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Date: 06-06-2020

Case Style:

In re M.W., a Person Coming Under the Juvenile Court Law, Sacramento County Department of Child, Family, and Adult Services v. A.C.

Case Number: C089997

Judge: Renner, J.

Court: California Court of Appeals Second Appellate District, Division Eight on appeal from the Superior Court, County of Los Angeles

Plaintiff's Attorney: Nicole L. Roman

Defendant's Attorney: Patricia K. Saucier

Description: Because the sole issue on appeal is ICWA compliance, a detailed recitation of the
non-ICWA related facts and procedural history is unnecessary to our resolution of this
appeal.
Proceedings Prior to Father’s Appearance
On December 4, 2018, the Department filed a dependency petition on behalf of the
newborn minor pursuant to section 300, subdivisions (b) and (j). The petition alleged the
minor suffered, or was at substantial risk of suffering, harm due to substance abuse by
mother and alleged father M.W. The petition further alleged substantial risk to the minor
due to the abuse or neglect of, and eventual termination of mother’s parental rights over,
the minor’s three half-siblings.
On November 30, 2018, mother and M.W. reported they believed M.W. was the
minor’s biological father but requested a paternity test for confirmation. Mother also
reported the maternal grandfather had Native American heritage with the Apache Tribe,
later confirming her claim in her parental notification of Indian status form (ICWA-020).
M.W. denied having any Indian ancestry.
At the December 5, 2018, detention hearing, the juvenile court made ICWA orders
as to mother and ordered the minor detained.2
On December 12, 2018, the Department interviewed mother in custody and
learned A.C. (father) could potentially be the minor’s biological father. Mother was
unable to provide father’s contact information, but stated he was active on social media

