California Court of Appeal Jul 28, 2022 No. E078731Unpublished
Filed 7/28/22 In re D.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NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
In re D.H., a Person Coming Under the Juvenile Court Law.
SAN BERNARDINO COUNTY CHILDREN AND FAMILY SERVICES, E078731
Plaintiff and Respondent, (Super.Ct.No. J287146)
v. OPINION
D.H.,
Defendant and Appellant.
APPEAL from the Superior Court of San Bernardino County. Annemarie G.
Pace, Judge. Affirmed.
William D. Caldwell, under appointment by the Court of Appeal, for Defendant
and Appellant.
Tom Bunton, County Counsel, and Kaleigh Ragon, Deputy County Counsel, for
Plaintiff and Respondent.
1
D.H. (father) appeals from an order terminating parental rights to his son, D.H., Jr.
(the child). The sole issue father raises is lack of compliance with the Indian Child
Welfare Act of 1978, or ICWA (25 U.S.C. § 1901 et seq.) and Welfare and Institutions
The duty of further inquiry is triggered when CFS or the juvenile court has reason
to believe, but does not have sufficient information to determine there is reason to know,
that the child is an Indian child. (D.F., supra, 55 Cal.App.5th at p. 566; § 224.2
subd. (e).) “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.” (§ 224, subd. (e)(1).) Further inquiry includes interviewing the
parents and extended family members to gather the information, contacting BIA and the
State Department of Social Services for assistance in identifying the names and contact
information of the tribes in which the child may be a member, and contacting the tribes
and any other person that may reasonably be expected to have information regarding the
child’s membership status or eligibility. Contact with a tribe includes “telephone,
facsimile, or electronic mail contact to each tribe’s designated agent” and shall include
sharing information identified by the tribe as necessary for the tribe to make a
membership or eligibility determination, as well as information on the current status of
the child and the case. (§ 224.2, subd. (e)(2)(A)-(C).)
13
Once CFS or the juvenile court “has a reason to know an Indian child is involved,
notice pursuant to ICWA must be sent to the pertinent tribe(s) via registered or certified
mail. [Citation.] The notice must contain sufficient information to enable the tribe to
‘conduct a meaningful review of its records to determine the child’s eligibility for
membership.’ [Citation.] The required information includes the names, birth dates,
birthplaces, and tribal enrollment information of the parents and other direct lineal
ancestors of the child, such as grandparents.” (D.F., supra, 55 Cal.App.5th at p. 568; see
§ 224.3, subd. (a)(1) & (a)(5)(C).)
We review a court’s ICWA findings for substantial evidence. (In re Austin J.
(2020) 47 Cal.App.5th 870, 885 (Austin J.); In re Charlotte V. (2016) 6 Cal.App.5th 51,
57 (Charlotte V.).) “ ‘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.’ ” (D.F., supra, 55 Cal.App.5th at p. 565.) The appellant “ ‘has the
burden to show that the evidence was not sufficient to support the findings and orders.’ ”
(Austin J., at p. 885.)
B. CFS and the Court Complied with Their Duties
We first must determine whether, as a result of the initial inquiry, CFS or the
juvenile court had “reason to believe” the child was an Indian child requiring further
inquiry of possible Indian heritage. If further inquiry was required, we then determine
whether CFS and the juvenile court had “reason to know” the child was an Indian child,
necessitating formal notice to pertinent tribes. (D.F., supra, 55 Cal.App.5th at p. 568.)
