Filed 2/18/15 In re Omar H. CA2/2

                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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 TWO

In re OMAR H., a Person Coming Under                                 B257871
the Juvenile Court Law.
                                                                     (Los Angeles County
                                                                     Super. Ct. No. DK04383)
LOS ANGELES COUNTY
DEPARTMENT OF CHILDREN AND
FAMILY SERVICES,

         Plaintiff and Respondent.

         v.

OMAR H.,

         Defendant and Appellant.




         APPEAL from a judgment of the Superior Court of Los Angeles County.
Marguerite D. Downing, Judge. Reversed and remanded.


         Grace Clark, under appointment by the Court of Appeal, for Defendant and
Appellant.


         Mark J. Saladino, County Counsel, Dawyn R. Harrison, Assistant County Counsel,
and David Nakhjavani, Deputy County Counsel for Plaintiff and Respondent.
       Appellant and father Omar H. (father) appeals from a judgment of the juvenile
court declaring his minor son Omar D.H. (Omar) a dependent of the juvenile court and
removing him from his parents’ custody. Father’s sole contention on appeal is that
although the juvenile court had reason to know that Omar might be an Indian child, the
court failed to assure compliance with the Indian Child Welfare Act (25 U.S.C. § 1901 et
seq.) (ICWA). We agree and reverse for the sole purpose of directing the juvenile court
and the Department of Children and Family Services (the Department) to comply with
the inquiry and notice requirements of ICWA.
                                     BACKGROUND
       Omar and his half-sister Rosie P. were detained in April 2014, and a dependency
petition was filed to bring them within the jurisdiction of the juvenile court pursuant to
Welfare and Institutions Code, section 300, subdivisions (a) and (b).1 This appeal
concerns only Omar, as Rosie has been placed in the custody of her father, Efrain P.
Omar was placed in the home of his paternal aunt, Tatiyana H. pending the proceedings.
The petition alleged that Vanessa P. (mother) was an abuser of illicit drugs, that father
abused marijuana, and that mother and father placed Omar in a detrimental and
endangering situation on March 24, 2014, by having a violent altercation in Omar’s
presence.2
       Father was not present at the detention hearing. The juvenile court ordered Omar
detained and ordered the Department to provide family reunification services for father.
Father was in court for the next hearing on May 14, 2014, when he submitted to the
court’s jurisdiction. He provided an ICWA-020 form to the court, indicating he may
have Blackfeet Indian ancestry.3 On the same date, the Department filed a report in


1     All further statutory references are to the Welfare and Institutions Code, unless
otherwise indicated.
2      Mother is not a party to this appeal.
3     The Blackfeet Tribe of the Blackfeet Indian Reservation of Montana is a federally
recognized tribe. (See 79 Fed.Reg. 4748-4749 (Jan. 29, 2014).)

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which the dependency investigator (DI) wrote: “Father . . . indicated his paternal
grandfather had Native American heritage. He stated neither he nor his grandfather were
registered. Father was able to provide only very limited information and referred this DI
to his mother, with whom this DI has been unable to make contact . . . to date.” The
court found that ICWA might apply to Omar and ordered the Department to “follow up
on ICWA.”
       The parties next appeared in court on June 16, 2014. When counsel for the
Department told the court essentially what was contained in the month-old report: that
the DI had spoken to father regarding his possible Blackfeet ancestry, but father did not
have any specific information, so he referred her to his mother. Counsel represented that
the Department telephoned paternal grandmother a few times but did not hear back from
her. With that information the court replied that, it had “no reason to know” that ICWA
applied. The following was included in the court’s minute order: “The Court does not
have a reason to know that this is an Indian Child, as defined under ICWA, and does not
order notice to any tribe or the [Bureau of Indian Affairs]. Parents are to keep the
Department, their Attorney and the Court aware of any new information relating to
possible ICWA status. JV-020, the Parental Notification of Indian Status is signed and
filed.” The court scheduled a contested jurisdiction/disposition hearing.
       At the combined jurisdiction/disposition hearing on July 15, 2014, the juvenile
court sustained the allegations of the petition and declared both children dependents of
the court. No ICWA notices were sent and the Department apparently conducted no
further inquiry of father or paternal grandmother, as counsel for the Department merely
repeated the information obtained from the DI prior to the June 16 hearing. Father was
present but not questioned. The court found “that Omar is an Indian child,” apparently
intending to state that Omar was not an Indian child, as that finding followed the court’s
statement that it had no reason to know that ICWA applied. Further, the minute order
contained the identical language as the minute order of June 16, 2014 (quoted above).
Pursuant to the court’s dispositional order Rosie remained in her father’s custody and



