Filed 1/5/22 In re K.J. 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication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
(Tehama)
----
In re K.J. et al., Persons Coming Under the Juvenile C093976
Court Law.
TEHAMA COUNTY DEPARTMENT OF SOCIAL (Super. Ct. Nos. 19JU000128,
SERVICES, 19JU000129)
Plaintiff and Respondent,
v.
A.F.,
Defendant and Appellant.
Appellant A.F., mother of the minors (mother), appeals from the juvenile court’s
orders terminating parental rights. (Welf. & Inst. Code, § 366.26.)1 Mother contends the
court erred in finding the Indian Child Welfare Act of 1978 (25 U.S.C. § 1901 et seq.)
(ICWA) did not apply. We will conditionally reverse the juvenile court’s orders.
1 Undesignated statutory references are to the Welfare and Institutions Code.
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BACKGROUND2
On December 30, 2019, the Tehama County Department of Social Services (the
Department) filed juvenile dependency petitions under section 300, subdivisions (b)(1)
and (j) for mother’s two minors: K.J. (seven years old) and O.J. (five years old). The
petitions alleged that law enforcement found the family’s house in a hazardous condition,
including weapons, needles, drug paraphernalia, and general filth throughout the house,
and the minors suffered from severe tooth decay. They also asserted K.J. and O.J.’s
siblings had been detained for abuse or neglect in prior cases. On March 2, 2021, the
juvenile court found by clear and convincing evidence the minors would be adopted and
terminated parental rights.
During this process, the social worker investigated whether the minors were Indian
children under ICWA. Mother told the social worker on December 26, 2019, she did not
have any known Native American ancestry. The social worker spoke with the father
(father) on December 27, 2019, who said he was not registered with any tribe “but he
might have some Choctaw/Cherokee ancestry.”
The December 30, 2019 detention report noted that ICWA does not apply to father
“as referenced in case number J12931 J12932 on October 7 2014.” It also said K.J. and
O.J. had “been previously removed by the Department on September 5, 2014,” asking the
court to take judicial notice of the prior cases. The report concluded it inquired with the
parents whether the minors are Indian minors, but found “ICWA does not apply.”
At the December 31, 2019 detention hearing, the juvenile court asked both parents
about their potential Indian ancestry. Mother said, “my dad’s mom was almost three
quarters Indian” and her “mom’s dad’s mom was also . . . almost three quarters Indian
2 Because mother’s sole claim challenges compliance with ICWA, we limit the
background summary to ICWA-related facts and procedure unless otherwise relevant to
the issue on appeal.
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from Oklahoma,” stating she remembered her “grandmother saying he’s an Okie from
Muskogee.” Father said he thought he might have a bloodline from “Cherokee and
Choctaw from Mississippi. I don’t know. My aunt’s been trying to track down that
bloodline.”
Both mother and father later submitted parental notifications of Indian status
forms for each minor. Mother’s forms, filed January 2, 2020, stated she “may have
Indian ancestry” under “Colusa, CA” and “Oklahoma.” She also checked the box that
she has information the minors have Indian ancestry, but did not list any tribes. For
relatives, she listed her father with the tribe “OK” and her father’s mother’s tribe as
“Colusa.”
Father’s forms, filed January 9, 2020, stated he “may have Indian ancestry”
“chacta/cherokee,” and that he believes the minors have Indian ancestry with these two
tribes from Mississippi. His form also listed five possible relatives with Indian ancestry:
(1) his mother, but with no tribe listed; (2) his father, with “cherokee/chacta” in
Mississippi; (3) his maternal grandmother, with no tribe listed; (4) his maternal
grandfather, with no tribe listed; and (5) his maternal great-grandmother, with no tribe
listed. Father indicated that none of the names listed were enrolled in a tribe.
On January 16, 2020, the social worker mailed notices to the Sacramento area
director for the Bureau of Indian Affairs (BIA), the United States Secretary of the
Interior, the Choctaw Nation of Oklahoma, the Mississippi Band of Choctaw Indians, and
the Jena Band - Choctaw. The notices listed several Blackfeet and Cherokee tribes for
mother’s heritage but “[n]o information available” for father.
On January 27, 2020, the social worker asked mother if she had any further
contact information on the names included on her form and she responded she did not but
would try and find some. The social worker found numbers for father’s mother and
father but the numbers were disconnected. The social worker met with both parents on
January 29, 2020, and they both indicated they had no additional information other than
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what was on their forms. The social worker’s disposition report, filed on January 31,
2020, stated ICWA “was found not to apply on Tehama County court cases J12931 and
J12932 on September 10, 2014 on previous case [sic] with the same family members.” In
late January 2020, the social worker received letters from all three contacted Choctaw
tribes that stated the minors were not eligible for enrollment in the tribes.
