California Court of Appeal Feb 24, 2022 No. E077488Unpublished
Filed 2/24/22 In re N.M. 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
In re N.M., a Person Coming Under the Juvenile Court Law.
SAN BERNARDINO COUNTY CHILDREN AND FAMILY SERVICES, E077488
Plaintiff and Respondent, (Super.Ct.No. J289645)
v. OPINION
A.L.,
Defendant and Appellant.
APPEAL from the Superior Court of San Bernardino County. Annemarie G.
Pace, Judge. Affirmed.
Karen J. Dodd, under appointment by the Court of Appeal, for Defendant and
Appellant.
Steven O’Neill, Interim County Counsel, Kaleigh Ragon, Deputy County Counsel
for Plaintiff and Respondent.
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A.L. (Mother) is the mother and J.M.1 is the father of N.M. (female, born April
2019; Minor). 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 conclude the
juvenile court properly found that the noticing provisions of ICWA did not apply to this
Effective January 1, 2019, the Legislature redefined the “reason to know”
requirement that triggers the duty to give notice of the proceedings to Indian tribes. (In
re A.M. (2020) 47 Cal.App.5th 303, 316 (A.M.), italics added; see § 224.3; Stats. 2018,
ch. 833, §§ 4-7.) Before January 1, 2019, a “reason to know” could be based on
“information suggesting the child is a member of a tribe or eligible for membership in a
tribe or one or more of the child’s biological parents, grandparents, or great-grandparents
are or were a member of a tribe.” (Welf. & Inst. Code, former § 224.3, subd. (b)(1),
italics added; Stats. 2006, ch. 838, § 32.) As of January 1, 2019, the mere suggestion of
eligibility for membership as to the child—or the mere suggestion of membership as to
the parents, grandparents, or great-grandparents—no longer provides a reason to know
that the court is dealing with an Indian child. (§ 224.2, subd. (d).) Now, the amended
statute declares that there is reason to know an Indian child is involved if, for instance,
“[a] person having an interest in the child . . . informs the court that the child is an Indian
child.” (§ 224.2, subd. (d)(1).) The changes to the statute conform the definition of
“reason to know” to the definition in federal regulations promulgated in 2016. (25 C.F.R.
§ 23.107(c); see A.M., at p. 316.)
“In defining the ‘reason to know’ standard as a reason to know that a child ‘is an
Indian child,’ the BIA expressly denied requests for more inclusive language, such as,
‘ “is or could be an Indian child” ’ or ‘ “may be an Indian child.” ’ [Citation.] In
rejecting the broader phrases, the BIA pointed to concerns that such language would
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cause ‘undue delay, especially when a parent has only a vague notion of a distant [t]ribal
ancestor.’ [Citations.] Indeed, tribal ancestry is not among the criteria for having a
reason to know the child is an Indian child.” (Austin J., supra, 47 Cal.App.5th at p. 885.)
“On appeal, we review the juvenile court’s ICWA findings for substantial
evidence. [Citations.] But where the facts are undisputed, we independently determine
whether ICWA’s requirements have been satisfied.” (D.S., supra, 46 Cal.App.5th at p.
1051.)
2. ANALYSIS
In this case, at the initial inquiry stage, Mother stated that she may have Indian
ancestry but could not identify the tribe. Thereafter, CFS further inquired about Minor’s
Indian ancestry by interviewing MGGM and MGA. MGGM told the social worker her
great-great grandmother told MGGM that they were affiliated with the Apache Tribe.
MGA told the social worker that in October of 2019, MGA send her DNA sample to
ancestry.com. The results showed a little bloodline for several tribes. Although MGA
did not provide any tribe names, she stated that she did not believe the tribes are federally
recognized tribes. Based on MGA’s information, the social worker contacted MGGM
again to collect additional information that may be needed for notice under ICWA. The
social worker also initiated contact via telephone with the Apache Nation but did not hear
back. Moreover, although the jurisdiction and disposition report stated that an ICWA-
030 form was submitted, there was no ICWA-030 form included in the record. No
written inquiry was sent to the Apache Nation or BIA. Furthermore, in the jurisdiction
and disposition report, CFS indicated that Minor “may come under the provisions of the
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Indian Child Welfare Act,” and that “Noticing requirements under ICWA have been
initiated.”
