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Filed 6/30/21 In re J.M. CA3 NOT TO BE PUBLISHED

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

THIRD APPELLATE DISTRICT

(Sacramento)

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In re J.M. et al., Persons Coming Under the Juvenile Court Law. C092737

SACRAMENTO COUNTY DEPARTMENT OF CHILD, FAMILY AND ADULT SERVICES,

Plaintiff and Respondent,

v.
J.M., Defendant and Appellant. (Super. Ct. Nos. JD239771, JD239772)

Appellant J.M ., father of the minors (father) , appeals from the juvenile court’s
orders terminating parental rights and freeing the minors for adoption. (Welf. & Inst. Code, § § 366.26, 395.) 1 His sole contention on appeal is that the Sacramento County Department of Child, Family and Adult Services (Department) and j uvenile court failed

1 Undesignated statutory references are to the Welfare and Institutions Code.2

to comply with the inquiry and notice requirements of the Indian Child Welfare Act (ICWA) because the Department did not adequately inquire into the paternal information that the minors may have Cherokee heritage. (25 U.S.C. § 1901 et seq.; § 224.2.) We disagree and will affirm.
BACKGROUND The underlying facts of the dependency are not at issue and we do not recite them. We limit our recitation of the background to those facts relevant to the ICWA inquiry and noticing require ments. On April 5, 2019, the Department filed a petition pursuant to section 300, subdivisions (b) and (e) in regards to the minor , S.M., and section 300, subdivisions (b), (e) , and (j) in regards to the minor , J.M. The m other denied having any Indian he ritage

. But f ather filed a Parental Notification of Indian Status form (Judicial Council Forms,
form ICWA

- 020) wherein he claimed he may have Cherokee ancestry . The juvenile
court found it was unclear whether there was reason to know that the minors may be
Indian children and ordered that the Department make further inquiries regarding the
minors ’ possible Indian status pursuant to section 224.2 , subdivision (e). The Department’s May 22, 2019 jurisdiction/disposition report outlined the Department’s initial ICWA compliance efforts. On May 1, 2019, the social worker
interviewed f

ather regarding his claim of Native American ancestry , and he reported he might have Cherokee ancestry from the paternal grandfather , O.M., but did not have
contact informatio n for the grandfather. That same day, the social worker contacted the paternal aunt, A

. M., who reported she was informed they may have Cherokee ancestry
from O

. M., but she was not aware of any tribal enrollment. On May 15, 2019, the social
worker contact ed A.M. again to obtain O.M. ’s contact information for the purpose of further ICWA inquiry, but she reported O.M. had not been a part of their lives and they do not have a relationship. A.M. reported she would attempt to find the paternal grandfather’s co ntact information and provide it to the social worker. She denied any3

additional information or other relatives who would know additional information regarding ICWA. On June 7, 2019, the Department filed the s econd a ddendum to the j urisdiction/ d ispositio n report , detailing further ICWA compliance efforts

. The social
worker contact ed A.M. again on June 4, 2019, to follow up regarding O.M.’s contact information, and A.M. indicated she was not able to obtain O.M.’s contact information.
The social worker in quired from A.M. as to any additional family members who may
have information regarding Native American heritage, and A.M. denied any additional
information or contact for other relatives. On June 4, 2019, the social worker contacted
the Bureau of Indian Affairs (BIA) and left a message and an e

- mail for the BIA s ocial worker inquiring about the possibility of Native American tribe eligibility. On June 4, 2019, the social worker contacted the California Department of Social Services (CDSS)
Office o f Tribal Affairs for assistance in identifying the names and contact information of the tribe, which the minors may be eligible for tribal enrollment, and was unable to obtain

contact information. The social worker then e

- mailed the CDSS Office of Tribal Affairs
for further assistance but had not received a response at the time of the report

. The social worker then contacted the Cherokee tribes to inquire about the minors’ eligibility for enrollment in an Indian tribe and spoke with the Social Services/Ch ildren’s Service Department . The social worker was informed that they were unable to provide
information as a certified letter was needed. On July 29, 2019, the Department filed the t hird a ddendum to the j urisdiction/ d isposition r eport containing additio nal ICWA information. On June 11, 2019, the social worker e

- mailed the Eastern Band of Cherokee Indians f amily s afety

s upervisor, and provided her with the minors’ names and birth dates, as well as the
mother ’s and father’s names and birth dates ; the next day , the social worker received an

e

- mail indicating all ICWA inquiries must be sent via certified mail. On June 12, 2019,
the social worker sent a certified letter to the Eastern Band of Cherokee Indians. On4