2 Father does not challenge ICWA compliance or the court’s ICWA findings as to
mother. ICWA-related facts and procedure as to mother are mentioned only to provide
context or where relevant to father’s issue on appeal.
3
and promised to provide the Department with his personal information upon her release
from custody. Several weeks later, the Department informed mother M.W. was excluded
from the paternity results and asked for father’s identifying information. Mother
eventually provided father’s telephone number, which the Department used to attempt to
contact father without success.
On December 24, 2018, the Department filed a declaration regarding its ICWA
investigation as to mother, including that notices were sent to the Bureau of Indian
Affairs (BIA), the Secretary of the Interior, and numerous Apache Tribes, and that the
notices contained information gleaned from mother’s previous dependency cases
involving the minor’s half-siblings regarding mother and the maternal relatives. The
declaration also noted previous findings by the juvenile court that the ICWA did not
apply as to each of the minor’s three half-siblings.
The January 9, 2019, jurisdiction/disposition report recommended that the court
sustain the allegations in the petition and bypass mother and M.W. for reunification
services.
No parent was present for the January 9, 2019 jurisdiction/disposition hearing.
The court ordered the Department to continue its search for father and, upon locating
him, inform him of the proceedings and his options for establishing paternity, and to
make ICWA inquiry. At the parties’ request, the court continued the matter to complete
ICWA noticing.
From January 16, 2019, to March 12, 2019, the Department was unable to locate
father.
On February 4, 2019, the Department reported that five tribes confirmed the minor
was not eligible for enrollment and three tribes had yet to respond. The Department
subsequently reported it was still awaiting responses from the three remaining tribes.
At the February 13, 2019 continued jurisdiction/disposition hearing, the court
sustained the allegations in the amended petition, bypassed mother for services,
4
scheduled an ICWA compliance hearing in March 2019, and scheduled a section 366.26
hearing in June 2019.
On March 13, 2019, the Department reported it finally made telephonic contact
with father.
The Department reported that, as of March 26, 2019, it received confirmation from
all but one of the tribes that the minor was not enrolled or eligible for enrollment.
Proceedings After Father’s Appearance
Father appeared in court on March 27, 2019, and requested paternity testing to
determine whether the minor was his biological child. The court authorized a paternity
test and set the matter for a paternity hearing.
The April 2019 addendum report filed by the Department stated the paternity test
results confirmed father was the biological father of the minor. The Department
contacted father on April 22, 2019, to inform him of the paternity results and inquire
about any potential Indian ancestry. Father stated, “ ‘He [the minor] is mine and I want
to raise him.’ ” Father reported he had Indian ancestry but was neither a member of, nor
seeking membership in, any tribe. He also stated his grandparents “may have
membership.”
On May 1, 2019, the court appointed counsel for father and found him to be the
biological father of the minor. The court asked father whether he had any Native
American heritage. Father responded, “I don’t know.” When asked if he knew of any
relatives who may have knowledge of potential Native American heritage, father replied,
“No.” The court then asked the paternal aunt, who was present in the courtroom, whether
she had any knowledge of Native American heritage in the family. The paternal aunt
replied, “It’s believed that we do have; I don’t have confirmation,” adding that she did
not know which tribe. The court ordered the Department to conduct further ICWA
inquiry of father’s relatives and continued the paternity hearing. That same day, father
5
filed a parental notification of Indian status writing “may have” on the line asking the
name of a band of which he might be a member or eligible for membership.
The Department filed an addendum report on May 13, 2019, regarding the
Department’s ICWA inquiry of father and his relatives. The report stated the social
worker contacted father on May 2, 2019, regarding potential Native American ancestry.
Father provided his telephone number and the paternal aunt’s telephone number and
stated there were no relatives other than the paternal aunt who might have information
regarding potential Indian heritage. That same day, the social worker contacted the
paternal aunt, who reported she did not think any relative knew which tribe they were
affiliated with and she did not think any member of her family was a member of a tribe.
