Opinion
A156531
10-04-2019
In re CHLOE T., a Person Coming Under the Juvenile Court Law. NAPA COUNTY HEALTH AND HUMAN SERVICES, Plaintiff and Respondent, v. ADAM T., Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Napa County Super. Ct. No. 17JD000130)
Adam T. (Father) appeals from an order terminating his parental rights as to his daughter, Chloe T. (Minor). His sole contention on appeal is that the Napa County Department of Health and Human Services (the Department) and the juvenile court failed to sufficiently investigate Minor's Native American heritage and to provide adequate notice to the tribes as required by the federal Indian Child Welfare Act (ICWA). (25 U.S.C. § 1901 et seq.) We find Father's claim has merit and conditionally reverse the court's orders terminating Father's parental rights. We remand the matter to the juvenile court to ensure the Department's compliance with ICWA's inquiry and notice requirements.
FACTUAL AND PROCEDURAL BACKGROUND
Because this appeal concerns only an alleged violation of ICWA's inquiry and notice requirements, we limit our statement of facts to those relevant to that issue.
The Department filed a petition under Welfare and Institutions Code section 300, subdivision (b)(1), concerning newborn Minor. Attached to the petition was an "Indian child inquiry attachment" (ICWA-010(A) form) indicating that Minor's maternal relatives were members of the Winnebago tribe and the Oglala Sioux tribe. The ICWA-010(A) form also stated Minor is or may be a member or eligible for membership in the "Blackfoot tribe" based on information from Minor's paternal grandfather. Minor's paternal grandfather told the Department that his own great, great grandfather may have had Native American Ancestry, and that he believed it might be with the "Blackfoot" tribe. But, the paternal grandfather said, "his father, grandfather and most of his paternal relatives are deceased so he has no additional information as to if it is actually the Blackfoot Tribe, if any family member had tribal membership[,] or if anyone received any services or support from a tribe."
All further statutory references are to the Welfare and Institutions Code unless otherwise specified.
The Department's brief on appeal clarifies the name of the tribe is the "Blackfeet" tribe of the Blackfeet Indian Reservation of Montana, a federally recognized tribe. (81 Fed. Reg. 5019.) While noting there is a "Blackfoot" tribe in Canada, the Department says that tribe is not entitled to notice of dependency proceedings. (In re L.S. (2014) 230 Cal.App.4th 1183, 1198.) Father does not dispute these points.
The juvenile court detained Minor. After finding that Minor may be an Indian child and that ICWA may apply, the court ordered notice of the proceedings be provided as required by law. The court also ordered Minor's mother, who was present at the hearing, to fill out the "ICWA paperwork."
On December 20, 2017, the Department filed its first ICWA notice (ICWA-030 form) providing notice to the Blackfeet tribe, the Winnebago tribe, the Oglala Sioux tribe, the Bureau of Indian Affairs (BIA), and the Department of the Interior. Regarding the maternal side of Minor's family, the form included information regarding Minor's mother (her name, date of birth, tribal affiliation, and that she is not deceased) and a maternal aunt (her name, address, and tribal affiliation). The only information provided regarding Minor's paternal relatives concerned: (1) Father (his name, date of birth, tribal affiliation, and that he is not deceased); (2) Minor's paternal grandfather (his name, address, date and place of birth, and tribal affiliation); and (3) Minor's paternal grandmother (her name only). The Department answered the ICWA-030 form's prompts for all other information about Minor's paternal relatives—including biographical information about Minor's paternal great-grandparents—with "unknown."
In late December 2017, the Department filed a letter it received from the Winnebago tribe, which asserted that Minor's mother is a member of their tribe, but that Minor was ineligible because she did not meet the tribe's requisite blood quantum.
In early January 2018, a Department social worker spoke to a representative of the Oglala Sioux tribe, who stated that their tribe did not determine eligibility by pedigree, but that more information about Minor's relatives was needed to ensure she was related to their tribe since Minor's mother is a member of the Winnebago tribe. Thereafter, a Department social worker obtained copies of the family tree and the maternal grandmother's birth certificate from Minor's maternal aunt, which the Department then emailed to the Oglala Sioux tribe.
