Opinion
NOT TO BE PUBLISHED
Alameda County Super. Ct. No. OJ07008613.
Bruiniers, J.
In a prior appeal in this matter, L.S. (Mother) and A.S. (Father) challenged an order of the juvenile court, made pursuant to Welfare and Institutions Code section 366.26, terminating their parental rights and freeing their daughter, Z.S., for adoption. (In re Z.S. (Sept. 24, 2009, A124064) [nonpub. opn.].) We rejected substantive challenges to the order, but reversed and remanded the matter to the juvenile court for the limited purpose of ensuring compliance with notice and inquiry provisions of the Indian Child Welfare Act (25 U.S.C. § 1901 et seq. (ICWA)). After remand, the juvenile court determined ICWA did not apply and reinstated the order terminating parental rights. Father appeals this order, contending the juvenile court again failed to comply with ICWA. Father also requests visitation with Z. in the event we reverse on ICWA grounds. We affirm.
All statutory references are to the Welfare and Institutions Code unless otherwise stated.
Mother is not a party to this appeal.
I. Factual and Procedural Background
A. The First Order Terminating Parental Rights
Mother was 16 years old and herself a dependent of the juvenile court when she gave birth to Z. in May 2007. Father was 14 years old.
On December 4, 2007, Alameda County Social Services Agency (the Department) initiated juvenile dependency proceedings for Z. by filing a section 300 petition on her behalf. At that time, Mother and Father were both dependents of the juvenile court and resided in group homes. As noted in our prior opinion: “The petition alleged failure to protect [Z.] (§ 300, subd. (b)), asserting that Mother had left the child at the group home where she resided or with ‘multiple random people’ for extended periods of time. The petition also alleged that Mother had taken [Z.] out at ‘inappropriate hours of night’ and that Mother engaged ‘in risky behaviors, including soliciting young girls for prostitution, and receiving payment from “men friends.” ’ The petition further indicated that Mother engaged in frequent physical fights, especially with Father, and that she had admitted having [Z.] in her arms while fighting with Father. According to the petition, Mother admitted smoking marijuana while caring for [Z.]. Finally, the petition alleged that Father also resided in a group home, had anger management problems, and was unable to care for [Z.].”
On December 5, 2007, Father filed a parental notification of Indian status form (former Judicial Council Forms, form JV-130 (JV-130)), on which he checked a box stating that he “may have Indian ancestry.”
Effective January 1, 2008, the JV-130 was revised and renumbered as Judicial Council Forms, form ICWA-020. For simplicity’s sake, we will refer to the parental notification of Indian status form as JV-130.
On October 2, 2008, the Department sent a notice of child custody proceeding (Judicial Council Forms, form ICWA-030 (ICWA-030)) to the Bureau of Indian Affairs (BIA). The notice filed with the court showed that the Department had provided identifying information for only Z., Mother, Father, Z.’s maternal grandparents, and Z.’s maternal great-grandmother. In the spaces requesting information regarding Z.’s paternal grandparents and great-grandparents, the Department had written only “[n]o information available.” The BIA responded on October 27, 2008, that insufficient information had been provided. The BIA’s response further provided: “This form is not to be considered a determination that the [child] is or is not an Indian child under the ICWA.”
On December 29, 2008, the Department filed a section 366.26 hearing report. The report recommended that parental rights be terminated so that Z. could be adopted. The report further noted: “[ICWA] does not appear to apply. [Mother] stated that she might have some Indian ancestry on her father’s side, but she could not identify a tribe. [The Department] spoke with the maternal grandfather... and [the maternal great-grandmother]. They stated that they believed there was Indian ancestry, but they could not identify a tribe. [The Department] sent notice to the [BIA], and received a reply on 10/27/2008 stating that there was insufficient information to substantiate the minor belonging to any known tribe.” The BIA’s response letter was submitted to the court.
In an order issued on January 22, 2009, the juvenile court followed the Department’s recommendations. It ruled that Z. was likely to be adopted and terminated Mother’s and Father’s parental rights. Adoption was selected as the permanent plan. The court also concluded that notice had been given as required by law, that the Department had complied with ICWA, and that Z. was not an Indian child as defined by ICWA.
B. This Court’s Limited Reversal and Remand
In his first appeal, Father contended: (1) the juvenile court had erred when it failed to find the continuing beneficial relationship exception (§ 366.26, subd. (c)(1)(B)(i)) applicable, and (2) the juvenile court had failed to comply with the inquiry and notice requirements of ICWA. Mother joined in these arguments.
