In re I.E. CA2/6

Filed 7/21/21 In re I.E. CA2/6
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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 SIX
In re I.E. et al., Persons 2d Juv. No. B310507
Coming Under the Juvenile (Super. Ct. Nos. 20JV00051,
Court Law. 20JV00053, 20JV00054)
(Santa Barbara County)
SANTA BARBARA COUNTY
CHILD WELFARE
SERVICES,
Plaintiff and Respondent,
v.
C.P.,
Defendant and Appellant.
C.P. (Mother) appeals from the juvenile court order
terminating her parental rights as to I.E. and S.P. She contends
the court erred in concluding that the Indian Child Welfare Act
(ICWA) did not apply. (25 U.S.C. § 1901 et seq.; Welf. & Inst.
Code, § 224 et seq.)1 We affirm.2
FACTUAL AND PROCEDURAL BACKGROUND
Mother had two children, I.E. and S.P., with their
biological father, C.E. (Father). The dependency petition alleged
that I.E. and S.P. received inadequate medical care, I.E. was
behind academically, and they were at substantial risk of abuse
or neglect because parental rights had been terminated for abuse
and neglect of two half-siblings. It alleged that Mother had a
chronic substance abuse problem, gave birth to two previous
drug-positive children, and had a substantial criminal history. It
further alleged that Father was in state prison and left the
children without provision for support. (§ 300, subds. (b)(1), (g),
(j).)
Mother stated in court, and on a form provided by the
Santa Barbara County Department of Social Services (the
department), that she had no Native American ancestry.
The department was unable to contact Father in
prison. It sent him an ICWA questionnaire by certified mail but
he did not respond. In court, Father said he was not enrolled in a
tribe but had Navajo and Mescalero ancestors. He said his
1Subsequent undesignated statutory references are to the
Welfare and Institutions Code.
2 The current appeal is from the order of February 11, 2021,
which involved only I.E. and S.P. The notice of appeal also
purports to appeal regarding a third child, A.P. Mother’s
parental rights as to A.P. were terminated on October 8, 2020.
We dismissed Mother’s appeal of that order after she filed a brief
that raised no issues. (In re A.P. (May 24, 2021, B308511)
[nonpub. opn.].) Accordingly, we dismiss the current appeal
regarding A.P.
2
mother knew more about their ancestry. He believed her
great-grandmother was Indian, perhaps Navajo. He had not
heard that his father had any Indian ancestry.
The paternal grandmother told the department she
believed both sides of Father’s family had Native American
heritage, but she could not “prove it” because she and Father
were not enrolled members. She said that Father’s
great-grandmother, whom she named, said she was a Navajo
Indian from New Mexico, but her nephew said they were
Mescalero.
The department obtained additional ancestry
information from databases and provided the court with
information for Father and 13 of his ancestors. Tribal affiliations
of Navajo or Mescalero were listed for Father, his mother, and his
grandfather, all based on tribal affiliation of his
great-grandmother.
In August 2020, the department sent Notices of Child
Custody Proceeding for Indian Child (Judicial Council Forms,
form ICWA-030) by certified return receipt mail to the parents,
the Bureau of Indian Affairs (BIA) and 11 tribal organizations:
the Mescalero Apache Tribe, seven other Apache tribes, the
Navajo Nation, the Ramah Navajo School Board, Inc., and the
Colorado River Indian Tribes (Navajo). Because the department
did not receive return receipts, it remailed the ICWA-030 forms
in September.
The Mescalero Apache Tribe responded by letter that
neither Father nor the children were members or met the
requirements for enrollment. It stated that enrollment is needed
for membership, and requires proof of one-quarter or more
Mescalero Apache blood. Five other Apache tribes responded
3
that the children were not enrolled or eligible for enrollment.
The other two Apache tribes received the notice but sent no
substantive response.
The Ramah Navajo School Board, Inc. stated that it
did not have access to the entire Navajo census records and
deferred to the Navajo Nation, where those records were located.
