Filed 9/18/18 In re L.N. CA3

NOT TO BE PUBLISHED

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE DISTRICT

(Sutter)

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J.N. (mother) appeals from the juvenile court’s orders terminating parental rights over L.N. and C.P. (the minors). (Welf. & Inst. Code, §§ 366.26, 395.)[1] L.P., the father of C.P., filed a separate appeal, and joins in mother’s contentions on appeal as they pertain to C.P. C.S. is the alleged father of L.N. and is not a party to these proceedings. Mother and father L.P. (collectively parents) contend (1) the juvenile court erred in finding the minors adoptable, and mother contends (2) the Sutter County Health and Human Services Department (Department) failed to comply with the Indian Child Welfare Act (ICWA) (25 U.S.C. § 1901 et seq.).

Agreeing with the latter contention, we will conditionally reverse the order terminating parental rights as to minor L.N. and remand for limited ICWA proceedings. In all other respects, we will affirm the orders.

BACKGROUND

In April 2016, the Yuba City Police Department contacted the Department and requested that a social worker find placement for the minors, who had been detained by police after witnessing a domestic violence incident between mother and her live-in boyfriend, B.G. Mother was ultimately arrested after attempting to evade officers.

On April 5, 2016, the Department filed identical juvenile dependency petitions for each minor alleging the minors came within the jurisdiction of the juvenile court pursuant to section 300, subdivisions (b) [failure to protect], (c) [serious emotional damage], and (g) [no provision for support]. In particular, the petitions alleged failure to protect due to mother’s domestic violence incident with B.G. and her subsequent arrest, all witnessed by the minors. The petitions alleged serious emotional damage due to the recent domestic violence incident between mother and B.G., mother’s attempt to evade arrest and her subsequent arrest, and a prior domestic violence incident between mother and father L.P. in 2014 resulting in injuries to mother, all of which were witnessed by the minors. The petitions further alleged serious emotional damage due to a 2012 domestic violence incident between mother and father L.P. during which father kicked mother in the stomach while she was pregnant. Mother later attempted to discredit the police department and insinuated that L.N., who witnessed the incident, was not truthful. The petitions alleged no provision for support due to mother’s 2016 arrest, that L.N.’s alleged father C.S. resided in Wisconsin and was a registered sex offender after having been convicted of second degree sexual assault of a child, and that father L.P. was incarcerated in state prison and had been so since August 2014.

At the April 6, 2016 detention hearing, the juvenile court appointed attorneys for parents, C.S., and the minors, adopted the findings and orders as set forth in the detention report, and ordered the minors detained.

At the jurisdictional hearing on April 21, 2016, mother and father L.P. both submitted on the Department’s jurisdictional report and recommendations. After striking the subdivision (g)(1) allegation in the petitions and renumbering the subdivision (g)(2) allegation as subdivision (b)(3), the juvenile court found the amended allegations true.

At the May 17, 2016 continued dispositional hearing, mother submitted on the reports and requested that the minors be returned to her under a plan of family maintenance, claiming she was no longer in an abusive relationship, her home was safe, and she was actively participating in parenting and codependency services. The juvenile court declared the minors dependent children of the juvenile court and ordered their continued out-of-home placement. The juvenile court further ordered that mother be provided reunification services, but bypassed services to father L.P. pursuant to section 361.5, subdivision (e)(1).

The interim review report filed August 11, 2016, stated L.N. was developmentally on track, adjusting well to her foster home, “eager to help with whatever is asked of her,” and “excited to be starting the third grade.” The report noted that L.N. often struggled with wanting to be the center of attention. She acted out and became jealous when C.P. was given attention and attempted to divert attention her way. She liked to intervene in and listen to adult conversations and share whatever information she learned with anyone who would listen. She was observed twice having detailed conversations with adult strangers in the park, something the foster parents and social workers were working on with L.N. The foster parents did not report any abnormal or otherwise concerning behaviors in L.N.

C.P. was reportedly very happy and energetic and was adjusting well to his foster home. He reportedly had a speech or language impairment for which he was receiving services during the school year. The foster mother was working with C.P. daily to promote speech and language skills. C.P. had no reported mental health issues.

At the August 11, 2016 review hearing, the juvenile court found the extent of mother’s progress in services was inadequate.