In our September 24, 2009 opinion resolving the first appeal, we concluded the juvenile court had not erred by finding the continuing beneficial relationship exception inapplicable. However, we concluded the juvenile court had failed to ensure compliance with ICWA’s inquiry and notice requirements with respect to possible Indian ancestry on Father’s side.
We noted that “it is conceded that the Department made adequate efforts to investigate Indian ancestry on [Z.]’s maternal side[.]”
We concluded that the ICWA notice and inquiry requirements were triggered by Father’s indication on the parental notification of Indian status form that he “may have Indian ancestry.” We held this statement “was sufficient to require the Department, at minimum, to inquire into Father’s family history so that it could provide proper notice to the BIA or the appropriate tribe.” (Fn. omitted.) In reaching this conclusion, we stated that “the Indian status of a child need not be certain to trigger ICWA’s notice requirements, ” and that information suggesting a child may have Indian ancestry is sufficient to trigger notice. (Citing In re Nikki R. (2003) 106 Cal.App.4th 844, 848 (Nikki R.); Dwayne P. v. Superior Court (2002)103 Cal.App.4th 247, 258 (Dwayne P.); In re Antoinette S. (2002) 104 Cal.App.4th 1401, 1408 (Antoinette S.).)
We also found that the notice of child custody proceeding for Indian child (ICWA 030) that the Department had sent to the BIA did not comply with ICWA’s requirements. The notice “did not include any information for [Z.]’s paternal grandparents or great-grandparents. In the spaces requesting information regarding [Z.]’s paternal grandparents and great-grandparents, the Department entered only ‘[n]o information available.’ ” We noted that, in response, the BIA had specifically advised the Department that insufficient information had been provided. “The BIA explained: ‘The family has provided insufficient information substantiating any federally recognized tribe. The family must provide a history back to the year 1900 with names, birth dates and/or birthplaces of ancestors to help in establishing a biological link with the original ancestral tribal member(s). [¶]... [¶] We depend on the family’s information and the investigation conducted by the Dept. of Social Services to help us identify tribal heritage so that the appropriate tribe and/or rancheria can be notified. This form is not to be considered a determination that the [child] is or is not an Indian child under the ICWA. Notice to the [BIA] is not a substitute for serving notice on the identified federally recognized tribe and the parent or Indian custodian. Compliance with 25 U.S.C. 1912 is still required.’ ”
We concluded that the notice did not include all information known about Father’s family by the Department, which had had repeated contact with Father’s mother (Paternal Grandmother); we noted that the Department’s “failure to include, at the very least, Paternal Grandmother’s name and identifying information was error.” We also noted that “the record contains no evidence that the [child welfare] worker attempted to gather family information from Father or Paternal Grandmother, or to investigate at all Father’s claim of potential Indian ancestry.” As a result, we held that the juvenile court had erred in finding that ICWA did not apply to Z., and that the error was not harmless.
We reversed the order terminating parental rights and remanded for the limited purpose of ensuring compliance with the notice and inquiry provisions of ICWA. We stated: “If, after proper inquiry and notice, the court determines [Z.] is an Indian child, the juvenile court shall proceed in conformity with ICWA. If, however, after proper inquiry and notice, the juvenile court determines [Z.] is not an Indian child, the order terminating parental rights and selecting adoption as the permanent plan shall be reinstated.”
C. Facts and Procedural History After the Filing of the First Appeal
1. July 2009 Status Review
In a report filed in July 2009, while the first appeal was pending, the child welfare worker noted that Father had last had a visit with Z. on February 3, 2009. A goodbye visit had not been scheduled because Father “continued to have issues in his group home placement, and it was felt that he needed to be in an optimum place emotionally before a goodbye visit could be scheduled.”
The report stated Z. had been in her current foster home since October 2008, when she was 17 months old. Z. had a close relationship with her foster mother and looked to her as a mother. The foster mother was committed to adopting Z. and was patiently waiting to adopt her. The foster mother had completed a home study. Z. appeared to be happy and well-adjusted and very comfortable in her foster home. Z. also had developed a close relationship with the foster mother’s parents and appeared to enjoy visiting them. The foster mother took two months off work to be with Z. during the transition to her home, and was committed to adjusting her work schedule for up to one year to best meet Z.’s needs. The foster mother cancelled an out-of-town business trip (on which Z. was to have accompanied her), because she felt Z. needed the stability, security, and familiarity of being in her home environment.
