Filed 7 / 21 / 21 In re I.E. CA2/6

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or or dered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SIX

In re I.E. et al ., Person s Coming Under the Juvenile Court Law. 2d Juv. No. B310507 (Super. Ct. No s

. 20JV00051, 20JV00053, 20JV00054) (Santa Barbara County)

SANTA BARBARA COUNTY CHILD WELFARE SERVICES,

Plaintiff and Respondent,

v.

C.P.,

Defendant and Appellant.

C.P. (Mother) appeals from the juvenile court order terminating her parental rights as to I.E. and S.P. She contends the court erred in concluding that the Indian Child Welfare Act (ICWA) did not apply

. ( 25 U.S.C. § 1901 et seq.; Welf. & Inst.2

Code, § 224 et seq.) 1 We affirm. 2
FACTUAL AND PROCEDURAL BACKGROUND
Mother had two children, I.E. and S.P., with the ir biological father, C.E. (Father)

. The dependency petition alleged
that I.E. and S.P. received inadequate medical care

, I.E. was behind academically , and they were at substantial risk of abuse or neglect because parental rights had been terminated for abuse and neglect of two half

- sibling s

. It alleged that Mother had a chronic substance abuse problem

, gave birth to two previous drug

- positive children , and had a substantial criminal history. It
further alleged that Father was in state prison and left the children without provision for support

. (§ 300, subds. (b)(1), (g), (j).)
Mother stated in court, and o n a form provided by the Santa Barbara County Department of Social Services (the department ) , that she had no Native American ancestry.

The department was unab le to contact Father in prison. It sent him an ICWA questionnaire by certified mail but
he did not respond

. In court, Father said he was not enrolled in a
tribe but had Navajo and Mescalero ancestors. He said his

1 Subsequent undesignated statutory references are to the Welfare and Institutions Code.

2 The current appeal is from the order of February 11, 2021, which involve d only I.E. and S.P. The notice of appeal also purports to appea l regarding a third child, A.P. Mother’s parental rights as to A.P. were terminated on October 8, 2020. We dismissed Mother’s appeal of tha t order after she filed a brief that raised no issues. ( In re A.P. (May 24, 2021, B308511) [nonpub. opn.].) Accordingly, we dismiss th e current appeal regarding A.P.3

mother knew more about their ancestry. He believed her great

- grandmother was Indian, perhaps Navajo. He had not
heard that his fat her had any Indian ancestry

.

The paternal grandmother told the department she believed both sides of Father’s family had Native American heritage, but she could not “prove it” because she and Father
were not enrolled members . She said that Father’s great

- grandmother, whom she named, said she was a Navajo
Indian from New Mexico, but her nephew said they were
Mescalero. The department obtained additional ancestry information from databases and provided the court with
information for Father and 13 of his ancestors. Tribal affiliations of Navajo or Mescalero were listed for Father, his mother, and his grandfather, all based on tribal affiliation of his great

- grandmother.

In August 2020, the department sent Notice s of Child Custody Proceeding for Indian Child (Judicial Council Forms,
form ICWA

- 030) by certified return receipt mail to the parents, the Bureau of Indian Affairs (BIA) and 11 tribal organizations : the Mescalero Apache Tribe, seven other Apache tribes, t he Navajo Nation, the Ramah Nava jo School Board

, Inc. , and the
Colorado River Indian Tribes (Navajo)

. Because t he department did not receive return receipts, it re mailed the ICWA

- 030 forms in September

.

The Mescalero Apache Tribe responded by letter that
neither Father nor the children were members or met the requirements for enrollment. It stated that enrollment is needed for membership, and requires proof of one

- quarter or more Mescalero Apache blood. Five other Apache tribes responded4

that the children were not enrolled or eligible for enrollment.
T he other two Apache tribes received the notice but sent no substantive response

.

The Ramah Navajo School Board

, Inc. stated that it did not have access to the entire Navajo census records and
deferred to the Navajo Nation , wh ere those records were located. A letter from the Navajo Nation dated October 19, 2020, stated it was in the process of verifying the chi ldren’s enrollment or eligibility for enrollment and needed time to complete it

. The
Colorado River Indian Tribes sent a return receipt but no substantive response.

