In re Jay C. CA2/3 ( 2022 )

Filed 8/4/22 In re Jay C. CA2/3
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on
opinions not certified for publication or ordered published, except as specified by rule
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION THREE
In re Jay C., et al., Persons Coming B317845
Under the Juvenile Court Law.
_____________________________________
LOS ANGELES COUNTY (Los Angeles County
DEPARTMENT OF CHILDREN AND Super. Ct. No.
FAMILY SERVICES, 18CCJP04865A,B)
Plaintiff and Respondent,
v.
Candi F., et al.,
Defendants and Appellants.
APPEALS from orders of the Superior Court of Los Angeles
County, Tara Newman, Judge. Affirmed.
Anne E. Fragasso, under appointment by the Court of
Appeal, for Defendant and Appellant Candi F.
Janelle B. Price, under appointment by the Court of
Appeal, for Defendant and Appellant Robert C.
Dawyn R. Harrison, Acting County Counsel, Kim Nemoy,
Assistant County Counsel, and Veronica J. Randazzo, Deputy
County Counsel for Plaintiff and Respondent.
‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗
Candi F. (mother) and Robert C. (father) appeal from the
juvenile court’s orders terminating parental rights to their
children, Jay C. (born in June 2013) and Ariana C. (born in
June 2014). The parents contend the orders should be reversed
because the Los Angeles County Department of Children and
Family Services (DCFS) failed to comply with the inquiry and
notice provisions of state law implementing the Indian Child
Welfare Act of 1978 (ICWA) (25 U.S.C. § 1901 et seq.). We
conclude substantial evidence supported the juvenile court’s
ICWA finding, the juvenile court did not abuse its discretion by
finding that DCFS conducted an adequate ICWA investigation,
and any error was not prejudicial. We therefore will affirm.
FACTUAL AND PROCEDURAL BACKGROUND
I. Background.
In July 2018, DCFS received a report that mother was
suicidal and verbally and physically abused the children, then
four and five years old. Father did not live with the family and
his whereabout were unknown. The children were removed from
mother and placed with paternal aunt Angelique R., who is the
prospective adoptive parent.
On August 2, 2018, DCFS filed a juvenile dependency
petition alleging the children were at substantial risk of serious
physical harm within the meaning of Welfare and Institutions
2
Code1 section 300, subdivisions (a) and (b) because mother and
maternal uncle Jay C. had a violent physical altercation in the
children’s presence (counts a-1, b-3), mother physically abused
the children by pulling Ariana’s hair, striking the children with
an open hand, and pulling the children’s arms (count a-2, b-4),
mother had a history of drug abuse and was a current abuser of
methamphetamine and alcohol (count b-1), and mother had a
history of mental and emotional problems, including diagnoses of
bipolar disorder, borderline personality disorder, and suicidal
ideation (count b-2).
On October 3, 2018, the court sustained the allegations of
the petition, and on October 10, 2018, it declared the children
juvenile court dependents and ordered reunification services for
mother. No services were ordered for father because his
whereabouts were unknown.
Mother’s reunification services were terminated at the 12-
month review hearing on October 30, 2019. The section 366.26
hearing initially was set for March 3, 2020, but was continued
many times, in large part due to the Covid-19 pandemic.
Parental rights ultimately were terminated on January 11, 2022.
Mother and father timely appealed from the orders
terminating parental rights.
II. ICWA inquiry.
A. Inquiry as to mother.
An ICWA-010 form attached to the juvenile dependency
petition stated that a children’s social worker (CSW) had spoken
1 All subsequent undesignated statutory references are to
the Welfare and Institutions Code.
3
to mother in person on July 31, 2018, and mother said the
children had no known Indian ancestry. At about the same time,
DCFS spoke to maternal grandmother Mary M., maternal great-
aunt Julie C., and maternal great-uncle Dennis S., but
apparently did not ask about the family’s possible Indian
ancestry.