June 20, 2019, the social worker received a letter from the Eastern Band of Cherokee
Indians , F amily S afety P rogram m anager who reported neither of the minors are considered an “Indian child” in relation to the Eastern Band of Cherokee Indians. On June 11, 2019, the social worker e

- mailed the Chero kee Nation e ligibility s upervisor, and provided her with the minors’ names and birth dates, as well as the mother ’s and father’s

name s and birth dates, and a response was r eceived on June 12, 2019, indicating the
Cherokee Nation Indian Child Welfare had ex amined the tribal records and none of the
names could be found ; as such, the minors are not Indian c hildren in relation to the
Cherokee Nation. On June 11, 2019, the social worker e

- mailed the United Keeto o wah Band of Cherokee Indians and provided the min ors’ names and birth dates , as well as the
mother ’s and father’s name s and birth dates. On June 26, 2019, the social worker
received an e

- mail from the United Keeto o wah Band of Cherokee Indians, Indian Child Welfare Department, indicating the t ribe had examined their tribal records and none of the names provided could be found ; as such, the minors w ere not eligible to become
citizen s and/or not recognized as citizen s of the United Keet o owah Band of Cherokee
Indians. The Departme nt attached a letter dated June 12, 2019 , from the Cherokee Nation, which stated the t ribe had examined their tribal records and none of the names provided could be found, as such the minors are not Indian c hildren in relation to the
Cherokee Nation as def

ined in the Federal Indian Child Welfare Act. The Department submitted a letter dated June 20, 2019 , from the Eastern Band of
Cherokee Indians Public Health & Human Services, which indicated the t ribe had reviewed the tribal registry and, based on the information received from the Department, the child S.M. was neither registered nor eligible to register as a member of the tribe. The letter further indicated “ [ S.M. ] is not considered an ‘Indian Child’ in relation to the
Eastern Band of Cherokee Indians as defined in 25 U.S.C., Section 1903(4).” An
identical letter was received on the same date in relation to the child J.M. An e

- mail was also submitted dated June 26, 2019 , to the social worker from the United Keeto o wah5

Band of Cherokee Indians, Indian Child Welfare Department, which stated the t ribe had
received the e

- mail ICWA inquiry, and had reviewed and researched the tribal history and concluded, “Based on the information that has been exactly provided to us, we are
unable to establish Keeto o wah He ritage. [¶] Therefore, the children, [S.M.]

. . . & [J.M.]

. . . are NOT eligible to become citizens and/or are NOT recognized as citizens of
the United Keet o owah Band of Cherokee Indians.” On August 14, 2019 , the juvenile court held an ICWA c ompliance hearing and made the finding that ICWA does not apply to the minors. Subsequently, p arental rights
were terminated on September 11 , 2020

. Father timely appealed

. DISCUSSION
Father contends the juvenile court er red in finding that the ICWA did not apply to the minors because the record was silent as to what information the Department sent to
the t ribes. Specifically, he argues the evidence does not support the juvenile court’s finding because the Department did not adequately provide copies of the correspondence

sent to the respective tribes.

“ The ICWA protects the interests of Indian children and promotes the stability and security of Indian tribes by establishing minimum standards for removal of Indian
children from their families, and by permitting tribal participation in dependency proceedings. (See 25 U.S.C. § 1902 ; In re Levi U. (2000) 78 Cal. App.4th 191, 195

- 196.) A major purpose of the ICWA is to protect ‘ Indian children who are members of or are eligibl e for membership in an Indian tribe. ’ (25 U.S.C. § 1901(3).) ” ( In re A.W. (2019)
38 Cal. App.5th 655, 662.) The ICWA defines an “ ‘ Indian child ’ ” as a child who “ 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 .” (25 U.S.C. § 1903( 4) .) The juvenile court and the Department have an affirmative and continuing duty , beginning at initial contact, to inquire whether a child who is subject to the proceedings is, or may be, an Indian child. (Cal. Rules of Court, rule 5.481(a); § 224. 2 , subd. (a ).)6

Section 224.2, subdivision (e) provides that if the court or social worker has
reason to believe that an Indian child is involved in a proceeding, the c ourt or social
worker shall , as soon as practicable, make further inquiry regarding the possible Indian
status of the child

