Filed 6/9/22 In re P.G. CA2/4
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FOUR
In re P.G, et al., Persons B314660 consolidated with
Coming Under the Juvenile B314674
Court Law.
(Los Angeles County
Super. Ct. Nos. CK63906,
CK63906H, CK63906I,
CK63906K, CK63906M)
LOS ANGELES COUNTY
DEPARTMENT OF
CHILDREN AND FAMILY
SERVICES,
Plaintiff and
Respondent,
v.
P.G.,
Defendant and
Appellant.
APPEAL from orders of the Superior Court of Los Angeles
County, Julie Fox Blackshaw and Debra Losnick, Judges.
Reversed and remanded with instructions.
Linda S. Rehm, under appointment by the Court of Appeal,
for Defendant and Appellant.
Rodrigo A. Castro-Silva, County Counsel, Kim Nemoy,
Assistant County Counsel, Aileen Wong, Deputy County Counsel,
for Plaintiff and Respondent.
___________________________________________________________
During dependency proceedings involving father P.G.’s
children P., R., I., and C., father advised the court and the Los
Angeles County Department of Children and Family Services
(DCFS) that he was or may be a member of a non-federally
recognized Indian tribe. Although the Indian Child Welfare Act
of 1978 (25 U.S.C. § 1901 et seq.; ICWA) applies only to federally
recognized tribes, DCFS sent the tribe notice of the proceedings
prior to the permanency planning hearing. The tribe responded
with a letter stating the children may be eligible for enrollment,
explaining the enrollment process, and expressing interest in
providing the children with cultural resources and services. The
letter also stated that the tribe participates in dependency cases
involving tribal children and requested further information about
the case, including contact information for DCFS social workers
and counsel. DCFS included the letter in the case file and
acknowledged it in subsequent reports, but there is no indication
DCFS or the court further engaged the tribe before the court
selected adoption as the children’s permanent plans and
terminated father’s parental rights to P. and R.
2
Father now contends the court erred by failing to determine
whether Welfare and Institutions Code section 306.61 applied to
the case. That statute gives the court discretion to permit a non-
federally recognized tribe to participate in dependency
proceedings upon request of the tribe if certain conditions are
met. Section 306.6, subdivision (e) provides that the court “shall,
on a case-by-case basis, make a determination if this section is
applicable and may request information from the tribe . . . for the
purposes of making this determination.” We agree with father
that the court should have considered the applicability of section
306.6 here. The tribe’s letter was tantamount to a request to
participate in the proceedings, and thus required the court to
make further inquiry under section 306.6. We accordingly
conditionally reverse the court’s orders and remand for the
limited purpose of conducting further inquiry pursuant to section
306.6.
BACKGROUND
P., R., I, and C. are the four youngest of father’s children in
common with mother C.Y. These four children and two of their
older siblings, all of whom were living with father, came to the
attention of DCFS in April 2017, after one of the older siblings
disclosed self-harm and suicidal ideation.2 DCFS detained the
children and, after investigating, filed a section 300 petition
alleging negligence and failure to protect as to all six children
under section 300, subdivision (b)(1), emotional abuse of the
1 All further statutory references are to the Welfare and
Institutions Code unless otherwise indicated.
2 Father does not challenge any of the court’s orders
concerning the two older siblings.
3
disclosing sibling under section 300, subdivision (c), and sibling
abuse of all six children under section 300, subdivision (j).3
The family had an extensive previous history with DCFS.
In previous proceedings, father stated that he had Native
American heritage with the Santa Ynez Band of Chumash
Indians, a federally recognized tribe. In 2010, the Santa Ynez
Band of Chumash Indians intervened in proceedings involving
the four children at issue here. The tribe concluded at that time
that P. and R. were tribal children. It made no determination as
to C., as it did not have his birth certificate, and concluded that I.
was not a tribal child because father was not named on his birth
certificate. By July 2014, however, a social worker with the
Santa Ynez Band of Chumash Indians notified DCFS that the
tribe no longer wished to participate in proceedings involving the
family. During DCFS’s investigation into the instant allegations,
a social worker who worked on a previous matter involving the
family advised the current social worker that the Santa Ynez
Band of Chumash Indians “does not want anything to do with”
father.
Father identified the “Chumash” tribe on the ICWA-020
form he completed in the instant case on May 10, 2017. He also
listed the “Tataavian” tribe, apparently referring to the
Fernandeño Tataviam Band of Mission Indians, a California tribe
that is not federally recognized. DCFS reported that it mailed
ICWA notices to the Santa Ynez Band of Chumash Indians on
July 18, 2017. After sustaining the allegations in the petition
and taking jurisdiction over the children on August 8, 2017, the
3 The facts underlying the dependency proceedings are not
relevant to the ICWA issues presented in this appeal. We
accordingly do not discuss them further.
