In re Jeffrey H.

Filed 4/5/07 In re Jeffrey H. CA3

NOT TO BE PUBLISHED

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE DISTRICT

(Butte)

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Jacquelyn H., mother of the minors, appeals from orders of the juvenile court denying a petition to invalidate proceedings due to alleged violations of the Indian Child Welfare Act of 1978 (the ICWA) (25 U.S.C. 1901 et seq.).^[1] Appellant contends the court erred in denying the petition and reversal is required because the tribe was not provided proper notice before the minors were moved to an out-of-county placement. We shall affirm.

FACTUAL BACKGROUND

The minors, Jeffery H., 10 months old, and Jade H., two years old, were removed from parental custody in June 2004. There was a box checked on the petitions which indicated the minors may be of Indian ancestry. The mother had informed the social worker that she had Pomo Indian ancestry through her father. Notice was promptly sent to various Pomo and Maidu tribes and rancherias including the Berry Creek Rancheria of Maidu Indians of California, also known as the Tyme Maidu Tribe. The Notice of Involuntary Child Custody Proceeding (form SOC 319) stated that the mother claimed Pomo and Maidu ancestry. The Request for Confirmation of Childs Status as Indian (form SOC 318) provided the names of the minors maternal grandfather, maternal great-grandfather, maternal great-uncle and maternal great-great-grandparents and noted that all available information had been provided. Notice was delivered to the Berry Creek Rancheria within a week of the minors detentions.

At the dispositional hearing in September 2004, the court adopted the social workers recommendation to offer the parents reunification services. The court declined to place the minors with the maternal grandparents due to the maternal grandfathers criminal history. Thereafter, the social worker sought out-of-county placement in a pre-adoptive home and the court ordered an out-of-county visit to the placement in December 2004. Notice of the request for out-of-county placement was sent to the father and maternal grandparents but not to the tribes.

In December 2004, the social worker gave the Indian tribes, including the Berry Creek Rancheria, notice of the six-month review hearing. As indicated in the notices, the report for the review hearing recommended termination of services due to lack of parental participation. The January 2005 report stated the Berry Creek Rancheria was one of several tribes which had not yet responded to the notices sent in June and December 2004.

At the combined hearing on the request for out-of-county placement and status review on January 13, 2005, the court adopted the recommendation to terminate services and authorized out-of-county placement of the minors. During the hearing, the maternal grandparents brought to the courts attention documents, previously lodged with the court, including a letter from the Bureau of Indian Affairs (BIA) that the mother was enrolled as a California Indian under the federal Act of September 21, 1968 (25 U.S.C.  651, 659), and was listed on the California judgment fund roll as 1/32d Wailaki. The BIA document made it clear that the judgment fund roll was only a payment roll and inclusion on this roll does not denote tribal membership with a federally recognized tribe. A list of payroll numbers for members of the mothers family was also provided. The court ordered the documents filed and copies served on the parties.

The social worker sent notices containing the new information to the tribes but failed to include the Berry Creek Rancheria in the list. In February 2005, notice of the section 366.26 selection and implementation hearing was sent to the tribes, including the Berry Creek Rancheria.

The report for the selection and implementation hearing filed in April 2005 stated that no tribes had intervened. The report further stated that the minors were likely to be adopted if parental rights were terminated. Neither parent had visited in months and the minors behavior improved when visits with the maternal grandparents were stopped.

In May 2005, the maternal grandparents filed a petition to invalidate the proceedings alleging they were Indian custodians, having provided care for the minors consistent with Indian norms. They argued the maternal grandfather was Indian, although they were not clear about his tribal affiliation, and that the substantive provisions of the ICWA applied. At a hearing in May 2005, counsel for the maternal grandparents acknowledged it was not yet certain in which tribe the minors were eligible for membership but there were a number of possibilities.

In June 2005, the Berry Creek Rancheria of Maidu Indians filed a notice of tribal intervention stating that the minors were eligible for membership in their federally recognized tribe, that the tribe recognized the maternal grandparents as Indian custodians and that the tribe joined the grandparents petition to invalidate.