According to the November 29, 2016 status review report, both minors had shown a “remarkable” change in behavior, speech, and overall functioning over the past six months. C.P. was making progress with his speech and language skills and was able to focus and participate in a day-long structured preschool program. He was observed to be very responsive to his foster parents, responding to direction and rules and not running away from them. He was also getting along well with others. The foster mother was continually providing C.P. with stimulating activities to promote his continued development of speech and language skills. C.P. was also learning sign language and was potty trained and able to completely dress himself. C.P. reportedly regressed during visits with mother by not using his speech, running around the room, crying, and throwing tantrums.

L.N. was reported to be developmentally on track and was learning healthy boundaries and the importance of personal safety. She was no longer telling lies to gain attention and was responding well to the structure of the foster home and engaged in age-appropriate activities. She was learning new responsibilities, such as helping with her laundry and keeping her room neat, and was learning to let her foster parents be a parent to C.P.

At the continued six-month status review hearing on November 29, 2016, the juvenile court again found mother’s participation in services was inadequate but found the permanent plan of returning the minors home was appropriate and ordered that mother continue in the family reunification program with the minors. The juvenile court further ordered continued out-of-home placement for the minors and transferred the case to Butte County, mother’s county of residence.

At the continued transfer hearing on February 22, 2017, the Butte County Superior Court transferred the case back to Sutter County because no parties involved had established a permanent residence in Butte County, and due to mother’s earlier statement in court that she lived in her vehicle and did not have a permanent residence in Butte County.

On March 23, 2017, the Sutter County Superior Court accepted transfer of the case back from Butte County, ordered that mother follow the updated family reunification case plan signed by mother on November 29, 2016, and set the matter for a 12-month status review hearing.

The May 2, 2017 status review report stated father L.P. was released from prison on March 13, 2017. L.N. was reportedly developmentally on track and doing well in school. C.P. continued to receive speech and language services and was thriving in his structured educational program. There were no concerns about either child’s mental or emotional status. The minors were reportedly making significant progress in all areas of their development, forming healthy attachments to their caregivers, and learning boundaries with strangers. The Department reported that the case plan for the minors was now adoption and recommended that the juvenile court set a permanency hearing pursuant to section 366.26.

The addendum report, filed May 2, 2017, stated that the social worker visited the minors in their foster home on April 13, 2017. Both children were excited to see the social worker and had much to talk about and share with her. L.N. asked if she was going to be adopted and said she wanted her foster mother to adopt her. L.N. said, “ ‘I don’t think my mom can take care of us. I just have one request; my brother gets adopted with me.’ ” The social worker assured L.N. that there was no plan to separate the minors and asked why L.N. believed her mother could not care for her. L.N. explained, “ ‘Well, my mom doesn’t have a home, she doesn’t have a car, she doesn’t have a job, and we have been here a year.’ ” L.N. stated she understood what it meant to be adopted, saying, “ ‘[T]his family will keep me and take care of me and make sure I am safe and have a home.’ ” She also confirmed she understood that being adopted meant she would have new parents and might not see her biological parents for some time or ever stating, “ ‘Yes, I know this, but I love it here and they (the family) take good care of me.’ ”

The foster mother informed the social worker she attended C.P.’s IEP meeting and reported that C.P. met his goals and made significant progress.

The Department recommended that mother’s reunification services be terminated and that the matter be set for a section 366.26 hearing.

At the May 2, 2017 continued 12-month status review hearing, the juvenile court found mother’s progress in services was inadequate, terminated her reunification services, and ordered continued out-of-home placement of the minors and a permanent plan of adoption. The juvenile court set the matter for a permanency hearing pursuant to section 366.26.

According to the permanency report filed September 5, 2017, L.N. was developmentally on track, making significant progress in school, and raised no concerns regarding her mental or emotional status. C.P. was continuing to receive speech and language services, thriving in his structured educational program, and also raised no concerns regarding his mental or emotional status. The minors had reportedly been placed together in a foster home from April 2, 2016 until June 22, 2017, and were then moved to a new placement “due to concerns in the foster home” and the fact that the “foster parents had also decided they did not wish to adopt [the minors].”

The Department determined both minors were likely to be adopted and noted that, while a prospective adoptive family had not yet been identified, the current placement had expressed a desire to adopt both children. The Department also noted that, while not enough information was known about the current foster family, the current family would be considered along with other families. The Department recommended termination of parental rights and a permanent plan of adoption for both minors.

