In re F.N. CA4/1
D078573
| Cal. Ct. App. | Jul 16, 2021Background
- Mother tested positive for methamphetamine during pregnancy (2017) and F.N. tested positive at birth; Agency opened a voluntary case and later initiated dependency proceedings in August 2020 after reports of domestic violence, ongoing substance abuse, and declining maternal mental health.
- Father told the Agency and the court that he had Native American ancestry: his maternal great‑grandmother was previously on a registry for Creek and Cherokee; father said his grandmother was “full Creek” from Muskogee, Oklahoma, though he denied tribal membership or reservation residence.
- The Agency’s September 2020 report recommended ICWA notice because the child “may be an Indian child,” but the Agency asked the court to defer formal notice while it pursued further inquiry with the Muscogee (Creek) Nation and three Cherokee tribes.
- The Agency contacted the Muscogee (Creek) Nation and the three Cherokee tribes (October 2020), reported the Creek Nation found no record of eligibility, and represented it had sent ICWA‑030 forms to the three Cherokee tribes; the record in the appeal initially lacked copies of those forms.
- At a November 2020 hearing the juvenile court found the Agency’s inquiry “sufficient to that point” and that there was no reason to know F.N. was an Indian child; the January 2021 minute order, however, inconsistently stated that ICWA notice was required because the court had reason to know the child may be an Indian child.
- The Court of Appeal conditionally reversed and remanded for the juvenile court to clarify its ICWA finding (whether there is reason to know F.N. is an Indian child), but held the Agency’s inquiry efforts were sufficient and that formal tribe notice was not required at the inquiry stage; later filings to the juvenile court included the ICWA‑030s and an April 2021 Cherokee Nation response finding F.N. not an Indian child as to that Nation.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Mother’s challenge to the juvenile court’s November 2020 finding (no reason to know child is Indian) is reviewable | Mother: Court erred in November 2020 by finding no reason to know; this should trigger formal ICWA notice | Agency: Subsequent January 2021 minute order controls; appeal challenges the January 2021 order and November challenge is untimely | Court: Mother’s challenge to November 2020 finding is untimely and largely moot given the January 2021 minute order; but because of an apparent inconsistency in minute entries, appellate court conditionally reversed and remanded to clarify the ICWA finding |
| Whether the Agency was required to give formal ICWA notice (ICWA‑030) to the three Cherokee tribes | Mother: Agency failed to provide adequate formal notice; no evidence ICWA‑030s were sent to the three Cherokee tribes in the record | Agency: It conducted sufficient inquiry (contacted tribes, sent forms); formal notice not required unless there is reason to know the child is Indian | Court: Agency’s inquiry obligations under §224.2(e) were satisfied; the limited information triggered further inquiry but did not mandate formal notice at the time; substantial evidence supports sufficiency of inquiry |
| Whether the inconsistent minute order requires remedy | Mother: Court’s January minute order (requiring ICWA notice) conflicts with prior oral findings and/or November minute order and must be corrected | Agency: Inclusion of ICWA notice in January minute order was inadvertent oversight | Court: Conditional reversal and remand for the juvenile court to correct/clarify its ICWA finding and reconcile the record (court has authority to correct clerical errors) |
Key Cases Cited
- In re Isaiah W., 1 Cal.5th 1 (affirming continuing duty to inquire under ICWA)
- In re T.G., 58 Cal.App.5th 275 (tribal eligibility determinations and ICWA procedures)
- In re Karla C., 113 Cal.App.4th 166 (notice and filing ICWA proof with juvenile court)
- Dwayne P. v. Superior Court, 103 Cal.App.4th 247 (tribe’s right to notice and intervention under ICWA)
- In re Louis S., 117 Cal.App.4th 622 (contents and sufficiency of ICWA notice)
- In re G.S.R., 159 Cal.App.4th 1202 (ICWA notice requirements strictly construed)
- In re D.N., 218 Cal.App.4th 1246 (standard of review for ICWA notice and applicability)
- In re A.M., 47 Cal.App.5th 303 (grandparental tribal membership alone does not establish reason to know)
- In re D.S., 46 Cal.App.5th 1041 (what constitutes sufficient inquiry under §224.2(e))
- People v. Mitchell, 26 Cal.4th 181 (trial court authority to correct clerical records)