14
Here, at the initial inquiry stage, father and mother stated on October 28, 2020,
that they may have Indian ancestry in the Cherokee and Chippewa tribes. This claim
triggered CFS’s duty to further inquire, since it had a “reason to believe” the child was an
Indian child. At the further inquiry stage, CFS was required to interview the parents and
extended family members to gather information, as well as contact the BIA and the State
Department of Social Services for assistance in identifying the contact information of the
potential tribes, and contacting the tribes and any other person that may reasonably be
expected to have information regarding the child’s membership status or eligibility. At
this stage, CFS was only required to contact the tribes by phone or email. (§ 224,
subd. (e)(2)(A)-(C).) The social worker attempted to interview the parents; however,
they did not keep in contact with CFS, and the social worker unsuccessfully tried to reach
them many times. When father did call, he refused to speak with the social worker. The
record reflects that somehow CFS obtained some information about the parents’ families
and sent ICWA notices to the BIA, the Eastern Band, the Cherokee Nation and the
United Keetoowah, on December 14, 2020. The ICWA notices provided the parents’
names, birthdates and birthplaces, and former address; the maternal and paternal
grandparents’ names, current and former addresses, and birthdates and birthplaces; the
maternal great-grandparents’ names, former address, and birthdates and birthplaces; the
paternal great-grandmother’s name, current and former address, birthdate and birthplace;
and the paternal great-grandfather’s name and birthdate.
The record shows that on January 13, 2021, CFS reported that it had received
signed proofs of service of the ICWA notice forms from the BIA and two of the three
15
noticed Cherokee tribes, but no confirmation of membership. Thus, at the January 22,
2021 jurisdiction/disposition hearing, the court found that notice had been given as
required by law, that ICWA did not apply, and that there was no reason to know the child
was an Indian child. On March 17, 2021, the court found that the required 65-day period
since noticing was received had passed, with no affirmative response of membership.
The court thereby ordered that ICWA did not apply, and no further notice was required.
Even so, on December 2, 2021, the social worker attempted to gather more information
by sending father a letter at the county jail where he was being held.
Furthermore, in compliance with its affirmative and continuing duty to inquire
under ICWA, county counsel requested a continuance to ensure compliance with ICWA,
at the initial section 366.26 hearing on November 19, 2021. The social worker spoke
with the MGA, who said it was rumored in their family that her great-grandmother had
been “stolen off a reservation.” The MGA further stated that she completed a DNA test
the prior year which indicated she was 1 percent Cherokee. She reported that there was
no Chippewa in the family’s bloodline. Accordingly, there was no reason for the social
worker to believe the child had any Chippewa ancestry.
Subsequently, on March 17, 2021, the social worker reported that CFS received a
response from the Eastern Band and United Keetoowah tribes indicating the child did not
qualify for membership. Nonetheless, on December 15, 2021, the social worker still
attempted to contact those two tribes, as well as the Cherokee Nation and the BIA, to
follow up on the child’s eligibility status. She left voicemail messages for each tribe
requesting a call back. The Cherokee Nation responded and indicated that the child was
16
not an Indian child and the Eastern Band responded and confirmed that the child was not
eligible for enrollment. Thus, there was no reason to believe the child had Cherokee
ancestry.
Father’s claims on appeal appear to be focused on CFS’s notice to the Blackfeet
and Chippewa tribes. At the hearing on February 1, 2022, he indicated he might have
Blackfeet ancestry. He stated he was not an enrolled member of any tribe and admitted
that his claim of possible Indian ancestry was based solely on what his grandmother told
him. Accordingly, the social worker followed up with the PGGM, who reported that
father was in foster care, and she adopted him. The PGGM also indicated that the court,
at that time, determined father did not have Native American ancestry. The PGGM
further said she did not recall ever telling father he had Blackfeet or Chippewa ancestry.
In view of this information, there was no reason to believe the child had Blackfeet or
Chippewa ancestry. (Austin J., supra, 47 Cal.App.5th at p. 888 [“Information about a
tribal connection that ‘is too vague, attenuated and speculative’ will not support a ‘reason
to believe the children might be Indian children.’ ”].)3 Even so, the social worker still
emailed 21 Chippewa tribes and the Blackfeet tribe to inquire about the child’s possible
Indian ancestry. She received responses indicating that the child was not an enrolled
member of eight of the Chippewa tribes.
