Filed 8/12/22 In re B.H. CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION TWO

APPEAL from the Superior Court of San Bernardino County. Erin K. Alexander, Judge. Conditionally reversed with directions.

Joseph T. Tavano, under appointment by the Court of Appeal, for Defendant and Appellant.

Tom Bunton, County Counsel, David Guardado and Glenn C. Moret, Deputy County Counsel, for Plaintiff and Respondent.

The juvenile court terminated the parental rights of defendant and appellant S.F. (Mother) to her sons, B.H. and D.H. (collectively, the children). Mother contends the juvenile court erred by finding plaintiff and respondent San Bernardino County Children and Family Services (the Department) conducted an adequate inquiry into whether the children are Indian children under the Indian Child Welfare Act of 1978 (25 U.S.C. § 1901 et seq.) (ICWA). We conditionally reverse the judgment with directions.

FACTUAL AND PROCEDURAL HISTORY

A. DETENTION

At the time of their removal, D.H. was one year old and B.H. was three months old. B.L.H. (Father) was the children’s presumed father.

On September 30, 2016, Mother was arrested for assault with a deadly weapon; the alleged victim was a man with whom Mother had been living. Mother was taken to the West Valley Detention Center. Father was already incarcerated in the High Desert Detention Center. The Department placed the children in foster care.

A Department social worker met with Mother at the jail. Mother “stated she did not know if there was Indian ancestry.” Mother told the social worker that the children were with their paternal grandmother (Grandmother) during the assault. Mother gave the social worker Grandmother’s name and the social worker contacted Grandmother. Grandmother said she was unable to have the children live with her.

The detention hearing took place on October 5, 2016. Mother and Father completed Parental Notification of Indian Status forms (ICWA-020). Mother marked the box indicating she does not have Indian ancestry. Father marked the box indicating that he may have Indian ancestry. Next to the box, Father wrote “Delaware through Father” and identified the tribe as “Delaware Indian.”

At the hearing, Mother orally confirmed that she does not have Indian ancestry. The court asked Father if he is “an enrolled member or eligible for enrollment as a member as far as you know?” Father replied, “I am—as far as I know, I am 25 percent, so I am a quarter, so I should be eligible. I never really pushed for paperwork.” Father explained that his Indian ancestry came through his father (Grandfather). Father spelled Grandfather’s first and last names and identified the town where Grandfather was born and two towns where Grandfather was raised. Father did not know if Grandfather was a registered tribal member and did not know Grandfather’s birthday. Father asserted Grandfather could be contacted through Grandfather’s employer, which was the Logan County Sheriff’s Department, in Logan County, Arkansas.

The Department’s attorney asked, “Is the tribe from Delaware or does the name of the tribe have Delaware in it?” Father asserted the word Delaware was in the tribe’s name. The Department asked if Father knew any other parts of the tribe’s name. Father responded, “No.” Father’s attorney said Father requested that the children be placed with Father’s brother (Uncle), and the attorney provided Uncle’s name and that Uncle lived in Phelan. Father’s attorney said Father would “have to gather [Uncle’s] contact information, though. He didn’t have it for me today.”

B JURISDICTION AND DISPOSITION

A Department social worker sought to interview Father at the jail on October 19, 2016, but was told by jail personnel that Father was released on October 14, 2016. The Department did not have any contact information for Father and his whereabouts were unknown.

In November 2016, the Department sent Notices of Child Custody Proceedings for Indian Children (ICWA-030) to (1) the Delaware Nation in Anadarko, Oklahoma; (2) the Bureau of Indian Affairs in Sacramento; and (3) the Bureau of Indian Affairs in Washington, D.C. The Notices provided information about Mother and Father but omitted information about other relatives, e.g. Grandmother and Grandfather.

