Filed 7/15/15 In re Ezra C. CA2/5
                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     SECOND APPELLATE DISTRICT

                                                  DIVISION FIVE



In re EZRA C., a Person Coming Under the                             B260439
Juvenile Court Law.                                                  (Los Angeles County Super. Ct.
                                                                      No. CK94456)


LOS ANGELES COUNTY
DEPARTMENT OF CHILDREN AND
FAMILY SERVICES,

         Plaintiff and Respondent,

         v.

SANDRA C.,

         Defendant and Appellant.



         APPEAL from an order of the Superior Court of the County of Los Angeles, Steff
R. Padilla, Commissioner. Affirmed in part and reversed in part.
         William Hook, under appointment by the Court of Appeal, for Defendant and
Appellant.
         Mark J. Saladino, County Counsel, Dawyn R. Harrison, Assistant County Counsel,
Navid Nakhjavani, Deputy County Counsel, for Plaintiff and Respondent.
                                         ________________________
       Sandra C. (mother) appeals from the order terminating her parental rights over her
child, Ezra C. Mother contends that the dependency court and the Los Angeles County
Department of Children and Family Services (Department) failed to comply with the
notice provisions of the Indian Child Welfare Act (ICWA). (25 U.S.C. § 1901 et seq.)
At issue is whether the court erred in finding the ICWA did not apply, where mother
indicated on various occasions that Ezra might have Apache ancestry from his maternal
grandfather, but maternal grandmother indicated that to her knowledge no such ancestry
existed. We conclude that because mother’s statements constituted a suggestion that the
child might be an Indian child, the ICWA’s notice provisions were triggered, and the
court erred in finding that the ICWA did not apply.


                 FACTUAL AND PROCEDURAL BACKGROUND


       Mother had previously been diagnosed with bipolar disorder and had a history of
substance abuse and violent behavior. In a 2002 dependency proceeding in Kern County,
resulting in mother losing custody over Ezra’s older half-sibling, Elijah C., a report
prepared by Kern County Child Protective Services stated, “[Mother] is of no known
American Indian heritage.”
       Three-month-old Ezra first came to the Department’s attention on December 14,
2012, after stating mother had a psychotic episode at a health clinic while Ezra was with
her. During a December 15, 2012 interview with a social worker, mother indicated she
had Apache ancestry from the maternal grandfather, but she was not a registered member
of the tribe, and the maternal grandfather had passed away. On December 19, 2012, the
Department filed a petition under Welfare and Institutions Code section 300,1 which was
later amended on January 28, 2012, to include further allegations regarding mother’s
mental instability. Both petitions indicated that the child might have Indian ancestry.



       1All statutory references are to the Welfare and Institutions Code, unless
otherwise indicated.

                                             2
         On December 19, 2012, the court ordered Ezra detained with maternal
grandparents. On December 27, 2012, mother was arrested and transferred to Santa
Barbara County for violating the terms of her probation related to multiple counts,
including battery, assault, and use of tear gas.
         On March 11, 2013, mother filed an ICWA-020 Parental Notification of Indian
Status, indicating possible Apache ancestry through maternal grandfather. The minute
order for a pretrial resolution conference held that day indicated that mother might have
Apache heritage and directed the social worker to conduct further investigation of the
claim.
         In the intervening time, mother was ordered by the Santa Barbara Superior Court
to enter a residential treatment program in place of incarceration for the December 27,
2012 arrest. Over the course of two months, mother was transferred to three different
residential treatment programs and hospitals, where she exhibited paranoia and
threatening behaviors and was diagnosed with schizoaffective disorder. Mother was
discharged from two treatment programs due to lack of compliance and disruptive
behavior.
         On April 13, 2013, the social worker spoke with the maternal grandmother about
Ezra’s possible Indian status. The maternal grandmother stated that as far as she knew
the maternal grandfather did not have Indian ancestry. She also stated that when mother
was hospitalized “she wanted to join the Tribe Association to play drums and wanted to
join for ‘Religious Reasons.’” The maternal grandmother said she would attempt to
determine Ezra’s possible Indian heritage by contacting the only living uncle on the
maternal grandfather’s side of the family, and she would then provide that information to
the social worker. No further information was received from maternal grandmother.
         On April 24, 2013, at the combined jurisdictional and dispositional hearing, the
court made a finding that the ICWA did not apply. Mother did not object, nor did she
appeal the court’s ICWA finding at that time. The later proceedings included a few
references back to the court’s ICWA decision on April 24, 2013, but no further ICWA
finding.

