In re M.W., a Person Coming Under the Juvenile Court Law, Sacramento County Department of Child, Family, and Adult Services v. A.C.

Because the sole issue on appeal is ICWA compliance, a detailed recitation of the

non-ICWA related facts and procedural history is unnecessary to our resolution of this

appeal.

Proceedings Prior to Father’s Appearance

On December 4, 2018, the Department filed a dependency petition on behalf of the

newborn minor pursuant to section 300, subdivisions (b) and (j). The petition alleged the

minor suffered, or was at substantial risk of suffering, harm due to substance abuse by

mother and alleged father M.W. The petition further alleged substantial risk to the minor

due to the abuse or neglect of, and eventual termination of mother’s parental rights over,

the minor’s three half-siblings.

On November 30, 2018, mother and M.W. reported they believed M.W. was the

minor’s biological father but requested a paternity test for confirmation. Mother also

reported the maternal grandfather had Native American heritage with the Apache Tribe,

later confirming her claim in her parental notification of Indian status form (ICWA-020).

M.W. denied having any Indian ancestry.

At the December 5, 2018, detention hearing, the juvenile court made ICWA orders

as to mother and ordered the minor detained.2

On December 12, 2018, the Department interviewed mother in custody and

learned A.C. (father) could potentially be the minor’s biological father. Mother was

unable to provide father’s contact information, but stated he was active on social media



2 Father does not challenge ICWA compliance or the court’s ICWA findings as to

mother. ICWA-related facts and procedure as to mother are mentioned only to provide

context or where relevant to father’s issue on appeal.

3

and promised to provide the Department with his personal information upon her release

from custody. Several weeks later, the Department informed mother M.W. was excluded

from the paternity results and asked for father’s identifying information. Mother

eventually provided father’s telephone number, which the Department used to attempt to

contact father without success.

On December 24, 2018, the Department filed a declaration regarding its ICWA

investigation as to mother, including that notices were sent to the Bureau of Indian

Affairs (BIA), the Secretary of the Interior, and numerous Apache Tribes, and that the

notices contained information gleaned from mother’s previous dependency cases

involving the minor’s half-siblings regarding mother and the maternal relatives. The

declaration also noted previous findings by the juvenile court that the ICWA did not

apply as to each of the minor’s three half-siblings.

The January 9, 2019, jurisdiction/disposition report recommended that the court

sustain the allegations in the petition and bypass mother and M.W. for reunification

services.

No parent was present for the January 9, 2019 jurisdiction/disposition hearing.

The court ordered the Department to continue its search for father and, upon locating

him, inform him of the proceedings and his options for establishing paternity, and to

make ICWA inquiry. At the parties’ request, the court continued the matter to complete

ICWA noticing.

From January 16, 2019, to March 12, 2019, the Department was unable to locate

father.

On February 4, 2019, the Department reported that five tribes confirmed the minor

was not eligible for enrollment and three tribes had yet to respond. The Department

subsequently reported it was still awaiting responses from the three remaining tribes.

At the February 13, 2019 continued jurisdiction/disposition hearing, the court

sustained the allegations in the amended petition, bypassed mother for services,

4

scheduled an ICWA compliance hearing in March 2019, and scheduled a section 366.26

hearing in June 2019.

On March 13, 2019, the Department reported it finally made telephonic contact

with father.

The Department reported that, as of March 26, 2019, it received confirmation from

all but one of the tribes that the minor was not enrolled or eligible for enrollment.

Proceedings After Father’s Appearance

Father appeared in court on March 27, 2019, and requested paternity testing to

determine whether the minor was his biological child. The court authorized a paternity

test and set the matter for a paternity hearing.

The April 2019 addendum report filed by the Department stated the paternity test

results confirmed father was the biological father of the minor. The Department

contacted father on April 22, 2019, to inform him of the paternity results and inquire

about any potential Indian ancestry. Father stated, “ ‘He [the minor] is mine and I want

to raise him.’ ” Father reported he had Indian ancestry but was neither a member of, nor

seeking membership in, any tribe. He also stated his grandparents “may have

membership.”