The family tree does not appear to be a part of the appellate record. The family tree apparently pertains to the maternal side of the family only, because (1) it was obtained from Minor's maternal aunt and (2) after the family tree was obtained, additional information regarding only the maternal side of the family was added to the second ICWA-030 form.
The Department also filed a second ICWA-030 form on January 19, 2018, which included new information about Minor's maternal relatives (great-grandparents and beyond) and potential affiliation with the Ho-Chunk Nation. While this second ICWA-030 form purports to provide the name of Minor's "paternal" great-great-grandfather and his tribal affiliation, the Department admits this appears to be a typo and this was actually information about Minor's "maternal" great-great-grandfather. The Department served this second ICWA-030 form on the Blackfeet tribe, the Oglala Sioux tribe, and the Ho-Chunk Nation. The information provided concerning Minor's paternal relatives remained unchanged from the initial notice, with the exception of the aforementioned mislabeling of Minor's paternal great-great-grandfather.
On February 9, 2018, the Department sent out a third ICWA-030 form that is materially identical to the second as far as information regarding Minor's relatives and the parties noticed.
In a letter dated January 22, 2018, the ICWA coordinator of the Blackfeet tribe stated that Minor was not in the tribal enrollment records or tribal rolls, that the tribe's blood quantum requirement is one-fourth Blackfeet blood, that Minor was ineligible for enrollment, and that she was not domiciled on the Blackfeet Indian reservation. The letter also stated: "If you are able to gather more information on the ancestry of the parents, please contact me again and I will review the tribal rolls."
On January 24, 2018, the Oglala Sioux tribe informed a social worker intern that Minor was ineligible if neither of her parents was enrolled in the tribe, and also that mother's enrollment in the Winnebago tribe forfeited her ability to enroll with the Oglala Sioux.
In a letter dated February 21, 2018, the Ho-Chunk Nation indicated Minor was ineligible for membership in their tribe because neither parent was enrolled as a member.
At the April 2018 jurisdiction and disposition hearing, the juvenile court issued orders finding ICWA did not apply and Minor was not an Indian child based on the determinations of the Winnebago tribe and the Ho-Chunk Nation that Minor was neither a member nor eligible for membership. The court's orders stated it would proceed as if ICWA did not apply because proper notice had been sent to the Blackfeet tribe, Oglala Sioux tribe, and/or the BIA, and 60 days had elapsed with no determinative response from the tribes and/or BIA. The court additionally stated it would apply ICWA if it later received evidence of the act's applicability. Thereafter, in May 2018, the Department filed the aforementioned letters it received from the Ho-Chunk Nation and the Blackfeet tribe.
In October 2018, the juvenile court held a six-month status review hearing. The court terminated reunification services for both parents and set a date for a section 366.26 hearing. Later, the Department filed a section 366.26 report recommending that the juvenile court terminate parental rights and select and implement a permanent plan of adoption. The report stated that ICWA did not apply and that the four identified tribes in this case all notified the Department of Minor's ineligibility for membership with them.
At the January 2019 section 366.26 hearing, Father submitted to the Department's recommendation that the juvenile court terminate parental rights. The juvenile court terminated both parents' parental rights and selected adoption as the permanent plan. As relevant here, the court's orders asserted Minor was not an Indian child based on determinations by the Winnebago tribe, Blackfeet tribe, and Ho-Chunk Nation that Minor was neither a member nor eligible for membership with them. The order stated proper notice was sent to the Oglala Sioux tribe and 60 days elapsed with no determinative response from the tribe. The court found ICWA did not apply. Father appealed. Minor's mother is not a party to this appeal.
DISCUSSION
A. Waiver
Father's sole contention on appeal concerns the alleged inadequacy of the Department's and the juvenile court's investigation of Minor's Native American heritage and notice to the tribes under ICWA.