In view of all these efforts, it is clear that CFS went above and beyond its duties
under ICWA. The social worker properly contacted and interviewed the parents’
3 This rule applies equally with respect to the “family rumor” of Cherokee ancestry. 17
relatives who had knowledge of their family’s ancestry, and based on the information
gathered, the court and CFS had no reason to know the child was an Indian child.
Moreover, even though not required, CFS sent formal ICWA notices to the BIA and three
Cherokee tribes. Those entities either responded and denied membership or failed to
respond within the required 65-day limit. Thus, no further action was needed.
As to father’s claims that the court relied on “woefully ineffective notifications” in
finding that ICWA did not apply, such claim has no merit. He specifically asserts that the
social worker attempted to contact the Chippewa and Blackfeet tribes by voicemail and
email, but failed to identify the information she provided to those tribes. Father appears
to be referring to the Chippewa tribes, as he asserts that the response letter received from
the Minnesota Chippewa tribe reflects that his and the child’s birthdates were listed as
“unknown,” and he infers that the social worker omitted that information. Father also
points out there was no evidence the social worker sent the ICWA-030 forms to the
Chippewa tribes. It is not clear why the letter to the Minnesota Chippewa indicated the
birthdates were unknown; however, even if the social worker did not include that
information when she contacted the tribe, such omission was immaterial, since there was
no reason to believe the child had Chippewa ancestry. The social worker contacted the
Chippewa tribes after the MGA reported there was no Chippewa in mother’s bloodline,
18
father admitted he did not know if he had Chippewa ancestry, and the PGGM reported
she did not recall ever telling father he had Chippewa ancestry.4
Father additionally claims that the social worker was required to notify the
Chippewa and Blackfeet tribal representatives “by registered or certified mail with return
receipt requested,” but instead only attempted to contact them by voicemail or email. He
further argues the court was not authorized to proceed with the March 10, 2022 section
366.26 hearing, since such proceeding was not to be held “until at least 10 days after
receipt of notice,” and there was no evidence the tribal representatives received the social
worker’s attempts to contact them. Father cites the notice requirements in section 224.3
in support of these claims. However, section 224.3 provides the notice requirements
when the social worker “knows or has reason to know” an Indian child is involved.
(§ 224.3, subd. (a).) The social worker had no reason to believe, much less reason to
know, the child had Chippewa or Blackfeet ancestry. Thus, the requirements of section
224.3 did not apply.
In sum, considering the evidence in the light most favorable to the prevailing
party, giving the prevailing party the benefit of every reasonable inference, and resolving
all conflicts in support of the order, we conclude that CFS complied with its duties, and
4 In his reply brief, father again argues that the ICWA-030 notices were not mailed to representatives of the Chippewa tribe, despite him identifying that tribe as a possible source of his Indian ancestry early on. However, when later asked if he was still claiming Chippewa ancestry, father admitted that he was not sure what Indian ancestry he had and his belief was based on what the PGGM told him. As discussed, the PGGM said she did not recall telling father he had Chippewa ancestry and did not know where he got that information. Thus, there was no reason to believe father had Chippewa ancestry. 19
the court properly found ICWA did not apply. (See Charlotte V., supra, 6 Cal.App.5th at
p. 57.)
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
FIELDS J.
We concur:
RAMIREZ P. J.
MILLER J.
20
AI Brief
AI-generated · verify before citing
Holding. The court held that the San Bernardino County Children and Family Services (CFS) fulfilled its affirmative and continuing duty to inquire into the child's potential Native American ancestry under the Indian Child Welfare Act (ICWA).
Issues
Did the juvenile court and CFS comply with their affirmative and continuing duty to inquire into the child's potential Native American ancestry under ICWA?
Was there substantial evidence to support the court's finding that ICWA did not apply to the dependency proceedings?
Disposition. Affirmed.
Quotations verified verbatim against the opinion
“The court found that CFS had gone above and beyond its duty to inquire and attempt to give notice to any tribes that were mentioned, and there was “no reason to know, believe, or suspect that this child [was] an Indian child.””
“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.”