A letter from the Navajo Nation dated October 19, 2020, stated it
was in the process of verifying the children’s enrollment or
eligibility for enrollment and needed time to complete it. The
Colorado River Indian Tribes sent a return receipt but no
substantive response.
On January 12, 2021, without objection, the court
found the ICWA did not apply. The court subsequently found the
children were likely to be adopted and terminated Mother and
Father’s parental rights. (§ 366.26.)
DISCUSSION
The ICWA serves “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.” (25 U.S.C. § 1902; Welf. & Inst. Code, § 224.) When
the facts are undisputed, we independently review compliance
with the ICWA. (In re A.M. (2020) 47 Cal.App.5th 303, 314.) We
review the juvenile court’s determination that the ICWA does not
apply for substantial evidence. (Ibid.; § 224.2, subd. (i)(2).)
“‘Indian child’ means 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); Welf. & Inst. Code, § 224.1, subd. (a).) Whether or not
4
a child is a member or eligible for membership is conclusively
determined by the tribe. (§ 224.2, subd. (h).)
Required inquiries
In dependency cases, the court and the department
have “an affirmative and continuing duty to inquire whether a
child . . . is or may be an Indian child.” (§ 224.2, subd. (a).) The
process is divided into three phases: an initial duty to inquire in
all cases, a duty of further inquiry when there is reason to believe
the child may be a tribal member or eligible for membership, and
a duty to provide formal notice when there is reason to know the
child is a member or eligible for membership. (In re D.F. (2020)
55 Cal.App.5th 558, 566.)
“There is reason to know a child . . . is an Indian
child” when: (1) “[a] person having an interest in the child . . .
informs the court that the child is an Indian child,” (2) the child,
parent, or Indian custodian lives on a reservation, (3) a
designated person “informs the court that it has discovered
information indicating that the child is an Indian child,” (4) “[t]he
child . . . gives the court reason to know that the child is an
Indian child,” (5) the child has been a ward of a tribal court, or (6)
the parent or child has a tribal membership identification card.
(§ 224.2, subd. (d), italics added.) This definition of “reason to
know,” effective January 1, 2019, superseded the previous
definition, which included a “‘person having an interest in the
child . . . provid[ing] information suggesting the child is a member
of a tribe or eligible for membership.’” (In re A.M., supra, 47
Cal.App.5th at p. 316.) Cases relying on the superseded language
“‘are no longer controlling or persuasive on this point.’” (In re
D.F., supra, 55 Cal.App.5th at p. 572.)
None of the circumstances constituting “reason to
5
know” apply here where the only information was that some of
the children’s ancestors were possibly Navajo or Mescalero.
Although the court and department did “not have sufficient
information to determine that there [was] reason to know that
the child[ren] [were] Indian child[ren],” there was “reason to
believe” they might be Indian children based on “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.”
(§ 224.2, subd. (e), (e)(1), italics added.)3 Accordingly, the court or
department was required to “make further inquiry” into the
children’s status “as soon as practicable,” including interviewing
family members, contacting the BIA, and contacting tribes that
may have information. (§ 224.2, subd. (e), (e)(2); Cal. Rules of
Court, rule 5.481(a)(4).)
This is not a case where vague assertions of Indian
heritage without specifics as to family members or tribes make
further inquiry unnecessary. (See In re A.M., supra, 47
Cal.App.5th at p. 322.) Further inquiry was required because the
paternal grandmother provided the names of Father’s ancestors
whom she believed were Navajo or Mescalero Indians. (In re T.G.
(2020) 58 Cal.App.5th 275, 295.)