Preliminarily, we note Father's claim that he did not forfeit the issue despite his failure to raise it below. The Department correctly acknowledges that a parent is not barred from challenging ICWA findings on appeal despite a failure to challenge them in the juvenile court. (In re Isaiah W. (2016) 1 Cal.5th 1, 9, 15 (Isaiah W.); In re Nikki R. (2003) 106 Cal.App.4th 844, 849.) Yet, the Department argues Father waived his right to appeal the order terminating parental rights by submitting to the Department's recommendation that his parental rights be terminated. We are not convinced.
As a general matter, "failure to raise ICWA notice error at juvenile court hearing does not waive the claim for purposes of appeal from an order issued at that hearing." (Isaiah W., supra, 1 Cal.5th at p. 9, citing In re Samuel P. (2002) 99 Cal.App.4th 1259, 1267 (Samuel P.) and In re Marinna J. (2001) 90 Cal.App.4th 731, 739.) Indeed, ICWA's notice requirements "serve the interests of the Indian tribes 'irrespective of the position of the parents' and cannot be waived by the parent." (Samuel P., supra, 99 Cal.App.4th at p. 1267.)
Here, the Department relies on In re Richard K. (1994) 25 Cal.App.4th 580 (Richard K.) and In re Ricardo L. (2003) 109 Cal.App.4th 552 (Ricardo L.) for the proposition that a parent in a dependency proceeding who submits to a county welfare department's recommended findings and orders (rather than merely the department's report) waives for appellate purposes his or her right to challenge the court's issuance of the recommended findings and orders. (Richard K., at pp. 589-590; Ricardo L., at p. 565.) These cases, however, concerned appellate challenges to jurisdiction and disposition orders that coincided with the recommended orders to which the parents allegedly submitted. (Richard K., at p. 587; Ricardo L., at p. 565.) They contain no discussion of ICWA inquiry and notice errors, nor do they hold that parental acquiescence to a county welfare department's recommendation forecloses challenges to ICWA inquiry and notice errors.
Because the principal purpose of ICWA is "to protect the best interests of Indian children and to promote the stability and security of Indian tribes and families by the establishment of minimum Federal standards for the removal of Indian children from their families" (25 U.S.C. § 1902; see In re Breanna S. (2017) 8 Cal.App.5th 636, 653-654 (Breanna S.)), and absent authority to the contrary, we will follow the general rule that a parent's failure to raise ICWA notice and inquiry error in the juvenile court does not waive review of the claim on appeal. We now turn to the substance of the claim.
B. ICWA Inquiry and Notice
Father contends inadequate notice was given to the tribes because the ICWA-030 forms sent by the Department did not include any information about Minor's paternal great-grandparents or great-great-grandparents, and included only limited information regarding Minor's paternal relatives. Father also claims the juvenile court and the Department violated their continuing duty of inquiry by not asking Minor's paternal grandfather or any extended paternal relatives for more information regarding the paternal grandfather's claim that his great-great-grandfather "may have had 'Blackfoot [Blackfeet] Tribe' ancestry." As the record reflects, the paternal grandfather was present at many of the dependency hearings.
Conversely, the Department argues substantial evidence supports the juvenile court's findings of a proper inquiry and adequate notice under both ICWA and California law.
i. Governing Law and Standard of Review
"ICWA protects the interests of Indian children and promotes the stability and security of Indian tribes by establishing minimum standards for, and permitting tribal participation in, dependency actions." (In re A.G. (2012) 204 Cal.App.4th 1390, 1396 (A.G.).) For purposes of ICWA, "Indian child" is defined as "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, subd. (4); § 224.1, subd. (a).)
ICWA requires notice to the parent or Indian custodian and the Indian child's tribe "where the court knows or has reason to know that an Indian child is involved." (25 U.S.C. § 1912, subd. (a); § 224.2, subd. (f).) "[R]eason to know a child involved in a proceeding is an Indian child" exists when, among other things, "[a] person having an interest in the child, including . . . a member of the child's extended family[,] informs the court that the child is an Indian child." (§ 224.2, subd. (d)(1); 25 C.F.R. § 23.107, subd. (c)(1).)