The report also stated that, on May 6, 2019, the social worker contacted the
paternal grandfather, who reported the paternal great-great-grandmother was part Navajo
and the paternal great-great-great-grandfather was part Apache. The paternal grandfather
reported that his family had not been involved with the reservation for generations, but he
believed they had some relatives who used to live on, or were currently living on,
reservations in Colorado and other states. The paternal grandfather said he would attempt
to contact some relatives to gather more information. When the social worker later
contacted the paternal grandfather and requested the relatives’ contact information so that
the social worker could contact them directly, the paternal grandfather refused to provide
that information.
At the continued paternity hearing on May 15, 2019, the court acknowledged
receipt of the May 13, 2019 addendum report and ordered as follows: “The Department
needs to contact the [BIA] and the State Department of Social Services. The Department
also needs to contact the tribes, and at a minimum that contact must include telephone,
facsimile or electronic mail contact to each tribe’s designated agent. If the tribes fail to
respond, the ICWA guidelines at page 22 requires multiple requests to the tribe.”
Father’s counsel stated father wanted to confirm “that there is possible Apache and
6
Cherokee heritage,” which father noted was “[o]ut of Colorado.” The court recalled that
the paternal grandfather reported the “family is part Navajo and part Apache” and asked
father whether he wished to add any additional tribes to that list. Father responded,
“Then, I guess, if that’s my father’s words then, I guess, you can go by that. That’s fine.”
The Department and the court requested clarification from father as to whether he
believed he may have Cherokee heritage. Father simply deferred to the statements of his
family members. Given father’s earlier statements, the court ordered the Department to
include Cherokee tribes in its ICWA inquiry efforts. The court’s written order stated as
follows: “There is no reason to know the [minor] is an Indian child. However, based on
information provided by the father, there is reason to believe the [minor] may be an
Indian child. [The Department] shall therefore make further inquiry regarding the
possible Indian status of the [minor]. Notice shall be provided as required by law, if there
is a reason to know the [minor] is an Indian child.”
The Department’s June 2019 selection and implementation report recommended
the court find the ICWA does not apply, terminate the parents’ reunification services, and
set the matter for a section 366.26 hearing.
In an addendum report filed June 6, 2019, the Department set forth its further
ICWA inquiry efforts regarding the minor’s potential Indian heritage. For example, on
May 15, 2019, the social worker called the paternal grandfather, who stated he had not
contacted any relatives but planned to speak to the paternal great-great-grandmother’s
sister that day and report back to the social worker. Two days later, the paternal
grandfather reported he located the paternal great-great-grandmother’s sister, who
“knows many of the relatives in Colorado,” and planned to see her the following day to
obtain more information, including the birthdates of the paternal great-great-grandmother
or great-great-great-grandfather, who was part of the Apache tribe in Sonora, Mexico.
In the meantime, the social worker contacted the California Department of Social
Services (CDSS) Office of Tribal Affairs and the BIA and reviewed the BIA’s list of
7
designated tribal agents to identify all Navajo, Apache, and Cherokee Tribes and their
designated agents. The social worker contacted 12 identified tribes, four of which
confirmed the minor was not an Indian child for purposes of the ICWA and the remainder
of which had not responded as of the date of the report.
On June 17, 2019, father filed a petition pursuant to section 388 to change the
court’s May 15, 2019, order finding him to be the biological father of the minor and
instead find him to be the minor’s presumed father, vacate the selection and
implementation hearing, and transition the minor to father’s custody or, alternatively, to
provide reunification services to father and set the matter for a six-month review hearing.
Sections 388 and 366.26 Hearing
On July 10, 2019, the court heard testimony on the issue of paternity and denied
father’s section 388 petition. The court terminated parental rights, finding there was “no
reason to know that the [minor] is an Indian child” within the meaning of the ICWA and
no further ICWA notice was required. Thereafter, the social worker testified that six
additional tribes provided responses confirming the minor was not an Indian child and the
remaining two tribes had not yet responded.3

