In re T.M. CA2/8

Filed 8/19/14 In re T.M. CA2/8
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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 EIGHT

In re T.M., a Person Coming Under the B253175
Juvenile Court Law. (Los Angeles County
Super. Ct. No. CK95152)

LOS ANGELES COUNTY
DEPARTMENT OF CHILDREN AND
FAMILY SERVICES,

Plaintiff and Respondent,

v.

BRANDON M.,

Defendant and Appellant.

APPEAL from an order of the Superior Court of Los Angeles County,
Jacqueline H. Lewis, Commissioner. Conditionally reversed.
Cristina Gabrielidis, under appointment by the Court of Appeal, for Defendant and
Appellant.
John F. Krattli, County Counsel, Dawyn R. Harrison, Assistant County Counsel,
and Aileen Wong, Deputy County Counsel, for Plaintiff and Respondent.

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 Brandon M. (father) appeals an order terminating his parental rights to his
daughter T.M. pursuant to Welfare and Institutions Code section 366.26,1 contending the
Los Angeles County Department of Children and Family Services (DCFS) and the
juvenile court did not comply with the Indian Child Welfare Act (ICWA)
(25 U.S.C. § 1900 et seq.). We agree. We conditionally reverse the order terminating
father’s parental rights and remand for compliance with the ICWA.
PROCEDURAL BACKGROUND2
On August 23, 2012, DCFS filed a section 300, subdivision (b) petition on behalf
of 23-month-old T.M. , alleging F.F. (mother) and father both had histories of drug abuse
and currently abused drugs (marijuana for father and marijuana and cocaine for mother),
cared for T.M. while under the influence of drugs, and mother went to father’s home and
brandished a handgun at him in T.M.’s presence.3 Although father had initially denied
any American Indian heritage and DCFS could not locate mother to determine whether
she had any American Indian Heritage, both parents filed ICWA-020 forms claiming
Cherokee ancestry. In his form, father indicated “ [E.V.] has information.”
At the August 23, 2012 detention hearing, mother testified neither she nor the
maternal grandmother were registered members of the Cherokee tribe, but she believed
her great-grandmother was a member. Mother could not provide a registration number
because her great-grandmother had passed away. Father testified his mother told him he
had Cherokee heritage, but neither he nor his mother were registered. Commissioner
Lewis (who presided over all hearings except for the January 31, 2013 hearing, discussed
below) ordered mother’s and father’s counsel to each complete an ICWA-030 form,

1 All further statutory references are to the Welfare and Institutions Code, unless
otherwise indicated.
2 We need not recite the underlying facts except as relevant to decide the narrow
issue on appeal.
3 The petition was also filed on behalf of T.M.’s four-year-old half sister M.W., who
had a different father. The proceedings as to M.W. are not at issue here.

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including how to reach the relatives that might have more information. Because no one
was registered with the Cherokee tribe, the court found there was no reason to know T.M.
would fall within the ICWA, although the court ordered DCFS to investigate and provide
a report as to the possible heritage.
On the merits of the petition, the court found T.M. fell within section 300,
subdivision (b) and detained her from the parents’ custody.
On September 27, 2012, DCFS filed a first amended petition adding allegations
that father abused cocaine, PCP, and opiates, in addition to marijuana; mother’s home
was filthy and infested with fleas, had no gas or electricity, and had broken windows; and
mother exposed T.M. and her half sister to sexual behavior between adults, causing them
to exhibit sexualized behaviors.
In the jurisdiction/disposition report, DCFS reported that T.M.’s paternal
grandmother, Eleonora C., was interviewed about T.M.’s Indian ancestry. She said the
paternal great-great-grandparents, Eleonora H. and Murphy H., had Cherokee blood, but
were not registered. Both were deceased. She said the paternal great-grandmother Hazel
D. might live in New Orleans, but she did not know if she was still alive. She said the
paternal great-grandfather Elly C. passed away in 1986, and she had never met his
parents and had little information about his side of the family.
At the October 25, 2012 adjudication and disposition hearing, the court found
T.M. fell within the court’s jurisdiction and removed her from both parents. The court
found father’s ancestry did not provide reason to know T.M. would fall within the ICWA
because the information provided by DCFS was “too attenuated and vague to trigger even
notices” under the ICWA. The court found insufficient information to address mother’s
heritage, so it ordered DCFS to provide a supplemental report to address possible Indian
heritage on mother’s side of the family.
On November 28, 2012, a social worker attempted to contact mother about her
Indian ancestry, but was unable to speak with her. The next day the social worker spoke
with the maternal grandmother L.F., and she reported that she believed the maternal
great-grandparents Lula D. and Lester, Jr. F. were half “Blackfoot Cherokee,” but she did

