Filed 4/19/22 In re Alliyah F. CA2/7

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SEVEN

In re ALLIYAH F. et al., 

Persons Coming Under the 

Juvenile Court Law.

 B314323

 (Los Angeles County

 Super. Ct. No. 

 18LJJP0313A-B)

LOS ANGELES COUNTY 

DEPARTMENT OF 

CHILDREN AND FAMILY 

SERVICES,

Plaintiff and Respondent,

v.

GRADY F., JR.,

Defendant and Appellant.

APPEAL from an order of the Superior Court of 

Los Angeles County, Stephanie M. Davis, Juvenile Court Referee. 

Conditionally reversed and remanded with directions. 
2

Jack A. Love, under appointment by the Court of Appeal, 

for Defendant and Appellant. 

Rodrigo A. Castro-Silva, County Counsel, Kim Nemoy, 

Assistant County Counsel, and Brian Mahler, Deputy County 

Counsel, for Plaintiff and Respondent. 

_________________________

Grady F., Jr., the father of nine-year-old Alliyah F. and 

seven-year-old Caden F., appeals the August 12, 2021 order 

terminating his parental rights, contending the Los Angeles 

County Department of Children and Family Services 

(Department) failed to adequately investigate his claim of Indian 

ancestry and the juvenile court failed to ensure an appropriate 

inquiry had been conducted before concluding the Indian Child 

Welfare Act of 1978 (ICWA) (25 U.S.C. § 1901 et seq.) did not 

apply to these proceedings. 

The obligation to conduct such an investigation is clear: 

When there is reason to believe a child involved in a dependency 

proceeding is or may be an Indian child within the meaning of

ICWA, the child protective agency filing the dependency 

petition—here, the Department—has a duty to make further 

inquiry regarding the possible Indian status of the child as soon 

as practicable. (Welf. & Inst. Code, § 224.2, subd. (e) [duty of 

further inquiry if there is reason to believe an Indian child is 

involved];1 Cal. Rules of Court, rule 5.481(a)(4) [duty of further 

inquiry if the social worker “knows or has reason to know or 

believe that an Indian child is or may be involved”].) 

1 Statutory references are to this code unless otherwise 

stated.
3

Although the existence of this duty is undisputed and its 

importance for protecting the rights of Indian children and 

Indian tribes repeatedly stated, we have too often been required 

to correct the Department’s cramped interpretation of its proper 

scope. (See, e.g., In re Y.W. (2021) 70 Cal.App.5th 542; In re T.G.

(2020) 58 Cal.App.5th 275; In re Elizabeth M. (2018) 

19 Cal.App.5th 768; In re Breanna S. (2017) 8 Cal.App.5th 636

(Breanna S.), disapproved on another ground in In re Caden C.

(2021) 11 Cal.5th 614, 637, fn. 6.) This is another such case. 

After Grady advised the court he may have Blackfeet 

ancestry through his grandfather LeeRoy H. (the children’s 

paternal great-grandfather), the juvenile court ordered the 

Department to investigate the children’s possible Indian 

ancestry. However, other than conducting a limited interview of

Grady, the Department made no effort to determine whether 

Alliyah and Caden may be Indian children. No one asked Grady 

for the names of paternal relatives other than his parents who 

might have pertinent information, reviewed the Department’s 

own files from Grady’s involvement with the dependency system

as a minor or requested information about LeeRoy from the 

United States Department of Veterans Affairs despite knowing 

he was a veteran and buried in a national cemetery. 

The Department’s perfunctory nod toward its obligation to 

make further inquiry was wholly inadequate, as was the juvenile 

court’s minimal oversight of that process before finding ICWA did 

not apply to these children. We conditionally reverse the order 

terminating Grady’s parental rights and remand the matter for 

full compliance with the inquiry and notice provisions of ICWA 

and related California law.
4

FACTUAL AND PROCEDURAL BACKGROUND

1. The Dependency Proceedings

The Department filed a petition pursuant to section 300, 

subdivision (b)(1), on May 18, 2018 alleging that Alliyah and 

Caden’s mother, Misty H., had a history of substance abuse and 

was a current user of amphetamine and marijuana and that 

Misty and her baby, Emma, had testified positive for 

amphetamine at Emma’s birth. A separate subdivision (b)(1) 

count alleged Emma’s father, Raymond B., was unwilling and 

unable to care for Emma. Grady, who was ultimately found to be 

the presumed father of Alliyah and Caden, was not named in the 

petition. 