The first addendum report, filed September 5, 2017, detailed concerns regarding the minors’ behavior following visits with mother. According to the foster parents, L.N. retreated to her bedroom and did not want to discuss her feelings. She expressed concern for her mother and confusion due to statements made by mother during visits, including, “ ‘This is not over; I’m still getting you back. I have a job driving a taxi and I have $600.00.’ ” C.P. was having difficulties at school, being more aggressive toward his peers, crying, and being uncooperative. At home, C.P. had been hitting the other children, telling the foster parents, “no,” and not cooperating or listening. He was also difficult to redirect. However, the foster parents noted that, a day or so after the visits, both minors appeared to settle back into their regular routines.

The continued permanency hearing commenced on September 5, 2017. The juvenile court found by clear and convincing evidence that the minors would likely be adopted, terminated the parental rights of mother, father L.P., and father C.S., and ordered a permanent plan of adoption.

On March 13, 2018, over parents’ objection, this court granted the Department’s request to augment the record on appeal to include postjudgment evidence regarding ICWA compliance.

Additional facts are set forth in the discussion as relevant to the contentions on appeal.

DISCUSSION

I

Parents contend there was insufficient evidence to support the juvenile court’s finding that C.P. was adoptable. They also contend that, because the minors were a bonded sibling group and needed to be placed in the same adoptive home, there was insufficient evidence to support the juvenile court’s finding that L.N. was adoptable. The claims lack merit.

A

“If the court determines, based on the assessment . . . and any other relevant evidence, by a clear and convincing standard, that it is likely the child will be adopted, the court shall terminate parental rights and order the child placed for adoption. The fact that the child is not yet placed in a preadoptive home nor with a relative or foster family who is prepared to adopt the child, shall not constitute a basis for the court to conclude that it is not likely the child will be adopted.” (§ 366.26, subd. (c)(1).)

“A finding of adoptability requires ‘clear and convincing evidence of the likelihood that adoption will be realized within a reasonable time.’ (In re Zeth S. [2003] 31 Cal.4th [396,] 406.)” (In re Valerie W. (2008) 162 Cal.App.4th 1, 13.) Generally, “[t]he issue of adoptability [posed in a section 366.26 hearing] focuses on the minor, ‘e.g., whether the minor’s age, physical condition, and emotional state make it difficult to find a person willing to adopt the minor.’ (In re Sarah M. (1994) 22 Cal.App.4th 1642, 1649.) However, ‘in some cases a minor who ordinarily might be considered unadoptable due to age, poor physical health, physical disability, or emotional instability is nonetheless likely to be adopted because a prospective adoptive family has been identified as willing to adopt the child.’ (Id. at p. 1650.)” (In re Brandon T. (2008) 164 Cal.App.4th 1400, 1408.) In such cases, where the finding of adoptability is based on the existence of a prospective adoptive parent, “an inquiry may be made into whether there is any legal impediment to adoption by that parent.” (In re Sarah M., at p. 1650.) The fact that a prospective adoptive family is willing to adopt the minor is evidence that the minor is likely to be adopted by that family or some other family in a reasonable time. (In re Lukas B. (2000) 79 Cal.App.4th 1145, 1154.)

The term “specifically adoptable” denotes a child who but for the existence of a prospective adoptive parent would not be adoptable. The suitability of the prospective adoptive parent is not an issue when the child is generally adoptable; it may be placed in issue when the child is specifically adoptable.

We review the juvenile court’s finding of adoptability under the substantial evidence standard. (In re B.D. (2008) 159 Cal.App.4th 1218, 1232.) “We give the court’s adoptability finding the benefit of every reasonable inference and resolve any evidentiary conflicts in favor of the judgment. (In re Autumn H. (1994) 27 Cal.App.4th 567, 573.)” (In re Valerie W., supra, 162 Cal.App.4th at p. 13.)

Here, the evidence supports the juvenile court’s finding that both minors were generally adoptable.

B

C.P. was three years old at the time of removal. He was placed in his first foster home on April 2, 2016, and remained there until June 22, 2017. He was reportedly very happy and energetic and adjusted well to his foster home. C.P. was diagnosed as having a speech or language impairment; however, he received services during the school year to address the impairment and his first foster mother worked with him daily to promote his speech and language skills. Within seven months, C.P. made progress with his speech and language skills, was able to focus and participate in a day-long structured preschool program, was very responsive to his foster parents, and got along well with others. He was learning sign language, was potty trained, and was able to completely dress himself. As of September 5, 2017, C.P. was continuing to receive speech and language services, thrive in his structured educational program, and make significant progress in all areas of his development.