The juvenile court’s orders throughout the process stated ICWA did not apply,
including the initial December 31, 2019 detention order and the section 366.26 orders
terminating parental rights.
Mother appealed from both the November 17, 2020 orders terminating
reunification services and the March 2, 2021 orders terminating parental rights.
DISCUSSION
Mother contends the juvenile court should have found there was a reason to
believe the minors were Indian children based on the information provided by the
parents, so a formal inquiry was required under ICWA. She asserts the Department’s
inquiry and notices did not satisfy ICWA procedures. Mother seeks reversal of the
termination orders for this error. The Department contends there was never any reason to
believe the minors were Indian children because mother never identified any federally
recognized Indian tribes. The Department also claims there was no evidence father was
the biological father of the minors and there was evidence his parents were foster parents.
Even if there was a reason to believe, the Department asserts sufficient inquiry was made
under ICWA, so any error was harmless.
“The ICWA protects the interests of Indian minors and promotes the stability and
security of Indian tribes by establishing minimum standards for removal of Indian
children from their families, and by permitting tribal participation in dependency
proceedings. (See 25 U.S.C. § 1902; In re Levi U. (2000) 78 Cal.App.4th 191, 195-196.)
A major purpose of the ICWA is to protect ‘Indian children who are members of or are
eligible for membership in an Indian tribe.’ (25 U.S.C. § 1901(3).)” (In re A.W. (2019)
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38 Cal.App.5th 655, 662.) ICWA defines an “ ‘Indian child’ ” as a child who “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).)
ICWA imposes different notice and inquiry requirements depending on whether
there is a “reason to know” or a “reason to believe” a minor is an Indian child. There is
reason to know if any of the circumstances under section 224.2, subdivision (d) are met,
generally where the court has direct and reliable knowledge the minor is an Indian child
(§ 224.2, subd. (d)(1)-(6)). Reason to believe exists when there is some indication the
minor may be an Indian child but there is no direct knowledge establishing reason to
know. (In re M.W. (2020) 49 Cal.App.5th 1034, 1044-1045.)
Section 224.2, subdivision (e) provides that if the court or social worker has
reason to believe that an Indian child is involved in a proceeding, the court or social
worker shall, as soon as practicable, make further inquiry regarding the possible Indian
status of the child. Further inquiry includes, but is not limited to: (1) interviewing the
parents, Indian custodian, and extended family members to gather the information
required in the fifth paragraph of subdivision (a) of section 224.3;3 (2) contacting the BIA
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 (3) contacting the tribe or tribes and any other person that may
reasonably be expected to have information regarding the child’s membership,
citizenship status, or eligibility. Contact with a tribe must, at a minimum, include
telephone, facsimile, or electronic mail contact to each tribe’s designated agent for receipt
of notices under ICWA, and sharing information identified by the tribe as necessary for
3 Section 224.3, subdivision (a)(5) includes the name, birth date, and birthplace of the
Indian child, if known; the name of the Indian tribe; and the names and other identifying
information of the Indian child’s biological parents, grandparents, and great-
grandparents, if known.
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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).)
We apply a substantial evidence review to the juvenile court’s ICWA findings.
(In re D.S. (2020) 46 Cal.App.5th 1041, 1051.) “Deficiencies in ICWA inquiry and
notice may be deemed harmless error when, even if proper notice had been given, the
child would not have been found to be an Indian child.” (In re D.N. (2013)
218 Cal.App.4th 1246, 1251.)
There was reason to believe the minors here were Indian children. Father
provided information that he had family members of a Choctaw or Cherokee tribe in
Mississippi. He also listed several relatives as possible members of one of these tribes.
Though father did not provide specific tribe names, the information he did provide has
been routinely found sufficient to create a reason to believe. (In re Josiah T. (2021)
71 Cal.App.5th 388, 404 [“even though the mother in [In re D.F. (2020) 55 Cal.App.5th
558] did not identify a specific tribe, she did specify it was a tribe from New Mexico, we
found ‘this information [wa]s specific enough to trigger the duty of further inquiry’ ”]; In
re D.S., supra, 46 Cal.App.5th at pp. 1046, 1052 [finding statements by the paternal aunt
that the father “may have Indian heritage” created a reason to believe].)
The Department therefore was obligated to further inquire whether the minors
qualified as Indian children. The Department appears to have done this for potential
Choctaw eligibility, providing notice of the proceedings to three Choctaw tribes. The
Department also sent these notices to the BIA and the Secretary of the Interior. There is
no evidence in the record, however, that any Cherokee tribes in Mississippi were notified
of the proceedings. The notices also did not list any possible Indian heritage for father
and instead listed a wide range of possible Indian heritage for mother.