Significantly, "[n]otice is a key component of the congressional goal to protect and preserve Indian tribes and Indian families. Notice ensures the tribe will be afforded the opportunity to assert its rights under the Act irrespective of the position of the parents, Indian custodian or state agencies." (In re Kahlen W. (1991) 233 Cal.App.3d 1414, 1421.) "Notice given under ICWA must therefore contain enough information to permit the tribe to conduct a meaningful review of its records to determine the child's eligibility for membership." (In re Cheyanne F. (2008) 164 Cal.App.4th 571, 576.)
As relevant here, federal regulations provide that "[n]otice must . . . include . . . [i]f known, the names, birthdates, birthplaces, and Tribal enrollment information of other direct lineal ancestors of the child, such as grandparents." (25 C.F.R. § 23.111, subd. (d)(3), italics added.) "[A]s much information as is known regarding the child's direct lineal ancestors should be provided." (25 C.F.R. § 23.111, subd. (e).) Under state law, notice must include "[a]ll names known of the Indian child's biological parents, grandparents, and great-grandparents, or Indian custodians, including maiden, married, and former names or aliases, as well as their current and former addresses, birth dates, places of birth and death, tribal enrollment information of other direct lineal ancestors of the child, and any other identifying information, if known." (§ 224.3, subd. (a)(5)(C), italics added.)
With respect to the state law duty of inquiry, juvenile courts and county welfare departments "have an affirmative and continuing duty to inquire whether a child for whom a petition under Section 300 . . . may be or has been filed, is or may be an Indian child." (§ 224.2, subd. (a); Cal. Rules of Court, rule 5.481(a).) When there is reason to believe an Indian child is involved in a proceeding, then "the court, social worker, or probation officer . . . shall make further inquiry regarding the possible Indian status of the child . . . as soon as practicable. Further inquiry includes, but is not limited to, . . . [¶] [i]nterviewing the parents, Indian custodian, and extended family members to gather the information required in paragraph (5) of subdivision (a) of Section 224.3." (§ 224.2, subd. (e)(1).) Moreover, when a parent first appears in a dependency case, the court must order the parent to complete a "Parental Notification of Indian Status" form (ICWA-020 form). (Cal. Rules of Court, rule 5.481(a)(2).) "If the parent . . . does not appear at the first hearing, or is unavailable at the initiation of a proceeding, the court must order the person or entity that has the inquiry duty under this rule to use reasonable diligence to find and inform the parent . . . the court has ordered the parent . . . to complete" an ICWA-020 form. (Id., rule 5.481(a)(3).)
We review the juvenile court's findings for substantial evidence. (In re H.B. (2008) 161 Cal.App.4th 115, 119-120.) Accordingly, " '[w]e must indulge in all legitimate and reasonable inferences to uphold the [judgment]. . . .' [Citation.] Our deference to the fact finder, of course, is not without limit. The substantial evidence standard requires evidence that is ' " ' "reasonable in nature, credible, and of solid value." ' " ' [Citation.] A judgment is not supported by substantial evidence if it is based solely upon unreasonable inferences, speculation or conjecture." (Id. at p. 120.)
ii. Analysis
Here, the record does not reflect that the Department adequately discharged its duty to investigate Minor's paternal lineal ancestry after the paternal grandfather reported he may have Blackfeet ancestry. For instance, there is nothing indicating that the Department ever asked the paternal grandfather or Father for information about their ancestors, so that it could more thoroughly fill out the ICWA-030 notice forms. (§ 224.2, subd. (e)(1).) There is also no indication that the Department interviewed Minor's paternal grandmother to obtain any information requested by the ICWA-030 form, even though she was present during the dependency proceedings and apparently available. (§ 224.2, subd. (e)(1).)