                                              3
       Between July 2013 and October 2013, mother was incarcerated for outstanding
warrants. On September 6, 2013, mother was found incompetent to stand trial and
placed in a state hospital.
       At a six-month review hearing on February 13, 2014, the court found mother was
not in compliance with the case plan. It terminated her reunification services and
scheduled a section 366.26 hearing to consider terminating mother’s parental rights.
Mother attempted to file a notice of intent to seek writ review of the court’s order setting
the section 366.26 hearing, but the notice was rejected as untimely.
       At the section 366.26 hearing on September 18, 2014, the court terminated
mother’s parental rights and found Ezra adoptable by maternal grandmother. Mother
appealed the order on November 6, 2014.


                                       DISCUSSION


Standard of Review


       We review the court’s ICWA finding for substantial evidence. (In re K.B. (2009)
173 Cal.App.4th 1275, 1283.) “In making this determination, we draw all reasonable
inferences from the evidence to support the findings and orders of the dependency court;
we review the record in the light most favorable to the court’s determinations . . . .” (In
re Heather A. (1996) 52 Cal.App.4th 183, 193.) “The judgment will be upheld if it is
supported by substantial evidence, even though substantial evidence to the contrary also
exists and the trial court might have reached a different result had it believed other
evidence.” (In re Dakota H. (2005) 132 Cal.App.4th 212, 228.)
       The Bureau of Indian Affairs (Bureau) publishes guidelines to assist states in
implementing the ICWA. The most recent guidelines state, “the Indian Child Welfare
Act (ICWA) [should be] applied in all States consistent with the Act’s express language,
Congress’ intent in enacting the statute, and the canon of construction that statutes
enacted for the benefit of Indians are to be liberally construed to their benefit.”

                                              4
(Guidelines for State Courts and Agencies in Indian Child Custody Proceedings, 80
Fed.Reg. 10146, 10150 (Feb. 25, 2015) (Guidelines).) “Given the interests protected by
the Act, the recommendations of the guidelines, and the requirements of our court rules,
the bar is indeed very low to trigger ICWA notice.” (In re Antoinette S. (2002) 104
Cal.App.4th 1401, 1408 (Antoinette S.).) Further, section 224 states that when
“applicable state or federal law provides a higher standard of protection to the rights of
the parent or Indian custodian of an Indian child,” the higher standard should be applied.
(§ 224, subd. (d).)


Evidence to Trigger the ICWA’s Notice Requirements


       The ICWA is meant to “protect the best interests of Indian children and to promote
the stability and security of Indian tribes and families by the establishment of minimum
Federal standards for the removal of Indian children” (25 U.S.C. § 1902) in response to
the increasing concern for the “abusive child welfare practices that resulted in the
separation of large numbers of Indian children from their families and tribes through
adoption or foster care placement, usually in non-Indian homes” (Mississippi Band of
Choctaw Indians v. Holyfield (1989) 490 U.S. 30, 32). Congress has made findings “that
there is no resource that is more vital to the continued existence and integrity of Indian
tribes than their children and that the United States has a direct interest, as trustee, in
protecting Indian children . . . .” (25 U.S.C. § 1901(3).) An Indian child is defined as
“any unmarried person who is under the age eighteen and 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).)
       Because “the tribes are in a better position than the parents, the agency, or the
court to determine potential membership” (In re J.T. (1997) 166 Vt. 173, 182-83 [693
A.2d 283, 289]), the ICWA provides that “where the court knows or has reason to know
that an Indian child is involved, the party seeking the foster care placement of, or
termination of parental rights to, an Indian child shall notify the parent or Indian