On August 6, 2018, mother signed a Parental Notification
of Indian Status form (ICWA-020), in which she stated under
penalty of perjury that to her knowledge she had no Indian
ancestry. The form advised mother that she must provide all
requested information about the children’s Indian status and, if
she subsequently got new information that would change her
answers, she must let her attorney and the CSW know
immediately.
Mother appeared at the August 6, 2018 detention hearing;
father did not. The court noted that it had received mother’s
ICWA-020 form, and it asked mother whether father had any
Native American ancestry. Mother said father had no Indian
ancestry to her knowledge. The court therefore found “there is no
reason to know this is a case involving the Indian Child Welfare
Act,” but said it would revisit the issue if father brought further
information to the court’s attention.
On January 12, 2021, the court noted that mother had
previously said she had no known Indian ancestry and asked
whether that information was still accurate. Mother said it was.
Mother also said she was not aware that father had any Indian
ancestry. The court therefore restated its prior finding that
ICWA did not apply.
4
B. Inquiry as to father.
Father contacted the CSW on August 2, 2018, several days
after the children were removed from mother. The CSW advised
father of the upcoming detention hearing but apparently did not
ask him about possible Indian ancestry. The CSW also did not
make an ICWA inquiry of paternal grandmother Linda G. or
paternal aunt Angelique T., with whom the CSW spoke the same
day.
Father did not appear at the detention hearing and counsel
was not appointed on his behalf. Mother identified father as the
children’s father and said that, to her knowledge, he had no
Indian ancestry. The court found father to be the children’s
presumed father and found it had no reason to know the children
were Indian children.
Father’s whereabouts were unknown from August 2018
until late March 2021, when he contacted the CSW.2 Counsel
was appointed for father at a May 28, 2021 hearing. Father did
not appear at that hearing, but an unsigned ICWA-020 form was
submitted by his counsel on his behalf, which stated that he may
have Indian ancestry and that the paternal grandmother might
have more information.3 The juvenile court ordered DCFS “to
2 Father also spoke briefly to the CSW in October 2018. The
phone connection was reported to be poor. Father agreed to meet
with the CSW in person on October 9, 2018, but he did not show
up for that appointment and did not respond to the CSW’s
subsequent phone message.
3 The ICWA–020 form says “maternal grandmother may
have more information,” but in response to the court’s question,
5
follow up immediately on interviewing [the] paternal relatives
and the person [father] identifies as potentially having
information [and to] send notices as appropriate.”
On June 10, 2021, a CSW attempted to call both father and
the paternal grandmother. Neither answered, the CSW left
messages requesting a call back, and neither responded. The
same day, the CSW spoke to paternal aunt Angelique, who said
she had been told the family had Indian ancestry but she could
not identify a tribe. She said her mother (the paternal
grandmother), and her grandmother (the paternal great-
grandmother) might have more information, and she provided
their phone numbers.
On June 14, 2021, the CSW called the paternal great-
grandparents and spoke to paternal great-grandfather Johnny P.,
while paternal great-grandmother Antonia (Toni) P. listened and
answered in the background. Johnny said his family was from
Mexico and had no Indian ancestry. Toni said all four of her
grandparents may have been affiliated with the Santo Domingo
Pueblo tribe in New Mexico, but to her knowledge her
grandparents had not been tribal members, attended Indian
schools, or lived on a reservation. Her family was from the areas
of Espanola, Al Calde, or Del Largo, in New Mexico. Toni
provided the names of her parents and grandparents, but she did
not know their dates of birth. Toni and Johnny also provided
their own birth dates, as well as that of their daughter (the
paternal grandmother).
father’s counsel clarified that the form should have said “paternal
grandmother.”