The juvenile court sustained the petition as to Misty, as 

amended by interlineation, finding her substance abuse placed 

the children at substantial risk of serious physical harm. At 

disposition the children were removed from their parents, and 

reunification services were ordered for Misty and Grady.2 

Grady’s services, which included participation in on-demand drug 

testing and a parenting course, were terminated in November 

2019 for lack of compliance. Misty’s services were terminated 

two months later. 

After several continuances the section 366.26 hearing was 

held on August 12, 2021. The court found by clear and 

convincing evidence the children were adoptable and found no 

exception to termination of parental rights applied. The court 

terminated Misty’s and Grady’s parental rights to Alliyah and 

Caden and transferred care, custody and control of the children to 

2 A May 22, 2019 Department report indicated Grady had 

not had any relationship with Alliyah and Caden in three years. 
5

the Department for adoptive planning and placement. Alliyah 

and Caden’s current caregivers (Mr. and Ms. P.), with whom they 

had been placed on April 30, 2020, were identified as their 

prospective adoptive parents. 

Grady filed a timely notice of appeal from the order 

terminating his parental rights. 

2. The Department’s ICWA Investigation and the Juvenile 

Court’s ICWA Findings

At the initial detention hearing on May 21, 2018 Misty 

informed the court she had no Indian ancestry. Grady was not 

present, and the court deferred making any ICWA findings until 

he appeared. 

Grady made his initial appearance on August 13, 2018. He

completed an ICWA-20 form, Parental Notification of Indian 

Status, stating he may have Indian ancestry in the Blackfeet 

Tribe through his grandfather.3 After reviewing Grady’s form, 

the court asked, “Is your grandfather available to discuss this 

with you?” Grady responded, “He passed away.” The court then 

inquired, “Is there anyone else in your family who has 

information about your possible Indian heritage?” Grady replied, 

“I can check. I’m not sure. Probably my mom or somebody.” The 

court ordered the Department to investigate further the possible 

Indian ancestry of Grady and Misty. 

3 Grady wrote “Blackfoot.” The Department understood this 

to be a reference to the federally recognized Blackfeet Tribe of the 

Blackfeet Indian Reservation of Montana. (See Indian Entities 

Recognized by and Eligible To Receive Services from the United 

States Bureau of Indian Affairs, 86 Fed.Reg. 7554 (Jan. 29, 

2021).)
6

During the following three months the Department made a 

number of attempts to contact Grady, finally reaching him for a

telephone interview on November 27, 2018. A November 28, 

2018 last minute information for the court report stated, without 

additional detail, “On 11/27/18 Mr. F[.] returned AA Dickerson’s 

phone messages and provided all known family information for 

ICWA purposes. Once a new hearing date has been established, 

AA Dickerson will mail the ICWA notices to the appropriate 

tribes.”

The substance of the Department’s interview with Grady 

was described in addenda to the ICWA-30 notices sent to the 

Blackfeet Tribe, which were attached to the Department’s 

April 30, 2019 last minute information for the court report. 

According to the Department’s summary of the conversation, 

Grady said his mother, LeeAnne H., had Blackfeet heritage. 

Grady told the social worker LeeAnne was homeless and did not 

have a phone and said he had not often seen her after he was 

nine years old. Grady provided some biographical information 

about his father, who died in October 2014. Grady had never met 

his father’s parents or his mother’s mother, but he had met his 

maternal grandfather, LeeRoy, on one occasion. Grady said he 

did not know his grandfather’s dates of birth or death, but he was 

a veteran buried in the National Cemetery in Arvin outside of 

Bakersfield. Grady told the social worker “the connection to the 

Blackfeet tribe comes through him.”

The social worker asked Grady if there were other family 

members that could be contacted for more information. Grady 

responded that “his family had disowned him and did not 

communicate with him and that he did not have any of their 

contact numbers.” Rather than ask any follow-up questions (the 
7

names of other family members who might have relevant 

information, for example), the social worker told Grady if he 

(Grady) obtained more information about his ancestry to notify 

the worker and Grady’s attorney. The social worker then

terminated the call. 