At a hearing on July 13, 2009, which Father and Paternal Grandmother attended, the court continued all existing orders and set the next review hearing for December 28, 2009.
2. Father’s Section 388 Petition
On November 30, 2009, after this court issued its decision on the prior appeal, remanding for compliance with ICWA, Father filed a section 388 petition seeking (1) an additional period of time for reunification with Z., and/or (2) visitation with her. In support of his request, Father cited his prior visitation history with Z., and argued she would benefit from being raised by and/or having an ongoing and loving relationship with him. The court set a hearing on the petition for December 15, 2009.
On December 14, 2009, the Department filed an opposition to Father’s petition, arguing (1) because this court’s remand was solely for the purpose of ICWA compliance, the juvenile court lacked jurisdiction to consider other issues, such as visitation, and (2) in any event, Father’s petition failed to establish grounds for changing the court’s prior orders. The Department also suggested that, at the December 15 hearing, the court should “voir dire any present family members on the subject of [N]ative American ancestry....”
3. The December 2009 Status Report
In a status report filed on December 14, 2009 (in preparation for the December 28, 2009 review hearing), the child welfare worker stated: “[ICWA] may apply. Recently the case was remanded due to concerns about ICWA compliance related to the birth father. [The Department] has contacted the birth father and his family to inquire if he has Native American heritage. The birth father and his grandmother both stated that they were not aware of any Native American Heritage in there [sic] families but that they would ask other relatives. As of the writing of this report the father’s ICWA status is uncertain.” (Italics added.)
The report noted Father’s last visit with Z. was on February 3, 2009, and stated the child welfare worker had spoken by telephone with Father during the review period about visitation. The report stated Father “has a history of violent and impulsive behaviors and continues to need the support of juvenile probation to help him manage his day to day activities.”
The report also stated Z. had a close relationship with her foster mother and was comfortable in her foster home. The foster mother remained committed to adopting Z. The foster mother was open to some form of continued contact with the birth family after adoption, to the extent appropriate and in Z.’s best interests.
4. The December 15, 2009 Hearing
At the hearing on December 15, 2009, Father and his counsel were present. The court reappointed all counsel. Father’s counsel stated she had just received the Department’s opposition to Father’s section 388 petition, and had not yet had a chance to review it. The court also had not yet seen the opposition. Father’s counsel asked for additional time to respond to the opposition, and the court stated the matter could be “set... for further hearing.”
The Department’s counsel then asked to voir dire Father on the issue of Native American heritage, noting the court and the Department had a “continuing duty to make that inquiry.” Counsel for Z. joined in the request. Father’s counsel asked for a continuance “to have further time to talk to [Father’s] family members about Indian heritage.” The Department’s counsel responded that if any family members had more information, it could be submitted prior to the next hearing, which was set for December 28, 2009. The court ordered Father to testify about ICWA issues. The Department’s counsel then questioned Father as follows:
“Q.... [¶]... Do you know if you have any Native American Indian heritage in your family?
“A. No, I don’t know.
“Q. Could you speak up.
“A. No, I don’t know.
“Q. Are you an enrolled member of any Indian tribe?
“A. No.
“Q. Are either of your parents enrolled members of any Indian tribe?
“A. No.
“Q. To your knowledge?
“A. No.
“Q. Has anyone in your family participated in any Native American events of any kind that you know of?
“A. I don’t know, no.
“Q. Has anyone in your family lived on an Indian reservation, to your knowledge?
“A. I don’t know.
“Q. Has anyone in your family received any services like health care services or that kind of thing that are specifically for people with Native American heritage, Native American health care services, that kind of thing?
“A. No.
“Q. Do you have any reason to believe that anyone in your family has Native American Indian heritage?
“A. I don’t know. I wouldn’t know.
“Q. You wouldn’t know.
“A. I’m not for sure.
“Q. You say that you are not for sure. Have you ever been told by anyone in your family that you have Native American Indian?
“A. Nobody have [sic] told me that.
“Q. Nobody has told you that you do?
“A. No.”