6
On June 16, 2021, the CSW mailed ICWA notices to the
Santo Domingo Pueblo tribe and the Bureau of Indian Affairs
(BIA). The notices included mother’s name and address, father’s
name, address, and date of birth, and names and birth dates,
where available, for father’s mother, grandparents, great-
grandparents, and great-great-grandparents. About a week
later, the CSW sent letters to the tribe and BIA that attached the
children’s birth certificates and a family tree, and asked the tribe
to search its census roll to determine whether father or the
children were eligible for tribal membership.
On July 14, 2021, the tribe informed DCFS that neither the
children nor the parents were “members [or] eligible for
membership with the Pueblo of Santo Domingo.”
On January 20, 2022, the juvenile court found as follows:
“The Pueblo Santo Domingo tribe responded stating the minors
are not eligible and [do not] qualify to be deemed . . . Indian
minors. The court has no reason to know or believe that [these
are] Indian child[ren as] defined by the Indian Child Welfare Act.
The provisions of ICWA are not applicable to this case.”
DISCUSSION
The parents contend that DCFS failed to comply with its
duty of initial inquiry pursuant to section 224.2 because it failed
to ask father about possible Indian ancestry at the case’s
inception and failed to make an ICWA inquiry of available
extended family members, including maternal aunt Julie C.,
maternal uncle Dennis S., maternal uncle Jake M., maternal
great-grandmother Mary M., paternal aunt Angelique T.,
paternal grandmother Linda C., and paternal grandfather
Samuel C. The parents further contend that DCFS failed to
discharge its duty of further inquiry after it learned of father’s
7
possible Indian ancestry because it made only one attempt to
contact the paternal grandmother, did not speak directly to
paternal great-grandmother Toni P., and made no attempt to
speak to paternal grandfather Samuel C. Finally, the parents
assert that DCFS failed to discharge its duty of notice because
the ICWA notices sent were inaccurate and incomplete. The
parents contend these errors were prejudicial, and thus the
matter should be reversed and remanded to the juvenile court for
a further ICWA inquiry.
As we discuss, we find the parents’ contentions to lack
merit, and we therefore will affirm the orders terminating
parental rights.
I. Legal standards.
A. ICWA.
ICWA was enacted “ ‘to protect the best interests of Indian
children and to promote the stability and security of Indian tribes
and families by the establishment of minimum Federal standards
for the removal of Indian children from their families and the
placement of such children in foster or adoptive homes which will
reflect the unique values of Indian culture . . . .’ [Citation.]”
(In re Isaiah W. (2016) 1 Cal.5th 1, 8 (Isaiah W.); see 25 U.S.C.
§ 1902.)
“Juvenile courts and child protective agencies have ‘an
affirmative and continuing duty to inquire’ whether a dependent
child is or may be an Indian child.” (In re Michael V. (2016)
3 Cal.App.5th 225, 233; see also Isaiah W., supra, 1 Cal.5th at pp.
9–11; § 224.2, subd. (a).) An “Indian child” is “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
8
tribe and is the biological child of a member of an Indian tribe.”
(25 U.S.C. § 1903(4); see also § 224.1, subd. (a) [adopting federal
definition of “Indian child”].)
The affirmative duty to inquire has several elements. If a
child is removed from his or her parents and placed in the
custody of a county welfare department, the department must
inquire whether a child is an Indian child. Such inquiry
“includes, but is not limited to, asking the child, parents, legal
guardian, Indian custodian, extended family members, others
who have an interest in the child, and the party reporting child
abuse or neglect, whether the child is, or may be, an Indian
child . . . .” (§ 224.2, subd. (b).) The court also must make an
ICWA inquiry when the parents first appear in court: The court
“shall ask each participant present in the hearing whether the
participant knows or has reason to know that the child is an
Indian child” (§ 224.2, subd. (c)), and must require each party to
complete California Judicial Council Form ICWA-020, Parental
Notification of Indian Status (Cal. Rules of Court, rule
5.481(a)(2)(C)).