Father timely appealed the court’s July 10, 2019 orders.
II. DISCUSSION
Father claims the juvenile court erred in finding the ICWA did not apply without
first ensuring proper compliance with the ICWA inquiry and notification requirements.

3 On January 10, 2020, the Department filed a motion to augment the record (Cal. Rules
of Court, rules 8.155 & 8.410) with the following post-termination ICWA-related
documents: a September 27, 2019 progress report (not file-stamped by the juvenile
court), a September 27, 2019 declaration of receipt of ICWA return receipt cards and/or
tribal correspondence, and the juvenile court’s minute order following an October 18,
2019 ICWA compliance hearing wherein the court reiterated its previous ICWA ruling.
The motion is hereby denied.
8
Development of ICWA Compliance Law
In 1978, Congress enacted the ICWA in response to “ ‘rising concern in the mid1970’s over the consequences to Indian children, Indian families, and Indian tribes of
abusive child welfare practices that resulted in the separation of large numbers of Indian
children from their families and tribes through adoption or foster care placement, usually
in non-Indian homes.’ [Citation.]” (In re Isaiah W. (2016) 1 Cal.5th 1, 7-8.) The
purpose underlying the ICWA was “ ‘to protect the best interests of Indian children and
to promote the stability and security of Indian tribes and families by the establishment of
minimum Federal standards for the removal of Indian children from their families and the
placement of such children in foster or adoptive homes which will reflect the unique
values of Indian culture . . . .’ (25 U.S.C. § 1902.)” (Id. at p. 8.)
“In 2006, our Legislature enacted provisions that affirm ICWA’s purposes (§ 224,
subd. (a)) and mandate compliance with ICWA ‘[i]n all Indian child custody
proceedings’ (§ 224, subd. (b)).” (In re Isaiah W., supra, 1 Cal.5th at p. 9.)
The ICWA notice requirements have long been triggered by a court’s “reason to
know” a child may be an Indian child for purposes of the ICWA. (See 25 U.S.C.
§ 1912(a).) Although initially undefined under federal law, the phrase “reason to know”
was defined by the California Legislature to include information provided by “a person
having an interest in the child . . . 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.” (Former § 224.3,
subd. (b)(1), italics added; Stats. 2006, ch. 838, § 32 (SB 678).) As demonstrated by case
law at that time, little more than a “minimal showing” was required to trigger the
statutory notice provisions. (See Dwayne P. v. Superior Court (2002) 103 Cal.App.4th
247, 258.)
Federal regulations governing court proceedings covered by the ICWA were
amended, effective December 12, 2016, to provide minimum Federal standards to ensure
9
compliance with the ICWA. (25 C.F.R. § 23.101, et seq.) As relevant here, the federal
regulations require that state courts, at the commencement of the involuntary childcustody proceeding, ask each participant “whether the participant knows or has reason to
know that the child is an Indian child” and “instruct the parties to inform the court if they
subsequently receive information that provides reason to know the child is an Indian
child.” (25 C.F.R. § 23.107(a), italics added.)
The regulations explain that a court “has reason to know that a child involved in
. . . [a] child-custody proceeding is an Indian child” under certain specified circumstances
(25 C.F.R. § 23.107(c)(1)-(6), italics added), and further explain that, “[i]f there is reason
to know the child is an Indian child, but the court does not have sufficient evidence to
determine that the child is or is not an ‘Indian child,’ the court must: [¶] (1) Confirm, by
way of a report, declaration, or testimony included in the record that the agency or other
party used due diligence to identify and work with all of the Tribes of which there is
reason to know the child may be a member (or eligible for membership), to verify
whether the child is in fact a member (or a biological parent is a member and the child is
eligible for membership); and [¶] (2) [t]reat the child as an Indian child, unless and until
it is determined on the record that the child does not meet the definition of an ‘Indian
child’ in this part.” (25 C.F.R. § 23.107(b)(1)-(2), italics added.)
Effective January 1, 2019, California Assembly Bill No. 3176 (2017-2018 Reg.
Sess.) made substantial revisions to the Welfare and Institutions Code to conform