On January 12, 2021, without objection, the court found the ICWA did not apply

. The court subsequently found the children were likely to be adopted and terminated Mother and
Father’s parental rights. (§ 366.26.)
DISCUSSION
The ICWA serves “ 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 .” ( 25 U.S.C

. § 1902 ; Welf. & Ins t. Code, § 224. ) When the facts are undisputed, we independently review c ompliance
with the ICWA. ( In re A.M. (2020) 47 Cal.App.5th 303, 314 .) W e review the juvenile court ’ s determination that the ICWA does not apply for substantial evidence. ( Ibid .; § 2 24.2, subd. (i)(2)

. )

“ ‘Indian child’ means any unmarried person who is under age eighteen and is either (a) a member of an Indian tribe or (b) is eligible for membership in an Indian tribe and is the biological child of a member of an Indian tribe. ” (2 5 U.S.C. § 1903(4); Welf. & Inst. Code, § 224.1, subd. (a).) Whether or not5

a child is a member or eligible for membership is conclusively determined by the tribe. (§ 224.2, subd. (h).) Required inquiries In dependency cases, the court and the department
have “ an affirmative and continuing duty to inquire whether a
child

. . . is or may be an Indian child.” (§ 224.2, subd. (a).) Th e

process is divided into three phases: an initial duty to inquire in
all cases

, a duty of further inquiry when there is reason to believe the child may be a tribal member or eligible for membership , and

a duty to provide formal notice when there is reason to know the child is a member or eligible for membership

. ( In re D. F. (2020) 55 Cal.App.5th 558, 566 .)

“ There is reason t o know a child . . . is an Indian
child” when : (1) “[a] person having an interest in the child . . .
informs the court that the child is an Indian child ,” (2) the child, parent, or Indian custodian lives on a reservation, (3) a designated person “informs the court that it has discovered
information indicat ing that the child is an Indian child,” (4) “[ t ] he child . . . gives the court reason to know that the child is an Indian child,” (5) the child has been a ward of a tribal court, or (6) the parent or child has a tribal membership identification card. (§ 224.2, subd. (d) , italics added .) This definition of “reason to
know

, ” effective January 1, 2019, superseded the previous definition, which included a “ ‘ person having an interest in the child . . . provid[ing] information suggesti ng the child is a member of a tribe or eligible for membership

. ’” ( In re A.M.

, supra , 47 Cal.App.5th at p. 316 .) Cases relying on th e superseded language

“ ‘ are n o longer controlling or persuasive on this point. ’ ” ( In re
D. F

. , supra , 55 Cal.App.5th at p. 572 .)
None of the circumstances constituting “reason to6

know” appl y here where t he only information was that some of
the children ’s ancestors were possibly Navajo or Mescal ero

. Although the court and department did “not have sufficient
information to determine that there [was] reason to know that
the child [ren] [were] Indian child [ren] ,” the re was “ reason to believe ” the y might be Indian child ren based on “information suggesting that eith er the parent of the child or the child is a member or may be eligible for membership in an Indian tribe.” ( § 224.2, subd. ( e)

, (e) (1) , italics added .) 3 Accordingly, t he court or department was required to “make further inquiry” into the
child ren ’s status “as soon as practicable

, ” including interviewing family members , contacting the B IA

, and contacting tribes that may have information. (§ 224.2, subd. ( e )

, (e)(2) ; Cal. Rules of Court, rule 5.481( a)(4) .)

This is not a case where vague assertions of Indian heritage without specifics as to family members or tribes make further inquiry unnecessary . ( See In re A.M.