If the court or social worker has “reason to believe that an
Indian child is involved in a proceeding,” the court or social
worker must “make further inquiry regarding the possible Indian
status of the child” by, among other things, interviewing the
parents and extended family members, and contacting any tribe
that may reasonably be expected to have information about the
child’s membership, citizenship status, or eligibility. (§ 224.2,
subd. (e)(2).) There is “reason to believe” a child involved in a
proceeding is an Indian child whenever the court or social worker
“has information suggesting that either the parent of the child or
9
the child is a member or may be eligible for membership in an
Indian tribe.” (§ 224.2, subd. (e)(1).)
If the agency’s inquiry creates a “reason to know” that an
Indian child is involved, notice of the proceedings must be
provided to the parent, legal guardian, or Indian custodian and
the child’s tribe. (§ 224.2, subd. (f).) There is “reason to know” a
child is an Indian child if any one of six statutory criteria is
met—e.g., if the court is advised that the child “is an Indian
child,” the child’s or parent’s residence is on a reservation, the
child is or has been a ward of a tribal court, or either parent or
the child possess an identification card indicating membership or
citizenship in an Indian tribe. (§ 224.2, subd. (d).) Thereafter,
the court shall confirm that the agency 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).) 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.” (§ 224.2,
subd. (h).)
If the juvenile court finds that “proper and adequate
further inquiry and due diligence as required in this section have
been conducted and there is no reason to know whether the child
is an Indian child,” the court may make a finding that ICWA does
not apply to the proceedings, “subject to reversal based on
sufficiency of the evidence.” (§ 224.2, subd. (i)(2).)
B. Standard of review.
As noted above, section 224.2, subdivision (i)(2) sets out two
statutory predicates to a juvenile court’s finding that ICWA does
10
not apply. First, the court must determine whether there is
“reason to know” whether the child is an Indian child. Second,
the court must decide whether a “proper and adequate further
inquiry and due diligence as required in this section have been
conducted.” If the court finds an adequate inquiry has been
conducted and there is no reason to know a child is an Indian
child, “the court may make a finding that the federal Indian
Child Welfare Act of 1978 (25 U.S.C. § 1901 et seq.) does not
apply to the proceedings.” (§ 224.2, subd. (i)(2).)
The first element––whether there is reason to know
whether the child is an Indian child––requires the juvenile court
to determine, based on the evidence before it, whether any one of
six statutory criteria is met—e.g., (1) the court has been advised
that the child “is an Indian child,” (2) the child’s or parent’s
residence is on a reservation, (3) any participant in the
proceeding informs the court that it has discovered information
indicating the child is an Indian child, (4) the child gives the
court reason to know that he or she is an Indian child, (5) the
child is or has been a ward of a tribal court, or (6) either parent or
the child possess an identification card indicating membership or
citizenship in an Indian tribe. (§ 224.2, subd. (d).) If none of
these six factors is met, the court must make a finding that there
is no reason to know the child is an Indian child. Because this
determination is fundamentally factual, we review it for
substantial evidence. (In re Caden C. (2021) 11 Cal.5th 614, 639–
640 (Caden C.) [factual determinations reviewed for substantial
evidence]; In re Ezequiel G. (July 29, 2022, B314432)
__ Cal.App.5th __ [2022 WL 3009914, *7]; In re Josiah T. (2021)
71 Cal.App.5th 388, 401; In re D.F. (2020) 55 Cal.App.5th 558,
565.) In other words, we “should ‘not reweigh the evidence,
11
evaluate the credibility of witnesses, or resolve evidentiary
conflicts,’ ” but should uphold the lower court’s determinations “if
. . . supported by substantial evidence, even though substantial
evidence to the contrary also exists and the trial court might have
reached a different result had it believed other evidence.’ ”
(Caden C., at p. 640; In re J.N. (2021) 62 Cal.App.5th 767, 774; In
re Noe F. (2013) 213 Cal.App.4th 358, 366.)