California law to the requirements of the federal regulations governing proceedings
covered by the ICWA. For example, section 224.2, subdivision (c) mirrors 25 C.F.R.
§ 23.107(a) and provides: “At the first appearance in court of each party, the court shall
ask each participant present in the hearing whether the participant knows or has reason to
know that the child is an Indian child. The court shall instruct the parties to inform the
court if they subsequently receive information that provides reason to know the child is
an Indian child.” (§ 224.2, subd. (c), italics added; see 25 C.F.R. § 23.107(a).)
10
Section 224.2, subdivision (d) mirrors 25 C.F.R. § 23.107(c) and provides the
court has “reason to know” a child involved in a proceeding is an Indian child under any
of the following circumstances: “(1) A person having an interest in the child, including
the child, an officer of the court, a tribe, an Indian organization, a public or private
agency, or a member of the child’s extended family informs the court that the child is an
Indian child; [¶] (2) The residence or domicile of the child, the child’s parents, or Indian
custodian is on a reservation or in an Alaska Native village; [¶] (3) Any participant in the
proceeding, officer of the court, Indian tribe, Indian organization, or agency informs the
court that it has discovered information indicating that the child is an Indian child; [¶]
(4) The child who is the subject of the proceeding gives the court reason to know that the
child is an Indian child; [¶] (5) The court is informed that the child is or has been a ward
of a tribal court; [¶] (6) The court is informed that either parent or the child possess an
identification card indicating membership or citizenship in an Indian tribe.” (§ 224.2,
subd. (d); see 25 C.F.R. § 23.107(c).)
Section 224.2, subdivision (g) similarly mirrors 25 C.F.R. § 23.107(b) by
providing: “If there is reason to know the child is an Indian child, but the court does not
have sufficient evidence to determine that the child is or is not an Indian child, the court
shall confirm, by way of a report, declaration, or testimony included in the record that the
agency or other party used due diligence to identify and work with all of the tribes of
which there is reason to know the child may be a member, or eligible for membership, to
verify whether the child is in fact a member or whether a biological parent is a member
and the child is eligible for membership.” (Italics added.)
In contrast to the “reason to know” requirements, California law also sets forth
requirements when there is a “reason to believe” a child is an Indian child. Section
224.2, subdivision (e) provides: “If the court, social worker, or probation officer has
reason to believe that an Indian child is involved in a proceeding, the court, social
worker, or probation officer shall make further inquiry regarding the possible Indian
11
status of the child, and shall make that inquiry as soon as practicable. Further inquiry
includes, but is not limited to, all of the following: [¶] (1) Interviewing the parents, Indian
custodian, and extended family members to gather the information required in paragraph
(5) of subdivision (a) of Section 224.3[;
4
] [¶] (2) Contacting the Bureau of Indian Affairs
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, or eligible for
membership in, and contacting the tribes and any other person that may reasonably be
expected to have information regarding the child’s membership status or eligibility[;] [¶]
(3) Contacting the tribe or tribes and any other person that may reasonably be expected to
have information regarding the child’s membership, citizenship status, or eligibility.
Contact with a tribe shall, at a minimum, include telephone, facsimile, or electronic mail
contact to each tribe’s designated agent for receipt of notices under the federal Indian
Child Welfare Act of 1978 (25 U.S.C. Sec. 1901 et seq.). Contact with a tribe 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)(1)-(3), italics added.)
Analysis
The newly-revised California laws made effective on January 1, 2019, apply to
father, who made his first appearance in the proceedings on March 27, 2019. Father was
found to be the minor’s biological father on May 1, 2019. From that point until the court
terminated his parental rights on July 10, 2019, the only ICWA information father
provided was that he may have Indian ancestry but was neither a member of a tribe nor

