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Name: In re M.W.
Case #: C089997
Court: CA Court of Appeal
District 3 DCA
Opinion Date: 06/05/2020

There was substantial evidence to support the court’s conclusion that ICWA did not apply where the juvenile court relied on the social worker’s report and testimony regarding due diligence. In a dependency action, father was found to be the minor’s biological father on May 1, 2019. From that point until the court terminated his parental rights on July 10, 2019, the only ICWA information father provided was that he may have Indian ancestry, but was neither a member of a tribe nor could he identify a possible tribe. He thought the heritage was possibly Apache or Cherokee “out of Colorado.” Paternal grandfather thought that the family was part Navajo and part Apache. Also, a paternal aunt reported possible Indian heritage, but said she did not believe any member of the family was a member of a tribe. Based on this information, the Department thought there was at best a reason to believe the minor might be an Indian child and conducted further inquiry of extended family members. The paternal grandfather provided additional information including that he believed some family members lived on or used to live on reservations. He refused to provide contact information for the other relatives to the Department. Based on that information, the social worker reported that 12 tribes and the BIA were noticed. Ten tribes responded that the minor was not an Indian child. The remaining two tribes were given nearly two months but did not provide a determinative response, despite follow up contacts by the Department. Based on that information, the juvenile court found the Department had complied with the ICWA notice provisions, and that no further notice was required. On appeal, father argued that the Department’s ICWA declaration upon which the court relied failed to include information, including contact information for the tribal agents with whom the Department made contact, the minor’s “family tree” mentioned in the declaration, information regarding the minor’s current status, return receipts from the two tribes which had not responded, and actual responses from the tribes. He also noted that the ICWA declaration was not filed under penalty of perjury. The appellate court rejected the argument and affirmed. Section 224.2, subdivision (e) does not require any particular formal documentation of ICWA inquiry. Section 224.2, subdivision (g) permits the the court to confirm the Department’s due diligence by way of a report, declaration, or testimony included in the record. The Department here provided evidence of its inquiry via a report and testimony at a hearing. Therefore, father’s claim regarding the declaration not being signed under penalty of perjury fails. Further, the report contained evidence sufficient to support the juvenile court’s findings. The information provided by the paternal grandfather did not meet the “reason to know” criteria set forth in section 224.2, subdivision (d). Although it provided a possibility of Indian heritage sufficient to pursue an inquiry, it did not rise to the level of information indicating that the minor was an Indian child. Therefore, the Department satisfied the criteria set forth in section 224.2, subdivision (e), and the juvenile court’s determination that ICWA did not apply was supported by substantial evidence.

The full opinion is available on the court’s website here: