Filed 3/23 /22 In re A.W. CA2/8

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

In re A.W ., A Person Coming

Under the Juvenile Court Law. B 312991

LOS ANGELES COUNTY

DEPARTMENT OF CHILDREN

AND FAMILY SERVICES,

Plaintiff and Respondent,

v.

DIONDRIA D

.,

Defendant and Appellant. (Los Angeles County

Super. Ct. No. 20CCJ P02218A )

APPEAL from an order of the Superior Court of Los

Angeles County

, D. Brett Bianco

, Judge

. Affirmed.

Caitlin Christian , under appointment by the Court of

Appeal, for Defendant and Appellant.

Rodrigo A. Castro

- Silva , County Counsel, Kim Nemoy

, Assistant County Counsel, and Sarah Vesecky

, Deputy County

Counsel, for Plaintiff and Respondent.

* * * * * * * * * *2 M other D iondria D. appeals the order terminating her

parental rights to A.W. , arguing the Los Angeles County

Department of Children an d Family Services (Department) did

not comply with the Indian Child Welfare Act (ICWA; 25 U.S.C.

§ 1901 et seq.), because it made an inadequate inquiry about

A.W.’s possible Indian ancestry and the notices sent to the tribes

were inadequate

. We affirm

.

FACTUAL AND PROCEDURAL BACKGROUND

Mother has a long history of substance abuse

, mental

illness

, child neglect

, and exposing her children to physical abuse

,

sexual abuse

, and domestic violence . She has an extensive child

welfare history arising from these issues and has failed to reunify

with A.W.’s five older siblings. (See Diondr i a D. v. Superior

Court (A pr

. 23 , 20 21

, B 307971 ) [nonpub. opn.].) Infant A.W. was

removed from mother and father J.W. because of the

Department ’s concern s of neglect based on mother’s extensive

child welfare history, mother’s positive marijuana test, and

father’s positive alcohol test.

T he April 20, 2020 petition concerning A.W. states that

ICWA does not apply . The detention r eport reflects that mother

and father denied any Indian ancestry on March 9, 2020.

In the dependency case concerning A.W.’s full

- blooded

sibling, T.W.

, mother appealed the sufficiency of the

Department’s ICWA inquiry. Division Seven of this court

conditionally affirmed the order terminating mother’s parental

rights to T.W., and remanded with instructions for further ICWA

compliance. ( In re T.W. (Aug

. 14 , 2019, B295013) [nonpub. opn.].)

Further investigation did not yield any useful information

indicating that T.W. was an Indian child

. The Department

conducted internet searches and was able to find contact3

information for maternal grandfather and one ma ternal uncle.

However, the people who answered the Department’s calls denied

any relationship to mother . Further information could not be

obtained from mother because her whereabouts were unknown

. (We grant the Department’s request that we take judicial notice

of these records.) N otices to the Cherokee tribes were sent and

two tribes responded that T.W. was not eligible for membership,

and another tribe did not respond . On February 11, 2020, the

j uvenile court found that ICWA did not apply, and reinstated the

order terminating mother’s parental rights.

Notwithstanding compliance with ICWA in the case

concerning T.W., and that mother and father denied any Indian

ancestry on March 9, 2020, o n April 22, 2020 ( one day before the

detention hearing ) mother filed a p aren tal n otification of Indian

status f orm (ICWA

- 020) stating “[o]ne or more of my parents,

grandparents, or other lineal ancestors is or was a member of a

federally recognized tribe ,” identi fying the Cherokee tribe, and

maternal great

- grandmother, Evelyn G. , as the tribal member.

Father’s ICWA

- 020 form stated that he had no known Indian

ancestry.

At the April 23, 2020 detention hearing, the court found

there was no reason to know that ICWA applie d , but ordered

mother and father to keep the Department and court aware of

any new information relating to any possible Indian ancestry.

The Department’s jurisdiction/disposition report note d that

mother has three brothers , and that mat ernal grandfather was

still living . Two of her brothers lived in Sacramento, and the

other brother ’s whereabouts were unknown. Mother did not

provide any further information about her brothers or maternal

grandfather to the Department.4 At a July 27, 2020 hearing , the juvenile court revisited the

ICWA findings, and asked the Department to investigate A.W.’s

possible Indian ancestry

. Mother told the court she was not a

registered or enrolled member of a tribe, and did not know

whether she was eligible for membership in a tribe. The court

found that without additional information, ICWA did not apply,

but ordered the Department to address ICWA in its next report.

The Department interviewed mother on July 28, 2020

.

Mother said she had Indian a ncestry in the Cherokee tribe

through maternal great

- grandmother; however, maternal great

grandmother died when mother was young. Mother did not know

her date of birth. M aternal grandmother was also deceased.

