Opinion
E077406
12-27-2021
In re Z.W. et al., Persons Coming Under the Juvenile Court Law. v. J.W., Defendant and Appellant. SAN BERNARDINO COUNTY CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent,
Konrad S. Lee, under appointment by the Court of Appeal, for Defendant and Appellant. Steven O'Neill, County Counsel, Catherine L. Wollard, Deputy County Counsel for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from the Superior Court of San Bernardino County Nos. J276254, J276255, J280698. Steven A. Mapes, Judge. Affirmed.
Konrad S. Lee, under appointment by the Court of Appeal, for Defendant and Appellant.
Steven O'Neill, County Counsel, Catherine L. Wollard, Deputy County Counsel for Plaintiff and Respondent.
OPINION
MILLER J.
J.W. (Mother) is the mother of Z.P. (female, born 2014), Z.W. (male, born 2018), and V.W. (male, born 2019). M.P. (Father-P) is the father of Z.P. and Z.W.; Va.W. (Father-W) is the father of V.W. Neither father is a party to this appeal. On appeal, Mother contends that San Bernardino County Children and Family Services (CFS) and the juvenile court failed to comply with the Indian Child Welfare Act (ICWA) (25 U.S.C. § 1901). For the reasons set forth post, we shall affirm the judgment.
FACTUAL AND PROCEDURAL HISTORY
A. Z.P. AND Z.W.
In the spring of 2018, Mother was living with Z.P. and Z.W. in San Bernardino. On May 17, 2018, Mother went to St. Bernadine's hospital for the purpose of surrendering the two children safely to child welfare authorities. Medical staff reported that Mother stated she was overwhelmed and was living out of her car for three months. Moreover, Mother sounded agitated. Mother told an investigating social worker that the paternal grandfather was taking care of Z.P., who was three years old at the time, in the evenings. The grandfather, however, would not allow Mother or Z.W. into his home. Mother was taking medications for bipolar disorder, schizophrenia, and depression. Mother had used marijuana but had no drug or alcohol problems.
CFS took the children into protective custody and placed them with a maternal cousin. Z.P. had a urinary tract infection but was otherwise healthy. Z.W. appeared normal and healthy.
On May 21, 2018, CFS filed a Welfare and Institutions Code section 300 petition on behalf of Z.P. and Z.W. The petition alleged that Mother's mental health issues inhibited her ability to safely care for the children, surrendering them to a hospital due to her inability to care for them. The petition also alleged that Father-P knew or should have known of Mother's mental health and failed to protect the children. When asked, both Mother and Father-P denied any known Native American ancestry.
All statutory references are to the Welfare and Institutions Code unless otherwise specified.
On May 22, 2018, when Father-P appeared at the initial detention hearing, he indicated "Unknown" on his ICWA-020, question 3.b. When the juvenile court asked Father-P if he has Native American ancestry, he responded, "It's unknown." The court then asked Father-P if he thought he did, and Father-P indicated, "Yes." Father-P indicated that he was-through his mom-and provided her contact information on the "Family Find" form. When county counsel asked for clarification on the tribe, the juvenile court responded, "He doesn't know, but she may know."
Father-P also indicated Mother informed him that she also had Native American ancestry, but did not know which tribe. Father-P stated that he was on Z.P.'s birth certificate and there were prior orders regarding her. As to Z.W., Father-P indicated that she looked like him and he might be the father, but there were other possibilities because Mother had a boyfriend when Z.W. was conceived.
On June 7, 2018, CFS filed an ICWA Declaration of Due Diligence, indicating notice of the proceedings was sent to the Bureau of Indian Affairs (BIA) and three Cherokee tribes on May 30, 2018. The ICWA-030 listed Cherokee tribes and the BIA under both Mother and Father-P. The form listed both maternal and paternal grandmothers, but the birthdate of only the paternal grandmother was provided. The form listed "Damien Unknown" as the paternal grandfather. The form listed the maternal grandfather's name and date of birth. Cherokee was also listed as a possible tribe for the maternal grandfather.
The jurisdictional and dispositional (JD) report dated June 8, 2018, reported that Father-P denied any Native American ancestry. Father-P attended the JD hearing on June 12, 2018, where the juvenile court admitted the JD report into evidence. Father-P did not make any objection to the admission of the report or state that information in the report was false. The only request of Father-P's counsel concerned visitation. At the conclusion of the hearing, Father-P was specifically asked if there was anything else. His counsel stated no. The court then found Father-P the presumed father of Z.P. and biological father of Z.W. The court also found that ICWA did not apply.
