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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION SEVEN

In re ALLIYAH F. et al.

, Person s Coming Under the Juven ile 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 a n 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. Castr o

- 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 A ugust 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 appropr iate 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 chil d 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 ch ild 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 rea son 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 t h e existence of th is duty is undisputed and its importance for protecting the rights of Indian children and Indian tribes repeatedly stated , w e have too often been required

t o correct the Department ’ s cramped interpretation of its proper

scope

. (See, e.g., In re Y.W. (2021) 70 Cal.App.5th 5 42; 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.
A fter Grady advised the court he may have Blackfeet ancestry through his grandfather LeeRoy H. (the children ’ s paternal great

- grandfathe r), the juvenile court ordered the Department to investigate the children ’ s possible Indian ancestry. However, o ther 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 dependen cy system as a minor or request ed information about LeeRoy f rom 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 f urther inquiry was wholly inadequate, as was the juvenile

court ’ s min imal oversight of that process before finding ICWA did not apply to these children

. W e 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 ab use 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 s ubstantial 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 c hildren were adoptable and found no exception to terminatio n 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 h ad 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, 2 0 2 0, were identified as their prospective adoptive parents. Grady filed a timely notice of appeal from the order terminating h is 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
T ribe through his grandfather. 3 After r eviewing 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 T ribe of the Blackfeet Indian Reservation of Montana

. (See Indian Entities Reco gnized 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 pr ovided 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 th e 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,
Gr ady said h is 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 neve r 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 outsid e 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 (the7

names of other family members who might have relevant information, for example), the social worker told Gra dy 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 provide d during the November 27, 2018 telephone interview, including the maternal grandmother ’ s name (LeeAnne H.) and date and likely plac e of birth, but no other information, and the paternal great

grandfather ’ 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 Cade n 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 A pril 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 and8

recommended that the court find ICWA did not apply to Alliyah
or Caden. At the disposition hearing for Grady on May 22, 2019, after

rev iewing 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,
contain ed no ICWA findings.
In a s upplemental 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 Apr il 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 o n January 12, 2021 continued the section 366.26 hearing due to issues with notice but reiterated its finding that ICWA did not apply to Alliya h or Caden , expressly ruling

, “ T he 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 reflect ed 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 b efore 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 tr ibes 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)

. T o ensure Indian tribes may exercise their right s 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 cour t 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 fe derally 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, sectio n 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 suf

ficient information to determine there is reason to
know that the child is an Indian child. ” C alifornia 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 I ndian child is or may be involved

. ” 6 F urther

6 Because Grady challenges the finding of ICWA i napplicability underlying the order made at the section 366.26 hearing terminating his parental rights, California ’ s ICWA

related 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 C al.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 hel d appl [y] to these appeals ” ]; In re A.M. (2020) 47 Cal.App.5th 303, 321 [ “ [s]ince Mother is appealing from the finding s made at the September 6, 2019 section 366.26 hearing and not those in 2017 or 2018, the current ICWA statutes apply ” ] ; see also I n re I saiah W

. , supra , 1 Cal.5th at p. 1 0 [ “ Properly understood, Ashlee ’ s present appeal does not seek to cha llenge 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 ’ s11

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 ma y reasonably be expected to have information regarding the child ’ s membership, citizenship status, or eligibility. ” ( § 224.2, subd. (e)(2).)
If th o se inquiries result in reason to know the child is an Indian child, notice to the relevant tribes is requi red. (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 contin uing 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 investi gate 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 ri ghts ” ].)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 questio ning (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
othe r grandchild ren , 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 an y 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 dut y 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 relatives13

and learned additional informat ion to include on the notices to
the Blackfeet Tribe. The Department ’ s de fense 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 dut y 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 Grad y 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. Th is assertion is far from true. Grad y 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 i n an ICWA notice if known (see § 224.3, subd. (a)(5)(C) )

, 7 as well as

7 The g overning 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 man dates inclusion of “ [a]ll names known of the Indian child ’ s biological14

information that might have led to current contact information. Moreover, i t 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, Cali fornia, 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 sh ould have been included
on the ICWA notice to the Blackfeet T ribe. (See In re Y.W.

, supra , 70 Cal.App. 5th at p. 557 [ “ ICWA notice requirements are strictly construed [citation] and must include enough informat ion
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.5t h 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 great

grandparents, to enable the tribe to properly identify the children ’ s Indian ancestr y. [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

q uotation marks omitted].) As a result of the Department ’ s failure to conduct any meaningful investigation after its interview with Grady , t he only information provided about LeeRoy on the notices sent, other than the Blackfeet affiliation,

was “ Deceased, Unknown Date; Bakersfield?, California. ” Y et it is highly likely with only a lim i ted Internet search the Department could have accessed publicly available Department
of Veterans Affairs records maintained for individuals buried in national cemeteries, whi ch would include L e e R oy’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 great

grandchildren were entitled to be membe rs 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 c ourt, 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 inv estigative 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 witho ut 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 inquiry16

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

- q uantum 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 [ Blackf ee t] 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 th e Department ’ s argument is somewhat un certain ; 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 grandfath er. From this, the Department asserts the children could be no more than

one

- eighth Blackfeet. D uring his interview , however, Grady also
said his mother , LeeAnne, had Blackfeet ancestry

. Perhaps t hat simply meant LeeAnne ’ s father (LeeRoy) was Blackfeet, as the Department assumes. But since Grady rarely s aw 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 diligen t investigation of All i yah and Caden ’ s Indian ancestry , the Department would have sought background information about this woman. At the very least, it should have determined her17

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 desc ribing its blood quantum requirement concerned eligibility for enrollment in the tribe. However, s ection 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 enr ollment 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 d etermine 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 memb ership rights] ; former section 224.3,
subd ivision (e)(1) [now section 224.2, subdivision (h)] [ “ [a] determination by an Indian tribe that a child is or is not a18

member of or eligible for membership in that tribe .

. . shall be
conclusive ” ] ; and several cou rt 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 rega rding 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 circumsta nces 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 n o additional information is developed, new ICWA notices containing LeeRoy ’ s birth and death dates should be sent to the
Blackfeet Tribe. And f urther inquiry by the Department may well develop additional information properly included on the
ICWA notices , b iographical 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, subdi vision (a)(5)(C), prescribes in detail the information about parents, grandparents

a nd great

- grandparents that must be included in

an ICWA notice ” ].) 8

8 We recognize the Blackfeet Tribe ’ s letters, in addition to expl aining the blood quantum requirement for enrollment, stated19 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 Californ ia law and for further proceedings not inconsistent with this opinion.

PERLUSS, P. J. We concur:

SEGAL , J.

FEUER , J.

Alliyah and Caden d o 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.)