The Department’s counsel then asked the court to find that Z. is not an Indian child within the meaning of ICWA. Z.’s counsel joined in the request. Father’s counsel asked that the court defer ruling until the Department had inquired of Paternal Grandmother. Father’s counsel stated “[Father] is still a minor and has not necessarily acquired the full family history in this matter.” The Department’s counsel responded that the Department had inquired of Paternal Grandmother and had been told “that there is no Native American Indian heritage that she knows of.” The Department’s counsel offered to present a formal report on that issue at the next hearing. The court stated “that would be most appropriate and will protect everyone’s interests.” The matter was continued to December 28, 2009. The court stated it would address the ICWA issue and Father’s section 388 petition at that time.
Before the conclusion of the hearing, Father’s counsel asked the court to order a visit between Father and Z. rather than waiting to address that issue at the next hearing. The Department’s counsel and Z.’s counsel opposed visitation, with the Department’s counsel stressing the limited nature of this court’s remand. Z.’s counsel stated that Father had had a year to come forward with information about Indian ancestry and had not done so. The court stated visitation would be addressed at the December 28 hearing. The court ordered Father to appear for that hearing.
5. The December 28, 2009 Hearing
The December 28, 2009 hearing was held before a different judge, who noted that this court’s decision was clear that the matter was remanded for the limited purpose of ensuring compliance with ICWA.
Father was not present at the hearing, although he had been ordered to appear. Father’s counsel requested a continuance so that Father could be present for the court’s ruling on the section 388 petition. Father’s counsel stated Father might have been confused about the hearing date, given that another hearing had been scheduled for a date in January 2010. The Department’s counsel opposed the continuance request, noting that, at the prior hearing, the court had ordered Father to appear at the December 28 hearing. The court declined Father’s counsel’s request for a continuance.
The Department’s counsel also stated that, at the December 15 hearing, Father “was also admonished that if he did not appear [at the December 28 hearing], the matter would go forward and that that might not be in his best interest.” The reporter’s transcript of the December 15 hearing does not reflect this admonishment; however, the court did order Father to appear at the December 28 hearing.
The Department’s counsel made an “offer of proof, ” stating that “no family member has given [the Department] any indication that there is any Native American ancestry. The child welfare worker is present and able to testify to that fact.” The court stated that it accepted the Department’s offer of proof. The Department’s counsel later clarified the offer of proof by stating that Father and Paternal Grandmother were the family members who had been interviewed.
Father’s counsel did not object to the court’s consideration of the offer of proof. However, Father’s counsel argued that Father was a minor and that therefore his responses at the previous hearing were not “dispositive of the issue of Indian heritage[.]” The court then asked Father’s counsel: “Excuse me. Do you have a good-faith belief that this child is of Indian heritage?” Father’s counsel responded: “Your Honor, I do not. I can say from inquiring of my client that my client has told me, as he told the judicial officer who was here that day, that he is not aware of any Indian heritage.”
The Department’s counsel asked the court to find, based on Father’s testimony at the prior hearing and the child welfare worker’s report, that ICWA did not apply. The court stated: “Based on that section and the comments by two of the counsel here, I accept those representations and find that the ICWA inquiry has been complied with.” Father’s counsel then stated that she had not “seen any forms regarding the ICWA compliance[, ]” and asked if Father had been “asked to fill out the form regarding Indian heritage[.]” The Department’s counsel responded that the “forms” had been repeatedly sent to Father and he had been ordered to complete them, but she did not know if he had done so; in any event, he had been questioned under oath. The court found that ICWA did not apply. No new notice was sent to the BIA.
In addition to ruling on the ICWA issue, the court denied Father’s section 388 petition, and reinstated the termination of parental rights.
Father filed a timely notice of appeal.
II. Discussion
A. ICWA Compliance
Father argues that, after this court’s remand, the Department did not conduct an adequate inquiry into whether Father has Native American ancestry, and therefore there was no “evidentiary basis” for the juvenile court’s finding that ICWA did not apply. Specifically, Father contends: (1) there is no evidence the Department inquired of Paternal Grandmother; (2) the record does not show Father was asked to complete forms related to the ICWA inquiry; (3) the Department’s own report prepared for the December 28, 2009 hearing (at which the court found ICWA did not apply) suggested the Department’s investigation was incomplete and stated ICWA “may apply”; and (4) no new notice was sent to the BIA. The Department responds that it conducted an adequate inquiry on remand, and that the duty to send notice was not triggered in light of the information obtained from further inquiry (including Father’s testimony, which the Department characterizes as a “retraction” of his previous statement that he “may” have Indian heritage).