4 Section 224.3, subdivision (a)(5) includes the name, birth date and birthplace of the
Indian child, if known; the name of the Indian tribe; and the names and other identifying
information of the Indian child’s biological parents, grandparents, and greatgrandparents, if known.
12
could he identify a tribe, his grandparents “may have membership,” there was “possible
Apache and Cherokee heritage” which was “[o]ut of Colorado,” and that the paternal
grandfather’s claim that the family was part Navajo and part Apache was “fine.” The
paternal aunt reported possible but unconfirmed Indian heritage and stated she did not
think any member of her family was a member of a tribe.
Based on the initial inquiry by the court and the Department, there was at best a
reason to believe the minor may be an Indian child, thus triggering the provisions of
section 224.2, subdivision (e), which required the court and the Department to make
further inquiry as soon as practicable. The Department conducted further inquiry of
father and his extended family members. The paternal grandfather—the only family
member with any information—reported the paternal great-great-grandmother was part
Navajo and the paternal great-great-great-grandfather was part of the Apache Tribe in
Sonora, Mexico; the paternal family had not been involved with the reservation for
generations; and he believed some of the paternal family members used to live on, or
were currently living on, reservations in Colorado and other states. He also reported he
was in contact with the paternal great-great-grandmother’s sister, who knew many of the
Colorado relatives, but refused to provide the relatives’ contact information to the
Department.
With that limited information, and at the direction of the juvenile court, the
Department contacted the CDSS and the BIA to obtain assistance in identifying the
designated tribal agents for all federally-recognized Navajo, Apache, and Cherokee
tribes. The Department reported, in a June 12, 2019 addendum report, that the social
worker identified 12 federally-recognized tribes: the Navajo Nation, the Cherokee
Nation, the Eastern Band of Cherokee Indians, the United Keetoowah Band of Cherokee
Indians in Oklahoma, the Apache Tribe of Oklahoma (Kiowa), the Fort Sill Apache Tribe
of Oklahoma, the Jicarilla Apache Nation, the Mescalero Apache Tribe, the San Carlos
Apache Tribe, the Tonto Apache Tribe of Arizona, the White Mountain Apache Tribe,
13
and the Yavapai-Apache Nation. The report documented the social worker’s contact with
the 12 tribes by telephone, fax, e-mail, and/or mail, the name of the designated agent for
each tribe, the dates of attempted contact with each designated agent (all between May 15
and June 4, 2019), and that each tribe was provided with the minor’s “ICWA Family
Tree.” As of the date of the report, four of the tribes had confirmed the minor was not an
Indian child. As of the July 10, 2019 hearing, six additional tribes had confirmed the
minor was not an Indian child, and the two remaining tribes (the Navajo Nation and the
White Mountain Apache Tribe) had acknowledged contact but had not yet provided a
definitive response.
Based on the documentation provided by the Department, the juvenile court found
the Department complied with the ICWA notice provisions, there was “no reason to
know that the [minor] is an Indian child” within the meaning of the ICWA, and no further
ICWA notice was required.
The Department’s ICWA inquiry based on reason to believe the minor might be
an Indian child met the requirements set forth in section 224.2, subdivision (e).
Therefore, there was sufficient evidence to support the juvenile court’s finding that there
was no reason to know the minor was an Indian child and no further ICWA noticing was
required.
Father contends the Department’s ICWA declaration upon which the court relied
failed to include information required by section 224.2, subdivision (e)(3), including
contact information for the tribal agents with whom the Department made contact, the
minor’s “ICWA Family Tree” mentioned in the declaration, information regarding the
minor’s current status, return receipts from the Navajo Nation or the White Mountain
Apache Tribe, and the actual responses from the tribes. He also takes issue with the fact
that the ICWA declaration was not signed under penalty of perjury. The claims lack
merit.
14
As a preliminary matter, section 224.2, subdivision (e) does not require that any
extensive or particular formal documentation of ICWA inquiry be provided to the tribe.
Subdivision (e)(3) of that section provides that contact with the tribe “shall include
sharing information identified by the tribe as necessary for the tribe to make a
membership or eligibility determination.” (Italics added.) Similarly, section 224.2,
subdivision (e) does not require that the Department report its inquiry efforts to the
juvenile court in the form of a declaration or in any particular form at all. The only
guidance in that regard can be found by analogy to subdivision (g) of that section
(applying specifically to circumstances where there is “reason to know”) which permits
the court to confirm the Department’s due diligence “by way of a report, declaration, or
testimony included in the record.” (§ 224.2, subd. (g).) Here, the Department provided
evidence of its due diligence inquiry via a report and testimony at the July 10, 2019
hearing. Thus, father’s claim that the “declaration” was not signed under penalty of
perjury fails.
In any event, the Department’s ICWA report contained evidence sufficient to
support the juvenile court’s findings. Section 224.2, subdivision (e)(3) requires that
further inquiry include: “Contacting the tribe or tribes and any other person that may
reasonably be expected to have information regarding the child’s membership,
citizenship status, or eligibility. Contact with a tribe shall, at a minimum, include
telephone, facsimile, or electronic mail contact to each tribe’s designated agent for receipt
of notices under the federal Indian Child Welfare Act of 1978 (25 U.S.C. Sec. 1901 et