In December 2016, the Department prepared Indian Child Inquiry Attachment forms (ICWA-010(A)) for each child. The forms documented who the Department questioned about the children’s Indian ancestry. The Department indicated that it spoke to Mother on September 30, 2016, and Mother did not know if the children had Indian ancestry. The Department left both forms unsigned.

The jurisdiction and disposition hearing was held on January 23, 2017. The juvenile court found true the allegations that (1) Mother’s abuse of illegal drugs impeded her ability to parent the children, which placed the children at risk (§ 300, subd. (b)); (2) Mother’s parental rights to the children’s half sibling were terminated on June 16, 2011 (§ 300, subd. (j)); and (3) Father failed to protect the children from Mother, which exposed the children to neglect (§ 300, subd. (b)).

On February 7, 2017, the Department submitted a Final ICWA Declaration of Due Diligence. In the declaration, the Department asserted it sent notices to the Delaware Nation and the relevant government agencies, but no responses were received. The Department requested the juvenile court sign a proposed order that read, “ICWA does not apply in the above-referenced case, and no further notice is required.” The juvenile court did not sign the order. Instead, the court handwrote a note on the proposed order that read, “Need new 0-3-0 [sic]. Didn’t include all known info. County Counsel notified.”

C. SIX-MONTH REVIEW HEARING

On July 14, 2017, the Department filed its six-month status report. The report’s ICWA section reads, “On February 07, 2017, OA III A. Cepeda filed a Final ICWA Declaration of Due Diligence asking the court to find ICWA did not apply.” On July 20, 2017, the Department submitted an ICWA Declaration of Due Diligence that cited the November 2016 notices. During the six-month status hearing, there was no discussion of the court’s rejection of the proposed ICWA order. The juvenile court terminated Father’s reunification services.

D. 12-MONTH REVIEW HEARING

On November 3, 2017, the Department filed its 12-month status report. The report’s ICWA section reads, “On February 07, 2017, OA III A. Cepeda filed a Final ICWA Declaration of Due Diligence asking the Court to find ICWA did not apply.” On November 13, 2017, the Department filed an ICWA Declaration of Due Diligence that cited the November 2016 notices. During the 12-month status hearing, there was no discussion of the court’s rejection of the proposed ICWA order. The juvenile court terminated Mother’s reunification services.

E. FIRST ICWA ORDER

On November 17, 2017, the Department sent first amended Notices of Child Custody Proceedings for Indian Children (ICWA-030) to (1) the Delaware Nation in Anadarko, Oklahoma; and (2) the Bureau of Indian Affairs in Sacramento. The Department also sent first amended notices to the Delaware Tribe of Indians in Bartlesville, Oklahoma. The first amended notices included information about Mother, Father, and Grandfather. In regard to Grandfather, the first amended notice included his place of birth and name, but his first name was misspelled. According to Father, Grandfather’s first name is “Hercshal.” The Department spelled it Herschel, transposing the “c” and “s” and using an “e” rather than an “a.”

On November 22, 2017, the Department received a letter from the Delaware Tribe of Indians Family & Children Services in Kansas. The letter provided that the children are not enrolled members of the Delaware Tribe of Indians; the children are not registered members of the Delaware Tribe of Indians; and the children are not eligible for enrollment in the Delaware Tribe of Indians. The letter continued, “If the family wishes to seek out another tribe for possible ancestral connection, we advise Delaware Nation (a separate federally-recognized tribe) in Anadarko, Ok or Cherokee Nation in Tahlequah, OK. It may be possible the children descend from a person listed with these tribes due to a historical association.”

On January 2, 2018, the Department filed an ICWA Declaration of Due Diligence. The Declaration incorrectly reflected that, on November 22, 2017, the Department received a letter from the Delaware Nation in Anadarko, Oklahoma, indicating that the children are not enrolled tribal members and that the tribe would not intervene in the case. The declaration omitted the Delaware Tribe of Indians.