On December 12, 2018, at the section 366.21e hearing, only Mother appeared; she denied Indian ancestry. Father-P's reunification services were terminated and Mother's services were continued until the section 366.21f hearing. Moreover, the juvenile court made ICWA findings and orders indicating that the 65-day period of time passed since noticing was received by the BIA and tribes, and that ICWA did not apply. All three Cherokee tribes replied that the children were not enrolled and they would not intervene.
On May 29, 2019, at the 12-month status review hearing, the children were ordered on a 29-day extended visit with Mother and a contested hearing was set for June 25, 2019. On June 25, the matter was continued to have the assigned judge hear the case and the children's extended visit with Mother was continued. At the hearing on July 1, 2019, the extended visit with Mother was terminated and reunification services to Mother were ordered until the 366.22 hearing on November 14, 2019.
On November 14, 2019, at the 18-month status review hearing, CFS recommended terminating services and setting a permanency plan review (PPR) hearing with a permanent plan of adoption upon locating a concurrent planning home for the children. Mother set the matter contested for January 27, 2020. At the contested section 366.22 hearing, the juvenile court found Mother's progress to be minimal and that there was no substantial probability the children would be returned to Mother. The court terminated reunification services to Mother and set a section 366.26 hearing for adoption.
At the section 366.26 hearing on June 30, 2020, the court continued the hearing to allow the children's new sibling, V.W., to join the case. The court set a PPR hearing for December 18, 2020.
On December 18, 2020, at the PPR hearing, the juvenile court set a 366.26 hearing for adoption on April 19, 2021. At the hearing on April 20, 2021, the parents set the section 366.26 hearing contested for May 24, 2021. At the contested hearing, the juvenile court terminated Father-P and Mother's parental rights. Father-P and his counsel did not appeal. Mother filed a timely notice of appeal on the issue of ICWA inquiry and notice.
B. V.W.
On March 7, 2019, CFS responded to a referral alleging general neglect to a newborn child, V.W. Mother's other children were in CFS custody at the time. The only concern regarding V.W. at this time was Mother's history with CFS. After investigation, CFS filed a petition to open a family maintenance case to ensure Mother's health did not interfere with her ability to parent V.W. The petition alleged that Mother had a history of untreated mental health and a criminal history that could impact her ability to parent V.W. The petition also contained an allegation under section 300, subdivision (j), referencing the older siblings' dependency case. The only allegation against Father-W was that his whereabouts were unknown. Pursuant to the ICWA 010 attached to the petition, Mother was interviewed on April 17, 2019. She denied any Indian ancestry.
Neither parent was present at the detention hearing on April 22, 2019. The juvenile court ordered V.W. maintained with Mother; Father-W was in prison. Via certified mail, Father-W was sent a notice of the JD hearing, a copy of the petition, and a blank ICWA 020 form.
Pursuant to the JD report dated May 22, 2019, Mother denied Indian ancestry on May 7, 2018, and on May 13, 2019. The paternal grandmother was interviewed on May 13, 2019; she denied any Native American ancestry on her side of the family. The paternal grandmother, however, indicated that the paternal grandfather had ancestry. She was asked to give information to the social worker.
At the initial JD hearing on May 22, 2019, Mother was present with Z.W. Father-W was still in state prison. The court continued the matter to have Father-W transported from prison.
On July 23, 2019, the social worker interviewed Father-W over the phone regarding Indian ancestry. Father-W told the social worker that he did have ancestry but did not know the tribe. He sated that he would have to contact his mother, the paternal grandmother. Father-W reported that his "grannie" was Native American.
On July 24, 2019, at the JD hearing, Father-W was present. He indicated that he had Indian ancestry through a tribe, perhaps Cherokee, but he was unsure and would need to get more information. He wrote Cherokee on his ICWA 020 form. V.W. was placed with Mother at the time, therefore, the court found that ICWA noticing was not triggered. After both parents submitted waivers of trial rights, the juvenile court found Mother's mental health allegation true and ordered services to the parents, adopting the case plan, and found Father-W to be the presumed father.
On September 24, 2019, CFS received a new referral alleging emotional abuse and general neglect based on Father-W's assault of Mother. On October 2, 2019, CFS interviewed Mother. She again indicated that she did not have Indian ancestry. She also denied any domestic violence issues in the home.
