Filed 9/7/18 In re I.S. CA3

NOT TO BE PUBLISHED

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE DISTRICT

(Sacramento)

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J. L., mother of the minor, I. S., appeals the juvenile court’s order terminating parental rights. (Welf. & Inst. Code,[1] §§ 366.26 & 395.) Mother contends the juvenile court and the Sacramento County Department of Child, Family and Adult Services (the Department) failed to comply with the requirements of the Indian Child Welfare Act (ICWA). (25 U.S.C. § 1901 et seq.) We affirm.

FACTUAL AND PROCEDURAL BACKGROUND[2]

On April 16, 2015, the Department filed a juvenile dependency petition pursuant to section 300, subdivision (b) alleging failure to protect due to ongoing domestic violence between mother and M. S. (father) in the presence of the six-month-old minor and failure to provide adequate care for the minor resulting in nonorganic failure to thrive, all placing the minor at substantial risk of physical harm, abuse, and neglect.[3] The minor was taken into protective custody the following day.

According to the detention report, mother and father both denied any Native American heritage on December 19, 2014.

The juvenile court ordered the minor detained on April 22, 2015, at which time the court noted the parents’ denial of Native American heritage and stated there was no evidence the minor was an Indian child within the meaning of the ICWA. Pursuant to the court’s order, each parent signed and filed a parental notification of Indian status denying Indian heritage.

On May 5, 2015, the Department’s ICWA paralegal filed a declaration stating that, at a recent hearing regarding the minor’s three siblings, mother claimed Navajo ancestry. Mother reported she was not a member of a tribe, nor were the maternal grandparents, but the maternal grandfather had Navajo ancestry and the maternal grandmother had Cherokee ancestry. Mother provided the paralegal with all the family and tribal information available to her but could not confirm whether any family member was a member of or enrolled with a tribe.

Also, on May 5, 2015, the ICWA paralegal mailed notices of child custody proceedings for Indian child (form ICWA-030) regarding the minor’s three siblings to three Cherokee tribes, three Navajo tribes, the Bureau of Indian Affairs (Bureau), and the Secretary of the Interior (Secretary). In particular, the notices referenced the upcoming jurisdiction/disposition hearing on May 12, 2015. That hearing was subsequently continued to May 26, 2015.

The jurisdiction/disposition report stated father initially denied any Indian ancestry but disclosed during an interview on May 5, 2015, his possible Indian ancestry through the paternal grandmother “with the tribe unknown.” The report noted that the ICWA noticing on father’s behalf was pending in light of the new information. The report noted mother’s claim of possible Navajo and Cherokee ancestry and stated notice on her behalf was completed on May 5, 2015. The notices included information regarding possible Navajo and Cherokee ancestry as to mother and some of the maternal extended family members, and stated neither father nor any of the paternal extended family members had any known Indian ancestry.

On May 19, 2015, the ICWA paralegal filed a declaration stating the paternal grandmother informed the social worker she had Indian ancestry, identifying her tribes as “Potawatomi and Red Fox.” The paternal grandmother did not claim enrollment or membership with any tribe. She stated she had memory problems due to health issues, but promised to contact her niece to obtain additional information to provide to the social worker; however, she failed to make contact with the paralegal on several occasions.

The ICWA paralegal reported the Red Fox Tribe was not on the list of federally recognized tribes. Nonetheless, on May 19, 2015, the paralegal mailed notices of child custody proceedings for Indian child (form ICWA-030) regarding the minor and his three siblings to three Cherokee tribes, three Navajo tribes, seven Potawatomi tribes, the Bureau, and the Secretary. The notices, which referenced the upcoming jurisdiction/disposition hearing on May 26, 2015, differed from the prior notices in that they contained additional information regarding the paternal grandmother’s and paternal great-grandfather’s Potawatomi and Red Fox ancestry.

On May 22, 2015, the ICWA paralegal filed a declaration reporting receipt of return receipts from the Bureau, the Secretary, and several of the tribes related to the initial ICWA notices, as well as correspondence from the United Keetoowah Band of Cherokee Indians in Oklahoma indicating the minor was not an Indian child and the tribe would therefore not intervene in the case.

On May 26, 2015, the court again continued the jurisdiction/disposition hearing due to mother’s transportation issues and “for ICWA compliance.”