The Department's investigative omissions appear to have hindered its ability to provide adequate notice to the tribes. As indicated, federal regulation requires that ICWA notice include, "[i]f known, the names, birthdates, birthplaces, and Tribal enrollment information of other direct lineal ancestors of the child, such as grandparents." (25 C.F.R. § 23.111, subd. (d)(3), italics added; In re N.G. (2018) 27 Cal.App.5th 474, 480-481 (N.G.) ["[a]n ICWA notice is also required to include known identifying information concerning the child's great-great-grandparents and even older lineal ancestors"]; In re E.H. (2018) 26 Cal.App.5th 1058, 1073 (E.H.).) State law requires ICWA notice include "[a]ll names known of . . . grandparents, and great-grandparents, or Indian custodians, including maiden, married, and former names or aliases, as well as their current and former addresses, birth dates, places of birth and death, tribal enrollment information of other direct lineal ancestors of the child, and any other identifying information." (§ 224.3, subd. (a)(5)(C), italics added.) The ICWA-030 forms used in this case were mandatory Judicial Council forms, adopted effective January 1, 2008, with boxes requesting the following information concerning the child's parents, grandparents, and great-grandparents: names (maiden, married, former or aliases); current and former address; birth date and place; tribe or band, and location; tribal membership or enrollment number; and date and place of death. The ICWA-030 forms also had boxes requesting similar information about "other" relatives.
In this case, the Department failed to include much of the requested information about Minor's paternal direct lineal ancestors on the ICWA notice forms. The only information provided regarding Minor's paternal relatives consisted of: (1) Father's name, date of birth, tribal affiliation, and his status as not deceased; (2) paternal grandfather's name, address, date of birth, place of birth, and tribal affiliation; and (3) paternal grandmother's name (the name provided appears to be her married name only). The Department answered the ICWA-030 form's prompts for all other information about Minor's paternal relatives—including all biographical information about the paternal grandfather's parents, and biographical information about the paternal grandmother (other than her name)—with "unknown." As the Department concedes, the paternal grandfather likely knew at least the names of his own parents, and surely the paternal grandfather and grandmother knew their own alleged "unknown" information, such as former addresses, if they had tribal membership or enrollment numbers, and if either of them was deceased.
Having reviewed the record, we conclude the evidence is insufficient to support the juvenile court's conclusion that the Department properly discharged its affirmative and continuing duty of inquiry. (§ 224.2, subd. (a); Cal. Rules of Court, rule 5.481(a).) Likewise, we do not find substantial evidence supporting its conclusion that proper and adequate ICWA notices were given and that ICWA did not apply. (§ 224.3, subd. (a)(5)(C); 25 C.F.R. § 23.111, subd. (d)(3).) As discussed below, the Department's contentions do not convince us to reach a contrary conclusion.
The Department argues it properly inquired of Minor's mother and maternal aunt whether Minor was a member of a tribe or eligible for membership, and obtained a copy of the maternal family tree and maternal grandmother's birth certificate. But Minor's potential membership in the Blackfeet tribe stemmed from her paternal ancestors. It is unclear how the Department satisfied its duty of inquiry by obtaining additional information regarding Minor's maternal ancestors only.
The Department also suggests there was no way to conduct any inquiry of Father because he was not present at the hospital or detention hearing and he provided no way for the Department to contact him. This, however, ignores the portions of the record showing the Department knew of Father's location and Father's presence in court at various times during the dependency process. For example, Father attended supervised visits with Minor while in jail and at the Department's office in the latter half of 2018. Father was present at the six-month status review hearing in October 2018, and he also attended the section 366.26 hearing in January 2019. Although the Department asserts Father never claimed Indian ancestry, there is nothing in the record reflecting that either the juvenile court or the Department ever asked Father for information about his Indian heritage, or asked him to fill out an ICWA-020 form. (See Cal. Rules of Court, rule 5.481(a)(2)-(3).)