4
court continued disposition to give DCFS an opportunity to
obtain an “expert letter” from the Santa Ynez Band of Chumash
Indians. Although no expert letter is in the record, on January
29, 2018 DCFS filed a report stating that a social worker spoke to
a representative of the Santa Ynez Band of Chumash Indians on
January 22, 2018. The representative stated that the tribe would
not be intervening in the proceedings because the family no
longer qualified for tribal membership. DCFS requested that the
tribe provide something to that effect in writing; the
representative said she had sent a letter and would check the
tribe’s archives for a copy.
At the February 8, 2018 disposition hearing, the court
stated, “The Chumash tribe has decided at this time this is not
an ICWA case. These children are not Indian children.” The
court declared the children dependents of the court. P., R., I., and
C. were placed with father, and the court ordered family
maintenance services. P., R., I., and C. were later detained from
father and placed in foster care after DCFS received another
referral involving the family in June 2018; DCFS filed a section
342 petition in July 2018. At the July 5, 2018 detention hearing,
the court found that ICWA did not apply and did not order notice
to any tribes. The court made the same finding at the September
19, 2018 adjudication hearing. It again found the case was not
an ICWA case at a June 3, 2019 review hearing; the court
terminated reunification services at that time and set the matter
for a section 366.26 hearing.
Despite these repeated findings, on October 20, 2020 DCFS
sent ICWA notices to the Santa Ynez Band of Chumash Indians
and, for the first time, to the Fernandeño Tataviam Band of
Mission Indians. The Santa Ynez Band of Chumash Indians
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declined the right to intervene in P.’s and R.’s cases and further
responded that I. and C. were not enrolled tribal members and
were not eligible for enrollment.
In a single letter dated January 25, 2021, the Fernandeño
Tataviam Band of Mission Indians stated that none of children
was “presently an enrolled member of the Tribe, however Minor
may be eligible for enrollment.” The letter continued:
“If the child is not enrolled, the application process for
citizenship begins by supplying a copy of a state-issued birth
certificate and social security card, along with the Minor
Application for Citizenship available on the Tribe’s website at
[url].
“The Tribe is a California Native American Indian
government in the [sic] northern Los Angeles County recognized
by the State of California Native American Heritage Commission.
The Tribe participates in ICWA proceedings involving Fernadeño
Tataviam children to ensure cultural well-being.
“The Tribe acknowledges Indian children in the custody of
DCFS who may have experienced some devastation at home; the
Tribe maintains that the tribal relationship between the child
and our community is vital for cultural valance [sic] and
preservation of the children’s heritage and future role within the
community. Placement of the minor is crucial for the child’s
heritage and cultural growth. The Tribe would like to be
informed of the status of the minor and contacts of the
foster/legal guardian to ensure cultural services.
“Accordingly, the minor is eligible to participate in the
Tribe’s cultural activities as well as other cultural services,
workshops, traditional games & sports, gatherings and
ceremonies. We would like to provide resources and references
6
where the minor may be involved with our collective community.
“Please remit the following information: County Counsel
name, email and phone number; current CSW name, email, and
phone number.
“Should you have any further questions please contact the
Tribal Citizenship Office at [phone and email contact
information].”
In section 366.26 reports filed on April 2, 2021 (for I. and
C.) and June 30, 2021 (for all four children), DCFS reported the
following: “On 09/19/2018, the Court found that ICWA does not
apply. [¶] An ICWA form 030 was submitted to the Chumash
Tribe and the Tatavian [sic] Tribes. The Tatavian [sic] Tribe
responded by letter stating the children [P., R., I., and C.] are not
presently enrolled members of the tribe, however may be eligible
for enrollment. [¶] On 3/3/21, DI Woodson-Jarrett received a
return phone call from Carmen Romero of the Santa Ynez Band
of Chumash Tribe. She stated that she is familiar with [father].
She stated at one time they were eligible to enroll in the tribe,
but the tribe has changed its eligibility requirements and the
family no longer meets the requirements to be enrolled with the
tribe. The Chumash tribe also sent a letter that they do not wish
to intervene in this matter. Court is referred to the attachment.”
On July 27, 2021, the court held a permanency planning
review hearing and ordered adoption as the permanent plan for
P., R., I., and C. No one mentioned the letter from the
Fernandeño Tataviam Band of Mission Indians.