On June 6, 2005, the juvenile court granted intervention by the Berry Creek Rancheria and continued the hearing on the petition to invalidate. Several of the other parties were somewhat surprised by the intervention because the Berry Creek Rancheria had notice of the proceedings for some time but had not previously indicated that the minors might be eligible for membership. The court noted that had the connection been made earlier, the minors would have been able to benefit from the substantive provisions of the ICWA. Counsel for the maternal grandparents observed the parties were on notice of the possibility the minors were Indian within the meaning of the ICWA from the outset and, while the judgment roll numbers provided to the court did not coincide with tribal membership and the family had not been part and parcel of this Tribe, that she had pushed the tribe to make the connection and they finally agreed to intervene. The court stated that the late intervention had created a nightmare for the minors particularly as to placement. The court reiterated its prior order denying placement of the minors with the maternal grandfather and ordered no visitation pending further hearing.

The Butte County Department of Social Welfare (the Department) filed an opposition to the petition to invalidate noting that the tribes claim that the minors were eligible for membership in the tribe was inadequate to trigger the substantive provisions of the ICWA absent any acknowledgment that either parent was a tribal member. In response, the Berry Creek Rancheria (Tyme Maidu Tribe) filed a clarification on September 1, 2005, which said that, by stating the minors were eligible, the tribe meant that the minors were considered members of the tribe.

At the September 1, 2005 hearing on the motion to invalidate, the court observed that the clarification was the first document which stated the minors were indeed tribal members and again questioned why it took the tribe so long to respond or whether the minors had just recently become members. The court found that, as of the hearing date, the minors were tribal members and wanted to know why it took a year for the tribe to claim the children. Counsel for the maternal grandparents withdrew the Indian custodian issues and placement request and asked, along with the tribe, to proceed solely on the invalidation on the ground that the court failed to comply with the ICWA. The court acknowledged the minors tribal membership and found the substantive provisions of the ICWA would apply to further proceedings, but found the tribes lack of participation compelling and denied invalidation.

DISCUSSION

I

Appellant contends the juvenile court erred in denying the petition to invalidate because the court failed to apply the substantive provisions, specifically those relating to placement, of the ICWA throughout the proceeding.

The ICWA protects the interests of Indian children and promotes 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.) If Indian heritage is claimed, notice of the pending proceeding and the right to intervene must be sent to the tribe so that the tribe may determine if the child is a member or eligible for membership and whether to intervene. (25 U.S.C. 1912; Cal. Rules of Court, rule 5.664(f).) Violation of the provisions of the ICWA may result in invalidation of placement orders on petition by the tribe. (25 U.S.C. 1914.)

Aside from its notice provisions, the ICWA applies only to Indian children. [Citations.] Only when information before the juvenile court is sufficient to show that the child is a member of a tribe, or is eligible for membership and is the child of a member, does [California Rules of Court, rule 5.664](e) require compliance with all of the provisions of the ICWA. (In re L. B. (2003) 110 Cal.App.4th 1420, 1427.)

This criteria was not met until September 2005, when the Berry Creek Rancheria clarified that its previous tribal declarations of eligibility of the minors meant that the minors were tribal members. Up to that time, the evidence before the court was that the minors claimed Indian heritage through the maternal grandfather as of June 2005 and that the Berry Creek Rancheria considered them eligible for membership but had made no statement about whether the minors mother was either a member or eligible to be a member of the tribe.^[2] Thus, the only provisions of the ICWA which applied to the proceeding until clarification of the minors status were those relating to notice. The Berry Creek Rancheria was provided notice of the dependency proceedings from the outset; no more was necessary until there was a positive response from the tribe. Because there was no violation of the ICWA, the juvenile court correctly ruled that invalidation of the proceedings was not required.

II

Appellant contends the tribe was not provided proper notice prior to placing the minors out of the county.

