Filed 5/18/21 In re A.K. CA3
NOT TO BE PUBLISHED
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT
(Sutter)
----
In re A.K. et al., Persons Coming Under the Juvenile C092718
Court Law.
SUTTER COUNTY HEALTH AND HUMAN (Super. Ct. Nos.
SERVICES DEPARTMENT, DPSQ190000009,
DPSQ190000010)
Plaintiff and Respondent,
v.
P.R.,
Defendant and Appellant.
P.R., father of the minors, challenges the juvenile court’s order terminating
parental rights and freeing the minors for adoption. (Welf. & Inst. Code, §§ 366.26,
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395.)1 He contends the juvenile court and the Sutter County Health and Human Services
Department (Department) failed to comply with the requirements of the Indian Child
Welfare Act (ICWA) (25 U.S.C. § 1901 et seq.). We will reverse and remand for limited
ICWA proceedings.
BACKGROUND
Because the sole issue on appeal is ICWA compliance, a detailed recitation of the
non-ICWA related facts and procedural history is unnecessary to our resolution of this
appeal.
On January 29, 2019, the Department filed a dependency petition on behalf of the
minors A.K. (13 years old) and C.R. (11 years old) pursuant to section 300,
subdivision (b). The identical petitions alleged failure to protect the minors due to the
parents’ inability to provide adequate food, clothing, shelter, supervision, and medical
treatment for the minors.
The February 2019 jurisdiction report noted the parents filled out and filed
parental notifications of Indian status, with father indicating no known Indian ancestry,
and mother indicating possible Indian ancestry with the Cherokee Tribe of Oklahoma.
On February 21, 2019, the Department informed the juvenile court that the social
worker was working with mother to obtain information regarding her family background.
Mother said there might be Cherokee ancestry out of Oklahoma through the maternal
great-great-grandparents. Mother provided the juvenile court with the maternal
grandfather’s name and birthdate and the maternal great-grandparents’ names, and noted
the maternal great-grandmother and the maternal great-great-grandmother were both
deceased but the maternal great-grandfather was still living. She also provided the
maternal great-great-grandfather’s first name. The juvenile court asked mother to obtain
1 Undesignated statutory references are to the Welfare and Institutions Code.
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as much information from her father as possible and to get it in writing for the
Department, that it was really important information. Mother stated her belief that she
was previously enrolled in the Cherokee Tribe of Oklahoma. The juvenile court
reiterated that mother needed to be very diligent about getting ICWA information to the
Department and ordered her to comply with any additional meetings requested by the
Department. The juvenile court also suggested the social worker contact the tribe in
mother’s presence to obtain mother’s roll number. The juvenile court sustained the
allegations in the petitions, found the minors to be dependents of the juvenile court, and
found father to be the presumed father.
On March 7, 2019, after a discussion that ICWA issues were still pending, the
juvenile court continued the disposition hearing. The parents were not present at the
continued hearing on March 26, 2019. The juvenile court was informed that father was
in custody and mother’s whereabouts were unknown.
On March 14, 2019, the Department sent ICWA notices to the Bureau of Indian
Affairs (BIA), the Secretary of the Interior, the Cherokee Nation, the Eastern Band of
Cherokee Indians, and the United Keetoowah Band of Cherokee Indians. The notices
included information regarding the names, former addresses, and birthdates and birth
places for each parent, and potential tribe affiliations for mother. The notices contained
no information regarding the maternal or paternal grandparents or great-grandparents.
The parents were not present at the continued disposition hearing on April 2, 2019.
The juvenile court adopted the Department’s recommended findings and orders,
including that the parents be provided with reunification services.
The disposition report filed April 2, 2019 stated that ICWA did or might apply,
noting that ICWA noticing was pending as to mother’s claim of possible Indian ancestry
with the Cherokee Tribe of Oklahoma. An addendum report filed the same day stated
ICWA notices were sent to the three Cherokee tribes on March 14, 2019.
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The October 2019 status review report stated the Department received responses
from all three of the noticed Cherokee tribes stating the minors were not registered or
eligible to register as members of the respective tribes. The Department requested that
the juvenile court make a finding that the minors are not Indian children and that ICWA
does not apply.
At the status review hearing on October 1, 2019, the juvenile court found the
parents made no progress toward alleviating or mitigating the causes necessitating the
minors’ removal and continued the minors’ out-of-home placement. The juvenile court
also found the minors were not Indian children within the meaning of ICWA and that
ICWA does not apply. Thereafter, the Department’s reports reiterated the juvenile
court’s finding that ICWA does not apply.
On July 9, 2020, the juvenile court found the minors adoptable and terminated
parental rights, ordering adoption as the permanent plan.
DISCUSSION
Father contends the Department failed to comply with ICWA requirements by
failing to inquire of all known maternal relatives about possible Indian heritage. The
Department argues father forfeited his claim because he did not object in the juvenile
court, and in any event, any error was harmless. As we explain, the matter must be
remanded for further limited ICWA proceedings.
ICWA’s purpose is to protect the interests of Indian children and promote the
stability and security of Indian tribes by establishing minimum standards for, and
permitting tribal participation in, dependency actions. (25 U.S.C. §§ 1901, 1902,
1903(1), 1911(c), 1912; In re Isaiah W. (2016) 1 Cal.5th 1, 7-8.) The juvenile 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); Cal. Rules of Court, rule 5.481(a); see In re
K.M. (2009) 172 Cal.App.4th 115, 118-119.) If, after the petition is filed, the juvenile
court knows or has reason to know that an Indian child is involved (25 U.S.C. § 1912(a)),
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notice of the pending proceeding and the right to intervene must be sent to the tribe or the
BIA if the tribal affiliation is not known. (See § 224.2, subds. (d) & (f); § 224.3,
subds. (a)-(g); Cal. Rules of Court, rule 5.481(b); In re Robert A. (2007) 147 Cal.App.4th
982, 989.) “At that point, the social worker is required, as soon as practicable, to
interview the child’s parents, extended family members, the Indian custodian, if any, and
any other person who can reasonably be expected to have information concerning the
child’s membership status or eligibility.” (In re Michael V. (2016) 3 Cal.App.5th 225,
233; see Cal. Rules of Court, rule 5.481(a)(4)(A); § 224.2, subd. (b).)