On December 7, 2018 the Department mailed ICWA notices 

regarding Caden to the Blackfeet Tribe of Montana, the Bureau 

of Indian Affairs and the Secretary of the Interior. The notice 

contained only the information Grady had provided during the 

November 27, 2018 telephone interview, including the maternal 

grandmother’s name (LeeAnne H.) and date and likely place of 

birth, but no other information, and the paternal greatgrandfather’s name (LeeRoy H.) and possible place of death 

(Bakersfield), but no other information. 

The Blackfeet Tribe responded in a letter dated 

December 27, 2018 that Caden was not listed on the tribal rolls. 

The letter also stated, “As of August 30, 1962, our blood quantum 

requirement for enrollment is 1/4 Blackfeet blood. The above 

children is/are not eligible for enrollment, and the child(ren) 

is/are not domiciled on the Blackfeet Indian reservation.” The 

letter, however, added, “If you are able to gather more 

information on the ancestry of the parents, please contact me 

again and I will review the tribal rolls.” 

Because the original notices had omitted Alliyah, the 

Department in April 2019 sent a second set of notices containing 

the same information. An identical response, dated April 24, 

2019, was received from the Blackfeet Tribe. In a last minute 

information report for the court filed May 14, 2019 the 

Department submitted the response from the Blackfeet Tribe and 
8

recommended that the court find ICWA did not apply to Alliyah 

or Caden. 

At the disposition hearing for Grady on May 22, 2019, after 

reviewing the Department’s reports, the court stated on the 

record it found no reason to know Alliyah and Caden are Indian 

children within the meaning of ICWA and checked the “no” box 

on the court-ordered case plan indicating ICWA did not apply. 

The minute orders from the May 22, 2019 hearing, however, 

contained no ICWA findings. 

In a supplemental report for the section 366.26 selection 

and implementation hearing scheduled for January 12, 2021, the 

Department noted the missing ICWA findings and recommended 

the court make ICWA findings at the upcoming hearing based on 

the Department’s April 30, 2019 and May 14, 2019 last minute 

information reports. The Department provided no new 

information regarding the children’s possible Blackfeet ancestry.

The court on January 12, 2021 continued the section 366.26 

hearing due to issues with notice but reiterated its finding that 

ICWA did not apply to Alliyah or Caden, expressly ruling, “The 

previous investigation with respect to Mr. F[.] was a sufficient 

inquiry.”

4 No further ICWA findings were made at the 

section 366.26 hearing on August 12, 2021 at which Grady’s and 

Misty’s parental rights were terminated.

4 Counsel for the Department, when requesting the court 

again make ICWA findings at the January 12, 2021 hearing,

stated, “The F[.] father did indicate ICWA possible Blackfoot 

heritage. However, that was extensively investigated by the 

Department and is reflected in the last minute information filed 

on May 14, 2020 [sic], which indicated that the children were not 

ICWA eligible.”
9

DISCUSSION

1. ICWA and the Duties of Inquiry and Notice

ICWA and governing federal regulations (25 C.F.R., 

§ 23.101 et seq. (2022)) set minimal procedural protections for 

state courts to follow before removing Indian children and placing 

them in foster care or adoptive homes. (In re Y.W., supra, 

70 Cal.App.5th at p. 551.)5 The statute authorizes states to 

provide “‘a higher standard of protection’” to Indian children, 

their families and their tribes than the rights provided under 

ICWA. (In re T.G., supra, 58 Cal.App.5th at pp. 287-288; 

see 25 U.S.C. § 1921.) In addition to significantly limiting state 

court actions concerning out-of-family placements for Indian 

children (see In re T.G., at pp. 287-288), ICWA permits an Indian 

child’s tribe to intervene in or, where appropriate, exercise 

jurisdiction over a child custody proceeding (see 25 U.S.C. 

§ 1911(c); In re Isaiah W. (2016) 1 Cal.5th 1, 8). 