On October 12, 2019, CFS received another referral indicating that when the parents were together in in a car with V.W., they were involved in a car accident and fled the scene. During the investigation, CFS confirmed that Father-W was having unsupervised contact with V.W. against court orders. In Mother's interview on October 14, 2019, she stated the accident occurred because she and Father-W were fighting in the car. CFS detained V.W.
On October 16, 2019, CFS filed a petition under sections 342 and 387, alleging that the parents engaged in domestic violence in the presence of V.W. At the hearing the following day, Mother again affirmed that she had no Indian ancestry. Father-W was asked by the court if he had Indian ancestry; he indicated that he had Cherokee ancestry. The JD hearing was set for November 7, 2019, to allow time for CFS to send out ICWA notices.
On November 13, 2019, CFS filed an amended petition under sections 342 and 387. The amended petition added substance abuse and criminal involvement allegations, as well as an allegation that Mother was not complying with her medication orders and was allowing Father-W contact with V.W. outside agency supervision. V.W. remained placed with the paternal cousin, D.Y. Mother was the only parent present at the further JD hearing. Mother set the matter contested for January 27, 2020. The juvenile court was informed that time would be needed to complete the ICWA noticing because an updated ICWA-030 was submitted on that day.
On December 17, 2019, D.Y. was interviewed. D.Y. stated that there was no Indian ancestry in her family. D.Y. provided information for the paternal great-aunt (Aunt) to the social worker. On January 21, 2020, the social worker attempted to contact Aunt to ask about Indian ancestry. Aunt did not answer so the social worker left a message.
On January 24, 2020, CFS filed the ICWA Declaration of Due Diligence; it indicated that notice was served on three Cherokee tribes and the BIA on December 13, 2019. On February 28, 2020, an updated ICWA declaration was filed; it indicated that all the tribes had received the ICWA-030.
On March 3, 2020, at the contested JD hearing, the juvenile court found the allegations true and denied services to Father-W under section 361.5, subdivision (e)(1), and Mother under section 361.5, subdivision (b)(10). The court found that V.W. may come under ICWA as noticing requirements had been initiated. The court set the section 366.22 hearing for July 1, 2020.
On July 1, 2020, the court changed the permanent placement of foster care to a permanent plan of adoption as the children were not in a concurrent planning home. Moreover, CFS filed the ICWA findings and orders, with a final declaration of due diligence. The court signed the findings and orders, which indicated that ICWA did not apply. The Eastern Band of Cherokee Indians and the United Keetoowah Band of Cherokee Indians stated that V.W. did not qualify for membership. The Cherokee Nation of Oklahoma and BIA failed to respond after 65 days. The court set a PPR hearing for December 18, 2020.
On December 18, 2020, at the PPR hearing, CFS recommended setting a section 366.26 hearing as V.W. and his older siblings were not in an adoptive home. The juvenile court followed the recommendation and set the section 366.26 hearing for April 19, 2021.
On April 19, 2021, at the section 366.26 hearing, all parents appeared by phone. The parents contested the recommendation to terminate their parental rights. A trial was set for May 24, 2021.
At the contested section 366.22 hearing, the juvenile court terminated parental rights and freed V.W. for adoption. Father-W did not appeal. Mother appealed on the issue of ICWA inquiry and notice.
DISCUSSION
A. THE JUVENILE COURT PROPERLY FOUND THAT ICWA DOES NOT APPLY
1. LEGAL BACKGROUND
ICWA, enacted in 1978, is a federal law, which is recognized and applied in California. (See, e.g., In re Alice M. (2008) 161 Cal.App.4th 1189, 1197.) Its purpose is to protect the interests of Indian children and to promote the stability and security of Indian tribes and families. (25 U.S.C. § 1902; see, e.g., In re Elizabeth W. (2004) 120 Cal.App.4th 900, 906.) The law was adopted "in response to concerns' "over the consequences to Indian children, Indian families, and Indian tribes of abusive child welfare practices that resulted in the separation of large numbers of Indian children from their families and tribes through adoption or foster care placement, usually in non-Indian homes."' [Citations.] [The] ICWA addresses these concerns by establishing '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.'" (In re Abbigail A. (2016) 1 Cal.5th 83, 90.)