, supra , 47 Cal.App.5th at p. 322 .) Further inquiry was required because the paternal grandmother provided the names of Father’s ancestors whom she believed were Navajo or Mescalero Indians. ( In re T.G. (2020) 58 Cal.App.5th 275, 295.) Navajo Nation
Mother contends it was unreasonable for the court to

3 The language regarding “reason to believe” was added by legislation effective January 1, 2019 (Stats. 2018, ch. 833, § 5) and September 18, 2020 (Stats. 2020, ch. 104, § 15), before the court here found the ICWA inapplicable or terminated parental rights. The amendment s appl y because the juvenile court had a continuing duty throughout the proceedings to inquire whether a child was an Indian child. ( In re A.M.

, supra , 47 Cal.App.5th at p. 321.)7

proceed to a find ing that the ICWA di d not apply because the Navajo Nation requested more time to process its inquiry. We disagree. The court was not required to continue the case to allow the Navajo Nation to complete its verification process. “A proceeding shall not be held until at least 10 days after receipt of notice by

. . . the tribe.” (§ 224.3, subd. ( d) ; 25 U.S.C. § 1912(a) .)
On request, the court shall grant the tribe up to 20 additional days to prepare for the hearing. ( Ibid .) After the Navajo Nation stated it needed more time, the court waited 85 days before determining th e ICWA did not apply. Proceeding without further delay was reasonable given the compelling need for prompt permanency determinations in dependency cases. ( In re Mari lyn
H. (1993) 5 Cal.4th 295, 308. ) Incomplete information Mother contends the inquiry was incomplete because information regarding some ancestors did not include their

current or former addresses or place of death

. (§ 224.3, subd. (a)(5)(C); 25 C.F.R. § 23.111(d) (2020) .) She is incorrect. This
information

, “if known,” must be provided only when there is
reason to know the child is an Indian child. (§ 224.3, subd. (a); Cal. Rules of Court, rule 5.481(c).) Formal n otice was not required for the inquiry here , which was based on a reason to believe the child ren were Indian child ren

. ( In re A.M.

, supra , 47 Cal.App.5th at pp. 321

- 322 ; In re D. F.

, supra , 55 Cal.App.5th at

pp. 568

- 571 .) Instead, the further inquiry required “informal contact with the tribe.” ( In re T.G.

, supra , 58 Cal.App.5th at p

. 290 .)
When it conduct ed its further inquiry, the department was required to “shar [e] information identified by the8

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)(C).) T he department provided sufficient information to constitute a “meaningful inquiry” of the tribes , including names , dates of birth, and other information regarding the children and

ancestors. ( In re S.R. (2021) 64 Cal.App.5th 303, 317.) Required filings Mother contends remand is necessary because the department failed to file copies of the ICWA

- 030 forms mailed in September or return receipts for those forms. Again, we disagree.

The record includes a Notice of Hearing on Selection of a Permanent Plan (§ 366.26) with p roofs of service on the
tribes. This notice did not provide or request information regarding tribal membership. But the department also filed

court reports s tating th at it sent a second set of ICWA

- 030 forms
to the tr ibes in September

. It filed for each tribe a signed receipt, United States Postal Service (USPS) tracking information showing delivery, and/or responsive letter.

Section 224.3, subdivision (c), provides, “Proof of the notice, including copies of notices s ent and all return receipts and responses received, shall be filed with the court in advance of the hearing . . . .” Th is requirement applies when notice is sent because there is “reason to know” an Indian child is involved. (§ 224.3, subd. (a); 25 C.F.R. § 23.111(a) (2020) .) It does not apply to the inquiry here, which was based on “reason to believe”
Indian children might be involved.

A copy of the August ICWA

- 030 form was filed

. Although a copy of the September form and some of the return

rece ipts and responsive letters were not filed , t he department’s9

reports summariz ing the mailings and the other filed documents
were sufficient to show it contacted the potential tribes as part of its inquiry. Improper service

Mother contends that a remand is required because
some of the notices were sent to addresses or individuals that
deviated from the most current Federal Register list

. (85 Fed. Reg. 24004 (Apr. 30, 2020 ) .) 4 We do not agree.