On May 1, 2019, the court appointed counsel for father and found him to be the

biological father of the minor. The court asked father whether he had any Native

American heritage. Father responded, “I don’t know.” When asked if he knew of any

relatives who may have knowledge of potential Native American heritage, father replied,

“No.” The court then asked the paternal aunt, who was present in the courtroom, whether

she had any knowledge of Native American heritage in the family. The paternal aunt

replied, “It’s believed that we do have; I don’t have confirmation,” adding that she did

not know which tribe. The court ordered the Department to conduct further ICWA

inquiry of father’s relatives and continued the paternity hearing. That same day, father

5

filed a parental notification of Indian status writing “may have” on the line asking the

name of a band of which he might be a member or eligible for membership.

The Department filed an addendum report on May 13, 2019, regarding the

Department’s ICWA inquiry of father and his relatives. The report stated the social

worker contacted father on May 2, 2019, regarding potential Native American ancestry.

Father provided his telephone number and the paternal aunt’s telephone number and

stated there were no relatives other than the paternal aunt who might have information

regarding potential Indian heritage. That same day, the social worker contacted the

paternal aunt, who reported she did not think any relative knew which tribe they were

affiliated with and she did not think any member of her family was a member of a tribe.

The report also stated that, on May 6, 2019, the social worker contacted the

paternal grandfather, who reported the paternal great-great-grandmother was part Navajo

and the paternal great-great-great-grandfather was part Apache. The paternal grandfather

reported that his family had not been involved with the reservation for generations, but he

believed they had some relatives who used to live on, or were currently living on,

reservations in Colorado and other states. The paternal grandfather said he would attempt

to contact some relatives to gather more information. When the social worker later

contacted the paternal grandfather and requested the relatives’ contact information so that

the social worker could contact them directly, the paternal grandfather refused to provide

that information.

At the continued paternity hearing on May 15, 2019, the court acknowledged

receipt of the May 13, 2019 addendum report and ordered as follows: “The Department

needs to contact the [BIA] and the State Department of Social Services. The Department

also needs to contact the tribes, and at a minimum that contact must include telephone,

facsimile or electronic mail contact to each tribe’s designated agent. If the tribes fail to

respond, the ICWA guidelines at page 22 requires multiple requests to the tribe.”

Father’s counsel stated father wanted to confirm “that there is possible Apache and

6

Cherokee heritage,” which father noted was “[o]ut of Colorado.” The court recalled that

the paternal grandfather reported the “family is part Navajo and part Apache” and asked

father whether he wished to add any additional tribes to that list. Father responded,

“Then, I guess, if that’s my father’s words then, I guess, you can go by that. That’s fine.”

The Department and the court requested clarification from father as to whether he

believed he may have Cherokee heritage. Father simply deferred to the statements of his

family members. Given father’s earlier statements, the court ordered the Department to

include Cherokee tribes in its ICWA inquiry efforts. The court’s written order stated as

follows: “There is no reason to know the [minor] is an Indian child. However, based on

information provided by the father, there is reason to believe the [minor] may be an

Indian child. [The Department] shall therefore make further inquiry regarding the

possible Indian status of the [minor]. Notice shall be provided as required by law, if there

is a reason to know the [minor] is an Indian child.”

The Department’s June 2019 selection and implementation report recommended

the court find the ICWA does not apply, terminate the parents’ reunification services, and

set the matter for a section 366.26 hearing.

In an addendum report filed June 6, 2019, the Department set forth its further

ICWA inquiry efforts regarding the minor’s potential Indian heritage. For example, on

May 15, 2019, the social worker called the paternal grandfather, who stated he had not

contacted any relatives but planned to speak to the paternal great-great-grandmother’s

sister that day and report back to the social worker. Two days later, the paternal

grandfather reported he located the paternal great-great-grandmother’s sister, who

“knows many of the relatives in Colorado,” and planned to see her the following day to

obtain more information, including the birthdates of the paternal great-great-grandmother

or great-great-great-grandfather, who was part of the Apache tribe in Sonora, Mexico.

