In re Gizelle D. CA2/2

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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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