                                               5
custodian and the Indian child’s tribe.” (25 U.S.C. § 1912(a).) If the tribe is unknown,
notice must be sent to the Secretary of the Interior. (25 U.S.C. § 1912(a); Dwayne P. v.
Superior Court (2002) 103 Cal.App.4th 247, 253 (Dwayne P.).) “That the identity of the
tribe is not known does not discharge [the Department] from the requirement of giving
notice.” (Antoinette S., supra, 104 Cal.App.4th at p. 1406.) Section 224.2 reiterates that
“[n]otice shall be sent whenever it is known or there is reason to know that an Indian
child is involved, and for every hearing thereafter . . . unless it is determined that the
Indian Child Welfare Act . . . does not apply to the case in accordance with [s]ection
224.3.” (§ 224.2, subd. (b).)
       Section 224.3 requires notice to the tribe when there is information provided by
“[a] person having an interest in the child . . . suggesting the child is a member of a tribe
or eligible for membership in a tribe or [that] one or more of the child’s biological
parents, grandparents, or great-grandparents are or were a member of a tribe.” (§ 224.3,
subd. (b)(1), italics added.) California Rules of Court, rule 5.481(a)(5)(A) also specifies
that “[t]he circumstances that may provide reason to know the child is an Indian child
include . . . . [¶] [t]he child or a person having an interest in the child, . . . informs or
otherwise provides information suggesting that the child is an Indian child to the court
[or] the county welfare agency . . . .” (Italics added.) “The determination of a child’s
Indian status is up to the tribe; therefore, the [dependency] court needs only a suggestion
of Indian ancestry to trigger the notice requirement.” (In re Nikki R. (2003) 106
Cal.App.4th 844, 848 (Nikki R.), italics added.)
       Determining whether enough information has been provided to trigger the ICWA
notice provisions requires a fact-sensitive analysis. As noted in In re Pedro N. (1995) 35
Cal.App.4th 183, 186, “[t]he requisite notice to the tribe or [Bureau] serves a twofold
purpose. First, it enables the tribe or [Bureau] to investigate and determine whether the
minor is an ‘Indian child.’ . . . [Citations.] Secondly, it advises the tribe or [Bureau] of
the proceedings and the tribe’s right to exercise its jurisdiction in the matter or at least
intervene in the proceedings. [Citations.]” (Fn. omitted.) Given these purposes “‘it is
preferable to err on the side of giving notice and examining thoroughly whether the

                                                6
juvenile is an Indian child.’” (Dwayne P., supra, 103 Cal.App.4th at p. 257, citing In re
M.C.P. (1989) 153 Vt. 275, 289 [571 A.2d 627, 634-635].)
       The information required to trigger the ICWA notice provisions is minimal in
comparison to the showing required “to establish a child is an Indian child within the
meaning of ICWA.” (In re Miguel E. (2004) 120 Cal.App.4th 521, 549; see also Dwayne
P., supra, 103 Cal.App.4th at p. 258 [the party initiating the dependency proceeding must
“distinguish between a showing that may establish a child is an Indian child within the
meaning of the ICWA and the minimal showing required to trigger the statutory notice
provisions”].) While eligibility to enroll and enrollment are central to a finding that the
child is an Indian child within the meaning of the ICWA, a lack of such information does
not waive the court’s affirmative duty to provide notice when the court knows or has
reason to know that an Indian child is involved. (§ 224.3; Cal. Rules of Court, rule
5.481(a)(5)(A).)
       Cases in which courts have found insufficient information to trigger the ICWA’s
notice requirements have dealt with statements of Indian ancestry where no particular
tribe was identified and no specific family member from whom the ancestry followed
was singled out. In In re J.D. (2010) 189 Cal.App.4th 118, the court held that because
the maternal grandmother was unable to specify the tribe or the relative from whom the
ancestry followed and because there were no living relatives who could be interviewed,
the information provided was not sufficient to trigger the ICWA’s notice provisions. The
information provided by the paternal grandmother was “too vague, attenuated and
speculative to give the dependency court any reason to believe the children might be
Indian children.” (Id. at p. 125.)
       In In re Jeremiah G. (2009) 172 Cal.App.4th 1514, the court held that the father’s
statement that he might have Indian ancestry was insufficient to determine whether the
child might be an Indian child. Father asserted he might have Indian ancestry because his
great grandfather was Indian, but he was unable to identify a specific tribe. Father filed
an ICWA-020 indicating that he might have Indian ancestry, but a few weeks later he
submitted a second ICWA-020 indicating that he did not have any Indian ancestry. At the