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not know if they were registered. She said her maternal great-uncle Charles William F.
was registered with the tribe, but when the social worker contacted him, he said no one in
the family had been registered. He believed, however, that some of his family had Indian
heritage.
At a December 6, 2012 hearing, the juvenile court reviewed the DCFS’s
investigation and did not believe it had reason to know T.M. would fall within the ICWA.
But out of an abundance of caution, it found there was enough information to trigger
ICWA notice requirements and ordered DCFS to issue appropriate notices to the
Blackfeet and Cherokee tribes. The court set the matter for a progress report and hearing
on January 3, 2013 and ordered the parents’ counsel to review the notices and inform the
court whether any new or different information should be included.
On December 20, 2012, DCFS sent ICWA-030 notices to the Blackfeet Tribe,4
Eastern Band of Cherokee Indian, Cherokee Nation of Oklahoma, and the United
Keetoowah Band of Cherokee, with copies sent to the parents.5 The notices contained
the following information for T.M.’s relatives:
- Mother’s name, address, birth date and state of birth, and her claim her
grandmother might be “Blackfoot Cherokee.” Under “additional information,” DCFS
wrote, “Information from CWS/CMS and by maternal grandmother Lesternette [F.]”
- Father’s name, address, and birth date and state of birth. Father’s “tribe or
band, and location” was listed as “not applicable.” Under “additional information,”
DCFS wrote, “Paternal grandmother stated that paternal great-grandmother Eleonora [H.]
[sic], no other information.”

4 T.M.’s counsel on appeal infers that notice to the Blackfeet tribe was required only
for T.M.’s half sister, who is not a part of the instant appeal. T.M. does not claim any
error related to the notice to the Blackfeet tribe and we will not further address the issue.
5 In his opening brief, father argues the record is deficient because the ICWA-030
notices sent to the pertinent tribes regarding T.M.’s Indian heritage were not included in
the record on appeal. We reject this argument because after father filed his opening brief,
the record was augmented to include the ICWA-030 notices at issue, among other
documents.

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 - Maternal grandmother’s name (L.F.), address, birth date and place, and her
belief her family had Cherokee heritage.
- Maternal grandfather’s name (Jeffrey J.J.), his current city of residence, and
his birth place and day but not year. Tribe or band was listed as “unknown.”
- Maternal great-grandmother’s name (Freda W.), birth place and day but not
year, and date and place of death. Tribe or band was listed as “unknown.”
- Maternal great-grandfather’s name (Lester Jr. F.), birth date, and date and
place of death. Tribe or band was listed as “unknown.”
- Paternal grandmother’s name (Eleonora C.) and what appeared to be a
phone number for her address. Other information was listed as “unknown.”
- Paternal grandfather and paternal great-grandparents were listed as
“unknown.”
In the “other relative information” section, the following information was
included:
- Maternal great-uncle’s name (Jeffrey G.J.), his city of current residence,
birth place and day but not year, and Cherokee and Blackfeet for tribe or band.
- Maternal great-great-grandmother’s name (Lual Made D.), state of birth,
year and city of death, and Cherokee and Blackfeet for tribe or band.
- Paternal great-grandmother’s name (Eleonora H.), city of birth and death,
and Cherokee for tribe or band.
At a January 3, 2013 hearing, the juvenile court acknowledged the notices were
sent to the listed tribes and to the parents. The court continued the matter to allow for
parents’ counsel to contact the parents and ensure the information in the notices was
appropriate and nothing was missing.
Before the next scheduled hearing on January 31, 2013, DCFS submitted the
following documents to the court: signed return receipts for the entities noticed; a letter
from the Bureau of Indian Affairs acknowledging receipt of the ICWA notice but
indicating it does not determine tribal eligibility; a letter from the United Keetoowah
Band of Cherokee Indians in Oklahoma declining to intervene in the case because there