To ensure Indian tribes may exercise their rights in 

dependency proceedings as guaranteed by ICWA and related 

state law, investigation of a family member’s belief a child may 

have Indian ancestry must be undertaken and notice provided to 

the appropriate tribes. (§ 224.2, subd. (a) [imposing on the court 

and child protective services agencies “an affirmative and 

5 For purposes of ICWA, an “Indian child” is an unmarried 

individual under age 18 who is either a member of a federally 

recognized Indian tribe or is eligible for membership in a 

federally recognized tribe and is the biological child of a member 

of a federally recognized tribe. (See 25 U.S.C. § 1903(4) 

[definition of “‘Indian child’”] & (8) [definition of “‘Indian tribe’”]; 

see also Welf. & Inst. Code, § 224.1, subd. (a) [adopting federal 

definitions].) 
10

continuing duty to inquire whether a child . . . is or may be an 

Indian child”]; see In re Charles W. (2021) 66 Cal.App.5th 483, 

489.) The duty to inquire “begins with initial contact (§ 224.2, 

subd. (a)) and obligates the juvenile court and child protective 

agencies to ask all relevant involved individuals whether the 

child may be an Indian child.” (In re T.G., supra, 58 Cal.App.5th 

at p. 290; see § 224.2, subds. (a)-(c).) 

In addition, section 224.2, subdivision (e), imposes a duty of 

further inquiry regarding the possible Indian status of the child

“[i]f the court, social worker, or probation officer has reason to 

believe that an Indian child is involved in a proceeding, but does 

not have sufficient information to determine there is reason to 

know that the child is an Indian child.” California Rules of 

Court, rule 5.481(a)(4) provides that further inquiry must be 

conducted if the social worker “knows or has reason to know or 

believe that an Indian child is or may be involved.”

6 Further 

6 Because Grady challenges the finding of ICWA 

inapplicability underlying the order made at the section 366.26 

hearing terminating his parental rights, California’s ICWArelated statutes and rules of court in effect in 2021, when that 

hearing was held, apply in this appeal. (See In re T.G., supra, 

58 Cal.App.5th at p. 289, fn. 13 [“[t]he parties agree the [state’s 

ICWA-related statutes] in effect in January 2020 when the 

section 366.26 hearings were held appl[y] to these appeals”]; In re 

A.M. (2020) 47 Cal.App.5th 303, 321 [“[s]ince Mother is appealing 

from the findings made at the September 6, 2019 section 366.26

hearing and not those in 2017 or 2018, the current ICWA

statutes apply”]; see also In re Isaiah W., supra, 1 Cal.5th at p. 10 

[“Properly understood, Ashlee’s present appeal does not seek to 

challenge the juvenile court’s finding of ICWA’s inapplicability 

underlying the January 2012 dispositional order. It instead 

seeks to challenge the juvenile court’s finding of ICWA’s 
11

inquiry includes, “but is not limited to,” interviewing, as soon as 

practicable, extended family members, contacting the Bureau of 

Indian Affairs and 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.” (§ 224.2, subd. (e)(2).) 

If those inquiries result in reason to know the child is an 

Indian child, notice to the relevant tribes is required. (25 U.S.C. 

§ 1912(a); Welf. & Inst. Code, § 224.3; see In re J.S. (2021) 

62 Cal.App.5th 678, 686; In re T.G., supra, 58 Cal.App.5th at 

p. 290; see also In re Josiah T. (2021) 71 Cal.App.5th 388, 402 

[“The juvenile court has ‘an affirmative and continuing duty to 

inquire’ whether a child subject to a section 300 petition may be 

an Indian child. [Citations.] ‘This continuing duty can be divided 

into three phases: the initial duty to inquire, the duty of further 

inquiry, and the duty to provide formal ICWA notice’”].)

2. The Department Failed To Conduct an Adequate Inquiry 

into Alliyah and Caden’s Possible Indian Ancestry

The information Grady provided concerning his maternal 

grandfather (the children’s paternal great-grandfather) on the 

ICWA-20 form, confirmed during his first court appearance, 

triggered the Department’s duty to conduct further inquiry 

concerning Alliyah and Caden’s Indian ancestry. The 

Department does not contend otherwise, nor could it since the 

juvenile court ordered it to investigate the children’s ancestry. 