The Department contends that Minor's paternal grandfather said all his other paternal relatives were deceased so there was no one available to provide any more detailed information. But this appears inaccurate because the Department had in fact reported the paternal grandfather as saying that "his father, grandfather and most of his paternal relatives are deceased so he has no additional information as to if it is actually the Blackfoot Tribe, if any family member had tribal membership[,] or if anyone received any services or support from a tribe." (Italics added.) The Department omits citation to the record showing it asked the paternal grandfather for more information about his relatives, deceased or not, or whether such information was unknown to him. At the same time, the Department acknowledges it did not include the names of Minor's paternal great-grandparents on the ICWA notice to the Blackfeet tribe, even though the paternal grandfather likely knew his own parents' names. Moreover, the paternal grandfather's statement that "most of his paternal relatives are deceased" implies some of his relatives are alive, and nothing in the record indicates that the Department asked for information regarding any living relatives who could potentially provide information about Minor's paternal ancestors.
Having found error, we turn to the question of whether it was harmless. "An ICWA notice violation may be held harmless . . . when, even if notice had been given, the child would not have been found to be an Indian child . . . . Moreover, any failure to comply with a higher state standard, above and beyond what the ICWA itself requires, must be held harmless unless the appellant can show a reasonable probability that he or she would have enjoyed a more favorable result in the absence of the error." (In re S.B. (2005) 130 Cal.App.4th 1148, 1162.) "[I]n a case . . . where the record does not show what, if any, efforts the agency made to discharge its duty of inquiry [citations], and the record also does not show . . . that the ICWA notices that were given included all known identifying information, the burden of making an adequate record demonstrating the court's and the agency's efforts to comply with ICWA's inquiry and notice requirements must fall squarely and affirmatively on the court and the agency. And in the absence of an appellate record affirmatively showing the court's and the agency's efforts to comply with ICWA's inquiry and notice requirements, we will not, as a general rule, conclude that substantial evidence supports the court's finding that proper and adequate ICWA notices were given or that ICWA did not apply. Instead, as a general rule, we will find the appellant's claims of ICWA error prejudicial and reversible." (N.G., supra, 27 Cal.App.5th at p. 484.)
Here, it appears ICWA itself was violated since, as the Department concedes, known information about Minor's direct lineal ancestors was not included in the ICWA-030 form. (25 C.F.R. § 23.111, subd. (d)(3).) We cannot conclude this error was harmless, as the Department urges. Despite the Blackfeet tribe's January 2018 letter stating that Minor was not in the tribal enrollment records or in the tribal rolls, and that Minor was ineligible for enrollment, the letter also stated: "If you are able to gather more information on the ancestry of the parents, please contact me again and I will review the tribal rolls." We acknowledge the possibility is remote that Minor might meet the Blackfeet tribe's one-fourth minimum blood quantum because, assuming Mother's side of the family had no Blackfeet tribe ancestry at all, at least one of Minor's paternal grandparents would have to be fully Blackfeet in order for Minor to meet the blood quantum requirement, or both paternal grandparents would have to have Blackfeet blood. That said, the Blackfeet tribe's letter does not negate the possibility that Minor could still be eligible for enrollment depending on further information concerning her paternal ancestry, since the letter did not specify whether any of Minor's paternal relatives was in the tribal records or what their Blackfeet blood quantum was, if any. (See § 224.2, subd. (h).)
Unlike the cases the Department relies on (see In re J.M. (2012) 206 Cal.App.4th 375, 382 (J.M.); In re D.W. (2011) 193 Cal.App.4th 413, 418; In re I.W. (2009) 180 Cal.App.4th 1517, 1531; Nicole K. v. Superior Court (2007) 146 Cal.App.4th 779, 784), we cannot say with certainty that Minor did not meet the Blackfeet tribe's eligibility criteria or that the ICWA error had no effect on the tribe's ability to determine tribal membership or eligibility for membership.