On February 2, 2018, the Department filed a Final ICWA Declaration of Due Diligence dated February 2, 2018, that was substantively identical to the January 2018 declaration. Also on February 2, 2018, the Department requested the juvenile court find that ICWA does not apply in the case. The Department incorrectly asserted, “The Department has received a response from the Delaware Nation indicating the child does not qualify for membership.” On February 6, 2018, the juvenile court signed a proposed order reflecting, “Notice has been conducted as required by the Indian Child Welfare Act (ICWA),” and ordering “that ICWA does not apply in the above-referenced case, and no further notice is required.”

F. 2019 THROUGH 2021

Court proceedings in the case were delayed due to the Department searching for a prospective adoptive family and due to the pandemic.

In October 2019, the Department sent second amended Notices of Child Custody Proceedings for Indian Children (ICWA-030) to (1) the Delaware Nation in Anadarko, Oklahoma; (2) the Delaware Tribe of Indians in Bartlesville, Oklahoma; and (3) the Bureau of Indian Affairs in Sacramento. The second amended notices provided information about Mother, Father, Grandfather, Grandmother, Mother’s mother, Mother’s father, and Mother’s grandfather. In regard to Grandfather, the second amended notice included his place of birth and his name, although his first name was misspelled in the same manner as in the first amended notice.

In October 2019, the Delaware Tribe of Indians Family & Children Services in Bartlesville, Oklahoma, sent a letter to the Department that provides the children “are not eligible for enrollment with the Delaware Tribe of Oklahoma.” In November 2019, the Delaware Nation in Anadarko, Oklahoma, sent a letter to the Department reflecting the children “are not currently enrolled, nor are eligible to be enrolled as a Delaware Nation citizen. In order to be eligible for citizenship an individual must be a lineal descendant of an Original Allottee and/or their brother/sister.”

On June 10, 2020, the Department filed an ICWA Declaration of Due Diligence. In the declaration, the Department asserted, “The Department has received a response from the Delaware Nation and the Delaware Tribe indicating the child does not qualify for membership. [¶] The undersigned requests the court to make the finding: That notice has been conducted as required . . . . [¶] ICWA does not apply. No further notice is required.” The Department submitted a proposed order reflecting, “It is hereby Ordered that ICWA does not apply . . . and no further notice is required.” On September 18, 2020, the juvenile court, in particular the Honorable Erin K. Alexander, denied the Department’s request and handwrote on the proposed order, “Denied. Need to Doc. Efforts[.] Email Sent.”

On July 22, 2021, the Department filed a status review report. In the section titled “Indian Child Welfare Active Efforts,” the Department wrote, “On July 21, 2021, the undersigned spoke with [Mother] to inquire about Indian Ancestry. The mother denied Indian ancestry. There was no working phone number for [Father]. [Mother] stated that she would contact him on Facebook and ask him to call the undersigned due to not having his phone number.”

On July 30, 2021, the juvenile court, with the Honorable Steve Mapes presiding, held a hearing in the case. The following exchange took place between the court and the Department’s attorney:

“The Court: I do have a note from Judge Alexander. Well, I don’t know if it’s dated or not, but it says 9-18-20. There’s a note related to ICWA orders. It should be reflected a year ago, and it said that—I don’t know if you got the—you must have the email because it has your name on it. Did you get the email from her? [¶] It says, ‘We’ve added info to the 030, but there’s still a lot missing. I can’t find where we’ve documented our efforts.’ [¶] You’re on it and so is Ms. Oliver and Ms. Ransom, but I can’t tell what date the email was sent. It’s just loose in the file.

“[County Counsel]: Right. I’m looking back in my notes. I have an email regarding the ICWA issues from Judge Alexander, which is dated September 18th, 2020.

“The Court: Okay.

“[County Counsel]: And the information was requested to be put in the further PPR Report. So I’d have to go back and review regarding ICWA which would take more than a moment in this file. [¶] If the Court would like, what Judge Alexander has done in the past is to set the Notice Review also as an ICWA Review, and I can double-check the file. And if there are any clarifications needed, I would have the Department submit a 6.7 for that date to just clarify.