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was no evidence T.M. was a descendant of anyone on the Keetoowah Roll based on the
information supplied; a letter from the Cherokee Boys Club, Inc., on behalf of the Eastern
Band of Cherokee Indians, declining to intervene in the case because T.M. was neither
registered nor eligible to register as a member of the tribe based on the information
supplied; and a letter from the Cherokee Nation seeking further information. The
Cherokee Nation letter asked DCFS to “verify correct spelling of maternal great great
grandmother Lual Made [D.], also need her date of birth. Relationship of
Eleonora [H.] to the above named child. [¶] We need dates of birth for everyone
involved, their relationship to the child or children in question, and maiden names of all
females listed. It is impossible to validate or invalidate this claim without more complete
information.” (Boldface and capitalization removed.)
At the January 31, 2013 hearing, which was presided over by a different hearing
officer than Commissioner Lewis, the court stated the tribes were properly noticed and it
had received letters back from the tribes indicating T.M. was not an Indian child. The
court found the ICWA did not apply. The court did not acknowledge the Cherokee
Nation’s request for further information.
On April 25, 2013, the court, again presided over by Commissioner Lewis,
ordered DCFS to provide to the court all notices, letters, and return receipts related to the
ICWA and prepare a supplemental report to address the ICWA.
In a May 22, 2013 interim review report, DCFS noted the ICWA did not apply
based on the finding at the January 31, 2013 hearing. It also submitted a letter from the
Cherokee Nation dated February 11, 2013, which indicated the Cherokee Nation had
received additional information, namely: “Maternal great great grandmother Lula Made
[D.]s’ correct spelling” and Eleonora H.’s relationship to T.M.’s half sister. Still, the
tribe was “unable to make a determination with the limited documentation we received”
so it was closing the inquiry due to “inadequate documentation.”
At a May 22, 2013 hearing, the juvenile court terminated reunification services
and set the case for a section 366.26 hearing. With regard to the ICWA, the court
appeared not to have been aware of all the available ICWA information because it said it

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had only “one letter back from the Cherokee Nation.” It ordered DCFS to notice all the
tribes for the section 366.26 hearing.
On September 18, 2013, the court continued the section 366.26 hearing to October
30, 2013, because the ICWA issue remained outstanding.
Prior to the next hearing, DCFS indicated it had not received any ICWA receipts,
but it noted the court had already found the ICWA did not apply on January 31, 2013. At
the October 30, 2013 hearing, Commissioner Lewis apologized for not realizing another
hearing officer had made the ICWA finding on January 31, 2013, in her absence. She
found the ICWA did not apply and terminated the parents’ rights. Father timely
appealed.
DISCUSSION
Father contends the ICWA-030 notices did not contain complete or adequate
information for the tribes to determine T.M.’s Indian heritage and the juvenile court
failed to ensure DCFS sent proper notices to the tribes. We agree the notices were
inadequate, requiring conditional reversal and remand for DCFS to send new notices to
the tribes and the juvenile court to make a new determination whether the ICWA applies
based on the tribes’ responses. Because new notices are required, we need not address
father’s other complaints about the ICWA proceedings.6
The ICWA provides in relevant part, “[i]n any involuntary proceeding in a State
court, where the court knows or has reason to know that an Indian child is involved, the
party seeking the foster care placement of, or termination of parental rights to, an Indian
child shall notify the parent or Indian custodian and the Indian child’s tribe, by registered
mail with return receipt requested, of the pending proceedings and of their right of
intervention. . . .” (25 U.S.C. § 1912(a).) California law implements the ICWA by
requiring notice be sent to the minor’s parents, the minor’s Indian custodian (if any) and

6 DCFS argues father’s appeal should be dismissed because he did not request a
reporter’s transcript for the January 3, 2013 hearing. We reject this contention because
that transcript was eventually added to the appellate record and we have considered it.

