Filed 8/9/22 In re E.A. CA2/4

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION FOUR

APPEAL from an order of the Superior Court of Los Angeles County, Kristen Byrdsong, Judge Pro Tempore. Affirmed.

Jill Smith, under appointment by the Court of Appeal, for Defendant and Appellant.

Office of the County Counsel, Rodrigo A. Castro-Silva, County Counsel, Kim Nemoy, Assistant County Counsel, and Sally Son, Deputy County Counsel, for Plaintiff and Respondent.

___________________________________

INTRODUCTION

Appellant E.L. (Mother) challenges the juvenile court’s order terminating parental rights over her son, E.A., claiming the Los Angeles County Department of Children and Family Services (the Department) failed to comply with its duties under the federal Indian Child Welfare Act (25 U.S.C. § 1901 et seq.; ICWA) and related California statutes. Early in the proceedings, Mother asserted she may have Yaqui heritage and referred the Department to the maternal grandmother, Angelica A. (Grandmother), for additional information. The Department gathered information from Grandmother and sent a notice containing family information to the Pascua Yaqui tribe. After reviewing the information, the tribe determined that neither E.A. nor his parents were members of the tribe, and that based on the information provided, E.A. was also not eligible for membership. Following this investigation, the juvenile court found that ICWA did not apply to these proceedings. On appeal, Mother contends that in investigating her claim of Pascua Yaqui heritage, the Department: (1) inadequately detailed the information it received from Grandmother, thus precluding a determination that its notice to the tribe complied with ICWA’s requirements; and (2) failed to document any effort to contact certain relatives Grandmother had identified, thus precluding a determination that its investigation efforts were sufficient under ICWA. Assuming, without deciding, that the Department’s investigation was deficient, we conclude any error was harmless, as the tribe’s response established that ICWA was inapplicable. We therefore affirm.

BACKGROUND

1. Overview of the Proceedings Below

In July 2019, the Department filed a petition under Welfare and Institutions Code section 300 on behalf of E.A. (born July 2018), alleging the child was endangered by physical abuse at the hands of his father, G.B. (Father), and by the parents’ history of domestic violence, substance abuse, and untreated mental and emotional problems.[1] The juvenile court largely sustained the petition and ordered family reunification services. However, in October 2020, the court determined that Mother had not made sufficient progress and terminated reunification services.[2] In August 2021, the court terminated parental rights over the child.

2. Facts Related to ICWA

At the inception of the proceedings, Father reported that he had no knowledge of any Indian ancestry. Mother, however, reported that she believed she may have “Ya[qu]i” ancestry. At a hearing in July 2019, the juvenile court ordered the Department to investigate Mother’s claim.

When the Department interviewed Mother again in August 2019, Mother stated that Grandmother would be able to provide more information, as she was the one who had mentioned having Yaqui heritage. The Department contacted Grandmother that same day. According to the Department’s report regarding the interaction, Grandmother told the Department that she had been informed that the family had Yaqui ancestry, and she provided “the names and date[s] of birth to the paternal [sic] side of the family.” The Department further reported that it sent out certified notices with “ancestry information provided . . . by [Grandmother].”

As relevant here, one such notice was sent to the Pascua Yaqui Tribe.[3] The Department’s notices listed E.A.’s name, birthdate, and place of birth, the parents’ names, addresses, and birthdates, Grandmother’s name, address, and birthdate, a maternal great-grandfather’s name and birthplace (though it erroneously listed him as the maternal great-grandmother), and a maternal great-grandmother’s name.

In a letter filed with the juvenile court the next month, the Pascua Yaqui Tribe responded to the Department’s notice: “The Pascua Yaqui Tribe’s Enrollment Department has indicated that [E.A], the minor child, [E.L.], the mother, and [G.B.], the father, are not members of the Pascua Yaqui Tribe, nor do they have applications for membership pending. [¶] Based upon the family information provided and the current enrollment records, the child is not eligible for membership and the Tribe will not intervene in this matter.” The tribe’s letter included a copy of an “Enrollment Verification” form, which indicated that E.A. was neither a member of the tribe nor eligible for membership, and that neither an application nor tribal affiliation had been found. At an October 2019 hearing, the juvenile court found that ICWA did not apply in the case. Following the termination of parental rights, Mother timely appealed.