The Department also contends any ICWA error was harmless. In light of our discussion post, we do not need to reach that issue.
We review the juvenile court’s factual findings relating to ICWA notice and inquiry issues under the substantial evidence standard, which requires us to determine whether reasonable, credible evidence of solid value supports the court’s order. (See In re N.M. (2008) 161 Cal.App.4th 253, 264; accord In re H.B. (2008) 161 Cal.App.4th 115, 119–120.) We review issues of law de novo. (In re Skyler H. (2010) 186 Cal.App.4th 1411, 1422 (Skyler H.).)
“In passing [ICWA], Congress identified two important, and sometimes independent, policies. The first, to protect the interests of the Indian child. The second, to promote the stability and security of Indian tribes and families. [Citations.] [ICWA] sets forth minimum federal standards, both substantive and procedural, for protecting these identified policies. [Citation.]” (In re Kahlen W. (1991) 233 Cal.App.3d 1414, 1421.) ICWA provides: “[W]here 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 Indian child’s tribe, by registered mail with return receipt requested, of the pending proceedings and of their right of intervention. If the identity or location of... the tribe cannot be determined, such notice shall be given to the Secretary [of the Interior] in like manner, who shall have fifteen days after receipt to provide the requisite notice to the parent or Indian custodian and the tribe. No foster care placement or termination of parental rights proceeding shall be held until at least ten days after receipt of notice by... the tribe or the Secretary....” (25 U.S.C. § 1912(a).) Appellate courts may void a termination order if notice is not given in accordance with ICWA. (25 U.S.C. § 1914.)
“[N]otice to the Secretary [of the Interior] is accomplished by notice to the BIA. [Citations.]” (Antoinette S., supra, 104 Cal.App.4th at p. 1406.)
The federal ICWA notice provisions are incorporated into California law. (See § 224 et seq.) Section 224.2, subdivision (b), provides, in relevant part: “Notice shall be sent whenever it is known or there is reason to know that an Indian child is involved, and for every hearing thereafter... unless it is determined that [ICWA] does not apply to the case in accordance with Section 224.3.” California law also imposes a duty of inquiry. (See § 224.3, subd. (a) [“[t]he court, county welfare department, and the probation department have an affirmative and continuing duty to inquire whether a child for whom a petition under Section 300, 601, or 602 is to be, or has been, filed is or may be an Indian child”]; Cal. Rules of Court, rule 5.481(a)(4) [“[i]f the social worker, probation officer, ... investigator, or petitioner knows or has reason to know that an Indian child is or may be involved, that person or entity must make further inquiry”].)
1. Further ICWA Notice Not Required
As we noted in our prior opinion, the forfeiture doctrine generally does not bar consideration of ICWA notice issues on appeal. (In re Alice M. (2008) 161 Cal.App.4th 1189, 1195.) Some courts have held that, after a reversal and remand on ICWA notice grounds, a parent may forfeit the right to appeal ICWA notice issues a second time by failing to raise the issue during proceedings on remand. (See, e.g., In re X.V. (2005) 132 Cal.App.4th 794, 798, 803–805; but see In re Alice M., supra, 161 Cal.App.4th at pp. 1196–1197 .) Here, Father’s counsel, during the December 28 hearing, arguably raised the notice issue by stating that appropriate ICWA compliance “forms” had not been completed. The Department does not argue that Father forfeited his right to appeal the notice issue.
As noted above, we concluded in our prior decision that Father’s statement on the form JV-130 that he “may have Indian ancestry” was sufficient to require the Department to inquire into Father’s family history so that it could provide proper notice to the BIA or the appropriate tribe. We explained the standard for when ICWA notice is triggered: “ ‘The determination of a child’s Indian status is up to the tribe; therefore, the juvenile court needs only a suggestion of Indian ancestry to trigger the notice requirement. [Citations.]’ ([Nikki R., supra, ] 106 Cal.App.4th [at p.] 848; see also § 224.3, subd. (b)(1) [‘[t]he circumstances that may provide reason to know the child is an Indian child, include, but are not limited to... [¶] (1) [a] person having an interest in the child... provides information suggesting the child is a member of a tribe or eligible for membership in a tribe’]; [Dwayne P., supra, ]103 Cal.App.4th [at p.] 258 [concluding that the ‘minimal showing’ required to trigger notice under the ICWA is merely evidence ‘suggest[ing]’ the minor ‘may’ be an Indian child].) [¶] ‘Given the interests protected by [ICWA], the recommendations of the [federal] guidelines, and the requirements of our court rules, the bar is indeed very low to trigger ICWA notice.’ ([Antoinette S.], supra, 104 Cal.App.4th at p. 1408 [father’s suggestion that child ‘might’ be an Indian child because paternal great-grandparents had unspecified Native American ancestry was enough to trigger notice requirements].)”