On June 4, 2015, the ICWA paralegal filed a declaration regarding return receipts and correspondence related to the amended ICWA notices sent to the Bureau, the Secretary, and 13 of the tribes. Three additional tribes (the Cherokee Nation, the Eastern Band of Cherokee Indians, and the Nottawaseppi Huron Band of the Potawatomi tribes) sent responsive correspondence stating that neither the minor nor his siblings were Indian children and the respective tribes would therefore not intervene in the case. For those return receipts that were undated, the paralegal tracked the date of delivery by the respective tribe by referring to information obtained from a track and confirm website.

The continued jurisdiction/disposition hearing commenced on June 9, 2015. The court sustained the allegations in the petition as to the minor, adjudged him a dependent of the juvenile court, and set the matter for an ICWA compliance hearing on July 28, 2015.

On July 27, 2015, the ICWA paralegal filed a declaration reporting that all tribes had received their respective ICWA notices on or before May 27, 2015. The declaration noted receipt of additional responsive correspondence from five Potawatomi tribes, all of which determined the minor was not an Indian child. The declaration also included correspondence from Ramah Navajo Social Services stating it “cannot confirm or deny if the parent(s) and/or child are members of the Navajo Nation or eligible” and noting the “Ramah Navajo is part of the Navajo Nation, however, as a small community[,] we do not have access to the Navajo Nation Census Office data base” located in Window Rock, Arizona. The Ramah Navajo Social Services social worker stated she would forward the ICWA notices to the Navajo Nation ICWA Office in Arizona. The ICWA paralegal stated the Department had not yet received responses from the Navajo Nation, the Colorado River Indian Tribes, or the Forest Co. of Potawami of WI, all three of which had been served by mail on May 19, 2015, and had received such notice on or before May 27, 2015.

At the ICWA compliance hearing on July 28, 2015, the Department submitted on the ICWA notice documentation previously filed, noting the matter had been continued from June 9, 2015, “because at that time we had not had 60 days pass from the time the last tribe received notice” but “looking at today’s calendar, we have over 60 days, so it looks like notice is good.” Without objection from the parents, the court found the Department complied with the ICWA notice requirements, there was nothing to indicate the minor was an Indian child, and no further ICWA notice was required.

The in-home permanency review report filed November 13, 2015, stated the ICWA does not apply.

At the contested permanency hearing on January 27, 2016, the court continued the minor’s out-of-home placement, continued reunification services for mother, terminated services for father, and set the matter for a permanency review hearing.

On March 8, 2016, the court received correspondence directly from the Navajo Nation stating the minor was not eligible for tribal membership or enrollment based on the information provided.

The October 2016 selection and implementation report reiterated the ICWA does not apply.

The Department filed informational memoranda on May 22, 2017 and June 5, 2017 stating that, among other things, the ICWA paralegal was “unaware of any information before the Court that would indicate [the minor] is an Indian Child as defined by the [ICWA].”

The contested selection and implementation hearing commenced on October 10, 2017, and took place over two days. On October 11, 2017, the court took judicial notice of all prior findings, orders, and judgments, terminated parental rights pursuant to section 366.26, and identified a permanent plan of adoption.

Mother filed a timely notice of appeal of the court’s October 11, 2017 order.

DISCUSSION

Mother contends the Department failed to fully comply with the ICWA notice requirements, and the juvenile court failed to ensure compliance with the ICWA. She contends reversal of the court’s October 11, 2017 order and remand for further ICWA proceedings is required. As we shall explain, the claims lack merit.

The ICWA’s purpose is to protect the interests of Indian children and promote the stability and security of Indian tribes by establishing minimum standards for, and permitting tribal participation in, dependency actions. (25 U.S.C. §§ 1901, 1902, 1903(1), 1911(c), 1912; In re Levi U. (2000) 78 Cal.App.4th 191, 195-196 (Levi U.).) The juvenile court and the Department have “an affirmative and continuing duty to inquire” whether a child is, or may be, an Indian child. (§ 224.3, subd. (a); California Rules of Court, rule 5.481(a).) If, after the petition is filed, the court “knows or has reason to know that an Indian child is involved,” notice of the pending proceeding and the right to intervene must be sent to the tribe or the Bureau if the tribal affiliation is not known. (§ 224.2; see Cal. Rules of Court, rule 5.481(b); 25 U.S.C. § 1912; In re Robert A. (2007) 147 Cal.App.4th 982, 988-989.) “Proof of notice filed with the court must include Notice of Child Custody Proceeding for Indian Child (form ICWA-030), return receipts, and any responses received from the Bureau of Indian Affairs and tribes.” (Cal. Rules of Court, rule 5.482(b).)