                                              7
combined jurisdictional and dispositional hearing, father’s counsel clarified that father
had retracted his statement that he might have Indian ancestry, at which point all parties
agreed the ICWA did not apply. (Id. at pp. 1518-1519.) The appellate court held that the
information provided by father was insufficient to trigger the ICWA’s notice
requirements because it was too vague and speculative and because the statement was
retracted. (Id. at p. 1516.) “In a juvenile dependency proceeding, a claim that a parent,
and thus the child, ‘may’ have Native American heritage is insufficient to trigger ICWA
notice requirements if the claim is not accompanied by other information that would
reasonably suggest the minor has Indian ancestry.” (Ibid.)
       In In re O.K. (2003) 106 Cal.App.4th 152, the court also held that information was
insufficient to indicate that the child was an Indian child within the meaning of the
ICWA. The paternal grandmother could not identify a tribe, and merely stated the child
could have Indian ancestry because “where were [sic] from it is that section” and she did
not know whether she was eligible for membership. (Id. at p. 155.) The appellant court
agreed that the information provided by the paternal grandmother was “insufficient to
give the court reason to believe that the minors might be Indian children . . . [because it]
was not based on any known Indian ancestors but on the nebulous assertion that ‘where
were [sic] from is that section . . . .’” (Id. at 157.)
       In contrast to the cases discussed above, a suggestion that a child may have Indian
ancestry identifying a specific tribe, or a family member from whom the ancestry
follows, or both, is sufficient to trigger the ICWA’s notice provisions. For instance, in In
re Damian C. (2009) 178 Cal.App.4th 192, 195-196 (Damian C.), the mother submitted
an ICWA-020 indicating that she may have Pasqua Yaqui ancestry from the maternal
grandfather, who could not confirm his Indian ancestry due to lack of information. The
appellate court held that the information provided by mother was sufficient to trigger the
ICWA’s notice provisions. “The [Department] was required to provide notice to the
federally recognized Navajo and Yaqui tribes because, even though [maternal
grandfather] reported the family had been unsuccessful in establishing the family’s Indian



                                                 8
heritage, the question of membership in the tribe rests with the tribe itself.” (Id. at p. 199,
citing In re Desiree F. (2000) 83 Cal.App.4th 460, 471 (Desiree F.).)
       In In re Alice M. (2008) 161 Cal.App.4th 1189 (Alice M.), the court held that
notice was required after the mother submitted an ICWA-020 indicating that the child
may be eligible for membership in an Apache or Navajo tribe. The appellate court held
that the information provided on the ICWA-020 “gave the court reason to know [the
child] may be an Indian child . . . The ambiguity in the form and the omission of more
detailed information, such as specific tribal affiliation or tribal roll number, do not negate
appellant’s stated belief that [the child] may be a member of a tribe or eligible for
membership.” (Id. at p. 1198.)
       In Antoinette S., supra, 104 Cal.App.4th 1401, the mother first claimed that neither
she nor the father had Indian heritage, at which point the dependency court held that the
ICWA did not apply. Father later told the social worker that he may have Indian ancestry
from his maternal grandparents, but was unable to provide a specific tribe or specific
information about his maternal grandparents. On appeal, the father argued that the
ICWA’s notice requirements were triggered by his statement and that the notice sent by
the Department was insufficient to meet those requirements. (Id. at pp. 1404-1405.)
Applying the low threshold and minimal showing required to invoke the ICWA’s notice
requirements, the appellate court held that “father’s suggestion that [the child] ‘might’ be
an Indian child was enough to trigger notice in this case.” (Id. at p. 1408; see also
Dwayne P., supra, 103 Cal.App.4th at pp. 257-258 [certainty not required to trigger
ICWA notice requirements; facts suggesting the child may be Indian are sufficient].)


Analysis


       Mother argues that the court and the Department had enough information to have
reason to know that Ezra might be an Indian child and, therefore, the court should have
ordered the Department to comply with the ICWA’s notice requirements. The
Department contends that the information was much too vague to trigger the ICWA