On August 10, 2021, the court held a section 366.26 hearing
for P. and R., who were placed in the same home; the hearing for
I. and C., who were placed together in a different home, was
continued to October 26, 2021. As at the July 27, 2021 hearing,
7
neither the court nor any party mentioned the letter from the
Fernandeño Tataviam Band of Mission Indians. The court found
that ICWA did not apply and terminated father’s parental rights
to P. and R.
Father filed notices of appeal from the orders terminating
his parental rights to P. and R. on August 10, 2021. On the same
day, father also filed separate notices of appeal, ostensibly from
orders terminating his parental rights to I. and C., though no
such orders had issued. As father requests in his opening brief,
we liberally construe the latter notices of appeal as being from
the July 27, 2021 permanency planning orders concerning I. and
C.; DCFS has made no claim of prejudice. (See In re Joshua S.
(2007) 41 Cal.4th 261, 272; see also § 395, subd. (a)(1); § 366.26,
subd. (l)(1).)
DISCUSSION
The ICWA is a federal law that establishes “minimum
Federal standards for the removal of Indian children from their
families and the placement of such children in foster or adoptive
homes which will reflect the unique values of Indian culture, and
by providing for assistance to Indian tribes in the operation of
child and family service programs.” (25 U.S.C. § 1902.) “When
applicable, ICWA imposes specific requirements on child custody
proceedings in state court. Among other things, when ‘the court
knows or has reason to know that an Indian child is involved,’ the
party seeking to remove the Indian child from the custody of its
parent or Indian custodian, or to terminate parental rights, must
‘notify the parent or Indian custodian and the Indian child’s tribe
. . . of the pending proceedings and of their right of intervention.’
(25 U.S.C. § 1912(a).)” (In re Abbigail A. (2016) 1 Cal.5th 83, 90-
8
91.) Once notified, an Indian tribe “may intervene ‘at any point in
the proceeding.’” (Id. at p. 91.)
“In any given case, ICWA applies or not depending on
whether the child who is the subject of the custody proceeding in
question is an Indian child.” (In re Abbigail A., supra, 1 Cal.5th
at p. 90.) “Congress defined ‘Indian child’ for these purposes to
mean ‘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).)” (In re
Abbigail, supra, 1 Cal.5th at p. 90.) Only federally recognized
Indian children and tribes are entitled to the protections of
ICWA; “non-federally recognized tribes . . . have no rights under
ICWA.” (Id. at p. 94.) This includes the rights to notice and
intervention.
However, the Legislature has enacted a statute that gives
the juvenile court discretion to allow non-federally recognized
tribes to participate in cases involving children who would be
Indian children but for the unrecognized status of their tribe. (In
re Abbigail A., supra, 1 Cal.5th at p. 94.) That statute, section
306.6, provides:
“(a) In a dependency proceeding involving a child who
would otherwise be an Indian child, based on the definition
contained in paragraph (4) of Section 1903 of the federal Indian
Child Welfare Act (25 U.S.C. Sec. 1901 et seq.), but is not an
Indian child based on the status of the child’s tribe, as defined in
paragraph (8) of section 1903 of the federal Indian Child Welfare
Act (25 U.S.C. Sec. 1901 et seq.), the court may permit the tribe
from which the child is descended to participate in the proceeding
upon request of the tribe.
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“(b) If the court permits a tribe to participate in a
proceeding, the tribe may do all of the following, upon consent of
the court: [¶] (1) Be present at the hearing. [¶] (2) Address the
court. [¶] (3) Request and receive notice of hearings. [¶] (4)
Request to examine court documents relating to the proceeding.
[¶] (5) Present information to the court that is relevant to the
proceeding. [¶] (6) Submit written reports and recommendations
to the court. [¶] (7) Perform other duties and responsibilities as
requested or approved by the court. “(c) If more than one tribe
requests to participate in a proceeding under subdivision (a), the
court may limit participation to the tribe with which the child
has the most significant contacts, as determined in accordance
with paragraph (2) of subdivision (d) of Section 170 of the Family
Code.
“(d) This section is intended to assist the court in making
decisions that are in the best interest of the child by permitting a
tribe in the circumstances set out in subdivision (a) to inform the
court and parties to the proceeding about placement options for
the child within the child’s extended family or the tribal
community, services and programs available to the child and the
child’s parents as Indians, and other unique interests the child or
the child’s parents may have as Indians. This section shall not be
construed to make the Indian Child Welfare Act (25 U.S.C. Sec.
1901 et seq.), or any state law implementing the Indian Child
Welfare Act, applicable to the proceedings, or to limit the court’s
discretion to permit other interested persons to participate in
these or any other proceedings.