The Department also did not contact all possible family members with relevant
information. The Department tried to contact only two family members listed on father’s
form as being possible members of a Choctaw or Cherokee tribe. But the Department did
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not try to contact father’s aunt, who could reasonably be expected to have additional
information on the minors’ heritage because father said she was “trying to track down
that bloodline.” Mother also stated she had family members on both sides that were
“three quarters Indian” and provided the names of these individuals on her forms. Even
if this may not have been enough to create a reason to believe, these are additional
individuals that were not contacted even though they could have reasonably been
expected to have information regarding the minors’ eligibility. Mother was working to
get contact information for these individuals, but the social worker appears to have only
requested this information again two days after the initial request. (In re K.R. (2018)
20 Cal.App.5th 701, 709 [“a social services agency has the obligation to make a
meaningful effort to locate and interview extended family members to obtain whatever
information they may have as to the child’s possible Indian status”].)
The Department and the juvenile court must have relied on the prior ICWA
finding. Mother and father had been the subject of prior proceedings involving these
same minors and the juvenile court had previously found ICWA did not apply in those
proceedings. This would explain the juvenile court finding ICWA inapplicable in these
proceedings at the first detention hearing, before either parent filed their parental
notifications.
Those prior findings, however, could not be conclusive in these proceedings.
ICWA imposes “a continuing duty . . . to inquire whether a child might be an Indian
child.” (In re J.D. (2010) 189 Cal.App.4th 118, 123.) So a juvenile court “must revisit a
prior determination that ICWA does not apply ‘if they subsequently receive information
that provides reason to know the child is an Indian child.’ ” (In re Charles W. (2021)
66 Cal.App.5th 483, 491; § 224.2, subd. (c); Cal. Rules of Court, rule 5.481(a).)
Without any new evidence the children are Indian children, a prior finding that
ICWA was inapplicable makes it unlikely that additional inquiry or notice would have
revealed the children to be within ICWA, rendering any error harmless. (See In
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re Charles W., supra, 66 Cal.App.5th at p. 492 [“given the prior ICWA finding regarding
this family and the parents’ unequivocal denials of Indian ancestry, we do not find it
reasonably probable that further inquiry based on the record before us would yield a
different result”].) But we do not have sufficient information in the record to determine
whether the information mother and father provided was information already provided at
the prior proceedings. It is mother’s obligation to present a record that affirmatively
demonstrates error. (In re D.W. (2011) 193 Cal.App.4th 413, 417-418.) Mother has done
so here. If we conclude the juvenile court did not comply with the 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. It is possible the
Department notified only Choctaw tribes because it had previously notified Cherokee
tribes in Mississippi in the prior proceedings. It is also possible the Department met with
the paternal aunt and mother’s family members to see if they unearthed any new
information since the prior proceedings. But these facts are not in the record and we
cannot assume such is the case because it is also possible the information provided here
was additional information discovered since 2014, when ICWA was found not to apply in
the prior proceedings. We therefore cannot find the Department’s incomplete inquiry
harmless.
We also find the Department forfeited its additional arguments regarding father’s
lineage. It never contested with the juvenile court father’s biological status or argued his
parents were foster parents. (In re S.B. (2004) 32 Cal.4th 1287, 1293 [“an appellate
court’s discretion to consider forfeited claims extends to dependency cases”]; In re Kiana
A. (2001) 93 Cal.App.4th 1109, 1118 [“Fair play dictates that Mario A. cannot wait until
his petition for presumptive father status has been denied in the juvenile court, then
request genetic testing for the first time on appeal”].) The record also belies the
Department’s positions. Father was the presumed father from the beginning of the
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proceedings because he was the minor’s presumed father at the prior proceedings. And
again, his biological status was never challenged. Father’s and mother’s interviews with
the social worker also never mention or even allude to another possible biological father.
As for his parent’s being foster parents, the Department’s sole evidence is a notation on
father’s form stating his father’s last name is “[J.]/Foster.” This ambiguous statement is
contradicted by father’s autobiographical statements to the social worker regarding his
upbringing, which strongly suggest his parents were his biological parents.
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 orders terminating mother’s parental rights are conditionally reversed and the
cases are remanded to the juvenile court with directions to order the Department to
comply with the investigation and notice provisions of ICWA and the views expressed in
this opinion. If, after proper notice, a tribe claims the minors as Indian children, the
juvenile court shall proceed in conformity with all requirements of ICWA. If no tribe
claims the minors as Indian children, the orders terminating parental rights shall be
reinstated.
/s/
RAYE, P. J.
We concur:
/s/
HULL, J.
/s/
ROBIE, J.
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