Once it is determined that the ICWA applies: No foster care placement may be ordered in [a juvenile dependency] proceeding in the absence of a determination, supported by clear and convincing evidence, including testimony of qualified expert witnesses, that the continued custody of the child by the parent or Indian custodian is likely to result in serious emotional or physical damage to the child. (25 U.S.C. 1912(e); Cal. Rules of Court, rule 5.664(j).) Moreover, if the ICWA applies, the juvenile court must adhere to the placement preferences set forth in the act absent good cause to the contrary. (25 U.S.C. 1915; Cal. Rules of Court, rule 5.664(k).) The purpose of these statutes is to maintain a tribal connection to the Indian child. As noted above, inchoate Indian heritage does not trigger application of these provisions of the ICWA.

In any case, the critical event to which the substantive ICWA placement provisions would have attached, had there been an earlier determination that the minors were members of the tribe, was not the out-of-county placement, but rather the initial placement in foster care made at the outset of the proceedings. At that time, the notice to all the tribes contained all known information and no tribe had claimed the minors were members. The out-of-county placement was a mere continuation of non-preferential foster care and was governed by state, not federal law. ( 361.2, subds. (f), (g), 361.21.) Dependency proceedings are subject to strict timelines. (See 361.5, 366.21, 366.22.) Failure to establish status promptly can, and does, result in loss of rights to which a party or, in this case the tribe, might be entitled. (See, e.g., Adoption of Kelsey S. (1992) 1 Cal.4th 816, 838; In re Zacharia D. (1993) 6 Cal.4th 435, 452-453.) Thus, while a tribe is free to take whatever time is necessary to determine a childs status and intervene, failure to do so promptly may result in loss of opportunity to participate in the earlier stages of the dependency proceeding.

Additional information on the minors heritage came to light six months after the order placing them in foster care.^[3] It was error to fail to forward the new information to the Berry Creek Rancheria. (In re Kahlen W. (1991) 233 Cal.App.3d 1414, 1424; Cal. Rules of Court, rule 5.664(d) & (f) [continuing duty of inquiry and notice].) However, the error was harmless since the Berry Creek Rancheria, as a result of pushing by the maternal grandparents counsel, eventually did decide to accept the minors as tribal members. There is no suggestion from the tribe that the process would have occurred more quickly had the additional information been provided by the Department. Further, from the time the notices with the additional information were sent in late January 2005 until intervention was granted in June 2005, the case was static. There was no change in the minors placement or status that would have involved substantive provisions of the ICWA.

At the time the out-of-county placement occurred in early January 2005, no federally recognized tribe had claimed the minors. Even the Berry Creek Rancheria did not do so for many more months and then not until pushed to do so by grandparents counsel, who a month before the Rancheria intervened informed the court that it was unclear to which tribe the minors were related. The shift from in-county to out-of-county foster care placement required a hearing under state law but did not implicate the ICWA because the minors were not yet Indian children within the meaning of the ICWA despite repeated notices to the tribe.

DISPOSITION

The orders of the juvenile court are affirmed.

BUTZ , J.

We concur:

NICHOLSON , Acting P. J.

CANTIL-SAKAUYE , J.

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^[1] The Tyme Maidu Tribe of the Berry Creek Rancheria of Maidu Indians of California also filed a notice of appeal from denial of the petition to invalidate but did not file an opening brief and the tribe has been dismissed from the case.

^[2] A child who is merely eligible for tribal membership must also be the biological child of a tribal member for the substantive provisions of the ICWA to apply. (25 U.S.C. 1903(4).)

^[3] The maternal grandfather lodged documents with the additional information in November 2004, however, they were not properly before the court prior to the January 2005 hearing and there is no evidence that they were given directly to either the social worker or county counsel until then. Since there is nothing to lead us to believe that anyone involved in the case regularly reviewed the contents of the courts file to discover whether some information relating to the minors Indian heritage had been lodged there, and indeed, the response of the parties to the new information at the January 2005 hearing suggests the contrary, we cannot impute knowledge of the contents of the documents to the Department prior to that hearing. In any case, the documents added information which was not directly related to membership in any federally recognized tribe, only information that there was, indeed, Indian ancestry in the family.