“The Court: Okay.”

The court set an ICWA notice review and “order[ed] a 6.7 update on all efforts related to whatever loose ends there were with the ICWA noticing and the 030.”

On October 26, 2021, the Department filed the 6.7 form documenting its ICWA inquiry efforts. The Department social worker wrote that on January 28, 2021, (1) she had spoken to Mother’s sister who denied any Indian ancestry and said her and Mother’s mother was deceased; (2) she had spoken to “a cousin who stated that it is unknown if there is Indian ancestry”; and (3) she had contacted Grandmother but there was no answer so the social worker had left a message. The social worker asserted the foregoing information was the same as that “outlined in the February 2021, PPR report.” We note the record does not include a report from February 2021.

The social worker further asserted that Mother was supposed to contact Father via Facebook and then contact the Department with Father’s phone number. The social worker called Mother on August 12, 2021, August 26, 2021, and September 3, 2021, but Mother did not answer, so the social worker left voicemails. The social worker attempted to contact “a family friend on October 25, 2021; [but] the phone number listed is not a working number.”

Further, the social worker wrote, “[The Department] has continued to reach out to paternal relatives to obtain information to confirm Native American ancestry. In addition, no other relatives have come forward to provide additional information to prove [Father’s] claims of Native American ancestry.”

On October 26, 2021, the juvenile court, with the Honorable Erin K. Alexander presiding, held an ICWA notice review hearing. The court said, “I’ll just note that the Court had rejected the original orders for ICWA on September the 18th of 2020. The Court’s concern is that there was a lot of information missing on the 030 and it wasn’t clear where we had documented our efforts or what relatives we spoke to. [¶] The 6.7 does clarify those issues and shows our documented efforts, so I’ll find that ICWA does not apply and that there has been no affirmative responses but ask that the final orders be submitted so that that’s clearly documented in the file.”

On November 5, 2021, the juvenile court signed a proposed order reflecting, “The court hereby finds Proper and adequate inquiry and due diligence has been conducted by [the Department] to determine whether there is a reason to know that the child(ren) are Indian children.” The court “ordered that the ICWA does not apply in the above referenced case and no further notice is required.” On January 6, 2022, the juvenile court terminated Mother’s and Father’s parental rights to the children.

DISCUSSION

A. ADEQUACY OF THE INQUIRY

Mother contends the juvenile court erred by finding the Department conducted an adequate inquiry into whether the children are Indian children. In particular, Mother asserts that “Father claimed Native American ancestry through [Grandfather],” and Father announced in open court that Grandfather could be contacted through Grandfather’s employer, but there is no indication that the Department contacted either Grandfather or Uncle to inquire about Indian ancestry.

When a social services agency takes a child into its custody, the agency has an initial “duty to inquire whether that child is an Indian child. Inquiry 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 and where the child, the parents, or Indian custodian is domiciled.” (Welf. & Inst. Code, § 224.2, subd. (b)[1]; see also In re Benjamin M. (2021) 70 Cal.App.5th 735, 742.)

“If the initial inquiry gives the juvenile court or the agency ‘reason to believe’ that an Indian child is involved, then the juvenile court and the agency have a duty to conduct ‘further inquiry,’ and if the court or the agency has ‘reason to know’ an Indian child is involved, ICWA notices must be sent to the relevant tribes.” (In re Benjamin M., supra, 70 Cal.App.5th at p. 742.)

At the further inquiry stage, when the juvenile court or the Department “has reason to believe that an Indian child is involved in a proceeding,” its inquiry should include “nterviewing the parents . . . and extended family members to gather the information required in paragraph (5) of subdivision (a) of Section 224.3.” (Welf. & Inst. Code, § 224.2, subd. (e)(2)(A).) The definition of “extended family member” includes the child’s grandparents and uncles. (25 U.S.C.A. § 1903(2); Welf. & Inst. Code. § 224.1, subd. (c).)