The law imposes a duty of inquiry. (In re Andrew S. (2016) 2 Cal.App.5th 536, 247.) Pursuant to California law, both the court and the agency "have an affirmative and continuing duty to inquire whether a child . . . is or may be an Indian child" for ICWA purposes. (§ 224.2, subd. (a); see also Cal. Rules of Court, rule 5.481(a); In re Isaiah W. (2016) 1 Cal.5th 1, 9.) According to the federal guidelines, the court is required to" 'make inquiries to determine if the child involved is a member of an Indian tribe or if a parent of the child is a member of an Indian tribe and the child is eligible for membership in an Indian tribe.'" (In re S.B. (2005) 130 Cal.App.4th 1148, 1158, italics omitted.)
ICWA generally requires that notice be given in instances "where the court knows or has reason to know that an Indian child is involved" in a dependency proceeding. (25 U.S.C. § 1912(a).) State law similarly provides that "[i]f the court, a social worker, or probation officer knows or has reason to know . . . that an Indian child is involved" in the dependency proceeding, notice is required. (§ 224.3, subd. (a).) It need not be a certainty that the child is an "Indian child" to require the giving of an ICWA notice. (In re Desiree F. (2000) 83 Cal.App.4th 460, 471.) "Notice 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.3rd 1414, 1421.) California implements ICWA's notice requirements through statutes and court rules. (See §§ 224, 224.6, 290.1-297; also Cal. Rules of Court, rules 5.480-5.487.)
The notice to potentially affected tribes 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); see In re Charlotte V. (2016) 6 Cal.App.5th 51, 56.) "The purpose of the ICWA notice provisions is to enable the tribe or the BIA to investigate and determine whether the child is in fact an Indian child. [Citation.] Notice given under [the] 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.) Once notice is provided, it is "[t]he Indian tribe [that] determines whether the child is an Indian child. [Citation.] 'A tribe's determination that the child is or is not a member of or eligible for membership in the tribe is conclusive.'" (In re Merrick V. (2004) 122 Cal.App.4th 235, 246.)
In In re D.S. (2020) 46 Cal.App.5th 1041, the Court of Appeal for the Fourth District (Division 1), explained the distinction between cases in which there is a "reason to believe" and where there is "a reason to know" the child may be an Indian child. "Section 224.2, subdivision (b) specifies that once a child is placed into the temporary custody of a county welfare department . . . the duty to inquire 'includes, but is not limited to, asking the child, parents, legal guardian, Indian custodian, extended family members, others who have an interest in the child, and the party reporting child abuse or neglect, whether the child is, or may be, an Indian child.' When [CFS] has 'reason to believe' that an Indian child is involved, further inquiry regarding the possible Indian status of the child is required. (§ 224.2, subd. (e).) The required further inquiry includes (1) interviewing the parents and extended family members; (2) contacting the Bureau of Indian Affairs and State Department of Social Services; and (3) contacting tribes the child may be affiliated with, and anyone else, that might have information regarding the child's membership or eligibility in a tribe. . . . [¶] The sharing of information with tribes at this inquiry stage is distinct from formal ICWA notice, which requires a 'reason to know'-rather than a 'reason to believe'-that the child is an Indian child." (Id. at pp. 1048-1049, fns. omitted.)
A "reason to know" that a dependent child is an Indian child exists under any of the six enumerated circumstances: "(1) A person having an interest in the child, including the child, an officer of the court, a tribe, an Indian organization, a public or private agency, or a member of the child's extended family informs the court that the child is an Indian child. [¶] (2) The residence or domicile of the child, the child's parents, or Indian custodian is on a reservation or in an Alaska Native village. [¶] (3) Any participant in the proceeding, officer of the court, Indian tribe, Indian organization, or agency informs the court that it has discovered information indicating that the child is an Indian child. [¶] (4) The child who is the subject of the proceeding gives the court reason to know that the child is an Indian child. [¶] (5) The court is informed that the child is or has been a ward of a tribal court. [¶] (6) The court is informed that either parent or the child possess[es] an identification card indicating membership or citizenship in an Indian tribe." (§ 224.2, subd. (d).) The less stringent "reason to believe" standard requiring further inquiry is based upon the six "reason to know" statutory circumstances: "There is reason to believe a child involved in a proceeding is an Indian child whenever the court, social worker, or probation officer has information suggesting that either the parent of the child or the child is a member or may be eligible for membership in an Indian tribe. Information suggesting membership or eligibility for membership includes, but is not limited to, information that indicates, but does not establish, the existence of one or more of the grounds for reason to know enumerated in paragraphs (1) to (6), inclusive, of subdivision (d).)" (§ 224.2, subd. (e)(2).)