Mother contends C.P. was not generally adoptable due to his “significant” emotional, psychological, and behavioral problems. She claims that, despite significant progress, C.P. was still having behavioral issues as reported in the September 5, 2017 addendum report. The claims are not supported by the record. There were never any concerns raised that C.P.’s mental or emotional status would prevent him from being adopted. The Department’s July 2017 adoption agency section 366.26 assessment noted that C.P.’s “mental health and emotional status appears to be fair” and that he “can tantrum, be aggressive, be hyperactive, and run away from his caregivers,” behaviors that “seem more significant than a typical four-year-old.” It was also noted that C.P. had “some attachment concerns” and could be “indifferent to his caregivers, by not noticing their whereabouts or physical contact, and only making eye contact sporadically.” However, it was also reported that C.P. was “resilient” and had made a smooth adjustment to his new foster home, and the Department concluded C.P. was likely to be adopted.

As for C.P.’s behavioral status, the September 5, 2017 report does state that C.P. was having difficulties at school, being more aggressive toward his peers, crying, and being uncooperative, and that he had been hitting the other children, being obstinate with the foster parents, and refusing to cooperate and listen at home. However, it was noted by the foster parents that those behaviors occurred after visits with mother and resolved themselves a day or so after the visits, when C.P. appeared to settle back into his regular routine.

Accordingly, there is sufficient evidence in the record to support the juvenile court’s finding that C.P. was generally adoptable. Therefore, we need not reach mother’s claim regarding C.P.’s specific adoptability.

C

Mother contends that, because L.N. and C.P. were a bonded sibling pair and needed to be placed together, the lack of sufficient evidence to support a finding that C.P. was either generally or specifically adoptable resulted in a lack of sufficient evidence to find L.N. was either generally or specifically adoptable.

As a preliminary matter, mother failed to cite any authority to support her claim. To avoid forfeiture of her claims of error, mother had the burden to support her arguments with analysis and citation to evidence in the appellate record. (People v. Hardy (1992) 2 Cal.4th 86, 150; People v. Galambos (2002) 104 Cal.App.4th 1147, 1159; People v. Sangani (1994) 22 Cal.App.4th 1120, 1135-1136.) She did not do so.

In any event, as we have concluded, there is sufficient evidence to support the juvenile court’s finding of C.P.’s adoptability.

In addition, while we recognize that the existence of a sibling group may make children difficult to place in an adoptive home (§ 366.26, subd. (c)(3)), that is only one factor in determining adoptability. Here, the record is replete with evidence of L.N.’s adoptability. She was reported to be developmentally on track at all stages of the proceedings. She adjusted well to her first foster home, was eager to help, and was doing well in school. While she struggled with wanting to be the center of attention, told lies, and lacked appropriate boundaries when interacting with others including strangers, she made significant progress with those behaviors due to intervention and support from her foster parents and social workers. She responded well to the structure of a foster home and learned new responsibilities and appropriate behaviors. She also demonstrated that she understood what it meant to be adopted and that, if she were adopted, she might not see her biological parents again. Like C.P., L.N. also regressed behaviorally as reported in the September 5, 2017 addendum report. She retreated to her bedroom, would not discuss her feelings, and expressed concern and confusion due to mother’s statements that indicated she would be returning to mother’s custody. However, like her brother, L.N. reportedly settled back into her regular routine a day or so after visits with mother.

Parents claim the absence of an adoptive study providing information about the suitability of the minors’ current caretakers as adoptive parents contributed to the lack of sufficient evidence to support the juvenile court’s finding of adoptability. Not so. An adoption home study is not a prerequisite to termination of parental rights, and absence of a home study is not an impediment to termination of parental rights of generally adoptable children. (§ 366.26, subd. (c)(1); see In re Brandon T., supra, 164 Cal.App.4th at p. 1410 [adoption home study not required prior to termination of parental rights for a specifically adoptable child].) An adoption home study is required only after parental rights are terminated and an adoption petition has been filed. (Fam. Code, § 8715, subd. (b).)