When “the [juvenile] court makes a finding that proper and adequate further inquiry and due diligence as required in [section 224.2] have been conducted and there is no reason to know whether the child is an Indian child, the court may make a finding that [ICWA] does not apply to the proceedings, subject to reversal based on sufficiency of the evidence.” (§ 224.2, subd. (i)(2); [i]In re Y.W. (2021) 70 Cal.App.5th 542, 552.) Under the substantial evidence standard, we “ ‘ “determine if reasonable, credible evidence of solid value supports the court’s order. [Citation.] We must uphold the court’s orders and findings if any substantial evidence, contradicted or uncontradicted, supports them, and we resolve all conflicts in favor of affirmance.” ’ ” (In re Josiah T. (2021) 71 Cal.Appl.5th 388, 401.)

Father asserted that his Native American ancestry flowed through Grandfather. Father explained that Grandfather could be contacted through Grandfather’s employer, and Father identified the employer as the Logan County Sheriff’s Department in Logan County, Arkansas. There is no indication that the Department attempted to contact Grandfather. Further, Father asserted he had contact information for Uncle, who lived in Phelan. There is no indication that the Department attempted to contact Uncle or attempted to obtain Uncle’s contact information from Father, Grandfather, or Grandmother. Presumably, if the Department had been successful in contacting Grandfather and/or Uncle, it could have gathered more information about (1) the precise name of the relevant tribe (§ 224.3, subd. (a)(5)(B)); (2) Grandfather’s parents’ identifying information (§ 224.3, subd. (a)(5)(C)); and (3) Grandfather’s birthdate and current and former addresses (§ 224.3, subd. (a)(5)(C)).

In October 2021, the Department wrote that it “has continued to reach out to paternal relatives to obtain information to confirm Native American ancestry.” However, it appears the Department was communicating with Father’s maternal relatives, such as Grandmother. The record indicates that Grandfather worked in Arkansas, while Grandmother resided with friends seemingly in Southern California. A reasonable inference from the record is that Grandfather and Grandmother were no longer in a relationship. Thus, communicating with Grandmother was not a reasonable substitute for speaking with Grandfather.

In sum, Grandfather was the relative that allegedly had Native American ancestry. The record does not indicate what, if any, efforts the Department made to contact Grandfather. Therefore, the record does not support the juvenile court’s finding that a diligent and adequate ICWA inquiry was conducted. (§ 224.2, subd. (i)(2).) Until that finding can be made, it is premature to order that ICWA does not apply.

The Department asserts its ICWA inquiry was adequate because (1) “for every individual for whom the Department had contact information, efforts were made to inquire regarding the possibility that the children may be Indian children”; and (2) “at no point did the Department have any manner of contact information” for Grandfather.

In open court, Father gave Grandfather’s name, spelled Grandfather’s name, identified the law enforcement agency where Grandfather works, and said Grandfather could be contacted through Grandfather’s employer. While Father did not provide Grandfather’s direct phone number, Father provided sufficient information for the Department to at least attempt to contact Grandfather through Grandfather’s employer. There is no indication that the Department attempted to contact Grandfather through Grandfather’s employer despite Grandfather being the one identified relative with Indian ancestry. Accordingly, we are not persuaded that the Department contacted all relatives for whom it had contact information.

The Department asserts it went above and beyond in this case by sending formal notices to the two tribes and the two government agencies because sending formal notices was more than ICWA required. In regard to Grandfather, the second amended notices included only his place of birth and a misspelling of his name. The notices did not include Grandfather’s accurate name, current address, former address, date of birth, and possible tribal affiliation. The second amended notices also did not include any information whatsoever about Grandfather’s parents. Given the dearth of relevant information and the incorrect information in the formal notices, we are not persuaded by the Department’s assertion that it went above and beyond in this case.