In "reason to know" cases, "[t]he juvenile court must determine whether proper notice was given under [the] ICWA and whether [the] ICWA applies to the proceedings." (In re E.W. (2009) 170 Cal.App.4th 396.) "The juvenile court is not authorized to determine [the] ICWA does not apply until (1) 'proper and adequate' ICWA notice has been given, and (2) neither a tribe nor the BIA has provided a determinative response to the notice within 60 days of receiving the notice." (In re N.G. (2018) 27 Cal.App.5th 474, 480.) "[A]ny finding of [the] ICWA's inapplicability before proper and adequate ICWA notice has been given is not conclusive and does not relieve the court of its continuing duty . . . to inquire into a child's Indian status in all dependency proceedings." (In re Isaiah W., supra, 1 Cal.5th at p. 11.)
"On appeal, we review the juvenile court's ICWA findings for substantial evidence. [Citations.] But where the facts are undisputed, we independently determine whether [the] ICWA's requirements have been satisfied." (In re D.S., supra, 46 Cal.App.5th at p. 1051., fn. omitted.) In instances in which it is determined that there has been noncompliance with the inquiry and notice provisions of ICWA that requires reversal, the appellate court may order that the matter be reversed with a limited remand to facilitate compliance with the statute. (In re Veronica G. (2007) 157 Cal.App.4th 179.)
2. ANALYSIS
In this case, Mother contends that "[CFS] and the juvenile court did not fulfill their duties under the ICWA because they failed to adequately inquire of family members, and others, regarding Indian ancestry or provide proper notice." (All caps. omitted.)
a. AP and Z.W.
In the first dependency case involving Z.W. and Z.P., the social worker interviewed Mother and Father-P per the ICWA 010 forms attached to the petition and detention report. Both parents indicated that they had no known Indian ancestry. Subsequently, on Father-P's ICWA 020 form signed on May 22, 2018, Father-P checked the box that he "may have Indian ancestry" and listed the tribe as "unknown." On the same day, in response to the question on the CFS 030 A, Father-P marked "Unknown" to the question, "Do you have/may have Native American Ancestry?" He then stated that the name of the tribe/band was "unknown" and provided the name of one person, the grandmother, and her phone number.
At the hearing on May 22, the following ensued:
"THE COURT: . . . Do you have Native American ancestry?
"[FATHER-P]: It's unknown.
"THE COURT: Do you think you do?
"[FATHER-P]: Yes.
"THE COURT: Through your mother?
"[FATHER-P]: Mom.
"THE COURT: Is your mom still alive?
"[FATHER-P]: Yes.
"THE COURT: Do you know how to contact her?
"[FATHER-P]: I have her number."
The court then confirmed that paternal grandmother's phone number was provided in the CFS 030 form.
From the conversation between the juvenile court and Father-P, and the forms that Father-P filled out, he clearly stated that his Native American ancestry was "unknown" and he believed his ancestry would be through his mother. CFS, however, never interviewed Father-P's mother.
Mother mistakenly states that Father-P "provided the names and telephone numbers of two other relatives who had Indian ancestry information." The form that Mother references, however, only named the paternal grandmother as the relative who may know of Native American ancestry information.
Under ICWA, CFS is required to "make further inquiry regarding the possible Indian status of the child . . . as soon as practicable" if it "has reason to believe that an Indian child is involved in a proceeding." (§ 224.2, subd. (e); see also rule 5.481(a)(4) [requiring further inquiry if social worker or investigator "knows or has reason to know or believe that an Indian child is or may be involved"].) Although Father-P's claim that he may have Native American ancestry through his mother was nonspecific, it, at a minimum, prompted further inquiry of the paternal grandmother and her relatives to determine whether there was a more specific basis for having a reason to believe that the children were Indian children. (See In re T.G. (2020) 58 Cal.App.5th 275, 292 (T.G.) [mother's filing of ICWA-020 form stating belief she had Cherokee ancestry and possible Indian ancestry (without tribal identification), later confirmed by maternal grandmother, "triggered the Department's duty to make further inquiry"]; see also In re Michael V. (2016) 3 Cal.App.5th 225, 235-236 [statement by mother that she had been told the maternal grandmother was "full-blooded Indian" with no reference to a specific tribe, obligated agency to contact other relatives, including maternal grandmother, to inquire whether they had information regarding children's possible Indian ancestry].)