Subsequent to our prior decision in this case (and after Father filed his opening brief in this appeal and one day before the Department filed its principal brief), our colleagues in the Fourth District Court of Appeal issued a published opinion-Skyler H., supra, 186 Cal.App.4th 1411-addressing the standard for when ICWA notice is triggered. In Skyler H., the appellate court held that a juvenile court “has discretion to consider the totality of the information presented concerning the child’s family circumstances to determine whether it meets the threshold required for ICWA notice-‘the court knows... or has reason to know [the child is] an Indian child....’ (§ 224.2, subd. (a).)” (Skyler H., supra, at p. 1418.) The court further held that “ICWA notice is not required unless the totality of the family’s circumstances indicate there is a low but reasonable probability the child is an Indian child.” (Id. at pp. 1418, 1427.) In Skyler H., the child’s great-great-great-grandfather was “ ‘full-blooded Cherokee, ’ ” and the child’s maternal grandmother participated in an annual Indian pow-wow. (Id. at p. 1421.) The appellate court concluded that, in view of the totality of the family’s circumstances, this “specific but attenuated Indian heritage” was not sufficient to provide reason to know the child was an Indian child; the trial court thus had not erred in finding that ICWA did not apply. (Id. at pp. 1418, 1421, 1427–1428.)
The Skyler H. court rejected the threshold standard for ICWA notice applied in some of the decisions we cited in our prior opinion (i.e., a suggestion the child may have Indian ancestry is sufficient to trigger ICWA notice). (Skyler H., supra, 186 Cal.App.4th at p. 1427.) The Skyler H. court stated that, after the incorporation of ICWA requirements into California law (§ 224 et seq., effective January 1, 2007), “a mere hint or suggestion of Indian ancestry is no longer sufficient to require notice under state law. (Contra, In re Robert A. (2007) 147 Cal.App.4th 982, 989 ; [Nikki R.], supra, 106 Cal.App.4th at p. 848; [Antoinette S.], supra, 104 Cal.App.4th at p. 1408; [Dwayne P., supra, ]103 Cal.App.4th [at p.] 258.)” (Skyler H., supra, 186 Cal.App.4th at p. 1427, italics added, parallel citations omitted.)
The Department, in a supplemental brief, contends the requirement of notice under ICWA was not triggered under the standard articulated in Skyler H. The Department states: “In our case the only circumstance hinting at any Indian connection is [Father’s] retracted statement that he may have Indian ancestry. Under [Skyler H.], this is insufficient to trigger notice to the BIA or any tribe.” In his reply brief, Father responds that we should not apply Skyler H. because this court previously held that notice was required and the notice sent by the Department was defective, and because the juvenile court in this case “did not have before it, on remand, a complete family history of [Z.], ” while the Skyler H. court knew the child in that case had some attenuated Indian ancestry.
We need not determine here whether to adopt the conclusion of Skyler H. that a mere hint or suggestion of Indian ancestry is insufficient to trigger further ICWA inquiry. In light of the information obtained through the Department’s inquiry on remand (including Father’s testimony, the representations of Father’s counsel, and the inquiry of Paternal Grandmother), we conclude even the lower threshold-“a suggestion of Indian ancestry” (see Nikki R., supra, 106 Cal.App.4th at p. 848; see also Dwayne P., supra, 103 Cal.App.4th at p. 258; Antoinette S., supra, 104 Cal.App.4th at p. 1408)-was no longer met. Accordingly, the Department was not required to send a further notice to the BIA.
As discussed, Father testified at the December 15 hearing that he did not know whether he had any Native American heritage, and that no one in his family had told him he had such heritage. Father also did not suggest in his testimony that he had any basis for believing he might have Indian heritage-he testified he did not know whether anyone in his family had participated in any Native American events, lived on an Indian reservation, or received Native American health care services. (See § 224.3, subd. (b) ; Cal. Rules of Court, rule 5.481(a)(5).)