Parents also take issue with the fact that the Department had not identified any specific adoptive family for the minors, did not state there were any families who were willing and approved to adopt the minors, and did not state that the minors would be adopted within a reasonable time. With regard to the minors’ likelihood of adoptability, “[i]t is not necessary that the child already be placed in a preadoptive home, or that a proposed adoptive parent be waiting. [Citations.] However, there must be convincing evidence of the likelihood that adoption will take place within a reasonable time. [Citation.]” (In re Brian P. (2002) 99 Cal.App.4th 616, 624; accord In re Zeth. S. (2003) 31 Cal.4th 396, 406.) Here, the social workers’ reports and the adoption agency’s July 2017 section 366.26 assessment concluded the minors were likely to be adopted, noting that the current placement had expressed a desire to adopt both minors, and that family would be considered along with other families for permanency. Under the circumstances, there is sufficient evidence in the record to support the juvenile court’s finding that both minors were adoptable.

II

Mother next contends the Department failed to comply with ICWA by failing to send notice of the dependency proceedings to the designated agent for service for three Cherokee tribes and five Creek tribes. She claims the failure is prejudicial and requires remand for further proceedings. The Department counters that it provided adequate notice to all relevant tribes and any error was harmless.

A

Parents were provided with, and ordered to complete, Parental Notification of Indian Status (ICWA-020) forms. The April 21, 2016 jurisdiction report stated mother filed her ICWA-020 form on April 6, 2016, indicating she had no known Indian ancestry. Father C.S. filed a completed ICWA-020 form on May 6, 2016, indicating that a specified ancestor was a member of the Cherokee Tribe, “Porch Creek Band, Alabama.”

On May 6, 2016, the Department filed a Notice of Child Custody Proceeding for Indian Child providing notice of L.N.’s possible Indian heritage to the Muscogee (Creek) Nation of Oklahoma, the Thlopthlocco Tribal Town, the Poarch Band of Creek Indians, the United Keetoowah Band of Cherokee, the Alabama-Quassarte Tribal Town, the Eastern Band of Cherokee Indians, the Cherokee Nation, the Kialegee Tribal Town, the Bureau of Indian Affairs (BIA), and the U.S. Department of the Interior, Secretary of the Interior.

The May 5, 2016 disposition report stated ICWA “does or may apply.”

The August 11, 2016 interim review report stated that, pursuant to the tribes identified by C.S., the Department notified the respective tribes on May 6, 2016, and had “received responses from all tribes indicating that the child, [L.N.], is not an Indian Child.” Copies of the certified return receipts and responses from the tribes were not attached to the Department’s report. The Department recommended the juvenile court find ICWA does not apply to L.N.

On November 16, 2016, father L.P. filed a completed ICWA-020 form indicating he had no known Indian ancestry.

The status review report filed November 29, 2016, stated ICWA notices had been sent to all relevant tribes and all responses received from those tribes indicated L.N. was not an Indian child. The Department recommended the juvenile court find ICWA does not apply to either of the minors.

At the November 29, 2016 six-month status review hearing, the juvenile court found ICWA does not apply to the minors.

The adoption agency’s section 366.26 assessment filed July 24, 2017, noted the juvenile court’s November 29, 2016 finding of ICWA inapplicability, stating that C.P. does not have Indian heritage and, while L.N. may have Native American heritage, she does not come within the provisions of ICWA because although father C.S. claimed heritage with Cherokee and Creek tribes, those tribes denied L.N. was eligible for membership.

We granted the Department’s motion to augment the appellate record with documentation filed with the juvenile court establishing all relevant tribes received and responded to ICWA notices. Included in that documentation is an addendum report filed February 1, 2018, which states that between May 17, 2016 and June 10, 2016, the Department received responses from all eight of the noticed tribes -- the United Keetoowah Band of Cherokee Indians in Oklahoma, the Thlopthlocco Tribal Town, the Eastern Band of Cherokee Indians, the Poarch Band of Creek Indians, the Alabama-Quassarte Tribal Town, the Kialegee Tribal Town, the Muscogee (Creek) Nation, and the Cherokee Nation -- indicating L.N. was neither a member of, nor eligible for membership in, the respective tribes. Copies of the tribes’ responses were attached to the report.