In the meantime, the social worker contacted the California Department of Social

Services (CDSS) Office of Tribal Affairs and the BIA and reviewed the BIA’s list of

7

designated tribal agents to identify all Navajo, Apache, and Cherokee Tribes and their

designated agents. The social worker contacted 12 identified tribes, four of which

confirmed the minor was not an Indian child for purposes of the ICWA and the remainder

of which had not responded as of the date of the report.

On June 17, 2019, father filed a petition pursuant to section 388 to change the

court’s May 15, 2019, order finding him to be the biological father of the minor and

instead find him to be the minor’s presumed father, vacate the selection and

implementation hearing, and transition the minor to father’s custody or, alternatively, to

provide reunification services to father and set the matter for a six-month review hearing.

Sections 388 and 366.26 Hearing

On July 10, 2019, the court heard testimony on the issue of paternity and denied

father’s section 388 petition. The court terminated parental rights, finding there was “no

reason to know that the [minor] is an Indian child” within the meaning of the ICWA and

no further ICWA notice was required. Thereafter, the social worker testified that six

additional tribes provided responses confirming the minor was not an Indian child and the

remaining two tribes had not yet responded.3



Father timely appealed the court’s July 10, 2019 orders.

II. DISCUSSION

Father claims the juvenile court erred in finding the ICWA did not apply without

first ensuring proper compliance with the ICWA inquiry and notification requirements.



3 On January 10, 2020, the Department filed a motion to augment the record (Cal. Rules

of Court, rules 8.155 & 8.410) with the following post-termination ICWA-related

documents: a September 27, 2019 progress report (not file-stamped by the juvenile

court), a September 27, 2019 declaration of receipt of ICWA return receipt cards and/or

tribal correspondence, and the juvenile court’s minute order following an October 18,

2019 ICWA compliance hearing wherein the court reiterated its previous ICWA ruling.

The motion is hereby denied.

8

Development of ICWA Compliance Law

In 1978, Congress enacted the ICWA in response to “ ‘rising concern in the mid1970’s over the consequences to Indian children, Indian families, and Indian tribes of

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.’ [Citation.]” (In re Isaiah W. (2016) 1 Cal.5th 1, 7-8.) The

purpose underlying the ICWA was “ ‘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 from their families and the

placement of such children in foster or adoptive homes which will reflect the unique

values of Indian culture . . . .’ (25 U.S.C. § 1902.)” (Id. at p. 8.)

“In 2006, our Legislature enacted provisions that affirm ICWA’s purposes (§ 224,

subd. (a)) and mandate compliance with ICWA ‘[i]n all Indian child custody

proceedings’ (§ 224, subd. (b)).” (In re Isaiah W., supra, 1 Cal.5th at p. 9.)

The ICWA notice requirements have long been triggered by a court’s “reason to

know” a child may be an Indian child for purposes of the ICWA. (See 25 U.S.C.

§ 1912(a).) Although initially undefined under federal law, the phrase “reason to know”

was defined by the California Legislature to include 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 “one or more of the child’s biological parents,

grandparents, or great-grandparents are or were a member of a tribe.” (Former § 224.3,

subd. (b)(1), italics added; Stats. 2006, ch. 838, § 32 (SB 678).) As demonstrated by case

law at that time, little more than a “minimal showing” was required to trigger the

statutory notice provisions. (See Dwayne P. v. Superior Court (2002) 103 Cal.App.4th

247, 258.)