Section 224.3, subdivision (b) provides in relevant part: “The circumstances that may provide reason to know the child is an Indian child include, but are not limited to... [¶] (1) A person having an interest in the child... 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. [¶] (2) The residence or domicile of the child, the child’s parents, or Indian custodian is in a predominantly Indian community. [¶] (3) The child or the child’s family has received services or benefits from a tribe or services that are available to Indians from tribes or the federal government, such as the Indian Health Service.”
The Department contends this testimony amounted to a “retraction” of Father’s prior statement that he “may” have Indian heritage. The Department relies on In re Jeremiah G. (2009) 172 Cal.App.4th 1514 (Jeremiah G.). In Jeremiah G., the reviewing court determined that the juvenile court properly proceeded without ICWA notice “[b]ecause father retracted his claim of Indian heritage, and because there was no other basis for suspecting that Jeremiah might be an Indian child....” (Jeremiah G., supra, at p. 1521, italics added.) The father in Jeremiah G. initially stated to the court and on a JV-130 form that he might have Indian ancestry. (Id. at pp. 1518, 1521.) However, the father later stated to the court and on a second JV-130 form that he did not have Indian heritage. (Id. at pp. 1519, 1521.)
When we concluded in our prior opinion that notice was triggered by Father’s statement that he “may” have Indian heritage, we found Jeremiah G. distinguishable because of the retraction by the father in that case.
Father contends his testimony on remand did not amount to a “retraction” of his statement that he might have Indian heritage. It is true that, in contrast to the father in Jeremiah G., who retracted his earlier statements by affirmatively stating that he did not have any Indian heritage (see Jeremiah G., supra, at pp. 1519, 1521), Father testified here that he did not know whether or not he had Indian ancestry. But, even if we do not characterize Father’s testimony as a full retraction of his prior statement, his testimony does clarify that Father has no actual knowledge of any Indian ancestry and has no specific information suggesting he may have such ancestry. This was confirmed at the next court hearing (on December 28), when Father’s trial counsel, in response to the court’s question, stated that she had no basis for believing Z. was an Indian child and that Father had told counsel he was not aware of any Indian heritage. While Father argues this statement by his trial counsel is not an “admission” that Z. had no Indian ancestry, it again confirms that Father had no knowledge of any Indian ancestry.
Father appears to argue that, although he had no knowledge of any Indian heritage, this lack of knowledge triggered a duty to negate the possibility. We disagree. While “information suggesting” a child or one of his or her specified relatives is a member of a tribe or eligible for membership in a tribe “may” provide “reason to know the child is an Indian child, ” thus triggering ICWA’s notice requirement (see § 224.3, subd. (b), italics added; see also Cal. Rules of Court, rule 5.481(a)(5)(A)), Father cites no authority suggesting that a parent’s lack of knowledge about whether or not he has Indian heritage, without more, triggers the requirement to provide notice under ICWA. (See In re Aaliyah G. (2003) 109 Cal.App.4th 939, 942 [in the absence of information suggesting child has Indian ancestry, court has no obligation to make further inquiry].) The cases cited above requiring notice based on information suggesting Indian ancestry involved more than just a parent’s lack of knowledge as to whether he or she might have Indian ancestry. (Nikki R., supra, 106 Cal.App.4th at pp. 847–848 [mother told court father had Cherokee heritage]; Dwayne P., supra, 103 Cal.App.4th at pp. 252, 258 [mother stated she had some Cherokee heritage]; Antoinette S., supra, 104 Cal.App.4th at pp. 1405, 1408 [father suggested that child “might” be an Indian child because paternal great-grandparents had unspecified Native American ancestry].)
For the reasons discussed below, we also reject Father’s arguments as to the adequacy of the Department’s ICWA inquiry on remand.
2. Inquiry of Paternal Grandmother
As noted above, after the Department’s counsel conducted her voir dire of Father at the December 15 hearing, Father’s counsel asked that the Department also inquire of Paternal Grandmother, since Father was a minor and might not know his “full family history[.]” On appeal, Father contends there was no evidence the Department inquired of Paternal Grandmother. This is incorrect. At the December 28 hearing, the Department’s counsel made an offer of proof that it had spoken to Paternal Grandmother, and that she had not given “any indication that there is any Native American ancestry.” The Department’s counsel stated the child welfare worker was present in court and able to testify about these inquiries. The court accepted the Department’s offer of proof. Father’s counsel did not object, nor did counsel ask to cross-examine the witness. Moreover, even on appeal, Father does not argue that the court erred in considering the offer of proof; instead, he simply asserts generally that there is no evidence in the record showing the Department inquired of Paternal Grandmother.
