California Court of Appeal Oct 19, 2023 No. E081103Unpublished
Filed 10/19/23 In re T.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NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 T.H., a Person Coming Under the Juvenile Court Law.
SAN BERNARDINO COUNTY CHILDREN AND FAMILY SERVICES, E081103
Plaintiff and Respondent, (Super.Ct.No. J289877)
v. OPINION
D.B. et al.,
Defendants and Appellants.
APPEAL from the Superior Court of San Bernardino County. Annemarie G.
Pace, Judge. Conditionally reversed.
Christine E. Johnson, under appointment by the Court of Appeal, for Defendant
and Appellant D.B.
Emily Uhre, under appointment by the Court of Appeal, for Defendant and
Appellant T.W.
1
Tom Bunton, County Counsel, Kristina M. Robb, Deputy County Counsel for
Plaintiff and Respondent.
The juvenile court terminated the parental rights of D.B. (Mother) and T.W.
(Father; collectively, Parents) to their daughter, T.H. (Minor) (Welf. & Inst. Code,
§ 366.26, subd. (b)(1).)1 Parents contend a proper inquiry under the Indian2 Child
Welfare Act of 1978 (25 U.S.C. § 1901 et seq.) (ICWA) was not conducted. We
sister, E.H.; and Mother’s aunt, M.F. (Aunt). DCFS did not conduct an ICWA inquiry
with the relatives. One year later, in September 2020, Mother informed DCFS that she
moved to San Bernardino County. In July 2021, the Los Angeles County juvenile court
transferred the case to San Bernardino County.
1 All subsequent statutory references will be to the Welfare and Institutions Code unless otherwise indicated.
2 “[B]ecause ICWA uses the term ‘Indian,’ we do the same for consistency, even though we recognize that other terms, such as ‘Native American’ or ‘indigenous,’ are preferred by many.” (In re Benjamin M. (2021) 70 Cal.App.5th 735, 739, fn. 1.)
2
B. SAN BERNARDINO COUNTY
The San Bernardino County juvenile court (the juvenile court) accepted the case
in August 2021. On October 26, 2022, the San Bernardino County Department of
Children and Family Services (the Department) contacted PGM to ask about Indian
ancestry. “[PGM] stated, ‘I have native American ancestry on my mom’s side of the
family. My mother and grandmother are Black Cherokee.’ ”3 That same day, the
Department called Parents to ask about Indian ancestry, but Mother did not return the
Department’s message and Father’s telephone was not in service.
On November 11 or 22, 2022, the Department sent letters about the case to three
Cherokee tribes. The letters are not included in the record. On November 14, 2022, the
Department called Mother, Father, and Aunt. Mother and Aunt did not return the
Department’s messages. Father’s telephone remained out of service. The Department
again called Aunt on November 22, 2022, but Aunt did not return that message either.
By February 2023, none of the three Cherokee tribes had responded to the
Department’s November letters. In April 2023, the juvenile court found “the
Department has met the burden of inquiry under ICWA” and that “ICWA does not
apply.” The juvenile court terminated Parents’ parental rights to Minor.
DISCUSSION
Parents contend the juvenile court erred by finding an adequate ICWA inquiry
was conducted.
3 The family is African-American, so we infer that “Black Cherokee” means the family’s African-American ancestors were part of the Cherokee Nation.
3
An “Indian child” is defined as an unmarried minor who is either a member of an
Indian tribe, or who is eligible for tribal membership and is the biological child of a
tribal member. (25 U.S.C.A. § 1903(4).) There are two points in a dependency case
where a child welfare agency may have a duty to inquire about whether a child is an
Indian child. The first duty can occur when there is no information about the child
possibly being an Indian child; that is the initial duty of inquiry. (§ 224.2, subd. (a).)
The second duty can occur when there is information about the child possibly being an
Indian child, i.e., there is a “reason to believe that an Indian child is involved in a
proceeding”; that is the duty of further inquiry. (§ 224.2, subd. (e).)