The second element––whether a “proper and adequate
further inquiry and due diligence as required in this section have
been conducted”––is somewhat different. Deciding whether an
inquiry was “adequate” and an agency acted with appropriate
diligence requires more of a court than simply applying a
statutory checklist to undisputed facts. Instead, it requires the
court to “engage in a delicate balancing” (see In re Caden C.,
supra, at p. 640) to assess whether an ICWA inquiry was
appropriate and sufficient in light of the facts of a particular case.
In short, the statute directs the juvenile court to perform a
quintessentially discretionary function, and thus we review it for
abuse of discretion. (In re Ezequiel G., supra, __ Cal.App.5th __
[2022 WL 3009914, at *7.])
If we conclude that the trial court erred in finding that an
adequate ICWA inquiry was conducted, we will return the case to
the juvenile court only if the error was prejudicial––that is, if
“the record contains information suggesting a reason to believe
that the child may be an ‘Indian child’ within the meaning of
ICWA, such that the absence of further inquiry was prejudicial to
the juvenile court’s ICWA finding.” (In re Dezi C. (2022)
79 Cal.App.5th 769, 779.) As our colleagues in Division Two have
recently explained, this test is “outcome focused,” asking whether
“it is reasonably probable that an agency’s error in not conducting
12
a proper initial inquiry affected the correctness (that is, the
outcome) of the juvenile court’s ICWA finding,” and remanding
only in those cases “in which the record gives the reviewing court
a reason to believe that the remand may undermine the juvenile
court’s ICWA finding.” (Id. at pp. 781–782, italics added.)
II. The trial court did not prejudicially err in finding
that the children are not Indian children and ICWA
does not apply to this case.
A. Mother’s family.
Although mother denied Indian ancestry below, she and
father contend on appeal that DCFS’s failure to make an ICWA
inquiry of her extended family was reversible error. We disagree.
As to the first element of the ICWA finding, we conclude
that substantial evidence unquestionably supported the juvenile
court’s finding that there is no reason to know the children are
Indian children on mother’s side. DCFS made an initial ICWA
inquiry before filing the petition, and it attached to the petition
an ICWA-010 form attesting that an Indian child inquiry had
been made of mother and she had no known Indian ancestry.
Subsequently, mother signed an ICWA-020 form in which she
stated, under penalty of perjury, that she did not have Indian
ancestry, and the juvenile court acknowledged mother’s denial on
the record. Mother denied Indian ancestry again at a January
12, 2021 hearing, when the court asked whether her prior answer
was still accurate. At no point––including now, on appeal––has
mother suggested her response was inaccurate, and no member of
mother’s extended family has ever told DCFS that the children
have Indian ancestry on mother’s side. Accordingly, all the
evidence before the juvenile court required the conclusion that
13
there was no reason to know the children are Indian children
through mother’s family.
As to the second element of the ICWA finding, we conclude
the juvenile court did not abuse its discretion in concluding that
DCFS conducted an adequate inquiry. In reviewing a juvenile
court’s ICWA findings for abuse of discretion, the key question for
a reviewing court is whether the ICWA investigation has reliably
answered the question at the heart of the ICWA inquiry:
Whether a child involved in a proceeding “is or may be an Indian
child” (§ 224.2, subd. (a))––that is, whether he or she either (a) “is
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, subd. (4); see also § 224.1,
subds. (a)–(b).) In other words, the focus of the court’s analysis is
not on the number of individuals interviewed, but on whether the
agency’s ICWA inquiry has yielded reliable information about a
child’s possible tribal affiliation. (In re Ezequiel G., supra,
__ Cal.App.5th __ [2022 WL 3009914, at *9.])
As we recently explained, “ ‘ICWA does not apply simply
based on a child or parent’s Indian ancestry.’ ” (In re Ezequiel G.,
supra, __ Cal.App.5th __ [2022 WL 3009914, at *9], citing U.S.