Federal regulations governing court proceedings covered by the ICWA were

amended, effective December 12, 2016, to provide minimum Federal standards to ensure

9

compliance with the ICWA. (25 C.F.R. § 23.101, et seq.) As relevant here, the federal

regulations require that state courts, at the commencement of the involuntary childcustody proceeding, ask each participant “whether the participant knows or has reason to

know that the child is an Indian child” and “instruct the parties to inform the court if they

subsequently receive information that provides reason to know the child is an Indian

child.” (25 C.F.R. § 23.107(a), italics added.)

The regulations explain that a court “has reason to know that a child involved in

. . . [a] child-custody proceeding is an Indian child” under certain specified circumstances

(25 C.F.R. § 23.107(c)(1)-(6), italics added), and further explain that, “[i]f there is reason

to know the child is an Indian child, but the court does not have sufficient evidence to

determine that the child is or is not an ‘Indian child,’ the court must: [¶] (1) Confirm, by

way of a report, declaration, or testimony included in the record that the agency or other

party used due diligence to identify and work with all of the Tribes of which there is

reason to know the child may be a member (or eligible for membership), to verify

whether the child is in fact a member (or a biological parent is a member and the child is

eligible for membership); and [¶] (2) [t]reat the child as an Indian child, unless and until

it is determined on the record that the child does not meet the definition of an ‘Indian

child’ in this part.” (25 C.F.R. § 23.107(b)(1)-(2), italics added.)

Effective January 1, 2019, California Assembly Bill No. 3176 (2017-2018 Reg.

Sess.) made substantial revisions to the Welfare and Institutions Code to conform

California law to the requirements of the federal regulations governing proceedings

covered by the ICWA. For example, section 224.2, subdivision (c) mirrors 25 C.F.R.

§ 23.107(a) and provides: “At the first appearance in court of each party, the court shall

ask each participant present in the hearing whether the participant knows or has reason to

know that the child is an Indian child. The court shall instruct the parties to inform the

court if they subsequently receive information that provides reason to know the child is

an Indian child.” (§ 224.2, subd. (c), italics added; see 25 C.F.R. § 23.107(a).)

10

Section 224.2, subdivision (d) mirrors 25 C.F.R. § 23.107(c) and provides the

court has “reason to know” a child involved in a proceeding is an Indian child under any

of the following circumstances: “(1) A person having an interest in the child, including

the child, an officer of the court, a tribe, an Indian organization, a public or private

agency, or a member of the child’s extended family informs the court that the child is an

Indian child; [¶] (2) The residence or domicile of the child, the child’s parents, or Indian

custodian is on a reservation or in an Alaska Native village; [¶] (3) Any participant in the

proceeding, officer of the court, Indian tribe, Indian organization, or agency informs the

court that it has discovered information indicating that the child is an Indian child; [¶]

(4) The child who is the subject of the proceeding gives the court reason to know that the

child is an Indian child; [¶] (5) The court is informed that the child is or has been a ward

of a tribal court; [¶] (6) The court is informed that either parent or the child possess an

identification card indicating membership or citizenship in an Indian tribe.” (§ 224.2,

subd. (d); see 25 C.F.R. § 23.107(c).)

Section 224.2, subdivision (g) similarly mirrors 25 C.F.R. § 23.107(b) by

providing: “If there is reason to know the child is an Indian child, but the court does not

have sufficient evidence to determine that the child is or is not an Indian child, the court

shall confirm, by way of a report, declaration, or testimony included in the record that the

agency or other party used due diligence to identify and work with all of the tribes of

which there is reason to know the child may be a member, or eligible for membership, to

verify whether the child is in fact a member or whether a biological parent is a member

and the child is eligible for membership.” (Italics added.)