Navajo Nation
Mother contends it was unreasonable for the court to
3 The language regarding “reason to believe” was added by
legislation effective January 1, 2019 (Stats. 2018, ch. 833, § 5)
and September 18, 2020 (Stats. 2020, ch. 104, § 15), before the
court here found the ICWA inapplicable or terminated parental
rights. The amendments apply because the juvenile court had a
continuing duty throughout the proceedings to inquire whether a
child was an Indian child. (In re A.M., supra, 47 Cal.App.5th at
p. 321.)
6
proceed to a finding that the ICWA did not apply because the
Navajo Nation requested more time to process its inquiry. We
disagree.
The court was not required to continue the case to
allow the Navajo Nation to complete its verification process. “A
proceeding shall not be held until at least 10 days after receipt of
notice by . . . the tribe.” (§ 224.3, subd. (d); 25 U.S.C. § 1912(a).)
On request, the court shall grant the tribe up to 20 additional
days to prepare for the hearing. (Ibid.) After the Navajo Nation
stated it needed more time, the court waited 85 days before
determining the ICWA did not apply. Proceeding without further
delay was reasonable given the compelling need for prompt
permanency determinations in dependency cases. (In re Marilyn
H. (1993) 5 Cal.4th 295, 308.)
Incomplete information
Mother contends the inquiry was incomplete because
information regarding some ancestors did not include their
current or former addresses or place of death. (§ 224.3, subd.
(a)(5)(C); 25 C.F.R. § 23.111(d) (2020).) She is incorrect. This
information, “if known,” must be provided only when there is
reason to know the child is an Indian child. (§ 224.3, subd. (a);
Cal. Rules of Court, rule 5.481(c).) Formal notice was not
required for the inquiry here, which was based on a reason to
believe the children were Indian children. (In re A.M., supra, 47
Cal.App.5th at pp. 321-322; In re D.F., supra, 55 Cal.App.5th at
pp. 568-571.) Instead, the further inquiry required “informal
contact with the tribe.” (In re T.G., supra, 58 Cal.App.5th at p.
290.)
When it conducted its further inquiry, the
department was required to “shar[e] information identified by the
7
tribe as necessary for the tribe to make a membership or
eligibility determination, as well as information on the current
status of the child and the case.” (§ 224.2, subd. (e)(2)(C).) The
department provided sufficient information to constitute a
“meaningful inquiry” of the tribes, including names, dates of
birth, and other information regarding the children and
ancestors. (In re S.R. (2021) 64 Cal.App.5th 303, 317.)
Required filings
Mother contends remand is necessary because the
department failed to file copies of the ICWA-030 forms mailed in
September or return receipts for those forms. Again, we disagree.
The record includes a Notice of Hearing on Selection
of a Permanent Plan (§ 366.26) with proofs of service on the
tribes. This notice did not provide or request information
regarding tribal membership. But the department also filed
court reports stating that it sent a second set of ICWA-030 forms
to the tribes in September. It filed for each tribe a signed receipt,
United States Postal Service (USPS) tracking information
showing delivery, and/or responsive letter.
Section 224.3, subdivision (c), provides, “Proof of the
notice, including copies of notices sent and all return receipts and
responses received, shall be filed with the court in advance of the
hearing . . . .” This requirement applies when notice is sent
because there is “reason to know” an Indian child is involved.
(§ 224.3, subd. (a); 25 C.F.R. § 23.111(a) (2020).) It does not apply
to the inquiry here, which was based on “reason to believe”
Indian children might be involved.
A copy of the August ICWA-030 form was filed.
Although a copy of the September form and some of the return
receipts and responsive letters were not filed, the department’s
8
reports summarizing the mailings and the other filed documents
were sufficient to show it contacted the potential tribes as part of
its inquiry.
Improper service
Mother contends that a remand is required because
some of the notices were sent to addresses or individuals that
deviated from the most current Federal Register list.
(85 Fed.Reg. 24004 (Apr. 30, 2020).)4 We do not agree.