The function of the ICWA notice provisions is to enable the tribe or the Bureau to investigate and determine whether a child is an Indian child. (In re Kahlen W. (1991) 233 Cal.App.3d 1414, 1421.) Notice must include all of the following information, if known: the child’s name, birthplace, and birth date; the name of the tribe in which the child is enrolled or may be eligible for enrollment; names and addresses of the child’s parents, grandparents, great-grandparents, and other identifying information; and a copy of the dependency petition. (§ 224.2, subd. (a)(5)(A)-(D); In re Mary G. (2007) 151 Cal.App.4th 184, 209.)

“[E]rrors in an ICWA notice are subject to review under a harmless error analysis. [Citation.]” (In re Brandon T. (2008) 164 Cal.App.4th 1400, 1415.) Error is not presumed. It is mother’s obligation to present a record that affirmatively demonstrates error. (In re D.W. (2011) 193 Cal.App.4th 413, 417-418.) In seeking reversal for lack of proper ICWA notice, she must also show “ ‘a reasonable probability that . . . she would have obtained a more favorable result in the absence of the error.’ ” (In re Autumn K. (2013) 221 Cal.App.4th 674, 715.)

I

Timeliness Of ICWA Notices

First, mother claims none of the notices sent by the Department provided adequate notice of the hearing to which they referred--the May 12, 2015 jurisdictional/dispositional hearing. The claim is untenable.

Section 224.2 provides in part that “[n]o proceeding shall be held until at least 10 days after receipt of notice by the parent, Indian custodian, the tribe, or the Bureau of Indian Affairs . . . .” (§ 224.2, subd. (d).)

As the Department aptly notes, the parents’ late disclosure of possible Indian ancestry made it impossible to mail ICWA notices to the tribes, the Bureau, and the Secretary such that those notices would be received 10 days prior to May 12, 2015, the original date set for the jurisdictional/dispositional hearing. Mother and father initially denied any Indian ancestry. It was not until an initial hearing for the minor’s siblings on April 28, 2015, that mother claimed Navajo ancestry. The ICWA paralegal attempted to contact mother on April 30, 2015 to obtain additional information, to no avail. The paralegal was finally able to reach mother on May 5, 2015, at which time mother indicated she had both Navajo and Cherokee ancestry and provided all the family and tribal information available to her. The paralegal provided notice to the tribes, the Bureau, and the Secretary. The tribes and the Bureau received their notices no later than May 27, 2015. The Secretary signed its return receipt on June 1, 2015, despite that the track and confirm showed the notice was delivered on May 27, 2015. Because the jurisdictional/dispositional hearing originally scheduled for May 12, 2015 was continued and eventually held on June 9, 2015, the jurisdictional/dispositional proceeding was held at least 10 days after receipt of notice by the tribes, the Bureau, and arguably the Secretary.

In any event, as the Department also aptly notes, there was no error because, under the circumstances here, the 10-day notice requirement set forth in section 224.2, subdivision (d) must be applied to the October 10, 2017 section 366.26 hearing, not the earlier jurisdictional/dispositional hearing. On that point, the case of In re Isaiah W. (2016) 1 Cal.5th 1 (Isaiah W.) is instructive.

In Isaiah W., the juvenile court found the ICWA did not apply at the jurisdictional/dispositional hearing. The mother did not appeal from that order or otherwise object to the court’s ICWA finding. (Isaiah W., supra, 1 Cal.5th at p. 6.) Nearly one year later, the court terminated the mother’s parental rights and again found the ICWA did not apply. The mother appealed the court’s order terminating her parental rights on the ground that the court had reason to know the minor was an Indian child but failed to order the Department to comply with the ICWA notice requirements. (Id. at pp. 6-7.) The Court of Appeal denied relief, finding mother forfeited her right to appeal from the section 366.26 order due to her failure to appeal from the jurisdictional/dispositional order, which became final 60 days after pronouncement by the court. (Isaiah W., at p. 7.)