                                              9
notice provisions. While the issue is close, we conclude mother has the better argument
and there was enough of a suggestion to meet the minimal showing required to trigger the
ICWA’s notice provisions.
       Mother informed the Department and the court that she had Apache heritage from
the maternal grandfather, who was deceased. Mother filed an ICWA-020 Parental
Notification of Indian Status indicating that she had “possible” Apache ancestry through
the maternal grandfather and the court acknowledged in a minute order mother’s
assertion that “she may have Apache heritage.” At the court’s direction, the social
worker contacted the maternal grandmother, who stated “that to her knowledge [maternal
grandfather] did not have Native American Indian heritage in his family background.” At
the jurisdictional and dispositional hearing, held a month after the social worker
interviewed the maternal grandmother, the court concluded without explanation that the
ICWA did not apply. All of these occurrences transpired within the context of mother
being repeatedly incarcerated or detained due to mental instability and violent behavior.
There was also indication from a prior dependency proceeding involving mother’s older
son, Elijah, that mother had no known Indian ancestry.
       Both California Rules of Court, rule 5.481(a)(5)(A) and section 224.3 indicate that
the ICWA notice requirement is triggered when a person who has an interest in the child
“provides information suggesting that the child” is an Indian child. (Italics added.)
Mother provided both a specific tribe and a specific family member from whom the
ancestry followed. “The Indian status of the child need not be certain to invoke the
notice requirement.” (Desiree F., supra, 83 Cal.App.4th at p. 471.) “The determination
of a child’s Indian status is up to the tribe; therefore, the [dependency] court needs only a
suggestion of Indian ancestry to trigger the notice requirement.” (Nikki R., supra, 106
Cal.App.4th at p. 848.)
       Although the maternal grandmother in this case indicated that she did not think the
paternal grandfather had Indian heritage, the information provided by mother both in her
interview with the social worker and in the ICWA-020 identified a specific tribe and a
specific family member from whom the ancestry followed. “There is nothing either in

                                             10
the ICWA or the case law interpreting it which enables anyone to waive the tribe’s right
to notice and right to intervene in child custody matters. [Citations.]” (Desiree F., supra,
83 Cal.App.4th at p. 471; see generally Alice M., supra, 161 Cal.App.4th 1189; Dwayne
P., supra, 103 Cal.App.4th 247; In re Jonathan D. (2001) 92 Cal.App.4th 105.) Maternal
grandmother’s statement that to her knowledge maternal grandfather did not have Indian
ancestry does not waive the tribe’s right to notice. This is particularly so since the record
contains no indication the maternal grandmother followed up with the uncle or reported
back to the Department with the uncle’s response.
       We cannot discount mother’s statements regarding possible Indian ancestry, even
though they were made at a time when she was mentally unstable. The tribe was still
entitled to notice based upon the information provided. (25 U.S.C. § 1903(4); § 224.3;
Cal. Rules of Court, rule 5.481(a)(5)(A).) Nor is it dispositive that a report from the Kern
County Child Protective Services in connection with Elijah’s dependency in 2002, some
10 years earlier, reflects that mother had no known Indian ancestry. In the intervening 10
years, mother could have gained information she did not previously have that indicated
she may have Indian ancestry. In addition, the earlier statement comes from an agency
report that does not cite any source for the denial of Indian ancestry. (See Desiree F.,
supra, 83 Cal.App.4th at p. 470 [tribal membership is determined on an individual basis,
and a letter indicating no Indian heritage in a prior dependency action involving a half-
sibling did not satisfy the duty to inquire in the current case].)
       The Department contends that because mother was not a registered member of an
Indian tribe, the ICWA notice provisions were not triggered. Lack of enrollment or
registration “is not dispositive because enrollment is not the sole means to establish tribal
membership.” (Antoinette S., supra, 104 Cal.App.4th at p. 1406, citing Dwayne P.,
supra, 103 Cal.App.4th at p. 254 [enrollment is not the only means of establishing trial
membership].) We reject the Department’s contention that the ICWA’s notice provisions
are not triggered when there is a lack of enrollment.




                                              11
          Limited Reversal


          Although the matter must be remanded to ensure compliance with the ICWA’s
notice requirements, we need not reverse the order terminating mother’s parental rights
because there has not yet been a sufficient showing that Ezra is an Indian child. If a tribe
later determines that Ezra is an Indian child, “the tribe, a parent, or [the child] may
petition the court to invalidate . . . [a] termination of parental rights ‘upon a showing that
such action violated any provision of sections [1911, 1912, and 1913].’ (25 U.S.C. §
1914.)” (Damian C., supra, 178 Cal.App.4th at p. 200.)


                                       DISPOSITION


          The case is remanded for the limited purpose of ensuring compliance with the
ICWA’s notice requirements. We need not reverse the termination of mother’s parental
rights.




                KRIEGLER, J.


We concur:




                MOSK, Acting P. J.




                KIRSCHNER, J. *



          *
        Judge of the Los Angeles County Superior Court, assigned by the Chief Justice
pursuant to article VI, section 6 of the California Constitution.

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