DISCUSSION

1. Governing Principles

Under ICWA, “In any involuntary proceeding in a State court, where the court knows or has reason to know that an Indian child is involved, the party seeking . . . termination of parental rights to[] an Indian child shall notify . . . the Indian child’s tribe . . . of the pending proceedings and [its] right [to intervene].” (25 U.S.C. § 1912(a).) “This notice requirement, which is also codified in California law [citation], enables a tribe to determine whether the child is an Indian child and, if so, whether to intervene in or exercise jurisdiction over the proceeding.” (In re Isaiah W. (2016) 1 Cal.5th 1, 5.)

“‘ICWA defines an “Indian child” 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(4); see § 224.1, subd. (a).) The trial court and [Department] have an affirmative and continuing duty in every dependency proceeding to determine whether ICWA applies.’” (In re H.V. (2022) 75 Cal.App.5th 433, 437.)

“Following changes to the federal regulations concerning ICWA compliance, California made conforming amendments to its statutory scheme regarding ICWA, effective in 2019. [Citation.] In [In re D.S. (2020) 46 Cal.App.5th 1041, 1048], the court explained that the resulting clarification of law, found in part in section 224.2, ‘creates three distinct duties regarding ICWA in dependency proceedings. First, from the [Department]’s initial contact with a minor and his family, the statute imposes a duty of inquiry to ask all involved persons whether the child may be an Indian child. (§ 224.2, subds. (a), (b).) Second, if that initial inquiry creates a “reason to believe” the child is an Indian child, then the [Department] “shall make further inquiry regarding the possible Indian status of the child . . . .” (Id., subd. (e) . . . .) Third, if that further inquiry results in a reason to know the child is an Indian child, then the formal notice requirements of section 224.3 apply.’” (In re Charles W. (2021) 66 Cal.App.5th 483, 489.)

At the first and second steps, the Department’s duties of “inquiry” and “further inquiry” respectively include contacting persons “who have an interest in the child” and interviewing any “person that may reasonably be expected to have information regarding the child’s [tribal] membership . . . or eligibility.” (§ 224.2, subds. (b) & (e)(2)(B).)

When providing formal notice at the third step, the Department “must include enough information for the tribe to ‘conduct a meaningful review of its records to determine the child’s eligibility for membership’ [citation], including the identifying information for the child’s biological parents, grandparents, and great-grandparents, to the extent known [citations].” (In re D.S., supra, 46 Cal.App.5th at 1050.) A tribe’s determination that “a child . . . is not a member of, or eligible for membership in, that tribe . . . shall be conclusive.” (§ 224.2, subd. (h).) As relevant here, under the Constitution of the Pascua Yaqui Tribe, a person is a member of that tribe only if the person’s name appears “on the original base [membership] roll” or if the person applied and was approved for membership.[4] (Pascua Yaqui Const., art. 3, § 1.)

Any failure by the Department to comply with its inquiry duties is a violation of state law. (In re Benjamin M. (2021) 70 Cal.App.5th 735, 742.) Accordingly, we may not reverse the juvenile court’s orders based on such deficiencies “unless we find that the error was prejudicial.” (Ibid.)

2. Analysis

Mother contends the Department violated its duties under state law by: (1) inadequately detailing the information Grandmother had provided, which precluded a determination that the ICWA notice to the tribe was compliant; and (2) failing to document any effort to contact the great-grandparents Grandmother had identified, which precluded a determination that its investigation efforts were sufficient. However, even assuming, arguendo, that the Department’s investigation did not comply fully with state law, any violation was harmless, because the investigation established that E.A. was not an Indian child for purposes of ICWA.