J.M., which the Department relies on, supports the outcome we reach here. In J.M., the county welfare department contacted the maternal grandmother of two detained children (J.M. and B.M.) after their mother reported the maternal grandmother was full Apache. (J.M., supra, 206 Cal.App.4th at p. 379.) The maternal grandmother reported that her parents (the children's great-grandparents) were registered members of the Apache, Yaqui, and Papago tribes (the Papago tribe is also known as the Tohono O'odham Nation), and her paternal grandparents (the children's great-great-grandparents) were members of the Papago tribe. (Ibid.) ICWA notices were sent to the relevant tribes including information known about B.M., the children's mother, grandmother, and great-grandparents. (Ibid.) The ICWA notices, however, omitted J.M.'s name and did not include the names of the children's great-great-grandparents. (Ibid.) Responses from the tribes indicated B.M. was not eligible for enrollment. (Ibid.) On appeal, the mother contended, among other things, the ICWA notice to the Papago tribe was inadequate because it did not include the names of the great-great-grandparents. (Id. at p. 380.)
The J.M. court found the omission of the names of the children's great-great-grandparents did not violate ICWA because neither existing federal regulations nor state law required that information more remote than great-grandparents be provided. (J.M., supra, 206 Cal.App.4th at pp. 380-381.) The court then took judicial notice of the Tohono O'odham Nation's tribal membership criteria, and determined any error in omitting the names of the great-great-grandparents was harmless because the children did not qualify for membership regardless of their great-great-grandparents' possible membership in the tribe. (Id. at p. 382.) The court asserted that one potential way to obtain membership in the Tohono O'odham Nation was to possess one-half Papago blood, and neither J.M. nor B.M. possessed a sufficient quantum of Papago blood even assuming their great-great-grandparents were full Papago Indian. (Ibid.) In reaching this conclusion, the court emphasized that the ICWA notices did include information about the children's other immediate lineal ancestors, "mother, grandparents, and great-grandparents" who were the descendants of the great-great-grandparents. (Id. at pp. 381 & 383.) The court stated: "This is not a case where there are gaps in the family tree, frustrating the Papago tribe's ability to meaningfully investigate the children's eligibility for membership in the Tohono O'odham Nation." (Id. at p. 383.)
J.M. concluded federal regulations did not require information more remote than great-grandparents be provided based on the 2012 version of 25 C.F.R. section 23.11. (J.M., supra, 206 Cal.App.4th at pp. 380-381; but see In re S.E. (2013) 217 Cal.App.4th 610, 615-616 ; In re C.B. (2010) 190 Cal.App.4th 102, 147.) As quoted in J.M., subdivision (d)(3) of 25 C.F.R. section 23.11 provided that ICWA notice must include " '[a]ll names known . . . of the Indian child's biological mother, biological father, maternal and paternal grandparents and great-grandparents or Indian custodians, including maiden, married and former names or aliases; birth dates; places of birth and death; tribal enrollment numbers, and/or other identifying information.' " (J.M., supra, 206 Cal.App.4th at p. 380.) Further, subdivision (b) of the 2012 version of 25 C.F.R. section 23.11 stated that " '[i]n order to establish tribal identity, it is necessary to provide as much information as is known on the Indian child's direct lineal ancestors including, but not limited to, the information delineated at paragraph (d)(1) through (4) of this section.' " (Id. at p. 381.)
In 2016, section 23.11 of 25 C.F.R. was amended to remove the foregoing language, and section 23.111 of 25 C.F.R. was added. (81 Fed. Reg. 38778, 38778; see E.H., supra, 26 Cal.App.5th at p. 1069.) Section 23.111 of 25 C.F.R. simply calls for information about "other direct lineal ancestors of the child." Recent case law has interpreted it as requiring inclusion of known identifying information concerning a child's great-great-grandparents and even older lineal ancestors. (See E.H., supra, 26 Cal.App.5th at p. 1073; N.G., supra, 27 Cal.App.5th at p. 480.) We see no reason to reach a contrary conclusion, and the Department does not presently argue it was not required to provide information, if known, about relatives more remote than Minor's great-grandparents.
In contrast to the situation in J.M., here the Department provided incomplete information about Minor's paternal grandmother, and no information at all about Minor's paternal great-grandparents. This is not a case like J.M., where there were no gaps in the family tree such that we can conclude that Minor does not satisfy the Blackfeet tribe's requisite blood quantum based on the information the Department did provide. (See Breanna S., supra, 8 Cal.App.5th at p. 654 [finding ICWA notice error prejudicial where reviewing court "[could not] say with any degree of confidence that additional information concerning [a] relative . . . would not have altered the tribe's evaluation"].)