Based on the above, the juvenile court found that the further inquiry conducted by
CFS was adequate and proper. Prior to making this finding, the juvenile court reviewed
the report and stated:
“Page 2 indicates the maternal great-grandmother says that her maternal great-
great grandmother—so way, way back, told her they were affiliated with the Apache
Tribe. And then the maternal aunt took a DNA test which case law establishes is not a
basis to believe a child is an Indian child. [¶] Mom indicated she was not enrolled.
From the interviews with the maternal great-grandmother, it does not appear that anyone
close to the mother is an enrolled tribe member, nor has she lived on a reservation—the
mother that is. [¶] It looks like if there is Indian ancestry, it’s way, way back. And
nobody has indicated that the child is eligible for enrollment either. But the Department
to continue to inquire. [¶] So at this point I’m going to find that the child does not come
under ICWA and strike the noticing requirement.”
Mother claims that “the court improperly found ICWA did not apply because the
child’s affiliation with the Apache Tribes was ‘way, way back,’ and struck the noticing
requirements. However, only the tribe, not the juvenile court, has the authority to
determine who is a member. By not requiring CFS to formally notice the tribes, the
juvenile court prevented the tribes from determining whether the minor was an Indian
child.”
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We disagree with Mother. In her appeal, Mother has failed to address the revised
criteria for evaluating whether CFS had a reason to believe that an Indian child was
involved. (§ 224.2, subd. (e).) Here, the court ultimately found that ICWA does not
apply. This finding implies that a duty of inquiry under California law had been satisfied.
Sufficient evidence supports the court’s finding.
In this case, as noted above, CFS collected additional familial information and
initiated contact with the identified tribe. The information revealed during this additional
inquiry did not establish any further “reason to believe” Minor is an Indian child.
Minor’s relatives indicated that Minor’s great-great-great-great-great grandmother may
have belonged to the Apache tribe and MGA’s DNA test results revealed Native
American ancestry with no identification to a tribe or tribes. These facts, however, are
insufficient to support a “reason to believe” that Minor is an Indian child as defined in
ICWA. At most, it suggests a mere possibility of Indian ancestry. But, as stated in
Austin J., “Indian ancestry, heritage, or blood quantum, however, is not the test; being an
Indian child requires that the child be either a member of a tribe or a biological child of a
member. [Citations.] Being a member of a tribe depends ‘on the child’s political
affiliation with a federally recognized Indian Tribe,’ not the child’s ancestry. [Citations.]
Consequently, ‘many racially Indian children’ do not fall within ICWA’s definition of an
Indian child, while others may be Indian children even though they are ‘without Indian
blood.’ [Citation.] Indian ancestry, without more, does not provide a reason to believe
that a child is a member of a tribe or is the biological child of a member.” (Austin J.,
supra, 47 Cal.App.5th at pp. 888-889, italics added; see In re Jeremiah G. (2009) 172
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Cal.App.4th 1514, 1520 [“if the child is not a tribe member, and the mother and the
biological father are not tribe members, the child simply is not an Indian child”].)
Because there was insufficient evidence to provide a reason to believe that Minor
or her maternal relatives are members of, or eligible for membership in, an Indian tribe,
the statute imposed no duty to make further inquiry. The juvenile court, therefore,
properly found that the noticing provisions of ICWA did not apply to this case.
DISPOSITION
The juvenile court’s findings and orders are affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
MILLER J.
We concur:
McKINSTER Acting P. J.
CODRINGTON J.
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AI Brief
AI-generated · verify before citing
Holding. The court held that the juvenile court properly found the Indian Child Welfare Act (ICWA) did not apply because the evidence of distant, non-specific Indian ancestry did not establish a 'reason to believe' the minor is an Indian child.
Issues
Did the juvenile court err in finding that ICWA did not apply to the dependency proceedings?
Did the agency and the court satisfy their duties of inquiry under ICWA and California law?
Disposition. Affirmed
Quotations verified verbatim against the opinion
“Being an ‘Indian child’ is thus not necessarily determined by the child’s race, ancestry, or ‘blood quantum,’ but depends rather ‘on the child’s political affiliation with a federally recognized Indian Tribe.’”
“Indian ancestry, without more, does not provide a reason to believe that a child is a member of a tribe or is the biological child of a member.”
“The juvenile court, therefore, properly found that the noticing provisions of ICWA did not apply to this case.”