“(e) The court shall, on a case-by-case basis, make a
determination if this section is applicable and may request
information from the tribe, or the entity claiming to be a tribe,
10
from which the child is descended for the purposes of making this
determination, if the child would otherwise be an Indian child
pursuant to subdivision (a).”
Father contends the court erred by not making the
determination required by section 306.6, subdivision (e) after
receiving the January 25, 2021 letter from the Fernandeño
Tataviam Band of Mission Indians. He argues that the letter
was a “request” by the tribe to intervene pursuant to section
306.6, subdivision (a), and was therefore “sufficient to trigger
subdivision (e).” DCFS agrees “the juvenile court need only make
a determination if section 306.6 is applicable if a tribe requests to
participate in the dependency proceedings,” but disputes that the
letter constituted such a request. Because resolution of this issue
requires interpretation of section 306.6, we apply a de novo
standard of review. (In re E.F. (2021) 11 Cal.5th 320, 326.)
By its plain terms, section 306.6 gives the court discretion
to allow a non-federally recognized tribe to “participate in the
proceeding upon request of the tribe.” (§ 306.6, subd. (a); see also
In re Abbigail A., supra, 1 Cal.5th at p. 94.) However, section
306.6, subdivision (e) uses the word “shall,” which is generally
construed as mandatory, particularly where, as here, both “shall”
and “may” are used in the same statute. (People v. Greeley (2021)
70 Cal.App.5th 609, 626.) Reading section 306.6 as a whole, and
in light of its purpose as set forth in subdivision (d), we agree
with the parties that the mandatory language used in subdivision
(e) requires the court to consider whether the statute is
applicable when a non-federally recognized tribe makes a request
to participate in dependency proceedings.
The statute does not define “request,” and the Fernandeño
Tataviam Band of Mission Indians did not use the term “request”
11
in its letter. However, the tribe stated in its letter that it
“participates in ICWA cases involving Fernandeño Tataviam
children to ensure cultural well-being,” “would like to be informed
of the status of the minor and contacts of the foster/legal
guardian to ensure cultural services,” and “would like to provide
resources and references where the minor may be involved with
our collective community.” These statements unambiguously
indicate a desire by the tribe to participate in the proceedings,
which involved children it believed “may be eligible for
membership.” The court may have been unaware of these
statements; the letter was mixed in with notices of hearing and
proofs of service. Moreover, DCFS did not fully summarize the
letter in the section 366.26 report, nor did it bring the letter to
the court’s attention during any hearings held after its receipt.
Nevertheless, the duty imposed by section 306.6, subdivision (e)
is a mandatory one; we therefore conclude error occurred.
When a non-federally recognized tribe expresses an
unambiguous interest in participating in dependency proceedings
involving children who are or may be tribal members, section
306.6, subdivision (e) requires the court to “make a determination
if [section 306.6] is applicable.” (§ 306.6, subd. (e).) Where, as
here, the children’s membership eligibility is pending, or if other
circumstances warrant, the court “may request information from
the tribe” to assist it in determining whether to apply section
306.6. (Ibid.) We emphasize that the court retains discretion to
determine whether and to what extent the tribe may participate;
we hold only that it must make the threshold determination of
whether section 306.6 may apply. This holding is intended to
advance the purpose of section 306.6, which is to “assist the court
12
in making decisions that are in the best interest of the child” (§
306.6, subd. (d)); the child’s interests remain paramount.
Because the court did not consider whether to apply section
306.6, we conditionally reverse the challenged orders and remand
for the limited purpose of determining whether section 306.6
applies and conducting any further proceedings necessary to
comply with the provisions of the statute.
To the extent father also contends the court did not comply
with ICWA notice requirements,4 we find any error harmless.
The requirements did not apply to the Fernandeño Tataviam
Band of Mission Indians, which is not a federally recognized
tribe. The requirements did apply to the Santa Ynez Band of
Chumash Indians, but “[d]eficiencies 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.) Here, the
Santa Ynez Band of Chumash Indians expressly declined to
participate in the proceedings involving P. and R., and notified
the court that I. and C. were not tribal members or eligible for
membership. Any error accordingly was harmless.
DISPOSITION
The July 27, 2021 orders concerning I. and C. and the
August 10, 2021 orders terminating father’s parental rights to P.
and R. are conditionally reversed. The matter is remanded for
the limited purpose of determining whether section 306.6 applies
4 Father does not caption this argument under a separate
argument heading, as required by California Rules of Court, rule
8.204(a)(1)(B).
13
and conducting further proceedings necessary to comply with the
provisions of the statute.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
COLLINS, J.
We concur:
WILLHITE, ACTING P.J.
CURREY, J.
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