Mother reported there were no other family members who would

have information about their Indian ancestry

. N either maternal

grandmother nor maternal great

- grandmother was registered

with the tribe. Mother “ really did not want to pursue this any

longer. ”

On July 28, 2020, the Department s ent notice to the

Eastern Band of Cherokee Indians, the Cherokee Nation, the

United Keetowah Band of Cherokee Indians, the Bureau of

Indian Affairs, and the Secretary of the Interior. The notices

included maternal grandmother’s name and date of birth . Th e

notices also included maternal great

- grandmother’s name , but no

other identifying information

. On September 3, 2020, the Department received certified

return receipts that notice was delivered to all three Cherokee

tribes , which were filed with the court on September 16, 2020

. The Department did not receive any responses from the tribes.

At the September 24, 2020 disposition hearing, the juvenile

court declared A.W. a de pendent, removed her from parental5

custody, bypassed reunification services, and set a Welfare and

Institutions Code section 366.26 hearing to select and implement

a permanent plan. (All further references are to this code, unless

otherwise indicated.) W e denied mother’s writ petition

challenging this order. ( Diondr i a D. v. Superior Court

, supra

,

B 307971 .) Therefore, on May 20, 2021 , the juvenile court

terminated mother’s parental rights. Mother timely appealed.

While this appeal was pending, the Department filed a

report indicating it had received a response from the Cherokee

Nation that A.W. was not an Indian child

.

DISCUSSION

Congress enacted ICWA “ ‘to protect the best interests of

Indian children and to pr omote the stability and security of

Indian tribes and families.’ ” ( In re Isaiah W. (2016) 1 Cal.5th 1,

8.) ICWA requires notice to Indian tribes “in any involuntary

proceeding in state court to place a child in foster care or to

terminate parental rights ‘where the court knows or has reason

to know that an Indian child is involved.’ ” ( In re Isaiah W. , at

p. 8 .)

S ection 224. 2 imposes on the juvenile court and the

Department “an affirmative and continuing duty to inquire

whether a child . . . is or may be an Indian child .

. . .” ( Id

. ,

subd. (a).) If there is “reason to believe [ that an Indian child is ]

inv olved in a proceeding

, ” further inquiry regarding the possible

Indian status of the child “shall” be made, including

“[i]nterviewing .

. . extended family members” to obtain the

necessary information to notice the tribes. ( Id. , subd. (e)(1) & (2);

see als o Cal. Rules of Court, rule 5.481(a).)

If there is reason to believe a child might be an Indian

child, the Department must provide notice to the Indian tribes.6

Notice to the tribes must contain sufficient information to allow

the tribe to conduct a meani ngful review of its records to

determine the child’ s eligibility for membership. ( In re

Jennifer A. (2002) 103 Cal.App.4th 692, 705 .) S ection 224. 3

requires the notices to include “[a]ll names known of the Indian

child’s biological 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, place of birth and death, tribal enrollment of other

direct lineal ancestors of the child, and any other identifying

information, if known.” ( Id., subd. (a)(5)(C).)

The adequacy of the ICWA inquiry is reviewed for

sufficiency of the evidence. ( In re S.B. (2005) 130 Cal.App.4th

1148, 1160

- 1161.) T he harmless error rule applies to ICWA

inquiry challenges. ( In re S.B., at p. 1162.) Notice errors are also

subject to harmless error analysis

. ( In re D.N. (2013)

218 Cal.App.4th 1246, 1251 .)

Mother contends the Department ’s notices were not sent to

the correct designated tribal agents (although she does not

contend the address es were incorrect), the notices were missing

identifying information about mother’s relatives which the

Department could have obtained had it better investigated A.W.’s

possible Indian ancestry by contacting other maternal relatives

, and the Department made no fu rther efforts to ask extended

family members about A.W.’s possible Indian ancestry , such as

trying again to locate maternal uncles

.

We find any purported error to be necessarily harmless.

The return receipts confirmed the tribes received the

Department’ s notices, so any purported error in stating the tribal

agent’s name was immaterial and irrelevant. T here is no reason7

to believe that further inquiry would result in any more

information about A.W.’s alleged heritage or confirmation that

she is an Indian child. ( In re Christopher I. (2003)

106 Cal.App.4th 533, 567.) Mother admitted the only people with

information about A.W.’s possible Indian ancestry were deceased.

Moreover, t he inquiry and finding s as to T.W., just months before

this dependency case, plainly show that ICWA does not apply

. ( In re A.B. (2008) 164 Cal.App.4th 832, 842 ; see also In re E.W.

(2009) 170 Cal.App.4th 396, 400

- 402 [ the Department’s failure to

comply with ICWA was harmless based on prior ICWA efforts as

to the child’s sibling because “there [wa]s no reason to believe

that providing separate notice regarding [this child] ‘would have

produced different results concerning [this child’s] Indian

heritage.” ].)

DISPOSITION

The order terminating mother’s parental rights to A .W. is

affirmed

.

GRIMES, Acting P. J.

WE CONCUR:

STRATTON , J

.

HARUTUNIAN , J. *

* Judge of the San Diego Superior Court, assigned by the

Chief Justice pursuant to article VI, section 6 of the California

Constitution.