There is a reason to believe that an Indian child is involved in a proceeding when
the court or social worker has information “suggesting” that the child may be eligible
for membership in an Indian tribe. (§ 224.2, subd. (e)(1) [italics added].) “Courts have
broadly construed the reason to believe standard.” (In re I.F. (2022) 77 Cal.App.5th
152, 163.) “ ‘Synonyms for the term [“]suggest[“] include “imply,” “hint,” “intimate”
and “insinuate.” ’ ” (Ibid.) “The duty of further inquiry existed in In re T.G.[4] where
the mother believed she had Cherokee ancestry through her mother and possible Native
American ancestry through her paternal grandfather.” (Ibid.) “[T]he court in In re
D.F.[5] found that a mother’s statement ‘that she may have Indian heritage from a tribe
in New Mexico’ was sufficient to trigger further inquiry.” (Id. at p. 164.)
4 In re T.G. (2020) 58 Cal.App.5th 275, 283-285, 292, 297.
5 In re Dominic F. (2020) 55 Cal.App.5th 558, 569.
4
In In re I.F., the “mother’s statements that she had been told by her paternal
grandmother that she had Native American ancestry through her paternal grandfather,
coupled with the maternal grandfather’s statements that his father told him the family
had Native American ancestry in Minnesota, established a reason to believe [the
children] are Indian children and thus triggered the duty of further inquiry under
California law.” (In re I.F., supra, 77 Cal.App.5th at p. 164, fn. omitted.)
In the instant case, PGM claimed that her “ ‘mother and grandmother are Black
Cherokee.’ ” PGM’s claim that her relatives “ ‘are Black Cherokee,’ ” could mean that
they are tribal members. Thus, PGM’s statement suggests that Minor could be eligible
for membership in a Cherokee tribe. (§ 224.2, subd. (e)(1).) As a result, the duty of
further inquiry was triggered.
The Department asserts PGM’s statement that her “ ‘mother and grandmother are
Black Cherokee’ ” does not satisfy the statutorily enumerated circumstances that
[“All names known of the Indian child’s biological parents, grandparents, and great-
grandparents”].) In other words, the Department needs to try to gather identifying
information for both sides of the family—not just the paternal side. In sum, the error
requires reversal.
DISPOSITION
The order terminating parental rights (§ 366.26) is conditionally reversed. The
juvenile court shall order, pursuant to ICWA and section 224.2, subdivision (e), that
within 30 days of the remittitur being issued that the Department perform a diligent
further inquiry. 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 Minor is an Indian child, then the juvenile court shall reinstate its
section 366.26 order. (§ 224.2, subd. (i)(2).) If, as a result of that inquiry, identifying
information is obtained that may assist the Bureau of Indian Affairs or a tribe in
determining whether Minor is an Indian child, then the Department shall provide the
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information to the relevant tribe(s) and the Bureau of Indian Affairs. (§ 224.2, subd.
(e)(2)(C).)
In the event no tribe responds indicating Minor is an Indian child, or if no tribe
seeks to intervene, then the juvenile court shall reinstate its section 366.26 order.
(§ 224.2, subd. (i)(2).) If a tribe determines that Minor is eligible for membership 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.
(§ 224.2, subd. (i)(1); In re Josiah T. (2021) 71 Cal.App.5th 388, 409.)
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
MILLER J.
We concur:
McKINSTER Acting P. J.
CODRINGTON J.
9
AI Brief
AI-generated · verify before citing
Holding. The juvenile court erred in finding an adequate ICWA inquiry was conducted because the Department failed to interview available extended family members to gather identifying information after the paternal grandmother's statement suggested potential tribal membership. The court conditionally reversed the termination of parental rights to allow for a diligent further inquiry.
Issues
Did the paternal grandmother's statement regarding 'Black Cherokee' ancestry trigger a duty of further inquiry under ICWA?
Did the Department's failure to interview available extended family members constitute prejudicial error?
Disposition. conditionally reversed
Quotations verified verbatim against the opinion
“PGM’s statement suggests that Minor could be eligible for membership in a Cherokee tribe. (§ 224.2, subd. (e)(1).) As a result, the duty of further inquiry was triggered.”
“Due to the Department’s failure to comply with the further inquiry requirements, the juvenile court erred by finding an adequate ICWA inquiry was conducted.”
“Accordingly, there was readily obtainable information that was likely to bear meaningfully on whether Minor is an Indian child.”