Dept. of Interior, Bureau of Indian Affairs, Guidelines for
Implementing the Indian Child Welfare Act (Dec. 2016) (BIA
Guidelines), p. 10
[as of August 2, 2022], archived at
.) Instead, “the definition of
“Indian child” is “based on the child’s political ties to a federally
recognized Indian Tribe, either by virtue of the child’s own
citizenship in the Tribe, or through a biological parent’s
14
citizenship and the child’s eligibility for citizenship.” (Indian
Child Welfare Act Proceedings, 81 Fed.Reg. 38795 (June 14,
2016) (BIA ICWA Proceedings), italics added.) In other words, an
Indian child is one with a tribal affiliation, not merely Indian
ancestry.
“Tribal citizenship (aka Tribal membership) is voluntary
and typically requires an affirmative act by the enrollee or her
parent.” (BIA ICWA Proceedings, supra, 81 Fed.Reg. at
p. 38783.) Specifically, “Tribal laws generally include provisions
requiring the parent or legal guardian of a minor to apply for
Tribal citizenship on behalf of the child. [Citation.] Tribes also
often require an affirmative act by the individual seeking to
become a Tribal citizen, such as the filing of an application.
[Citation.] As ICWA is limited to children who are either
enrolled in a Tribe or are eligible for enrollment and have a
parent who is an enrolled member, that status inherently
demonstrates an ongoing Tribal affiliation.” (Ibid., italics added;
see also BIA Guidelines, supra, at p. 10 [“Most Tribes require
that individuals apply for citizenship and demonstrate how they
meet that Tribe’s membership criteria.”].) Because membership
in an Indian tribe therefore requires that an individual or his or
her parent apply for tribal membership, a child’s parents will, in
most cases, be the best source of information for determining
whether a child is an Indian child.
In the present case, nothing in the record gives us reason to
doubt the accuracy of mother’s denial of a tribal affiliation. At
the time of the detention hearing, mother lived with her mother
(the maternal grandmother), her grandmother (the maternal
great-grandmother), and her brother (the maternal uncle), and
she lived across the street from her aunt and uncle (the maternal
15
great-aunt and great-uncle). In view of her relationship with her
extended family, the possibility that mother might unknowingly
be a member of a tribe appears trivially small. Further, when
the juvenile court found it had no reason to know the children
were Indian children on August 6, 2018 and January 12, 2021,
neither mother nor her attorney objected or indicated that the
information was incorrect or that mother was unsure about her
ancestry. (See Super. Ct. L.A. County, Local Rules, rule 7.17(a)
[“An attorney representing a client in dependency court shall
affirmatively inquire of their client as to whether the client has
reason to believe that any child appearing in the dependency
court has Indian heritage under the ICWA. Every effort should
be made by counsel to assist confirmation of a child’s Indian
status and tribal membership.”].) The juvenile court therefore
did not abuse its discretion by concluding that DCFS conducted
an adequate ICWA inquiry as to mother.
For all the same reasons, even if the juvenile court erred by
finding DCFS’s inquiry adequate, that error was not prejudicial
because it is not “reasonably probable that an agency’s error in
not conducting a proper initial inquiry affected the correctness
(that is, the outcome) of the juvenile court’s ICWA finding.” (In re
Dezi C., supra, 79 Cal.App.5th at p. 781, italics added.) As we
have said, nothing in the juvenile court record gives us a reason
to doubt the accuracy of mother’s denial that she or the children
were members of or eligible for membership in an Indian tribe,
and she has not made a proffer on appeal that she has Indian
heritage. No remand therefore is warranted.
16
B. Father’s family.
1. Inquiry.
The parents contend that an inadequate initial inquiry was
made regarding father’s Indian ancestry, and we agree. For the
first two-and-a-half years of this case, DCFS did not ask father or
any member of his extended family whether the family had
Indian ancestry. The failure to inquire of father was perhaps
unavoidable: After making telephone contact with DCFS in
August and October 2018, father did not again get in touch with
DCFS until March 2021. His whereabouts were unknown
throughout this time, including to his family. But DCFS had
regular contact with father’s sister, who was the children’s
caregiver, and also had contact information for father’s mother,
with whom the CSW spoke several times. Plainly, in light of
father’s unavailability, the statute required DCFS to make an
ICWA inquiry of members of father’s family, and its failure to do
so was error.