In contrast to the “reason to know” requirements, California law also sets forth

requirements when there is a “reason to believe” a child is an Indian child. Section

224.2, subdivision (e) provides: “If the court, social worker, or probation officer has

reason to believe that an Indian child is involved in a proceeding, the court, social

worker, or probation officer shall make further inquiry regarding the possible Indian

11

status of the child, and shall make that inquiry as soon as practicable. Further inquiry

includes, but is not limited to, all of the following: [¶] (1) Interviewing the parents, Indian

custodian, and extended family members to gather the information required in paragraph

(5) of subdivision (a) of Section 224.3[;

4

] [¶] (2) Contacting the Bureau of Indian Affairs

and the State Department of Social Services for assistance in identifying the names and

contact information of the tribes in which the child may be a member, or eligible for

membership in, and contacting the tribes and any other person that may reasonably be

expected to have information regarding the child’s membership status or eligibility[;] [¶]

(3) Contacting the tribe or tribes and any other person that may reasonably be expected to

have information regarding the child’s membership, citizenship status, or eligibility.

Contact with a tribe shall, at a minimum, include telephone, facsimile, or electronic mail

contact to each tribe’s designated agent for receipt of notices under the federal Indian

Child Welfare Act of 1978 (25 U.S.C. Sec. 1901 et seq.). Contact with a tribe shall

include sharing information identified by the tribe as necessary for the tribe to make a

membership or eligibility determination, as well as information on the current status of

the child and the case.” (§ 224.2, subd. (e)(1)-(3), italics added.)

Analysis

The newly-revised California laws made effective on January 1, 2019, apply to

father, who made his first appearance in the proceedings on March 27, 2019. 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



4 Section 224.3, subdivision (a)(5) includes the name, birth date and birthplace of the

Indian child, if known; the name of the Indian tribe; and the names and other identifying

information of the Indian child’s biological parents, grandparents, and greatgrandparents, if known.

12

could he identify a tribe, his grandparents “may have membership,” there was “possible

Apache and Cherokee heritage” which was “[o]ut of Colorado,” and that the paternal

grandfather’s claim that the family was part Navajo and part Apache was “fine.” The

paternal aunt reported possible but unconfirmed Indian heritage and stated she did not

think any member of her family was a member of a tribe.

Based on the initial inquiry by the court and the Department, there was at best a

reason to believe the minor may be an Indian child, thus triggering the provisions of

section 224.2, subdivision (e), which required the court and the Department to make

further inquiry as soon as practicable. The Department conducted further inquiry of

father and his extended family members. The paternal grandfather—the only family

member with any information—reported the paternal great-great-grandmother was part

Navajo and the paternal great-great-great-grandfather was part of the Apache Tribe in

Sonora, Mexico; the paternal family had not been involved with the reservation for

generations; and he believed some of the paternal family members used to live on, or

were currently living on, reservations in Colorado and other states. He also reported he

was in contact with the paternal great-great-grandmother’s sister, who knew many of the

Colorado relatives, but refused to provide the relatives’ contact information to the

Department.

With that limited information, and at the direction of the juvenile court, the

Department contacted the CDSS and the BIA to obtain assistance in identifying the

designated tribal agents for all federally-recognized Navajo, Apache, and Cherokee

tribes. The Department reported, in a June 12, 2019 addendum report, that the social

worker identified 12 federally-recognized tribes: the Navajo Nation, the Cherokee

Nation, the Eastern Band of Cherokee Indians, the United Keetoowah Band of Cherokee

Indians in Oklahoma, the Apache Tribe of Oklahoma (Kiowa), the Fort Sill Apache Tribe

of Oklahoma, the Jicarilla Apache Nation, the Mescalero Apache Tribe, the San Carlos

Apache Tribe, the Tonto Apache Tribe of Arizona, the White Mountain Apache Tribe,

13

and the Yavapai-Apache Nation. The report documented the social worker’s contact with

the 12 tribes by telephone, fax, e-mail, and/or mail, the name of the designated agent for

each tribe, the dates of attempted contact with each designated agent (all between May 15

and June 4, 2019), and that each tribe was provided with the minor’s “ICWA Family

Tree.” As of the date of the report, four of the tribes had confirmed the minor was not an

Indian child. As of the July 10, 2019 hearing, six additional tribes had confirmed the

minor was not an Indian child, and the two remaining tribes (the Navajo Nation and the

White Mountain Apache Tribe) had acknowledged contact but had not yet provided a

definitive response.