Our state Supreme Court reversed and remanded for further ICWA proceedings, finding the juvenile court had a continuing duty of ICWA inquiry and its termination order “necessarily subsumed a present determination of ICWA’s inapplicability.” Because the mother brought a timely appeal from the court’s termination order challenging the ICWA determination, her failure to appeal from the jurisdictional/dispositional order did not preclude her from raising the claim as to the termination order. (Isaiah W., supra, 1 Cal.5th at pp. 9-12, 14-15.)

While the facts of Isaiah W. differ from those in this case in some respects, it is nonetheless instructive. Here, the jurisdiction/disposition hearing commenced on June 9, 2015, at which time the juvenile court sustained the allegations in the petition, adjudged the minor a dependent of the juvenile court, and set the matter for an ICWA compliance hearing on July 28, 2015. Mother did not appeal from the June 9, 2015 order, nor did she object at the subsequent July 28, 2015 ICWA compliance hearing when the court found the Department complied with the ICWA notice requirements and concluded there was no evidence the minor was an Indian child and no further ICWA notice was required. Nearly two years later, on October 11, 2017, the juvenile court took judicial notice of all prior findings, orders, and judgments and terminated mother’s parental rights. Like Isaiah W., mother’s challenge is applicable to the juvenile court’s finding of ICWA inapplicability underlying the October 11, 2017 order terminating her parental rights, not the June 9, 2015 jurisdictional/dispositional order. (Isaiah W., supra, 1 Cal.5th at p. 15; In re J.L. (2017) 10 Cal.App.5th 913, 917, fn. 4.)

The issue before us then is whether all tribes and entities were provided adequate notice of the October 2017 selection and implementation hearing.

II

Adequacy Of ICWA Notices

Mother claims the juvenile court failed to ensure that the Department fully complied with its duty of ICWA inquiry. She asserts the Department failed to provide notice to the “Sac and Fox federally recognized tribes” in response to the paternal grandmother’s report that she had Red Fox Indian heritage.

The Department argues it had no duty to provide ICWA notice to the “Red Fox Tribe,” as there is no such federally recognized tribe, nor was it required to cast about or resort to sources lacking the required indicia of reliability and not presented to the juvenile court to obtain information regarding potential Indian tribes. The Department further argues it conducted proper and thorough inquiry into the parents’ potential Indian heritage and properly provided ICWA notice to all known federally recognized Indian tribes and entities. We agree with the Department.

The “ ‘affirmative and continuing duty’ ” of inquiry does not require the Department to conduct a comprehensive investigation into the minor’s Indian status or to “cast about for Indian connections.” (In re C.Y. (2012) 208 Cal.App.4th 34, 39, 42; In re S.B. (2005) 130 Cal.App.4th 1148, 1161; Levi U., supra, 78 Cal.App.4th at p. 199.) Instead, it obligates the social worker, as soon as practicable, to interview the minor’s parents, extended family members, and any other person who can reasonably be expected to have information concerning the minor’s membership status or eligibility. (§ 224.3, subd. (c); Cal. Rules of Court, rule 5.481(a)(4).)

The ICWA applies only to federally recognized tribes. (25 U.S.C. § 1903(8); In re K.P. (2009) 175 Cal.App.4th 1, 5 (K.P.).) The K.P. case bears a striking resemblance factually to this case and as such is instructive. In K.P., the appellant mother was a member of the Colfax/Todd’s Valley Consolidated Tribe, a tribe that is not federally recognized. Relying on information appellants’ counsel claimed to have found on the Internet, appellants claimed the mother’s tribe might be affiliated with either the Miwok or Maidu tribe. The appellants claimed they did not assert the information as conclusive proof of affiliation with a federally recognized Indian tribe, but rather to demonstrate the alleged ease of determining the question of federal tribal recognition. (K.P., at pp. 4-5.) This court concluded that because the Internet evidence referred to by the appellants had never been presented to the juvenile court, the juvenile court had no reason to know the minors had possible affiliation with any tribe other than the Colfax/Todd’s Valley Consolidated Tribe. This court noted that the appellants cited no authority for the proposition that such information could be considered for the first time on appeal and refused to consider the newly tendered information. (Id. at p. 5.) Finally, this court noted the appellants cited no authority to support their contention that an agency is required to investigate any possible affiliation of a tribe that is not federally recognized. We therefore “decline[d] to extend the ICWA to cover an allegation of membership in a tribe not recognized by the federal government.” (Id. at pp. 5-6.)