B

When the juvenile court knows or has reason to know that a child involved in a dependency proceeding is an Indian child, ICWA requires that notice of the proceedings be given to any federally recognized Indian tribe of which the child might be a member or eligible for membership. (25 U.S.C. §§ 1903(8), 1912(a); In re Robert A. (2007) 147 Cal.App.4th 982, 989.) “Indian tribes may designate an agent for service of ICWA notices. (25 C.F.R. § 23.12 (2008).) A list of the designated agents and their addresses is published annually by the BIA. [Citations.] Notice to the tribe ‘must be sent to the tribal chairperson unless the tribe has designated another agent for service.’ (Cal. Rules of Court, rule 5.481(b)(4).) ‘The purpose of the requirement that notice be sent to the designated persons is to ensure that notice is received by someone trained and authorized to make the necessary ICWA determinations, including whether the minors are members or eligible for membership and whether the tribe will elect to participate in the proceedings. Receipt by an unidentified person at the tribe’s address does not fulfill this purpose.’ [Citation.]” (In re E.W. (2009) 170 Cal.App.4th 396, 402.)

This notice requirement, which is also codified in California law (§ 224.2), enables a tribe to determine whether the child is an Indian child and, if so, whether to intervene in or exercise jurisdiction over the proceeding. (25 U.S.C. § 1912(a); see § 224.2, subd. (d).) The definition of “Indian children” in ICWA and state law requires that minors be either (a) members of a tribe themselves or (b) biological children of members of a tribe and eligible for tribal membership. (25 U.S.C. § 1903(4); § 224.1, subd. (a) [ICWA definition of “Indian child” will apply under state law].) “Notice shall be sent to all tribes of which the child may be a member or eligible for membership” until such time as the child’s tribe has been determined. (§ 224.2, subd. (a)(3).)

“[E]rrors in an ICWA notice are subject to review under a harmless error analysis. [Citation.]” (In re Brandon T., supra, 164 Cal.App.4th at p. 1415.) Error is not presumed. It is the parents’ obligation to present a record that affirmatively demonstrates error. (In re D.W. (2011) 193 Cal.App.4th 413, 417-418.)

C

Mother claims ICWA notices mailed to the Cherokee Nation, the Eastern Band of Cherokee Indians, the United Keetoowah Band of Cherokee Indians in Oklahoma, the Alabama-Quassarte Tribal Town, the Kialegee Tribal Town, the Muscogee (Creek) Nation, the Poarch Band of Creek Indians, and the Thlopthlocco Tribal Town Tribes were not mailed to the tribal agent for service of notice as designated in the Federal Register list of designated tribal agents for service of notice published on March 2, 2016. (See 81 Fed.Reg. 10887 (March 2, 2016).) Mother also claims copies of return receipts and responses from the respective tribes were not contained in the record. These errors, they claim, were prejudicial, necessitating a conditional reversal and remand for further ICWA proceedings.

The Department provided notice to all required tribes, all but one of which were specifically addressed to the tribal chair or designated “ICWA Representative.” The return receipts and responses from those tribes were made part of the appellate record pursuant to the Department’s motion to augment. The augmented material shows that responses from four of the eight tribes were from the designated tribal representatives and responses from the remaining four tribes were from the tribes’ Indian Child Welfare social workers or offices or ICWA coordinators. All responses stated L.N. is not an Indian child. Neither parent has shown prejudice flowing from the failure to name the tribal chair in the notices. (In re L.B. (2003) 110 Cal.App.4th 1420, 1426.) Where a tribe has received notice and provided a response stating that the minor is not an Indian child, any error in failing to name the tribal chairperson in the notice is harmless. (In re E.W., supra, 170 Cal.App.4th at pp. 402-403.)

Nevertheless, mother asserted for the first time in her reply brief that although the responses from the Alabama-Quassarte Tribal Town and the Thlopthlocco Tribal Town provided responses that are conclusive determinations that L.N. is neither a member nor eligible for membership in the respective tribe, the responses from the remaining tribes failed to provide a conclusive determination of L.N.’s membership status. In particular, mother asserted the following:

1. The responses from the Poarch Band of Creek Indians and the Kialegee Tribal Town stated L.N. is “not currently enrolled” nor is she “eligible for enrollment,” but failed to state either that enrollment is a prerequisite for membership under tribal law or custom as required by section 224.3, subdivision (e)(1), or that the minor is not an Indian child.