We do not agree, however, that DCFS conducted an
inadequate ICWA inquiry after father disclosed in May 2021 that
he may have Indian ancestry through his mother’s family. After
father’s disclosure, the CSW immediately attempted to contact
father’s mother but was unable to reach her, and spoke to father’s
sister, Angelique. Angelique said she had heard the family had
Indian ancestry but did not know the name of the tribe with
which the family might have a connection. Angelique suggested
that the CSW talk to her mother or grandmother, whose phone
numbers she provided. The CSW then spoke to the paternal
great-grandmother (father’s and Angelique’s maternal
grandmother), who identified the tribe from which she believed
her family descended, the names of her four grandparents who
17
she believed had Indian ancestry, her parents’ names, her own
birth date, and the name and birth date of her daughter (the
paternal grandmother). With this information, the CSW was
able to create a detailed family tree that linked the four ancestors
believed to have Indian ancestry to the children through six
generations. The CSW provided this family tree to the BIA and
the Pueblo of Santo Domingo tribe, who responded that neither
father nor the children were members or eligible for membership
in the tribe.
The parents contend that this inquiry was inadequate
because DCFS did not speak to the paternal grandparents about
the family’s Indian ancestry, but we do not agree. DCFS
attempted to reach the paternal grandmother, but received no
response to its message. Further, any information the paternal
grandmother might have had necessarily would have come from
her own parents, with whom the CSW spoke and from whom the
CSW received a detailed family tree. As to the paternal
grandfather, both father and Angelique said the family’s Indian
ancestry was through their mother, not their father, and thus the
failure to speak to their father was not relevant to the adequacy
of the ICWA inquiry. Further, while the parents contend that
DCFS erred by failing to speak “directly” to paternal great-
grandmother Antonia, the record is clear that while paternal
great-grandfather Johnny may have been holding the phone,
Antonia “listened [to] and answered” the CSW’s questions. We
thus conclude that the juvenile court did not abuse its discretion
by finding that DCFS made an adequate ICWA inquiry as to
father’s family.
18
2. Notice.
The parents further contend that the notices sent to the
BIA and the Santo Domingo Pueblo were inadequate because
they did not comply with section 224.3, subdivisions (a)(5) and
(c)––namely, they did not attach the children’s birth certificates
or the petition, and they did not provide complete information
(names, current and former address, birth and death dates, birth
places, and tribal enrollment information) for the children’s
direct lineal ancestors. Not so. ICWA notice is required only if
after initial and further inquiries there is “reason to know” that
an Indian child is involved in the proceeding. (§ 224.2, subd. (f),
italics added.) As we have described, there is “reason to know” a
child is an Indian child if any one of six statutory criteria is
met—e.g., if the court is advised that the child is a member or
eligible for membership in an Indian tribe, the child’s or parent’s
residence is on a reservation, the child is or has been a ward of a
tribal court, or either parent or the child possess an identification
card indicating membership or citizenship in an Indian tribe.
(Id., subd. (d).) Here, none of these statutory criteria was met,
and thus ICWA notice was not required. Any insufficiencies in
the notices sent, therefore, were legally irrelevant.
19
DISPOSITION
The orders terminating parental rights are affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL
REPORTS
EDMON, P. J.
I concur:
EGERTON, J.
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LAVIN, J., Dissenting:
For the reasons set forth in my dissent in In re Ezequiel G.
(July 29, 2022, B314432) ___Cal.App.5th___, I would
conditionally affirm the orders and remand for further
proceedings.
LAVIN, J.
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