The Federal Register gave the address of the
Colorado River Indian Tribes as: Rebecca Loudbear, Attorney
General, 26600 Mohave Rd., Parker, AZ 85344. The department
sent notice to the Attorney General without including her name
and used a street address from an earlier list (81 Fed.Reg. 10887
(Mar. 2, 2016)). The tribe returned the certified mail receipt.
The fact that the notice was addressed to the Attorney General
shows that notice was sent to “someone trained and authorized to
make the necessary ICWA determinations” and not “an
unidentified person at the tribe’s address.” (In re J.T. (2007) 154
Cal.App.4th 986, 994.) The absence of a substantive response is
not prejudicial because, as stated in the letter of the Ramah
Navajo School Board, the complete Navajo census records are
kept by the Navajo Nation.
The notice to the Mescalero Apache Tribe gave a
different post office box number and gave the name of the Tribal
Census Clerk as Crystal Garcia rather than Crystal Lester. The
tribe’s ICWA Case Manager, Augusta Williams, responded that
the children were not members or eligible for membership.
4 The BIA publishes an annual list of names and addresses
of tribal agents for service of ICWA notice. (25 C.F.R. §§ 23.12,
23.105(a) (2020).)
9
Notice to the San Carlos Apache Tribe was correctly addressed
and was acknowledged in a return receipt and a letter stating
that there was no evidence the parents or children were enrolled
or eligible for enrollment.
Notice to four other Apache tribes (Apache Tribe of
Oklahoma, Fort Sill Apache Tribe of Oklahoma, Tonto Apache
Tribe of Arizona, and Yavapai-Apache Nation) was mailed to
addresses that differed from the Federal Register list or named
different individuals, but those notices resulted in letters stating
that the children were not eligible for enrollment or membership.
Notice to the Jicarilla Apache Nation was sent to the ICWA
Department at an outdated post office box number and omitted
the name of the ICWA Specialist, but USPS tracking shows it
was delivered. Notice to the ICWA Representative of White
Mountain Apache Tribe named a different person, but a return
receipt was received.
Notice to the tribal chairperson or designated agent
for service is required when there is reason to know that an
Indian child is involved. (§ 224.3, subd. (a), (a)(2); see 25 C.F.R.
§ 23.105 (2020) [inquiry “should” be directed to BIA list in
Federal Register].) Strict compliance was not required here. In
re J.T., supra, 154 Cal.App.4th 986, 994-995, which held that
notice must be sent to the tribal chairperson or designated agent
for service, preceded the 2019 and 2020 amendments to section
224.2. Any discrepancies were harmless here because the notices
were received by ICWA representatives of the tribes identified by
Father’s family, and the responses disclosed no reason to know
the children were Indian children. (In re E.W. (2009) 170
Cal.App.4th 396, 402-403; In re N.M. (2008) 161 Cal.App.4th 253,
268.)
10
Substantial evidence
In light of her arguments discussed above, Mother
contends that the juvenile court’s finding that the ICWA did not
apply was unsupported by substantial evidence. We conclude
otherwise.
“If the court makes a finding 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 the [ICWA] does not apply to the proceedings.”
(§ 224.2, subd. (i)(2).) Substantial evidence shows the
department and the court conducted a diligent good faith inquiry.
(In re D.F., supra, 55 Cal.App.5th at p. 570.) Accordingly, the
court did not err in concluding the ICWA was inapplicable.
DISPOSITION
The appeal regarding A.P. (20JV00054) is dismissed.
The order terminating parental rights as to I.E. (20JV00051) and
S.P. (20JV00053) is affirmed.
NOT TO BE PUBLISHED.
TANGEMAN, J.
We concur:
GILBERT, P. J. YEGAN, J.
11
Arthur A. Garcia, Judge
Superior Court County of Santa Barbara
______________________________
Carol A. Koenig, under appointment by the Court of
Appeal, for Defendant and Appellant.
Michael C. Ghizzoni, County Counsel, Lisa A.
Rothstein, Deputy County Counsel, for Plaintiff and Respondent.