The Federal Register gave the address of the
Colorado River Indian Tribes as: Rebecca Loudbear, Attorney General, 26600 Mohave R d., Parker, AZ 85344. The department

sent notice to the Attorney General without including her name
and used a street address from an earlier list (81 Fed.Reg. 10887 (Mar. 2, 2016 ) )

. The tribe returned the certified mail receipt.
The fact that the notice was addressed to the Attorney General
shows that notice was sent to “someone trained and authorized to make the necessary ICWA determinations ” and not “ an unidentified person at the tribe ’ s address .” ( In re J.T. (2007) 154 Cal.App.4th 986, 994 .) The absence of a substantive response is not prejudicial because, as stated in the letter of the Ramah Navajo School Boar d, the complete Navajo census records are kept by the Navajo Nation.

The notice to the Mescalero Apache Tribe gave a different post office box number and gave the name of the Tribal Census Clerk as Crystal Garcia rather than Crystal Lester. T he
tribe’s ICWA Case Manager, Augusta Williams, responded that
the children were not members or eligible for membership.

4 The BIA publishes an annual list of names and addresses of tribal agents for service of ICWA notice. (25 C.F.R. §§ 23.12, 23.105(a) (2020).)10

Notice to the San Carlos Apache Tribe was cor rectly addressed and was acknowledged in a return receipt and a letter stating
that there was no evidence the parents or children were enrolled or eligible for enrollment

.

Notice to four other Apache tribes ( Apache Tribe of
Oklahoma

, Fort Sill Apache Tribe of Oklahoma

, Tonto Apache
Tribe of Arizona

, and Yavapai

- Apache Nation ) was mailed to
addresses that differed from the Federal Register list or named
different individuals, but those notices resulted in letters stating
that the child ren were not eligible for enrollment or membership

. Notice to the Jicar illa Apache Nation was sent to the ICWA Department at an outdated post office box number and omitted the name of the ICWA Specialist, but USPS tracking shows it

was delivered. Notice to the ICWA Representative of W hite
Mo u ntain Apache Tribe named a different person, but a return receipt was received.

Notice to the tribal chairperson or designated agent for service is required when there is reason to know that an
Indian child is involved

. (§ 224.3, subd. (a), (a)(2) ; see 25 C.F.R. § 23.105 (2020) [inquiry “should” be directed to BIA list in Federal Register]

. ) Strict compliance was not required here. In
re J.T.

, supra , 154 Cal.Ap p.4th 986, 994

- 995, which held that notice must be sent to the tribal chairperson or designated agent
for service

, precede d the 2019 and 2020 amendments to section
224.2

. Any discrepancies were harmless here because the notices were received by ICWA representatives of the tribes identified by
F ather’s family , and the responses disclosed no reason to know
the children were Indian children. ( In re E.W. (2009) 170 Cal.App.4th 396, 402

- 403 ; In re N.M. (2008) 161 Cal.App.4th 253,
268 .)11 Substantial evidence In light of her arguments discussed above, Mother contends that the juvenile court’s finding that the ICWA did not apply was unsupported by substantial evidence. We conclude
otherwise. “If the court makes a fin ding that proper and adequate further inquiry and due diligence as required in this
section have been conducted and there is no reason to know whether the child is an Indian child, the court may make a finding that the [ICWA] does not apply to the proceedi ngs.” (§ 224.2, subd. (i)(2).) Substantial evidence shows the department and the court conducted a diligent good faith inquiry. ( In re D. F.

, supra , 55 Cal.App.5th at p. 570.) Accordingly, the
court did not err in concluding the ICWA was inapplicable.
DISPOSITION The appeal regarding A.P. (20JV00054) is dismissed.
The order terminating parental rights as to I.E. (20JV0005 1 ) and S.P. (20JV0005 3 ) is affirmed

.

NOT TO BE PUBLISHED.

TANGEMAN, J.

We concur:

GILBERT, P. J. YEGAN, J.Arthur A. Garcia, Judge

Superior Court County of Santa Barbara

______________________________ Carol A. Koenig, under appointment by the Court of Appeal, for Defendant and Appellant.

Michael C. Ghizzoni, County Counsel, Lisa A. Rothstein, Deputy County Counsel, for Plaintiff and Respondent.