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the minor’s tribe whenever the court, a social worker, or probation officer “knows or has
reason to know that an Indian child is involved.” (§ 224.2, subd. (a); Cal. Rules of Court,
rule 5.481(b)(1).)
Under California law, when there is reason to know an Indian child is involved in
a proceeding, the social worker “is required to make further inquiry regarding the
possible Indian status of the child, and to do so as soon as practicable, by interviewing the
parents, Indian custodian, and extended family members to gather the information
required in paragraph (5) of subdivision (a) or Section 224.2, contacting the Bureau of
Indian Affairs and the State Department of Social Services 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 reasonably
can be expected to have information regarding the child’s membership status or
eligibility.” (§ 224.3, subd. (c); see Cal. Rules of Court, rule 5.481(a)(4).)
Under the implementing federal regulation, the notice must contain the following
information: the name, birth date, and birthplace of the Indian child; the name of the
Indian tribe or tribes in which the child is enrolled or may be eligible for enrollment;
“[a]ll names known, and current and former addresses of the Indian child’s biological
mother, biological father, maternal and paternal grandparents and great grandparents or
Indian custodians, including maiden, married and former names or aliases[,] birthdates[,]
places of birth and death[,] tribal enrollment numbers[,] and/or other identifying
information”; and a copy of the petition, complaint, or other document initiating the
proceeding. (25 C.F.R. § 23.11, subds. (a), (d)(1)-(4).) California law requires similar
information in the notices, including “any other identifying information, if known.”
(§ 224.2, subd. (a)(5)(A)-(D).)
“ICWA notice requirements are strictly construed and must contain enough
information to be meaningful.” (In re J.M. (2012) 206 Cal.App.4th 375, 380 (J.M.).)
“Thorough compliance with ICWA is required.” (Id. at p. 381.) We review the juvenile
court’s findings of proper notice and application of the ICWA for substantial evidence.
(In re D.N. (2013) 218 Cal.App.4th 1246, 1251 (D.N.).)

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 Substantial evidence did not support the juvenile court’s finding that the ICWA-
030 notices were adequate. For father’s relatives, the notices provided almost no
information at all. Only two paternal relatives were identified: paternal grandmother
Eleonora C., and paternal great-grandmother Eleonora H. Despite interviewing
Eleonora C., DCFS included only what appears to be a phone number in the space for her
current address, and noted all other information about her was “unknown.” For Eleonora
H., DCFS included her city of birth and death and her affiliation with the Cherokee tribe.
All other paternal relatives were listed as “unknown,” even though Eleonora C. named
several of them, including paternal great-grandparents Hazel D. and Elly C., and paternal
great-great-grandfather Murphy H., whom she believed had Cherokee blood but was not
registered.7 DCFS does not explain why the notices did not include information DCFS
either obtained or easily could have obtained during its investigation of T.M.’s Indian
heritage. (See In re Gerardo A. (2004) 119 Cal.App.4th 988, 995 [“Because the record
reveals that the department possessed identifying Indian heritage information and it did
not share that information with one or more tribes of whom a dependent child could be a
member, we cannot conclude the department’s effort to serve notice satisfied ICWA.”];
see In re A.G. (2012) 204 Cal.App.4th 1390, 1397 [notices inadequate because agency
only included information for mother and father, did not interview other available
relatives, and did not identify even the known family members in notices]; In re D.T.
(2003) 113 Cal.App.4th 1449, 1455 [notices inadequate because agency knew but did not
include mother’s married name, parents’ current addresses, names of grandparents, and
claimed tribal affiliation].)

7 Normally information for great-great-grandparents need not be included in ICWA
notices unless there is some indication the omitted relatives would have provided
additional insight into a child’s Indian heritage. (See J.M., supra, 206 Cal.App.4th at pp.
382-383.) Here, given the dearth of information on father’s relatives, DCFS should have
included the names and biographical information of the paternal great-great-grandparents
to ensure the tribes’ investigation was not frustrated by the lack of information.