As noted, ICWA applies only to proceedings involving an Indian child -- an unmarried child who “is either (a) a member of an Indian tribe or (b) is eligible for membership in an Indian tribe and is the biological child of a member of an Indian tribe.” (25 U.S.C. § 1903(4), italics added.) To ascertain whether E.A. was an Indian child, the Department sent a formal notice to the Pascua Yaqui Tribe, the tribe both Mother and Grandmother had identified. In its notice, the Department provided the identifying information for E.A. and both his parents. It is undisputed that this information was accurate. After reviewing the Department’s notice, the tribe responded that neither the child nor the parents were members of the tribe, and that based on the information provided, the child was also not eligible for membership.[5] The tribe did not claim to have insufficient information to determine the membership status of the child or his parents, and indeed, given that membership with the Pascua Yaqui Tribe is a matter of record -- based on either inclusion in the original membership roll or an approved application (Pascua Yaqui Const., art. 3, § 1) -- it had all the necessary information to rule out the family’s membership. Any additional information the Department might have been able to provide the tribe regarding the great-grandparents might theoretically have influenced the tribe’s determination that the child was ineligible for membership. But if neither the child nor his biological parents were members, he was not an Indian child, and thus ICWA did not apply. (See 25 U.S.C. §§ 1903(4), 1912(a); In re Abbigail A. (2016) 1 Cal.5th 83, 88-89 [ICWA did not apply where, “despite their eligibility for membership in the tribe, the children were not Indian children because neither of their biological parents was a member” (id. at 89)].) Accordingly, any deficiency in the Department’s investigation was harmless.

In re K.R. (2018) 20 Cal.App.5th 701, cited by Mother, does not support a different conclusion. There, the court “recognized an exception to [the rule that an appellant has the burden of producing an adequate record that demonstrates reversible error] when the record is inadequate because of the social services agency’s failure to document its inquiries.”[6] (In re A.C. (2021) 65 Cal.App.5th 1060, 1070 [discussing In re K.R.].) The appellate record here is not inadequate. As discussed, it affirmatively establishes that further inquiry with, and provision of additional information about, the great-grandparents would not have revealed that E.A. was an Indian child. As we conclude that no prejudice resulted from any investigation deficiency in this case, we affirm. (See In re Benjamin M., supra, 70 Cal.App.5th at 742.)

DISPOSITION

The juvenile court’s order is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL

REPORTS

MANELLA, P. J.

We concur:

COLLINS, J.

CURREY, J.

[1] Undesignated statutory references are to the Welfare and Institutions Code.

[2] Father had moved to Boston early in the proceedings and did not respond to the Department’s efforts to contact him during the reunification period.

[3] The Pascua Yaqui Tribe is the only federally recognized Yaqui tribe. (See Indian Entities Recognized by and Eligible to Receive Services from the United States Bureau of Indian Affairs, 87 Fed.Reg. 4636-4641 (Jan. 28, 2022).)

[4] The tribe’s constitution provides: “The membership of the Pascua Yaqui Indian Tribe shall consist of any person: [¶] a. whose name appears on the original base roll dated September 18, 1980 or applied for and was approved for membership under the Open Enrollment Act of 1994 Public Law 103-357; or [¶] b. who is a direct lineal descendant or a collateral Yaqui blood relation to a member . . . ; and [¶] c. who possesses at least one-quarter (¼) degree Pascua Yaqui Indian Blood, and [¶] d. who is a United States Citizen; and [¶] e. applies for and is granted membership under the laws of the Pascua Yaqui Tribe . . . .” (Pascua Yaqui Const., art. 3, § 1.) We take judicial notice of this constitutional provision. (See Big Valley Band of Pomo Indians v. Superior Court (2005) 133 Cal.App.4th 1185, 1192 [tribal law is judicially noticeable under Evid. Code, § 452].)

[5] Mother asserts, “the Pascua Yacqui Tribe responded that, based on the information provided, neither the parents nor [E.A.] were members of the tribe nor eligible for membership in the tribe.” In fact, the tribe stated without qualification that neither the child nor the parents were members. Its note regarding “the family information provided” concerned only the child’s lack of eligibility for membership.

[6] In In re K.R., after learning that the dependent children might have Cherokee heritage through their father, the agency noticed the Cherokee tribes, but did not include identifying information about a paternal great-grandfather, which might have been available to it had it interviewed additional relatives. (In re K.R., supra, 20 Cal.App.5th at 705, 707.) In response to the agency’s notices, the tribes all responded that the children were not Indian children. (Id. at 705.) The Court of Appeal remanded for additional inquiry, concluding that based on that record, the juvenile court could not have ascertained whether the agency had conducted an adequate investigation. (Id. at 709.) However, in so doing, the court did not discuss the relevant tribes’ requirements for membership, and nothing in the court’s opinion suggests that the omission of the children and their parents from the relevant tribes’ membership rolls precluded Indian child status, as it does in the case of the Pascua Yaqui Tribe.