Here, the tribe at issue--Red Fox Tribe--is not a federally recognized tribe. Mother does not claim to the contrary. Instead, like the appellants in K.P., mother claims the Red Fox Tribe might be affiliated with the “Meskwaki (sometimes spelled Mesquakie) . . . a Native American people often known to European-Americans as the Fox tribe” and the related federally recognized “Sauk and Meskwaki (Fox) Native Americans,” which include the “Sac and Fox Nation,” the “Sac and Fax [sic] Tribe of the Mississippi in Iowa,” and the “Sac and Fox Nation of Missouri in Kansas and Nebraska.” Like the appellants in K.P., mother claims to have gleaned this information from the Internet website, wikipedia.org,[4] asserting it demonstrates that “the identity of relevant Fox federally registered tribes is readily available, and that a reference to a Red Fox tribe might easily be a lay mixing together or conflation of Fox and Red Earth.” However, like the appellants in K.P., mother never presented this information to the juvenile court and has offered no authority for the proposition that we should consider such “evidence” for the first time on appeal. Consequently, the juvenile court had no reason to know the minor’s possible tribal affiliation was with any tribe other than the Red Fox Tribe. Finally, like the appellants in K.P., mother cites no authority to suggest that the “meaningful inquiry” required by section 224.3, subdivision (a) mandates that the Department investigate any possible affiliation of a tribe that is not federally recognized.

Instead, the Department did precisely what it was required to do under 25 United States Code section 1912(a) of the ICWA and rule 1439(f)(4) of the California Rules of Court in a situation where it did not know the identity of the tribe: it sent the notice of child custody proceedings for Indian child (form ICWA-030) containing information that included what was known about the paternal grandmother’s and paternal great-grandfather’s Potawatomi and Red Fox ancestry to the Bureau and the Secretary. (See Levi U., supra, 78 Cal.App.4th at p. 198; In re C.D. (2003) 110 Cal.App.4th 214, 222.) Under these circumstances, such notice suffices for purposes of the ICWA. (25 U.S.C. § 1912(a) [notice shall be given to the Secretary if the identity of the tribe cannot be determined]; § 224.2, subd. (a)(4) [“Notice, to the extent required by federal law, shall be sent to the Secretary of the Interior’s designated agent, the Sacramento Area Director, Bureau of Indian Affairs”].)

Therefore, we conclude the Department’s inquiry was adequate and there is nothing in the record to suggest that additional inquiry or notice was required.

We further conclude the court properly found the minor was not an Indian child and the ICWA did not apply. If “proper and adequate notice” has been provided pursuant to section 224.2, and neither a tribe nor the Bureau has provided a determinative response within 60 days after receipt of such notice, the court may determine that the ICWA does not apply. (§ 224.3, subd. (e)(3); Cal. Rules of Court, rule 5.482(c)(1).) “At that point, the court is relieved of its duties of inquiry and notice (§ 224.2, subd. (b)), unless the [Bureau] or a tribe subsequently confirms that the child is an Indian child (§ 224.3(e)(3)).” (In re Isaiah W., supra, 1 Cal.5th at pp. 15-16.) At the time of the October 11, 2017 selection and implementation hearing, all relevant tribes and entities had been timely provided with adequate ICWA notice and had either responded that the minor was not an Indian child or had not provided a determinative response within the mandatory 60-day period. The court expressly found the minor was not an Indian child at the July 28, 2015 ICWA compliance hearing, more than 60 days after receipt of the ICWA notices by all relevant tribes and entities. On October 11, 2017, the court took judicial notice of all prior findings, orders, and judgments in the case. Therefore, the court’s October 11, 2017 order terminating mother’s parental rights necessarily subsumed a present determination of ICWA’s inapplicability. There was no error.

DISPOSITION

The juvenile court’s order is affirmed.

/s/

Robie, J.

We concur:

/s/

Blease, Acting P. J.

/s/

Renner, J.