy of the
Department’s inquiry or whether ICWA applied or did not apply. While the Department
expressed its view in the reports, the juvenile court did not ask counsel any questions
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concerning this issue or make any findings. As a result, we cannot conclude the juvenile
court considered the issue and decided whether the Department’s inquiry was adequate
and that the minor is not an Indian child. Thus, the juvenile court erred when it did not
make these requisite findings. That does not end our inquiry. On this record, we
conclude any failure to make the findings was harmless.
B. Harmless Error
Pointing to section 224.2, subdivision (e)(2)(B), mother and father argue the
failure of the Department to send an inquiry to the BIA and the DSS, with the
information they had, requires reversal. Notice issues, however, may be subject to
harmless error analysis. (In re Antoinette S. (2002) 104 Cal.App.4th 1401, 1410.) An
ICWA notice violation may be held harmless, “when, even if notice had been given, the
child would not have been found to be an Indian child, and hence the substantive
provisions of the ICWA would not have applied.” (In re S.B. (2005) 130 Cal.App.4th
1148, 1162.)
Further, the substantive error raised by mother and father is a failure to meet the
standards contained in state law. Any such error “ ‘must be held harmless unless the
appellant can show a reasonable probability that he or she would have enjoyed a more
favorable result in the absence of the error.’ ” (In re Breanna S. (2017) 8 Cal.App.5th
636, 653, disapproved of on other grounds by In re Caden C. (2021) 11 Cal.5th 614, 637,
fn. 6; see also In re Benjamin M. (2021) 70 Cal.App.5th 735, 739-740.)
Here, following the juvenile court’s order there was not a reason to know, but only
a reason to believe the minor may be an Indian child, the Department responded and
engaged in additional due diligence. The Department interviewed mother and father
again. The Department interviewed the maternal grandmother twice more. After these
interviews, the sum total of the information the Department was able to uncover was the
names of the great-grandfather and great-great-grandfather and great-great-grandmother,
and that the great-grandfather had lived in Arizona where there were multiple Native
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American tribes. The Department dutifully reported this information to the juvenile court
in three separate reports the court indicated it read and considered. This is the same
information the court had before it when it had already determined there was no reason to
know, but only a reason to believe the minor may be an Indian child. At no time was any
source of information able to identify any possible tribe, state any relative was an
enrolled member of a tribe, or identify any relative that had lived on tribal lands. Without
any new information, we conclude the juvenile court’s failure to make an express or
implied finding the Department’s inquiry had been adequate was harmless. On this
record, there was not enough information to require the Department to make any further
inquiry or provide any additional notice.
The inquiry required by section 224.2, subdivision (e)(2) is a sequential three-step
process. The first step, required in every case where there is reason to believe the minor
may be an Indian child, is to the interview of the parents, Indian custodian (if any), and
extended family members to gather relevant information. (§ 224.2, subd. (e)(2)(A).)
Only if this information provides something useful in determining whether the child may
be an Indian child or may result in additional information being uncovered by the BIA or
the DSS, must the Department take the next step of contacting the BIA and the DSS to
see what additional information they can provide. (§ 224.2, subd. (e)(2)(B).) The third
step requires the Department to contact tribes that may reasonably be expected to have
information regarding the child’s membership to obtain additional information. (§ 224.2,
subd. (e)(2)(C).) Of course, in order to contact these relevant tribes, the Department must
have the name or some inkling of the name of those tribes from some source --
presumably the inquiry it completed in steps one and two. Likewise, in order to require
the Department to contact the BIA or DSS, the Department must have some information
that the BIA or DSS could use to provide them with information to identify tribes.
The instant case is similar to In re J.S. (2021) 62 Cal.App.5th 678, 689. There, the
father indicated he may have Indian ancestry and the mother reported she was nearly 100
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percent certain none of her relatives had been eligible or enrolled in any tribe. (Ibid.)
She did, however, receive results from Ancestry.com claiming she had approximately 54
percent “ ‘Native American lineage/heritage.’ ” (Ibid.) In rejecting the claim the
Department failed to conduct a proper inquiry, the court noted, “[w]ithout the identity of
a tribe, let alone a federally recognized one, or at least a specific geographic area of
possible ancestry origin, the BIA could not have assisted the Department in identifying
the tribal agent for any relevant federally recognized tribes.” (Ibid.) As a result, the
court concluded, “[t]ransmission of a notice to the BIA would have been an idle act.
(Civ. Code[,] § 3532 [‘[t]he law neither does nor requires idle acts’].) Without more
information, the Department also could not send notices to any tribes.” (Id. at p. 690, fn.
omitted.) The court concluded the Department conducted an adequate and proper further
inquiry under section 224.2, subdivision (e). (In re J.S., at p. 689.)
Here, the information obtained from the parents and the maternal grandmother was
not sufficient to require the Department to take the next step of contacting the BIA or
DSS. The Department had three names: one great-grandparent and two great-great-
grandparents. It also had a vague notion the maternal great-grandfather of the minor had
lived in Arizona. The Department had exhausted the sources of information from the
minor’s relatives; the maternal grandmother stated no one else in the family had any
information. We conclude that knowledge of three names and the fact one of those
persons might have lived in Arizona where there are Native American tribes is not
enough to trigger the requirement the Department send an inquiry to the BIA or DSS.
The information obtained by the Department is precisely the type of “vague
information or ‘ “family lore” ’ indicating a child ‘ “may” ’ have Indian ancestry
insufficient to require notice.” (In re A.M., supra, 47 Cal.App.5th at p. 322.) In In re
A.M., the “only specific information Mother provided was a statement that she was told
and believed that she may have Indian ancestry with the Blackfeet and Cherokee tribes
but was not registered. She also listed her grandfather, C.M., as having possible Indian
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heritage but never provided additional information concerning her Indian ancestry.”
(Ibid.) As noted by the court, “[t]here is no need for further inquiry if no one has offered
information that would give the court or [county] reason to believe that a child might be
an Indian child.” (Id. at p. 323.) The court also noted the department was not required to
cast about for investigative leads. As a result, the court concluded this was not enough
information to require the department to make further inquiry. (Ibid.)
On this record, we conclude the failure of the juvenile court to expressly find the
minor is not an Indian child and the substantive provisions of the ICWA did not apply is
harmless.
DISPOSITION
The juvenile court’s orders are affirmed.
/s/
HOCH, J.
We concur:
/s/
RAYE, P. J.
/s/
DUARTE, J.
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