B. PREJUDICE

An error in failing to further inquire is prejudicial “where the record indicates that there was readily obtainable information that was likely to bear meaningfully upon whether the child is an Indian child.” (In re Benjamin M., supra, 70 Cal.App.5th at p. 744.)

Grandfather could be reached at the Logan County Sheriff’s Department in Arkansas. By contacting Grandfather, it is reasonably likely that the Department would be able to learn his birthdate, current place of residence, his parents’ names (§ 224.3, subd. (a)(5)(C)), and through what tribe(s), if any, he has ancestry. Thus, identifying information and ancestral information about Grandfather was readily obtainable. That information, combined with the correct spelling of Grandfather’s name, would assist the tribes in their research into whether B.H. is an Indian child because the alleged Indian ancestry was through Grandfather. In sum, “the record indicates that there was readily obtainable information that was likely to bear meaningfully upon whether the child is an Indian child.” (In re Benjamin M., supra, 70 Cal.App.5th at p. 744.) Therefore, the error is prejudicial.

The Department contends the error is harmless. The Department asserts, “[E]ven if the Department did fail to make appropriate efforts to locate these individuals, such a failure to interview them would nevertheless be harmless error, as explained in subheading 5 of this brief, ante.” In section five of the respondent’s brief, the Department asserted that it “satisfied its duties under ICWA” by contacting some of the children’s relatives and sending notices to tribes and government agencies. The Department also asserted that the two tribes concluded the children were not eligible for tribal membership.

While the Department contacted relatives, it failed to attempt to contact Grandfather, who allegedly has Indian ancestry. The Department’s act of contacting other relatives does not render the Department’s omission harmless.

The Department’s act of sending notices to the Tribes and receiving letters from the Tribes indicating the children are not Indian children does not render the Department’s omission harmless because (1) the notices misspelled Grandfather’s name; and (2) the notices lacked information, such as Grandfather’s parents’ names, that likely could have been obtained if the Department successfully contacted Grandfather. In sum, the error is prejudicial.

DISPOSITION

The order terminating parental rights under section 366.26 is conditionally reversed and the matter is remanded to the juvenile court with directions that within 10 court days of the remittitur the Department demonstrate whether it contacted or attempted to contact Grandfather and Uncle as part of its inquiry into the children’s potential Indian ancestry. If the juvenile court determines the Department’s inquiry satisfied its affirmative duty to investigate, then the juvenile court shall reinstate its section 366.26 orders.

If the juvenile court concludes the Department’s investigation was insufficient, then the juvenile court shall order, pursuant to ICWA and California Rules of Court rules 5.481 and 5.482, that within 30 days of the remittitur that the Department perform a diligent inquiry into the children’s alleged Indian ancestry by contacting or attempting to contact Grandfather and Uncle. If adequate additional investigation is performed but yields no further information that could assist the Bureau of Indian Affairs or a specific tribe or tribes in determining whether the children are Indian children, then the juvenile court shall reinstate its section 366.26 orders. If, as a result of that inquiry, new information is obtained that may assist the Bureau of Indian Affairs or a tribe in determining whether the children are Indian children, then the juvenile court shall order the Department to provide the relevant tribe(s) and the Bureau of Indian Affairs with proper notice of the pending proceedings.

In the event no tribe responds indicating the children are Indian children, or if no tribe seeks to intervene, the juvenile court shall reinstate its section 366.26 orders. If a tribe determines that the children are Indian children and seeks to intervene in the proceedings, then the juvenile court shall vacate its prior orders and conduct all proceedings in accordance with ICWA and related California laws. (In re Josiah T., supra, 71 Cal.App.5th at p. 409.)

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

MILLER

J.

We concur:

McKINSTER

Acting P. J.

FIELDS

J.

[1] All further statutory references will be to the Welfare and Institutions Code, unless otherwise indicated.