NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
THE COURT *
Appellant Rachel L. (mother) challenges the adequacy of notice under the Indian Child Welfare Act (ICWA), 25 United States Code section 1901 et seq., and the finding that Gregory M., Jr. was not an Indian child. Father joins in mother's appeal and raises no other issues. We remand with instructions.
FACTUAL AND PROCEDURAL SUMMARY
The minor, Gregory, was born in January 2016. At the time of his birth, Gregory and mother tested positive for methamphetamine; mother also tested positive for marijuana. Approximately two months after his birth, mother and father were arrested for burglary and driving under the influence. Gregory and his older half sibling, Vanessa, were both in the car at the time of the arrest and illegal drugs and paraphernalia found in the car were within reach of the children.
The Stanislaus County Community Services Agency (agency) filed a Welfare and Institutions Code
Father appeared at the April 5, 2016 detention hearing. Mother was in custody and appeared through counsel. The juvenile court inquired about Indian ancestry at the detention hearing. Father stated he was adopted and had no knowledge of his birth family. Father was directed by the juvenile court to inquire of his adoptive parents about any Indian ancestry in his adoptive family.
Mother's counsel indicated that the maternal grandfather was present and had information on the family's Native American ancestry. Maternal grandfather indicated his grandmother was one-half Native American, making mother "potentially ... 1/16th Native American." The maternal grandfather did not know the tribe, but committed to finding out and notifying the social worker of the tribe's name.
The jurisdiction report filed by the agency on May 13, 2016, states that the social worker contacted father to obtain information about any Indian heritage of father's adoptive family; father indicated he had not contacted his adoptive family about this. The jurisdiction report noted that the maternal grandfather had also failed to provide the agency with any further information about his family's Indian heritage.
On May 19, 2016, the agency filed form ICWA-030, notice of child custody proceeding for Indian child, with the court. The form provided information on mother, father, the maternal grandparents, and maternal great-grandparents. No specific tribe was identified. The form was served on the Secretary of the Interior (Secretary) and the Bureau of Indian Affairs (BIA) by certified mail, return receipt requested. The acknowledgements of receipt of the ICWA form were filed on June 1 and 7, 2016.
An amended section 300 petition was filed June 3, 2016. The ICWA-010(A) form attached to the petition indicates Gregory "may have Indian ancestry."
At the June 7, 2016, hearing on the amended petition, mother's counsel asked to be relieved due to a conflict. The juvenile court noted that the matter would have to be continued. The juvenile court then inquired again of mother and father as to their knowledge of their Indian ancestry. Mother indicated she had Native American ancestry, but did not know what tribe. Father indicated he did not know if he had any Native American heritage, he had not been able to get any information. The juvenile court continued the matter to June 16, 2016.
At the June 16, 2016 hearing, the juvenile court noted that the maternal grandfather was present and "has been here for every proceeding." The juvenile court stated that it "is unknown whether the ICWA applies. However, all of the ICWA green return receipt cards have been received in a timely fashion."
Testimony was accepted at the June 16, 2016 hearing. Mother testified extensively. Father also testified. The hearing was continued to June 24, 2016.
At the conclusion of testimony at the June 24, 2016 hearing, the juvenile court stated that it did not find the testimony of the parents to be credible. The juvenile court found that both parents had substance abuse problems, which placed the children at risk, and their denial of the problem increased the risk of serious harm. The juvenile court then declared Gregory to be a dependent, removed Gregory from the custody of both parents, and granted reunification services to both parents.
No specific finding as to applicability of ICWA was articulated by the juvenile court at the June 24, 2016 hearing. The minute order of the hearing does not indicate whether the juvenile court found ICWA did, or did not, apply. Neither box was checked.
Mother filed her appeal on July 11, 2016. Father filed his appeal on July 20, 2016. On August 5, 2016, this court, on its own motion, ordered the two appeals consolidated.
Mother contends the juvenile court failed to comply with the notice and inquiry requirements of ICWA. Father joins in mother's contention and raises no other issues.
Congress enacted ICWA to promote the stability and security of Indian tribes and families by establishing minimum standards for removal of Indian children from their families and placement of such children in foster or adoptive homes that will reflect the unique values of Indian culture. (In re C.Y. (2012) 208 Cal.App.4th 34, 39; In re Levi U. (2000) 78 Cal.App.4th 191, 195.) An "`Indian child' is defined as a child who is either (1) `a member of an Indian tribe' or (2) `eligible for membership in an Indian tribe and ... the biological child of a member of an Indian tribe....' (25 U.S.C. § 1903(4).)" (In re Jonathon S. (2005) 129 Cal.App.4th 334, 338.) ICWA applies only to federally recognized Indian tribes. (25 U.S.C. § 1903(8); In re Jonathon S., supra, at p. 338; In re B.R. (2009) 176 Cal.App.4th 773, 783 [federal definition of "`Indian'" includes "Eskimos and other aboriginal peoples of Alaska"; see also 25 U.S.C. § 5129 (former § 479)]; In re Wanomi P. (1989) 216 Cal.App.3d 156, 166-168 [Canadian tribe is not federally recognized tribe under ICWA].)
In state court proceedings involving the foster care placement of, or termination of parental rights to, an Indian child, the Indian custodian of the child and the Indian child's tribe have the right to intervene at any point in the proceeding. (25 U.S.C. § 1911(c).) However, this right is meaningless unless the tribe is notified of the proceedings. (In re Hunter W. (2011) 200 Cal.App.4th 1454, 1466.) Notice serves the dual purpose of (1) enabling the tribe to investigate and determine whether a child is an Indian child and (2) advising the tribe of the pending proceeding and its right to intervene. (In re Desiree F. (2000) 83 Cal.App.4th 460, 470.)