Based on the documentation provided by the Department, the juvenile court found

the Department complied with the ICWA notice provisions, there was “no reason to

know that the [minor] is an Indian child” within the meaning of the ICWA, and no further

ICWA notice was required.

The Department’s ICWA inquiry based on reason to believe the minor might be

an Indian child met the requirements set forth in section 224.2, subdivision (e).

Therefore, there was sufficient evidence to support the juvenile court’s finding that there

was no reason to know the minor was an Indian child and no further ICWA noticing was

required.

Father contends the Department’s ICWA declaration upon which the court relied

failed to include information required by section 224.2, subdivision (e)(3), including

contact information for the tribal agents with whom the Department made contact, the

minor’s “ICWA Family Tree” mentioned in the declaration, information regarding the

minor’s current status, return receipts from the Navajo Nation or the White Mountain

Apache Tribe, and the actual responses from the tribes. He also takes issue with the fact

that the ICWA declaration was not signed under penalty of perjury. The claims lack

merit.

14

As a preliminary matter, section 224.2, subdivision (e) does not require that any

extensive or particular formal documentation of ICWA inquiry be provided to the tribe.

Subdivision (e)(3) of that section provides that contact with the tribe “shall include

sharing information identified by the tribe as necessary for the tribe to make a

membership or eligibility determination.” (Italics added.) Similarly, section 224.2,

subdivision (e) does not require that the Department report its inquiry efforts to the

juvenile court in the form of a declaration or in any particular form at all. The only

guidance in that regard can be found by analogy to subdivision (g) of that section

(applying specifically to circumstances where there is “reason to know”) which permits

the court to confirm the Department’s due diligence “by way of a report, declaration, or

testimony included in the record.” (§ 224.2, subd. (g).) Here, the Department provided

evidence of its due diligence inquiry via a report and testimony at the July 10, 2019

hearing. Thus, father’s claim that the “declaration” was not signed under penalty of

perjury fails.

In any event, the Department’s ICWA report contained evidence sufficient to

support the juvenile court’s findings. Section 224.2, subdivision (e)(3) requires that

further inquiry include: “Contacting the tribe or tribes and any other person that may

reasonably be expected to have information regarding the child’s membership,

citizenship status, or eligibility. Contact with a tribe shall, at a minimum, include

telephone, facsimile, or electronic mail contact to each tribe’s designated agent for receipt

of notices under the federal Indian Child Welfare Act of 1978 (25 U.S.C. Sec. 1901 et

seq.). Contact with a tribe shall include sharing information identified by the tribe as

necessary for the tribe to make a membership or eligibility determination, as well as

information on the current status of the child and the case.”

The Department’s report included evidence of interviews of father and his

extended family members, contact with the BIA and CDSS to identify any federallyrecognized Navajo, Apache, and Cherokee tribes in which the minor might be a member

15

or eligible for membership and, as required by subdivision (e)(3), contact with the

identified tribes (by telephone, facsimile, e-mail, and regular mail) and sharing of

information via the minor’s ICWA family tree. (See § 224.2, subd. (e)(1)-(3).) It also

included information regarding the tribes’ responses, or lack thereof. In that regard, at

the time of the juvenile court’s July 10, 2019 ruling, 10 of the 12 tribes confirmed the

minor was not an Indian child. As for the two remaining tribes, the Department reported

it contacted the Navajo Nation on May 15 and 22, 2019, and June 4, 2019, spoke with a

tribal representative by telephone, and faxed the ICWA inquiry twice but had yet to

receive a determinative response. The Department further reported it contacted the White

Mountain Apache Tribe on May 23 and 28, 2019, communicated by e-mail, and e-mailed

and mailed the ICWA inquiry but had yet to receive a determinative response. Based

thereon, the two tribes were given nearly two months within which to provide a

determinative response to the Department’s ICWA inquiry, a time period we find

reasonable in the context of a dependency proceeding.