seq.). Contact with a tribe 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.”
The Department’s report included evidence of interviews of father and his
extended family members, contact with the BIA and CDSS to identify any federallyrecognized Navajo, Apache, and Cherokee tribes in which the minor might be a member
15
or eligible for membership and, as required by subdivision (e)(3), contact with the
identified tribes (by telephone, facsimile, e-mail, and regular mail) and sharing of
information via the minor’s ICWA family tree. (See § 224.2, subd. (e)(1)-(3).) It also
included information regarding the tribes’ responses, or lack thereof. In that regard, at
the time of the juvenile court’s July 10, 2019 ruling, 10 of the 12 tribes confirmed the
minor was not an Indian child. As for the two remaining tribes, the Department reported
it contacted the Navajo Nation on May 15 and 22, 2019, and June 4, 2019, spoke with a
tribal representative by telephone, and faxed the ICWA inquiry twice but had yet to
receive a determinative response. The Department further reported it contacted the White
Mountain Apache Tribe on May 23 and 28, 2019, communicated by e-mail, and e-mailed
and mailed the ICWA inquiry but had yet to receive a determinative response. Based
thereon, the two tribes were given nearly two months within which to provide a
determinative response to the Department’s ICWA inquiry, a time period we find
reasonable in the context of a dependency proceeding.
Father claims the juvenile court “knew or had reason to believe” the minor was an
Indian child within the meaning of the ICWA based on information provided by father
and the paternal grandfather, and the Department failed to send notices to the Navajo,
Apache, and Cherokee Tribes as required. In the absence of such noticing, he argues, the
court’s conclusion that the minor was not an Indian child was error. We disagree.
Father conflates two separate and distinct provisions of section 224.2, namely the
“reason to know” provisions found in section 224.2, subdivisions (c), (d), (f), (g), and (i)
and the “reason to believe” provision found in section 224.2, subdivision (e). As
discussed at length above, a “reason to believe” the minor is an Indian child triggers
requirements less rigorous than does a “reason to know.”
Here, the entirety of the information provided by father and the paternal
grandfather was that father’s family had possible Cherokee heritage and possible Navajo
and Apache heritage linked to the paternal great-great-grandmother and the paternal
16
great-great-great-grandfather. The information did not meet the “reason to know” criteria
set forth in section 224.2, subdivision (d). That is, no person having an interest in the
minor (including the minor himself) had informed the court that the minor was an Indian
child, there was no information to suggest the minor had at any time lived on a
reservation or been a ward of a tribal court, and there was no indication either the minor
or the parents possessed an identification card indicating membership or citizenship in an
Indian tribe. The information provided by father and the paternal grandfather indicated
the possibility that they had Indian heritage but did not rise to the level of “information
indicating that the [minor] is an Indian child.” (§ 224.2, subd. (d)(3).)
At best, the information provided by father and the paternal grandfather gave the
court a “reason to believe” the minor may be an Indian child, thus triggering the inquiry
provisions of section 224.2, subdivision (e). The court established that fact at the
May 15, 2019 hearing, during which the court first ordered the Department to contact the
BIA and the CDSS, and contact the tribes by, at a minimum, telephone, facsimile, or
electronic mail, as required by section 224.2, subdivision (e). Then, when father
suggested there might be Cherokee heritage in addition to the previously-claimed Navajo
and Apache heritage, the court ordered the Department to include Cherokee tribes in its
ICWA inquiry. The court’s May 15, 2019 written order expressly stated there was “no
reason to know the [minor] is an Indian child” (italics added) but, based on the new
information provided by father, there was a “reason to believe the [minor] may be an
Indian child.” The order directed the Department to make further ICWA inquiry and
provide notice “if there is a reason to know the [minor] is an Indian child.” (Italics
added.) As the court later determined, there was no reason to know.
Father relies on a number of cases which he claims support his argument that
ICWA notice to the tribes was “mandatory.” All but one of the cases upon which he
relies—In re A.W. (2019) 38 Cal.App.5th 655—predate the 2019 amendments to the
California statutes distinguishing between “reason to believe” and “reason to know.” In
17
A.W., the parents argued the agency and the juvenile court failed to comply with the
ICWA procedures and erroneously terminated their parental rights without prior notice to
the relevant Indian tribe. (Id. at p. 663.) This court rejected the agency’s argument that
the newly-revised language of section 224.2 required notice “only when the court knows
or has reason to know the child is definitively a member (or knows a parent is definitively
a member and the child is eligible for membership).” (A.W., at p. 665.) In doing so, this
court applied the 2016 law in effect at the time the juvenile court conducted its ICWA
compliance hearing and did not analyze the issue under the 2019 revised statute
applicable here. (Id. at p. 662.) A.W. is inapposite here.
The Department satisfied the criteria set forth in section 224.2, subdivision (e) and
the juvenile court’s finding that, based on the evidence provided, there was no reason to
know the minor was an Indian child and no further noticing was required, and its
determination that the ICWA did not apply were supported by substantial evidence.

Outcome: The juvenile court’s orders are affirmed.

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