Although a Department social worker thereafter exercised 

diligence in reaching out to Grady, finally interviewing him by 

telephone after multiple unsuccessful attempts, the Department 

inapplicability underlying the April 2013 order terminating her 

parental rights”].)
12

made no meaningful effort to contact any of Grady’s extended 

family members or anyone else who might reasonably be 

expected to have information concerning Alliyah and Caden’s 

possible Indian status, as mandated by section 224.2, 

subdivision (e)(2)(A) and (C). 

As discussed, when asked during the telephone interview

whether there were other family members that could be 

contacted for more information, Grady explained his family had 

disowned him, he did not communicate with them and he had no 

contact numbers for them. There was no follow-up questioning 

(or, at the very least, neither the report of this telephone 

interview nor any of the Department’s other reports to the court 

suggest any follow-up questions were asked)—not even whether 

his mother had any siblings or his maternal grandfather any 

other grandchildren, and, if so, their names, which would have 

allowed the social worker or another Department investigator to 

attempt to learn additional information about LeeRoy. 

The Department’s feeble defense of this omission is that 

neither Grady nor any other party provided contact information. 

That surely made the Department’s task more difficult, but it did 

not justify the complete lack of effort reflected in this record. As 

we have repeatedly reminded the Department, “it was the social 

worker’s duty to seek out this information, not the obligation of 

family members to volunteer it.” (Breanna S., supra, 

8 Cal.App.5th at p. 652; accord, In re Michael V. (2016)

3 Cal.App.5th 225, 236 [“[i]t was not the paternal great-aunt’s 

obligation to speak up; it was the Department’s obligation to 

inquire”].) With the names and possibly last known addresses of 

children or grandchildren of LeeRoy, the Department would 

likely have been able to contact at least a few of these relatives 
13

and learned additional information to include on the notices to 

the Blackfeet Tribe.

The Department’s defense of its failure to review 

information from Grady’s history in the dependency system is 

equally weak. In bold ipse dixit the Department asserts that 

examining its own records is not part of its duty of further 

inquiry, ignoring section 224.2, subdivision (e)’s express 

statement that the statutory listing of tasks to be undertaken 

must not be understood as limiting the nature of the agency’s 

obligation to investigate. (See In re T.G., supra, 58 Cal.App.5th 

at p. 295 [“it is essential to the enforcement of the court’s and 

child protective agency’s ‘affirmative and continuing duty to 

inquire’ to construe broadly the duty to make further inquiry”].) 

The Department then adds that Grady provided identifying 

information about his mother and father (the paternal 

grandparents), suggesting, again without explanation, that no 

other pertinent information would be available in Grady’s 

dependency records. This assertion is far from true. Grady 

provided only his mother’s name (LeeAnne H.) and the date and 

possible place of her birth (Bakersfield), explaining she was 

homeless and did have a phone (although how Grady knew this 

was not detailed in the Department’s report). Dependency 

records may have confirmed her place of birth and disclosed 

former addresses, biographical details that must be included in 

an ICWA notice if known (see § 224.3, subd. (a)(5)(C)),

7 as well as 

7 The governing federal regulations require that ICWA 

notices include, if known, the names, birthdates, birthplaces and 

tribal enrollment information of all direct lineal ancestors of the 

child. (25 C.F.R. § 23.111(d)(3) (2022).) State law mandates 

inclusion of “[a]ll names known of the Indian child’s biological 
14

information that might have led to current contact information. 

Moreover, it is likely that information concerning other paternal 

relatives (for example, Grady’s aunts or uncles—LeeRoy’s other 

children), including potential contact information, would be 

revealed had the Department bothered to look, particularly if, as 

would seem probable, an ICWA inquiry was made during those

earlier dependency proceedings.