ICWA notices must include all of the following information, if known: the child’s
name, birthplace, and birth date; the name of the tribe in which the child is enrolled or
may be eligible for enrollment; names and addresses of the child’s parents, grandparents,
great-grandparents, and other identifying information; and a copy of the dependency
petition. (§ 224.3, subds. (a)(5)(A)-(D); In re Mary G. (2007) 151 Cal.App.4th 184,
209.)
Here, mother claimed possible Indian ancestry with the Cherokee Tribe of
Oklahoma and, at the February 21, 2019 hearing, informed the juvenile court that the
Indian ancestry flowed through her great-grandparents, namely her great-grandfather and
her great-great grandparents on his side. She provided the juvenile court with the
maternal grandfather’s first and last name and the day of his birth (but not the year), and
the names of the maternal great-grandparents who were residents of Oklahoma, and
stated the maternal great-grandmother and the maternal great-great-grandmother were
deceased but the maternal great-grandfather was still living. She noted her grandfather’s
father was named Mason and he was Indian too. When the juvenile court asked if she
could obtain Mason’s last name from the maternal grandfather, mother replied
affirmatively. When the juvenile court encouraged mother to look for any other
identifying information, including a roll number, mother said she believed she was
enrolled with the Cherokee Tribe of Oklahoma and stated, “I used to have my card.
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[¶] . . . [¶] I used to. I probably could go get another one. I’m not sure. I’ll ask my
mom.”
The Department sent ICWA notices to the BIA and the three Cherokee tribes on
March 14, 2019. The notices contained information about mother and father, but nothing
about the maternal relatives. The Department received responses from all three tribes
stating the minors were not Indian children and, in its October 2019 status review report,
requested that the juvenile court find the minors are not Indian children and ICWA does
not apply. Yet, in that same report, it was noted that the maternal grandmother, J.K., had
met with the social worker about possible placement of the minors.
On October 1, 2019, the juvenile court found the minors were not Indian children
within the meaning of ICWA and that ICWA does not apply. Thereafter, and throughout
the remainder of the proceedings, the Department reiterated the juvenile court’s finding
in each of its reports, but made no additional inquiry or attempts to identify and locate the
maternal relatives identified by mother, nor did the social worker inquire of the maternal
grandmother when the two communicated regarding potential placement of the minors.
The agency’s duty of ICWA inquiry extends to the minor’s extended family, if
known. (§ 224.2, subd. (b); Cal. Rules of Court, rule 5.481(a)(4).) Here, information
regarding the minors’ extended family on their mother’s side was known. However, we
see nothing in the record that demonstrates there was any effort to contact or obtain
information from the maternal grandmother, the maternal grandfather, the maternal great-
grandfather, or any of mother’s relatives. Based on the dearth of information provided, it
appears the Department failed to obtain, at a minimum, the full names and birth dates or
any identifying information for the maternal relatives or to include that information in
updated notices to the BIA and the three Cherokee tribes. The Department cannot fulfill
its continuing duty of inquiry and notice by omitting known information, “[n]or can the
juvenile court assume that because some information was obtained and relayed to the
relevant tribes, the social services agency necessarily complied fully with its obligations.”
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(In re K.R. (2018) 20 Cal.App.5th 701, 709, italics omitted.) The notices sent by the
Department were insufficient for purposes of ICWA.
“[E]rrors in an ICWA notice are subject to review under a harmless error
analysis.” (In re Brandon T. (2008) 164 Cal.App.4th 1400, 1415.) Error is not
presumed. It is father’s obligation to present a record that affirmatively demonstrates
error. (In re D.W. (2011) 193 Cal.App.4th 413, 417-418.) Father has done so here. If we
conclude the juvenile court did not comply with ICWA provisions, we “reverse only if
the error is prejudicial.” (In re A.L. (2015) 243 Cal.App.4th 628, 639.) Given the state of
the record, we cannot say with certainty that the notices were legally sufficient or that
there was no prejudice to the relevant tribes.
The Department either did not take sufficient affirmative steps to investigate the
minors’ possible Indian ancestry on the maternal side of the family or did not document
its efforts to do so. In the absence of evidence of the Department’s efforts to fulfill its
continuing duty of inquiry, we cannot say the failure of ICWA compliance was harmless.
A failure to conduct a proper ICWA inquiry requires reversal of the orders terminating
parental rights and a limited remand for proper inquiry and any required notice. (In re
A.B. (2008) 164 Cal.App.4th 832, 839; In re D.T. (2003) 113 Cal.App.4th 1449, 1454-
1456.) We must therefore remand for limited proceedings to determine ICWA
compliance.
DISPOSITION
The juvenile court’s order terminating parental rights is conditionally reversed.
The matter is remanded to the juvenile court for limited proceedings to determine ICWA
compliance. If, at the conclusion of those proceedings, no tribe indicates the minors are
Indian children within the meaning of ICWA, then the juvenile court shall make the
appropriate ICWA finding and reinstate the order terminating parental rights. If the
juvenile court finds, after proper inquiry and notice, that ICWA applies, the juvenile court
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shall hold such further proceedings as are appropriate. In all other respects, the judgment
is affirmed.
/S/
MAURO, J.
We concur:
/S/
RAYE, P. J.
/S/
MURRAY, J.
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