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 Further, father indicated on his ICWA-020 form that “ [E.V.]” would have more
information, but this person was not listed in the notices and there is no indication DCFS
made efforts to investigate this person. Although DCFS points out father did not provide
further information when given the opportunity to do so, DCFS still had a duty to at least
“inquire as to possible Indian ancestry and act on any information it receive[d],” even if it
had “no duty to conduct an extensive independent investigation for information.” (In re
C.Y. (2012) 208 Cal.App.4th 34, 41.)
The information in the notices for mother’s relatives was more complete, but still
deficient. Maternal grandfather Jeffrey J.J. was listed, but only with his current city of
residence and his birth day but not year. Maternal great-grandmother Freda W. was listed
with her birth day but not year and the year and place of her death. Maternal great-
grandfather Lester Jr. F. was listed with his birth date and his date and place of death.
His tribe or band affiliation was listed as “unknown,” even though maternal grandmother
L.F. told DCFS he was half “Blackfoot Cherokee.” L.F. also named maternal great-
grandmother Lula D., whom she said was also half “Blackfoot Cherokee,” but someone
else was listed as the maternal
great-grandmother. The similar name “Lual Made D.” was listed as the maternal
great- great-grandmother in the “other relative information” section of the notices, and
according to the Cherokee Nation’s February 11, 2013 letter, “Lual Made D.” was a
misspelling of “Lula Made [D.]” or “Lula Mae D.” But, that does not clarify whether
that name referred to the person identified by L.F. and simply underscores the inadequacy
of the information provided in the notices to the tribes.8
DCFS argues the failures as to father’s relatives were harmless because at the
October 25, 2012 hearing the juvenile court found the information about father’s ancestry

8 L.F. also said her maternal great-uncle Charles William F. was registered with the
tribe, but he was not listed in the notices. But we find no error because he was
interviewed and denied anyone in the family had been registered. Although he believed
some of his family had Native American heritage, there is no indication he provided more
information that DCFS could have investigated.

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was “too attenuated and vague to trigger even notices” under the ICWA. But that was
only a preliminary finding because the juvenile court later required notices be sent. Had
this been a final determination, it would have been erroneous. (See § 224.3, subd. (b)(1)
[“reason to know” triggering notice is satisfied when a member of the child’s extended
family “provides information suggesting the child is a member of a tribe or eligible for
membership in a tribe or one or more of the child’s biological parents, grandparents, or
great-grandparents are or were a member of a tribe.” (Italics added.)].)
More generally, we find the errors and omissions in the notices were prejudicial
because the notices did not give the tribes an adequate opportunity to investigate T.M.’s
Indian heritage. When tribes actually receive notice, deficiencies in the notices may be
deemed harmless if the child would not have been found to be an Indian child even if
proper notice had been given. (D.N., supra, 218 Cal.App.4th at p. 1251.) Although the
tribes found T.M. was not an Indian child, they did so upon incomplete information
provided by DCFS. Indeed, the Cherokee Nation requested and received further
information, but it was still “unable to make a determination with the limited
documentation” it received, so it closed the inquiry due to “inadequate documentation.”
Thus, we cannot conclude T.M. would not have been found to be an Indian child if the
tribes had been given more complete information. (See In re Cheyanne F. (2008) 164
Cal.App.4th 571, 576 [“Notice given under ICWA must . . . contain enough information
to permit the tribe to conduct a meaningful review of its records to determine the child’s
eligibility for membership.”].)
DISPOSITION
The order terminating parental rights is conditionally reversed, and the matter is
remanded to the juvenile court with directions to order compliance with the notice
provisions of the ICWA in accordance with this opinion. If, after proper inquiry and
notice, no response is received from a tribe indicating T.M. is an Indian child, all
previous findings and orders shall be reinstated. If a tribe determines T.M. is an Indian
child, the juvenile court is ordered to conduct a new section 366.26 hearing in conformity
with all provisions of the ICWA.

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 In all other respects, the order is affirmed.

FLIER, J.
WE CONCUR:

BIGELOW, P. J.

GRIMES, J.

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