Father claims the juvenile court “knew or had reason to believe” the minor was an

Indian child within the meaning of the ICWA based on information provided by father

and the paternal grandfather, and the Department failed to send notices to the Navajo,

Apache, and Cherokee Tribes as required. In the absence of such noticing, he argues, the

court’s conclusion that the minor was not an Indian child was error. We disagree.

Father conflates two separate and distinct provisions of section 224.2, namely the

“reason to know” provisions found in section 224.2, subdivisions (c), (d), (f), (g), and (i)

and the “reason to believe” provision found in section 224.2, subdivision (e). As

discussed at length above, a “reason to believe” the minor is an Indian child triggers

requirements less rigorous than does a “reason to know.”

Here, the entirety of the information provided by father and the paternal

grandfather was that father’s family had possible Cherokee heritage and possible Navajo

and Apache heritage linked to the paternal great-great-grandmother and the paternal

16

great-great-great-grandfather. The information did not meet the “reason to know” criteria

set forth in section 224.2, subdivision (d). That is, no person having an interest in the

minor (including the minor himself) had informed the court that the minor was an Indian

child, there was no information to suggest the minor had at any time lived on a

reservation or been a ward of a tribal court, and there was no indication either the minor

or the parents possessed an identification card indicating membership or citizenship in an

Indian tribe. The information provided by father and the paternal grandfather indicated

the possibility that they had Indian heritage but did not rise to the level of “information

indicating that the [minor] is an Indian child.” (§ 224.2, subd. (d)(3).)

At best, the information provided by father and the paternal grandfather gave the

court a “reason to believe” the minor may be an Indian child, thus triggering the inquiry

provisions of section 224.2, subdivision (e). The court established that fact at the

May 15, 2019 hearing, during which the court first ordered the Department to contact the

BIA and the CDSS, and contact the tribes by, at a minimum, telephone, facsimile, or

electronic mail, as required by section 224.2, subdivision (e). Then, when father

suggested there might be Cherokee heritage in addition to the previously-claimed Navajo

and Apache heritage, the court ordered the Department to include Cherokee tribes in its

ICWA inquiry. The court’s May 15, 2019 written order expressly stated there was “no

reason to know the [minor] is an Indian child” (italics added) but, based on the new

information provided by father, there was a “reason to believe the [minor] may be an

Indian child.” The order directed the Department to make further ICWA inquiry and

provide notice “if there is a reason to know the [minor] is an Indian child.” (Italics

added.) As the court later determined, there was no reason to know.

Father relies on a number of cases which he claims support his argument that

ICWA notice to the tribes was “mandatory.” All but one of the cases upon which he

relies—In re A.W. (2019) 38 Cal.App.5th 655—predate the 2019 amendments to the

California statutes distinguishing between “reason to believe” and “reason to know.” In

17

A.W., the parents argued the agency and the juvenile court failed to comply with the

ICWA procedures and erroneously terminated their parental rights without prior notice to

the relevant Indian tribe. (Id. at p. 663.) This court rejected the agency’s argument that

the newly-revised language of section 224.2 required notice “only when the court knows

or has reason to know the child is definitively a member (or knows a parent is definitively

a member and the child is eligible for membership).” (A.W., at p. 665.) In doing so, this

court applied the 2016 law in effect at the time the juvenile court conducted its ICWA

compliance hearing and did not analyze the issue under the 2019 revised statute

applicable here. (Id. at p. 662.) A.W. is inapposite here.

The Department satisfied the criteria set forth in section 224.2, subdivision (e) and

the juvenile court’s finding that, based on the evidence provided, there was no reason to

know the minor was an Indian child and no further noticing was required, and its

determination that the ICWA did not apply were supported by substantial evidence.

The juvenile court’s orders are affirmed.