However, we conclude that any error was harmless in light of Father-P's subsequent denial of any Indian heritage to the social worker, as noted in the JD report filed on June 8, 2018. In the JD report the social worker provided that ICWA did not apply because Father-P, on June 1, 2018, reported that that there was no Native American ancestry and no tribal affiliation. At the JD hearing on June 12, 2018, Father-P was present and did not object to this information in the report when county counsel moved to admit the JD report into evidence. Therefore, because Father-P denied Native American ancestry after first claiming he may have ancestry, neither the juvenile court nor CFS had the duty of further inquiry. (See In re Jerimiah G. (2009) 172 Cal.App.4th 1514, 1521 [no reason to believe children were Indian where, at jurisdictional/dispositional hearing and upon inquiry from the court, "father's counsel clarified that although father had initially claimed he might have Indian ancestry, he had retracted that claim and did not have any Indian heritage"].)
In her reply brief, Mother contends that CFS and the juvenile court failed to fulfill their duties by failing to inquire of the paternal grandmother about Z.P. and Z.W.'s possible Native American heritage. Mother, however, fails to address the fact that Father-P later report that there was no Native American ancestry in his family.
In sum, we find that any error in conducting a further inquiry as to Z.P. and Z.W.'s possible Native American ancestry through the paternal grandmother was harmless. Moreover, because there was no duty to inquire about the children's Native American ancestry, CFS was not required to send ICWA-030 notices regarding Father-P's possible Native American ancestry. Therefore, any alleged "faulty" ICWA-030 notices regarding Father-P's alleged ancestry are not relevant. We perceive no error by the juvenile court in fulfilling its duty of inquiry or in finding that ICWA does not apply.
c. V.W.
In the second dependency case involving V.W., Father-W, stated that he had Native American ancestry. He stated that his "grannie" was Native American. He stated he may be "Cherokee. I'm not sure. I have to get the right information for you." The social worker noted that she had previously spoken with the paternal grandmother on May 13, 2019; she indicated that she "reported that she would have to contact the Paternal Great Aunts as she was unaware of the ancestry." The paternal grandmother could not name a tribe but she believed there was ancestry on the paternal grandfather's side but had to ask for the information.
Mother contends that Father-W's and grandmother's statement gave "[CFS] reason to know . . . V.W. [was an] Indian [child]." In support of her argument, Mother cites to T.G., supra, 58 Cal.App.5th 275, in which the court held there was a duty of further inquiry and remanded the case for further ICWA inquiry. In T.G., the juvenile court ordered the social services agency to provide ICWA notice to the Cherokee tribe and BIA, and investigate the father's claim of possible Indian ancestry. The agency failed to do so. Nevertheless, the juvenile court granted guardianship and terminated jurisdiction without any order or findings that ICWA did not apply. The court in T.G. held the juvenile court and agency failed to comply with their ICWA duties of further inquiry and notice. (Id. at pp. 280-281.)
In reaching its holding, T.G. rejected the court's holding in Austin J. that a parent's express statement of Indian ancestry is insufficient to constitute a "reason to believe" an Indian child may be involved, triggering a duty of further inquiry. (T.G., supra, 58 Cal.App.5th at pp. 293-295; In re Austin J. (2020) 47 Cal.App.5th 879, 888-889 (Austin J.).) The Austin J. court concluded that, "[e]ven if we assume that the possibility of Indian ancestry may suggest the possibility of Indian tribal membership, that bare suggestion is insufficient by itself to establish a reason to believe a child is an Indian child." (Id. at p. 889.) The Austin J. court reasoned that such a statement is insufficient because it alone does not provide reason to believe the child is a member of a tribe or the biological child of a member, which is required in order for a child to be an Indian child under ICWA. (Id. at pp. 888-889.)
The court in T.G. disagreed, holding that a parent's statement and similar statements by relatives that the child may have Indian ancestry is sufficient to trigger a duty of further inquiry. (T.G., supra, 58 Cal.App.5th at pp. 293-295.) The T.G. court therefore remanded the matter for further inquiry based on responses the court received from the mother and maternal grandmother that the mother had Cherokee ancestry and the children also had Indian ancestry through their maternal great-grandfather and maternal grandmother.
Notwithstanding the conflict between Austin J. and T.G. regarding whether there was a duty of further inquiry, the instant case is distinguishable from both cases and there is no dispute that there initially was a duty of further inquiry based on Father-W's response regarding Indian ancestry. The issue here is whether the court's and CFS's further inquiry was insufficient under ICWA and the state statutes because CFS did not follow up with Aunt. We conclude substantial evidence supports the juvenile court's finding of compliance with the duty of further inquiry.
CFS was required to conduct "a meaningful and thorough inquiry" regarding the children's "possible Indian ancestry, including interviews with extended family members and any other persons who may reasonably be expected to have information regarding the children's tribal membership or eligibility for membership and contact with any tribes that may have such information." (T.G., supra, 58 Cal.App.5th at p. 297.)
In this case, as noted ante, CFS attempted to find information regarding Father-W's claim of ancestry. D.Y. was interviewed, and she denied Indian ancestry. A social worker called Aunt to inquire about ancestry; she did not answer the phone and the social worker left a message. Aunt never returned the call to the social worker. When a social worker interviewed Father-W on July 23, 2019, he "reported he does have Native American ancestry, tribe unknown; he would have to contact his mother to inquire about it." He reported that his "grannie" was Native American. He did not provide the social worker with any other names or contact information to conduct a further inquiry into his ICWA status. Here, CFS interviewed all available paternal relatives or attempted to interview them.
Moreover, CFS sent notices to the BIA, the Eastern Band of Cherokee Indians, the United Keetoowah Band of Cherokee Indians, and the Cherokee Nation of Oklahoma. The BIA and the Cherokee Nation of Oklahoma failed to respond after 65 days and the other two tribes advised that the child did not qualify for membership.
CFS was not required to "cast about" for information or pursue unproductive investigative leads. (In re Levi U. (2000) 78 Cal.App.4th 191, 199.) Based on the record, we conclude there was substantial evidence supporting the court's conclusion that CFS complied with its further inquiry obligations. When the juvenile court found that there was no longer a duty of further inquiry and ICWA did not apply, further inquiry, including contacting Aunt, was not required because there was no reason to believe at that point that they had any additional information or that the child was an Indian child.
Moreover, Mother contends that the notices sent to the tribes and BIA were faulty as they only included the names of Father-W and the paternal grandmother. Although CFS had information that other paternal relatives existed, those names were not included in the "additional" information section.
"Deficiencies or errors in an ICWA notice are subject to harmless error review." (In re Charlotte V., supra, 6 Cal.App.5th at p. 57.) "In general, an appellant has the burden of producing an adequate record that demonstrates reversible error. [Citation.] However, ICWA compliance presents a unique situation, in that, as we have just discussed, although the parent has no burden to object to deficiencies in ICWA compliance in the juvenile court, the parent may nevertheless raise the issue on appeal. [Citation.] The purpose of ICWA and the California statutes is to provide notice to the tribe sufficient to allow it to determine whether the child is an Indian child and whether it wishes to intervene in the proceedings. [Citation.] The parent is in effect acting as a surrogate for the tribe in raising compliance issues on appeal. Appellate review of procedures and rulings that are preserved for review irrespective of any action or inaction on the part of the parent should not be derailed simply because the parent is unable to produce an adequate record." (In re K.R. (2018) 20 Cal.App.5th 701, 708 (K.R.).)
In K.R., the court concluded there was prejudicial error because the social services agency had not provided a record of its efforts undertaken to comply with ICWA. There was no evidence the agency had contacted the paternal aunt, paternal grandparents, or paternal great-grandmother, even though there was contact information available for them. In K.R., the appellate court remanded the matter for further inquiry because, unlike in the instant case, the record indicated that the paternal aunt, paternal grandparents, and paternal great-grandmother would likely provide additional information that would assist in determining whether the children had Indian ancestry. (K.R., supra, 20 Cal.App.5th at pp. 707-708.)
In In re A.C. (2021) 65 Cal.App.5th 1060 (A.C.), the appellate court did not remand the matter for further inquiry because the court concluded there was no prejudicial error. In A.C., the father did not provide any evidence of Indian ancestry nor claim Indian ancestry in the juvenile or appellate courts. (Id. at pp. 1067, 1073.) The court held in A.C. the error did not constitute reversable prejudicial error because the father could have, but did not, establish prejudice by submitting, on appeal, postjudgment evidence showing he had Indian ancestry and the juvenile court record was silent as to whether he had Indian ancestry because CFS did not inquire. (Ibid.)