This case also bears similarity to N.G., supra, 27 Cal.App.5th 474. In N.G., the detained minor's father reported he may have Blackfeet or Navajo Indian ancestry. (N.G., at p. 478.) The county welfare department sent ICWA notices to several tribes but included no information about the minor's paternal lineal ancestors other than the child's father and paternal grandfather's full names and dates of birth, the father's current address and one former address, and that the paternal grandfather lived in "Corona, California." (Ibid.) Thereafter, the father told the department his paternal cousins were registered members of "the Cherokee tribe" and he and his father may have Cherokee ancestry though neither were members of any tribe. (Ibid.) No ICWA notices were given to any federally recognized Cherokee tribes or the BIA, and nothing in the record indicated the department tried to interview anyone to obtain information concerning the minor's paternal lineal ancestors. (Id. at p. 479.)
The Court of Appeal in N.G. found conditional reversal was required because, among other things, the record failed to show the department fully investigated the minor's paternal lineal ancestry after the father reported possible Blackfeet, Navajo or Cherokee ancestry. (N.G., supra, 27 Cal.App.5th at pp. 481-482.) The court reasoned that, where the record did not show what efforts the agency made to discharge its duty of inquiry, and did not show that all required ICWA notices were given or that all known identifying information was included in the ICWA notices that were given, it would generally conclude such error is prejudicial and reversible. (Id. at p. 484.) The court explained, "on a deficient record such as this one, we simply cannot know whether [the department] would have discovered information sufficient to enable any of the previously noticed tribes to determine whether [the minor] is an Indian child." (Id. at p. 485.)
Because it is also unknown what a proper inquiry might have revealed here, we cannot deem the errors harmless. (See, e.g., A.G., supra, 204 Cal.App.4th at pp. 1397 & 1400-1402 [conditionally reversing for ICWA notice and inquiry error and rejecting a claim of harmless error where the ICWA-030 contained little information about the minor's relatives, and there was no indication the Agency made any effort to investigate the minor's heritage after the father claimed Native American heritage].)
DISPOSITION
The order terminating Father's parental rights as to Minor is conditionally reversed. (In re Francisco W. (2006) 139 Cal.App.4th 695, 705-706.) The juvenile court is directed to order the Department to investigate and obtain complete and accurate information, if known, about Minor's paternal relatives and to provide corrected ICWA notices to the relevant tribes. The information to be obtained and provided in the ICWA notices includes "[a]ll names known of the Indian child's biological parents, grandparents, and great-grandparents, or Indian custodians, including maiden, married, and former names or aliases, as well as their current and former addresses, birth dates, places of birth and death, tribal enrollment information of other direct lineal ancestors of the child, and any other identifying information, if known." (§ 224.3, subd. (a)(5)(C).) The Department must also seek out and include, "[i]f known, the names, birthdates, birthplaces, and Tribal enrollment information of other direct lineal ancestors of the child." (25 C.F.R. § 23.111, subd. (d)(3).) This would include information concerning Minor's paternal great-great-grandparents, or even older relatives, if that information becomes known after an appropriate investigation. (N.G., supra, 27 Cal.App.5th at p. 480; E.H., supra, 26 Cal.App.5th at p. 1073.) The Department must also correct the ICWA notice purporting to provide information about Minor's "paternal" great-great-grandfather, who the Department presently asserts is actually the maternal great-great-grandfather.
If a tribe intervenes after receiving proper notice, the court shall proceed in accordance with ICWA. If no tribes intervene or otherwise respond after receiving proper notice, the order terminating Father's parental rights shall be reinstated.
/s/_________
Fujisaki, Acting P. J. WE CONCUR: /s/_________
Petrou, J. /s/_________
Wick, J.
Judge of the Superior Court of Sonoma County, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.