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Omar remained in the custody and under the supervision of the Department. The court
approved the reunification plan. Father filed a timely notice of appeal.
                                        DISCUSSION
       Father’s sole contention is that the trial court erred in failing to comply with the
notice requirements of ICWA. We agree.
       Under ICWA, if there is reason to believe a child who is the subject of a
dependency proceeding is an Indian child, the child’s Indian tribe must be notified of the
proceeding and its right to intervene. (25 U.S.C. § 1912(a); see also § 224.3, subd. (b).)
If the identity or location of the tribe cannot be determined, the notice must be given to
the Bureau of Indian Affairs (BIA). (25 U.S.C. § 1912(a).) Further, the social services
agency has an affirmative and continuing duty to investigate and obtain, if possible, the
information necessary to give the required notices. (In re A.G. (2012) 204 Cal.App.4th
1390, 1396; § 224.2, subd. (a)(5)(C); 25 C.F.R. § 23.11(d)(3) (2015); Cal. Rules of Court,
rule 5.481(a)(4).) A“minimal showing” is all that is required to trigger inquiry and notice
obligations under ICWA. (Dwayne P. v. Superior Court (2002) 103 Cal.App.4th 247,
254, 258 (Dwayne P.).) The bar is very low and may be met by the mere suggestion of
Indian ancestry. (In re Antoinette S. (2002) 104 Cal.App.4th 1401, 1408.) Indeed, a
father’s suggestion that his child’s paternal great-grandparent had unspecified Native
American ancestry is enough to trigger ICWA notice requirements, even though birth
date, birthplace, or the enrollment status of the great-grandparent is unknown. (Id. at pp.
1405-1408.)
       Without citing authority, respondent contends that the notice provisions of ICWA
were not triggered because father told the Department that neither he nor his paternal
grandfather was a registered member of the tribe. It is the tribe which determines
membership or eligibility for membership in a tribe, not father. (See § 224.3, subd.
(e)(1).) Parents are not necessarily knowledgeable about the tribe’s requirements for
membership. (Dwayne P., supra, 103 Cal.App.4th at p. 258.) As no notice was sent in
this case to the Blackfeet tribe, there is no indication in the record that registration of the
parent, grandparent or great-grandparent is required for membership in that tribe or that

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the child is not eligible for registration. In any event, registration is not required to
trigger ICWA. (Id. at pp. 257-258.)
       Relying on In re O.K. (2003) 106 Cal.App.4th 152, respondent also contends that
the information father gave was too vague to trigger the ICWA notice requirements. In
the cited case the information was provided by the paternal grandmother, who simply
stated “that the father ‘may have Indian in him.’” (Id. at p. 157.) Here, the information
was given by father about his grandfather, and he named the Blackfeet Tribe. Father
gave “limited information” but there is no indication in the record exactly what
information he gave or failed to give, and there is no indication in the record that the
Department even asked father for anything as basic as the grandfather’s name or
birthplace. In any event, the obligation to provide notice to the Blackfeet tribe was
triggered simply by father’s naming that tribe on the ICWA-020 form and indicating
possible Indian ancestry. (See In re L.S. (2014) 230 Cal.App.4th 1183, 1197-1198;
§ 224.3, subd. (b)(1).)
       Moreover the information father gave was at least sufficient to trigger the
Department’s obligation to investigate further. (See § 224.3, subd. (a) & (c).) A social
worker need not conduct a comprehensive investigation, but “‘is required to make further
inquiry regarding the possible Indian status of the child, and to do so as soon as
practicable, by interviewing the parents . . . and extended family members to gather the
information’ required to be provided in the ICWA notice. [Citation.]” (In re C.Y. (2012)
208 Cal.App.4th 34, 39, quoting § 224.3, subd. (c).) The Department did not document
what information it requested of father or what efforts it made to speak with any relatives
other than an unspecified number of telephone calls to paternal grandmother. Even
assuming that the Department made all reasonable efforts but could not obtain additional
information, it was not relieved of its obligation to notify the Blackfeet Tribe of whatever




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information it possessed. (See In re Gerardo A. (2004) 119 Cal.App.4th 988, 995.)4 The
tribe must be given the opportunity to conduct its own investigation. (Id. at pp. 994-995.)
       “The responsibility for compliance with the ICWA falls squarely and affirmatively
on the court and the Department. [Citations.]” (Justin L. v. Superior Court (2008) 165
Cal.App.4th 1406, 1410; § 224.3, subd. (a).) As the record is devoid of evidence that the
Department or the court fulfilled its responsibility, there must be a limited remand for the
juvenile court to assure that the appropriate inquiries are made and that the required
notices are properly given, and then for the court to determine whether Omar is an Indian
child. (Justin L., supra, at pp. 1410-1411.)
                                       DISPOSITION
       The judgment of the juvenile court is reversed. On remand, the juvenile court is
directed to vacate its prior ruling that ICWA did not apply, and to conduct further
proceedings consistent with the views expressed in this opinion. The court is ordered to
direct the Department to make the appropriate inquiry of father and paternal relatives,
properly serve the required notices, and notify the court of any response from the tribe or
the BIA. The court shall then determine whether the child is an Indian Child. If the
juvenile court determines that the child is not an Indian child or the tribe declines to
intervene, it shall reinstate its dispositional findings and orders.
       NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.

                                                    ____________________________, J.
                                                    CHAVEZ

We concur:

__________________________, Acting P. J.            ____________________________, J.
ASHMANN-GERST                                       HOFFSTADT


4      It is likely the Department knew the child’s name, birth date, birthplace, the
parents’ names, and the name of the paternal grandmother the social worker attempted to
contact; and father, had he been questioned, may have remembered his grandfather’s
name.

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