Even though A.C is distinguishable from this case, the court's discussion in A.C., of prejudicial error in general is instructive here. As explained in A.C.," 'any failure to comply with a higher state standard, above and beyond what . . . 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.'" (A.C., supra, 65 Cal.App.5th 1069.) This means a parent asserting failure to inquire as to an extended family member must show, at a minimum, that, if asked, the extended family member would have provided new information of Indian ancestry. Where the record below fails to demonstrate this, a miscarriage of justice has not been established and reversal is not required. (Id. at p. 1069.)
Any error here in CFS not contacting Aunt is not one of federal law. (A.C., supra, 65 Cal.App.5th at p. 1069.) "There is no federal duty to inquire of extended family members. In any event, assuming there was a federal statutory error, and assuming (without deciding) that the reversibility of such an error is a federal question [citation], there is a harmless error rule under federal law, too. (28 U.S.C. § 2111.) '[T]he party that "seeks to have a judgment set aside because of an erroneous ruling carries the burden of showing that prejudice resulted." '" (A.C., at pp. 1069-1070.)
In A.C., the court rejected the father's argument he did not have to make an affirmative showing of prejudicial error because "a parent will not necessarily be aware of his or her Indian ancestry. Part of the error here is that CFS failed to inquire of extended family members. Thus, we cannot know for certain whether the error did or did not prevent it from discovering Indian ancestry on the father's side." (A.C., supra, 65 Cal.App.5th at p. 1070.)
As noted in A.C., "[t]he flaw in this argument is that 'an appellant has the burden of producing an adequate record that demonstrates reversible error. [Citation.]' [Citation.].) Admittedly, in In re K.R., we recognized an exception to this rule when the record is inadequate because of the social services agency's failure to document its inquiries." (A.C., supra, 65 Cal.App.5th at p. 1070, citing K.R., supra, 20 Cal.App.5th at p. 705 and In re N.G. (2018) 27 Cal.App.5th 474, 481.) That exception does not apply here because this case does not involve CFS failing to document its inquiries.
Here, the record demonstrates CFS made a concerted effort to discharge its duty of further inquiry by contacting D.Y., the paternal grandmother, and attempting to contact Aunt. Moreover, all required ICWA notices were given and included all known identifying information. Furthermore, although Father-W claimed he had Native American ancestry and claimed he may be Cherokee, he was uncertain and could not name any other tribes. None of Father-W's other family members named a tribe or indicated there was specific ancestry in a tribe through a specific member. Because CFS sent notices to three Cherokee tribes and to the BIA based on the information it had, we find that any alleged error in the ICWA 030 notices to be harmless.
We therefore conclude CFS and the court fulfilled their duty of further inquiry by the time the court ordered that ICWA did not apply, even though Aunt was never interviewed. The juvenile court and CFS could have reasonably found it was unlikely that any additional inquiry would have produced additional information regarding the children's Indian ancestry.
Again, a parent asserting failure to inquire as to an extended family member must show, at a minimum, that, if asked, the extended family member would have provided new information of Indian ancestry. Where the record below fails to demonstrate this, a miscarriage of justice has not been established and reversal is not required. (A.C., supra, 65 Cal.App.5th at p. 1069.) There is no evidence in the record that Aunt had or might have any new information regarding V.W.'s Indian ancestry. In addition, the BIA and two of the three noticed tribes confirmed that V.W. was not a member or eligible, and the remaining tribe confirmed receipt of ICWA notice but did not bother to respond.
In her reply brief, Mother repeats her argument that CFS and the juvenile court failed to fulfill their cuties because they did not adequately inquire about Father-W's Native American heritage through the paternal aunts. We disagree; as discussed in detail ante, the social worker in this case contacted several members of Father-W's family. The social worker left a message with Aunt who never returned the call to the social worker.
In conclusion, substantial evidence shows that CFS sufficiently investigated V.W.'s Indian ancestry and the investigation demonstrated that V.W. does not have Indian ancestry through either parent and is not a Indian child under ICWA or the state statutes. We therefore conclude that, if there was any error in CFS and the court not contacting Aunt, the omission was harmless error.
DISPOSITION
The jurisdictional findings and dispositional orders of the juvenile court are affirmed.
We concur: McKINSTER Acting P. J., CODRINGTON J.