As previously noted, after the voir dire of Father at the December 15 hearing, the Department’s counsel offered to file a “formal report” about its inquiries of Paternal Grandmother; the court stated “that would be most appropriate and will protect everyone’s interests.” In his reply brief, Father notes no such subsequent report was filed. However, the Department’s offer of proof on this issue supports the juvenile court’s ultimate finding that the Department made adequate inquiries under ICWA, including making inquiries of Paternal Grandmother.
3. The Department’s Report
Father argues that the report the Department did file (i.e., the report filed on December 14 in preparation for the December 28 post permanency review), establishes the Department’s ICWA inquiries were incomplete and did not include inquiries of Paternal Grandmother. In that report, noted ante, the child welfare worker stated: “[ICWA] may apply. Recently the case was remanded due to concerns about ICWA compliance related to the birth father. [The Department] has contacted the birth father and his family to inquire if he has Native American heritage. The birth father and his grandmother both stated that they were not aware of any Native American Heritage in there [sic] families but that they would ask other relatives. As of the writing of this report the father’s ICWA status is uncertain.”
The report does not show that the juvenile court’s ICWA findings were not supported by substantial evidence. The report, although prepared for the December 28 hearing, was signed by the child welfare worker on December 7 and filed with the court on December 14. The child welfare worker’s general statements that ICWA may apply and that Z.’s ICWA status is uncertain did not preclude the juvenile court from making its own ICWA determination, based both on the report and on subsequent developments, including Father’s testimony on December 15 and Father’s counsel’s statement on December 28. Nor does the report’s reference to an interview with Father’s “grandmother” (i.e., Z.’s great-grandmother) preclude a conclusion that, as the Department’s counsel stated in her subsequent offer of proof, the child welfare worker spoke to Father’s mother (i.e., Paternal Grandmother).
4. ICWA Compliance Forms
At the December 28 hearing, after the juvenile court found ICWA’s inquiry requirements had been satisfied, Father’s counsel stated she had not “seen any forms regarding the ICWA compliance[, ]” and asked whether Father had been “asked to fill out the form regarding Indian heritage[.]” The Department’s counsel responded that “[t]he forms [had] been repeatedly sent” to Father, and he had been ordered to complete them, but in any event he had testified under oath. In his opening brief, Father states “there is no evidence in the record to show he was asked to complete forms, ” apparently suggesting he should have been asked to fill out a new JV-130. However, as the Department points out, Father has not presented any authority or analysis supporting a conclusion that it was necessary for the Department to ask Father to complete a new JV 130 (which he had previously completed) or to complete any other forms. In his reply brief, Father does not argue the Department should have asked him to complete a new JV 130.
Instead, Father suggests in his reply brief that the required “forms” to which his counsel referred were the notices (on form ICWA-030) to be sent to the BIA. For the reasons discussed in part II.A.1 above, based on the information developed on remand, the Department was not required to send a revised ICWA notice to the BIA.
We find that the ICWA inquiry conducted by the Department on remand was adequate. In our prior decision, we found that, based on the information then before the court, further inquiry was required. The court conducted that inquiry, and the record now demonstrates that even the very low threshold for notice to the BIA articulated under Nikki R., Dwayne P. and Antoinette S. was not met. We conclude the juvenile court’s finding that ICWA did not apply was supported by substantial evidence. Because we find no ICWA error, we need not address the parties’ arguments as to whether any error was prejudicial.
The Department filed a request for judicial notice of a JV-130 completed by Paternal Grandmother in Father’s own dependency proceedings; Father opposed the request. The Department argues this document is relevant to the question of prejudice, i.e., it claims the document would establish any error by the Department in failing to inquire of Paternal Grandmother was not prejudicial. Because we do not reach the question of prejudice, we deny the Department’s request for judicial notice.
B. Visitation
Father argues that, if this court reverses the juvenile court’s order on ICWA grounds, we should instruct the juvenile court to consider Father’s request to have supervised visits with Z. while the Department complies with ICWA. Because we do not reverse the ICWA findings, we need not reach the merits of this argument.
III. Disposition
The juvenile court’s December 28, 2009 order reinstating its prior order terminating parental rights is affirmed.
We concur: Simons, Acting P. J., Needham, J.