. Further inquiry includes, but is not limited to : (1) i nterviewing the parents, Indian custodian, and extended family members to g ather the information required in paragraph (5) of subdivision (a) of Section 224.3 ; 2 (2) c ontacting the 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 b e a member, or eligible for membership in; and (3) c ontacting 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 must , at a minimum, include telephone, facsimile, or electronic mail contact to each tribe’s designated agent for receipt
of notices under the ICWA, and sharing information identified by the tribe as necessary for the tribe to make a membership or eligibility deter mination, as well as information on
the current status of the child and the case. ( § 224.2, subd. (e).) “[S]ection 224.2 creates three distinct duties regarding ICWA in dependency proceedings. First, from the Agency ’ s initial contact with a minor and his [or her] family, the statute imposes a duty of inquiry to ask all involved persons whether the child may be
an Indian child. ( § 224.2, subds. (a), (b).) Second, if that initial inquiry creates a ‘ reason
to believe ’ the child is an Indian child, then the Agency ‘ shall make further inquiry regarding the possible Indian status of the child, and shall make that inquiry as soon as practicable. ’ ( Id., subd. (e), italics added.) Third, if that further inquiry results in a

reason to know the child is an Indian child, then the formal notice requirements of section

2 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 India n child’s biological parents, grandparents, and great

grandparents, if known.7

224.3 apply. (See § 224.2, subd. (c) [court is obligated to inquire at the first appearance whether anyone ‘ knows or has reason to know that the child is an India n child ’ ]; id., subd. (d) [defining circumstances that establish a ‘ reason to know ’ a child is an Indian child]; § 224.3 [ICWA notice is required if there is a ‘ reason to know ’ a child is an Indian
child as defined under § 224.2, subd. (d)].)” ( In re D.S. (2020) 46 Cal. App.5th 1041, 1052.)
Here , the social worker made substantial efforts to make contact, gather and share information regarding the minors ’ possible Indian ancestry with f ather and his relatives, the BIA, the CDSS Office of Tribal Affairs , and the Cherokee tribes . Father contends reversal is required because the Department was required to file documentation with the juvenile court establishing the efforts it undertook to obtain information about the minors’ possible Indian ancestry

. He is wrong. Section 224.2 does not identify a particular manner by which the Department must inform the juvenile court of its inquiry efforts when there is only “reason to believe” (§ 224.2, subd. (e)) a child may be an
Indian child. ( In re M.W. (202 0) 49 Cal. App.5th 1034, 1046.) It does not require the Department file documentation with the juvenile court establishing its efforts. The Department may demonstrate its efforts or due diligence via reports, declaration, or testimony. ( Ibid. ) 3
The e vidence was sufficient to support the juvenile court’s finding. Father stated that he may have Cherokee heritage but was unable to provide any additional information to aid in the ICWA investigation and contact information for the paternal grandfather.
T he Department filed t he jurisdiction/disposition report and subsequent addendums to the report, describing the details of repeated contact with the paternal aunt, attempting to

3 The juvenile court held an ICWA compliance hearing on August 14, 2019, and made the finding that ICWA does n ot apply to the minors. The transcript of that hearing is not part of the record on appeal.8

procure contact information for the paternal grandfather or other family member s with information about paternal Indian heritage. No other relatives were identified as having information and the paternal grandfather’s contact information was unknown to f ather and the paternal aunt

. The social worker then pursued information from the BIA and the Cherokee tribes.
T he social worker’s signed report adequately described what information was sent to
each of the three tribes , and the Department filed copies of each tribe’s response with the
court. The social worker described the e

- mail se nt to the Eastern Band of Cherokee
Indians f amily s afety s upervisor, which provided the minors’ names and birth dates, as
well as the mother ’s and father’s names and birth dates , which was the only pertinent information gleaned from the family interviews. T he next day, the social worker
received an e

- mail indicating all ICWA inquiries must be sent via certified mail , and the social worker reported sending the inquiry by certified letter to the Eastern Band of
Cherokee Indians. The Eastern Band of Cherokee Indians responded that neither child was registered or eligible to be registered with the tribe, and these letters were filed with the juvenile court. While the certified letter sent to the tribe is not a part of the record,
th e social worker ’s declaration in combination with the response from the tribe is sufficient to support the inference that the social worker sent the information it had about
the minors’ and parents’ names and birth dates to the tribe just as it sent the information
to th e tribe by e

- mail. The social worker likewise described sending the same
information to the Cherokee Nation and the United Keeto o wah Band of Cherokee Indians and receiving similar responses that the minors are not Indian children within the meaning of the ICWA . The responses from these two tribes were also filed with the juvenile court. We conclude that the foregoing reports from the social worker and letters from the tribes are sufficient to support the juvenile court’s finding that ICWA does not apply t o the minors. The Department’s further inquiry was sufficient and complied with the9

guidelines of ICWA. Section 224.2 does not require the Department to file copies of its correspondence with the court , and f ather does not provide any statutory authority supporting his argument. We thus reject his claim of error

. DISPOSITION The orders of the juvenile court are affirmed.

/s/ RAYE, P. J.

We concur:

/s/ BLEASE, J.

/s/ HULL, J.