In every dependency proceeding, the department and the juvenile court have an "affirmative and continuing duty to inquire whether a child ... is or may be an Indian child...." (§ 224.3, subd. (a); Cal. Rules of Court, rule 5.481(a); In re W.B. (2012) 55 Cal.4th 30, 53; In re Gabriel G. (2012) 206 Cal.App.4th 1160, 1165.) Once the court or department "knows or has reason to know that an Indian child is involved, the social worker ... is required to make further inquiry regarding the possible Indian status of the child, and to do so as soon as practicable...." (§ 224.3, subd. (c); Cal. Rules of Court, rule 5.481(a)(4); Gabriel G., supra, at p. 1165.) The department's duty of "further inquiry" requires "interviewing the parents, Indian custodian, and extended family members ... contacting the Bureau of Indian Affairs ... and contacting the tribes and any other person that reasonably can be expected to have information regarding the child's membership status or eligibility." (§ 224.3, subd. (c); Cal. Rules of Court, rule 5.481(a)(4); Gabriel G., supra, at p. 1165.)
ICWA applies to children who are eligible to become or who are members of a tribe but does not limit the manner by which membership is defined. (In re Jack C. (2011) 192 Cal.App.4th 967, 978.) A "tribe's right to define its own membership for tribal purposes has long been recognized as central to its existence as an independent political community." (Santa Clara Pueblo v. Martinez (1978) 436 U.S. 49, 72, fn. 32.) The tribe's determination that a child is a member of or eligible for membership in the tribe is conclusive. (§ 224.3, subd. (e)(1).)
Standard of Review
A juvenile court's ICWA finding is reviewed under the substantial evidence standard. (In re Rebecca R. (2006) 143 Cal.App.4th 1426, 1430; In re Karla C. (2003) 113 Cal.App.4th 166, 178-179.) Thus, we must uphold the juvenile court's orders and findings if any substantial evidence, contradicted or uncontradicted, supports them, and we must indulge all legitimate inferences in favor of affirmance. (In re John V. (1992) 5 Cal.App.4th 1201, 1212.) A juvenile court's ICWA finding is also subject to harmless error analysis. (In re Alexis H. (2005) 132 Cal.App.4th 11, 16.)
Because ICWA was enacted by Congress with the intent to "protect the best interests of Indian children and to promote the stability and security of Indian tribes and families," the juvenile court had an affirmative and continuing duty to inquire whether a child who is subject to the proceedings is, or may be, an Indian child. (25 U.S.C. § 1902; In re Isaiah W. (2016) 1 Cal.5th 1, 14.) The juvenile court here made inquiry at the inception of the case as well as later in the case.
Father and maternal grandfather were questioned at the inception of the case regarding their knowledge of any Native American ancestry and ordered by the juvenile court to make inquiries and provide the agency with any information relevant to Native American ancestry; mother was incarcerated and not at the hearing. The social worker followed up with father and maternal grandfather in May 2016, but received no additional information.
On May 19, 2016, the agency served the ICWA form on the Secretary and BIA by certified mail, return receipt requested. The form provided information on mother, father, the maternal grandparents, and maternal great-grandparents. No specific tribe was identified because the agency had not been provided with any information pointing to any specific tribe or tribes. The acknowledgements of receipt of the form were filed on June 1 and 7, 2016.
At the June 7, 2016, hearing on the amended petition, the juvenile court inquired again of mother and father as to their knowledge of their Indian ancestry. Mother indicated she had Native American ancestry, but did not know what tribe. Father indicated he did not know if he had any Native American heritage, he had not been able to get any information. Maternal grandfather, who was present for all the proceedings, apparently provided no further information about Native American heritage to the juvenile court.
Someone in mother's family had to have provided information to the agency to complete the form, as the ICWA notices included names and birthdates of maternal relatives back to the maternal great-grandparents, as required by section 224.2, subdivision (a)(5)(C). (In re J.M. (2012) 206 Cal.App.4th 375, 380.) The agency cannot give notice to a tribe if the family provides no indication of the tribe of their ancestry. Even after the May 2016 notices, the juvenile court continued to inquire of father and mother if they had any further information on Native American ancestry; no information was forthcoming.
These facts demonstrate the agency and juvenile court made an adequate inquiry and fulfilled their continuing obligation to inquire. (In re Gabriel G., supra, 206 Cal.App.4th at p. 1165.) However, the juvenile court issued its disposition order, removing Gregory from the custody of both parents, before 60 days from the date of service of the ICWA notices had passed. The juvenile court made no ICWA finding before proceeding to issue a disposition order.
As the California Supreme Court noted in its decision in In re Isaiah W., after proper notice has been given, "if the tribes respond that the minor is not a member or not eligible for membership, or if neither the BIA nor any tribe provides a determinative response within 60 days, then the court may find that ICWA does not apply to the proceedings." (Isaiah W., supra, 1 Cal.5th at p. 15.) The juvenile court could not make this finding because the 60 days had not lapsed.
The matter must be remanded for the juvenile court to make a determination as to whether ICWA applies to Gregory. If ICWA does not apply to Gregory, then the juvenile court's disposition order should be reinstated. If ICWA does apply, then the juvenile court must determine if "active efforts" have been made to prevent the breakup of the Indian family, as required by 25 United States Code section 1912(d), before a child can be removed from the custody of a parent.
The matter is remanded for the juvenile court to make a determination as to whether ICWA applies to Gregory. If it is determined ICWA does not apply, the disposition order is reinstated. If it is determined that ICWA does apply, then the juvenile court must comply with 25 United States Code section 1901 et seq. in determining a disposition.