Finally, and perhaps most troubling, although Grady told 

the social worker during the telephone interview that LeeRoy 

was a veteran buried at a national cemetery in Arvin, California, 

no effort was made to contact the United States Department of 

Veterans Affairs or to otherwise use that information to obtain

additional details about LeeRoy that should have been included 

on the ICWA notice to the Blackfeet Tribe. (See In re Y.W., 

supra, 70 Cal.App. 5th at p. 557 [“ICWA notice requirements are 

strictly construed [citation] and must include enough information 

for the tribe to conduct a meaningful review of its records to 

parents, grandparents, and great-grandparents, or Indian 

custodians, including maiden, married, and former names or 

aliases, as well as their current and former addresses, birth 

dates, places of birth and death, tribal enrollment information of 

other direct lineal ancestors of the child, and any other 

identifying information, if known” (§ 224.3, subd. (a)(5)(C); 

see former § 224.2, subd. (a)(5)(C)). (See In re A.M., supra, 

47 Cal.App.5th at p. 317 [“‘If the notice duty is triggered under 

ICWA, the notice to a tribe must include a wide range of 

information about relatives, including grandparents and greatgrandparents, to enable the tribe to properly identify the 

children’s Indian ancestry. [Citation.] Any violation of this 

policy requires the appellate court to vacate the offending order 

and remand the matter for further proceedings consistent with 

ICWA requirements’”].)
15

determine the child’s eligibility for membership,” internal 

quotation marks omitted].) As a result of the Department’s 

failure to conduct any meaningful investigation after its 

interview with Grady, the only information provided about 

LeeRoy on the notices sent, other than the Blackfeet affiliation, 

was “Deceased, Unknown Date; Bakersfield?, California.” Yet it 

is highly likely with only a limited Internet search the 

Department could have accessed publicly available Department 

of Veterans Affairs records maintained for individuals buried in 

national cemeteries, which would include LeeRoy’s dates of birth 

and death. Undoubtedly additional data were obtainable from 

the Department of Veterans Affairs that may have helped the 

Blackfeet Tribe accurately determine whether his greatgrandchildren were entitled to be members of the tribe.

For its part, the juvenile court failed to ensure the 

Department adequately investigated the children’s Indian 

ancestry. After ordering the Department on August 13, 2018 to 

inquire further based on Grady’s ICWA-20 form and statements 

in court, it passively accepted the Department’s report of its 

November 27, 2018 interview as fulfilling its statutory 

obligations without questioning the lack of follow-up in the 

interview itself, let alone the Department’s failure to engage in 

any active investigative efforts. Far more is required. (In re K.R.

(2018) 20 Cal.App.5th 701, 709 [“the court has a responsibility to 

ascertain that the agency has conducted an adequate 

investigation and cannot simply sign off on the notices as legally 

adequate without doing so”]; see In re T.G., supra, 58 Cal.App.5th 

at p. 293 [“[t]he court here fulfilled its initial obligation to ask 

about Tamara’s possible Indian ancestry; it failed, however, to 

ensure the Department complied with its duty of further inquiry 
16

based on the responses the court had received from Tamara and 

Loretta S.”]; In re N.G. (2018) 27 Cal.App.5th 474, 482.)

3. The Department’s Blood-quantum Harmless Error 

Argument Is Misplaced

Pointing out that the Blackfeet Tribe informed the 

Department that it has a one-quarter blood quantum 

requirement for enrollment with the tribe, the Department

argues any errors in its ICWA inquiry or notice were harmless 

because “the children could have no more than one-eighth 

[Blackfeet] blood, at best” and, accordingly, “there is no 

reasonable probability that the juvenile court would have found 

Alliyah or Caden to be an Indian child based on the paternal 

family’s purported affiliation with the tribe and the tribe’s own 

enrollment requirements.” The factual basis for the 

Department’s argument is somewhat uncertain; its legal premise 

fundamentally flawed.

As the Department points out, on his ICWA-20 form and 

again in his interview with the social worker, Grady stated his 

Blackfeet heritage was through his maternal grandfather. From 

this, the Department asserts the children could be no more than 

one-eighth Blackfeet. During his interview, however, Grady also 

said his mother, LeeAnne, had Blackfeet ancestry. Perhaps that 

simply meant LeeAnne’s father (LeeRoy) was Blackfeet, as the 

Department assumes. But since Grady rarely saw his mother 

after he was nine years old and had never met his mother’s 

mother (LeeRoy’s wife), it is possible Grady’s maternal 

grandmother also had Blackfeet affiliation. If it had conducted a 

diligent investigation of Alliyah and Caden’s Indian ancestry, the 

Department would have sought background information about 

this woman. At the very least, it should have determined her 
17

name and included it on the ICWA notices to the Blackfeet Tribe, 

rather than simply stating on the form, “Unknown/Information 

Not Provided.” Without this additional information, we cannot 

know (and the Blackfeet Tribe did not know) whether Alliyah and 

Caden may have satisfied the tribe’s blood quantum requirement 

for enrollment. 

Even if Alliyah and Caden’s Blackfeet ancestry is only 

through LeeRoy, as the Department posits, the Department’s 

failure to adequately investigate and the juvenile court’s lack of 

meaningful oversight were not harmless. The Blackfeet Tribe’s 

letter describing its blood quantum requirement concerned 

eligibility for enrollment in the tribe. However, section 224.2, 

subdivision (h)—a provision not cited in the Department’s brief—

states, “Information that the child is not enrolled, or is not 

eligible for enrollment in, the tribe is not determinative of the 

child’s membership status unless the tribe also confirms in 

writing that enrollment is a prerequisite for membership under 

tribal law or custom.” The Blackfeet Tribe provided no such 

written confirmation.

In addition, although apparently overlooked by the 

Department, we rejected an identical harmless error argument in 

Breanna S., supra, 8 Cal.App.5th 636. “[T]he Indian tribe, not 

the juvenile court or the court of appeal, is the sole entity 

authorized to determine whether a child who may be an Indian 

child is actually a member or eligible for membership in the 

tribe,” we explained (id. at p. 654), citing Santa Clara Pueblo v. 

Martinez (1978) 436 U.S. 49, 72, fn. 21 [Indian tribe is final 

arbiter of its membership rights]; former section 224.3, 

subdivision (e)(1) [now section 224.2, subdivision (h)] [“[a] 

determination by an Indian tribe that a child is or is not a 
18

member of or eligible for membership in that tribe . . . shall be 

conclusive”]; and several court of appeal decisions confirming that 

point. Applying that fundamental principle, we held, “[W]e are 

unwilling to determine in the first instance the tribe’s 

membership eligibility requirements, particularly since we are 

without benefit of testimony regarding how that language has 

been applied by the tribe and whether exceptions have been 

created by tribal custom and practice. [¶] Moreover, once ICWA 

notice is required, as it plainly was in this case, we would be 

extremely reluctant under most circumstances to foreclose the 

tribe’s prerogative to evaluate a child’s membership rights 

without it first being provided all available information 

mandated by ICWA.” (Breanna S., at p. 655.)

That reluctance is controlling here, as it was in Breanna S. 

Even if no additional information is developed, new ICWA notices 

containing LeeRoy’s birth and death dates should be sent to the 

Blackfeet Tribe. And further inquiry by the Department may 

well develop additional information properly included on the 

ICWA notices, biographical data crucial to an accurate 

determination by the Blackfeet Tribe of Alliyah and Caden’s 

eligibility for tribal membership. (See In re T.G., supra,

58 Cal.App.5th at p. 294 [determination of a child’s membership 

status “often requires providing a tribe with extensive 

biographical data (that is, information about ancestors and 

ancestry), which is why section 224.3, subdivision (a)(5)(C), 

prescribes in detail the information about parents, grandparents 

and great-grandparents that must be included in 

an ICWA notice”].)8

8 We recognize the Blackfeet Tribe’s letters, in addition to 

explaining the blood quantum requirement for enrollment, stated 
19

DISPOSITION

The section 366.26 order terminating Grady’s parental 

rights is conditionally reversed. The matter is remanded to the 

juvenile court for full compliance with the inquiry and notice 

provisions of ICWA and related California law and for further 

proceedings not inconsistent with this opinion.

PERLUSS, P. J.

We concur:

SEGAL, J.

FEUER, J.

Alliyah and Caden do not fall within ICWA’s definition of an 

Indian child. That assessment is not binding. Although tribal 

membership is for the tribe to determine based on tribal law, 

once that determination is made, a child’s status as an Indian 

child within the meaning of ICWA “is a conclusion of federal and 

state law.” (In re Abbigail A. (2016) 1 Cal.5th 83, 95; 

see Breanna S., supra, 8 Cal.App.5th 636, 654-655.)