2. The response from the United Keetoowah Band of Cherokee Indians stated there was no evidence to support that L.N. is a descendant of anyone on the Keetowah Roll, therefore the United Keetoowah Band of Cherokee would not intervene in the case. But the response failed to state that being a descendant is a prerequisite of membership or that the minor is not an Indian child.

3. The Eastern Band of Cherokee Indians stated the minor was neither registered nor eligible to register as a member and stated the minor was not an Indian child. But it failed to say that registration was a prerequisite for membership.

4. The Muscogee (Creek) Nation stated the minor could not “be traced within” its “tribal records” and was not considered an Indian child, but failed to state that being traced in tribal records was a prerequisite to membership.

5. The Cherokee Nation stated none of the names provided could be found as current enrolled members and the minor is not an Indian child, but failed to state that the name of a current enrolled member in the tribal records is a prerequisite to membership.

In supplemental briefing requested by this court to address the issue asserted by mother in her reply brief, the Department argued that, out of the eight tribes or bands to which ICWA notices were sent, six tribes or bands (the Cherokee Nation, the Eastern Band of Cherokee Indians, the Kialegee Tribal Town, the Muscogee (Creek) Nation, the Alabama-Quassarte Tribal Town, and the Thlopthlocco Tribal Town Tribes) responded in a manner that provided a conclusive determination as to L.N.’s membership status; the remaining two (the Poarch Band of Creek Indians and the United Keetoowah Band of Cherokee Indians) did not.

The Department argues the Thlopthlocco Tribal Town and the Alabama-Quassarte Tribal Town tribes provided conclusive responses stating L.N. was neither a member nor eligible for membership in the respective tribe. Mother agrees and so do we.

The Department argues the Eastern Band of Cherokee Indians, the Muscogee (Creek) Nation, and the Cherokee Nation all responded that L.N. is not considered either an “Indian Child,” “Indian children,” or “Indian child/children” as defined in the Federal Indian Child Welfare Act, title 25 of the United States Code section 1903(4), and that those responses unequivocally confirmed that L.N. is neither a member nor eligible for membership in and of those tribes, nor is she an Indian child of any of those tribes. Mother disagrees, asserting the responses were not clear enough to comply with section 224.3, subdivision (e)(1). We agree with the Department that the responses from the Eastern Band of Cherokee Indians, the Muscogee (Creek) Nation, and the Cherokee Nation -- stating that L.N. is not an Indian child pursuant to title 25 of the United States Code section 1903(4) -- provided a conclusive determination as to L.N.’s membership status. The tribes were asked to determine whether L.N. is a member. ICWA defines an “Indian child” as a child who is either (1) “a member of an Indian tribe” or (2) “eligible for membership in an Indian tribe and . . . the biological child of a member of an Indian tribe.” (25 U.S.C. § 1903(4).) The tribes’ respective responses implicitly answered that question. The conclusion that the child is not an Indian child pursuant to title 25 of the United States Code section 1903(4) necessarily encompassed the conclusion that the child is neither a member of the tribe nor eligible for membership in the tribe.

The Department and mother agree that the response provided by the Poarch Band of Creek Indians that L.N. “is not currently enrolled nor is the child eligible for enrollment” is not, in the absence of additional information whether enrollment is a requirement for membership, a conclusive determination of L.N.’s membership status or her status as an Indian child as defined by ICWA. Similarly, the parties agree that the response provided by the United Keetoowah Band of Cherokee Indians is not a conclusive determination of L.N.’s membership status or her status as an Indian child as defined by ICWA. The United Keetoowah Band said there is no evidence L.N. is a descendant of anyone on the Keetoowah Roll, but did not say whether enrollment is a requirement for membership. We agree with the parties. “ ‘Enrollment is the common evidentiary means of establishing Indian status, but it is not the only means nor is it necessarily determinative.’ [Citation.]” (In re Jack C. (2011) 192 Cal.App.4th 967, 978.) “Information that the child is not enrolled or eligible for enrollment in the tribe is not determinative of the child’s membership status unless the tribe also confirms in writing that enrollment is a prerequisite for membership under tribal law or custom.” (§ 224.3, subd. (e)(1).) Neither the Poarch Band of Creek Indians nor the United Keetoowah Band of Cherokee Indians confirmed so in writing. Therefore, remand is required for further compliance with ICWA.

The Kialegee Tribal Town’s response stated L.N. was not a currently enrolled member of Kialegee Tribal Town and is not eligible for enrollment at this time, adding “There is insufficient information to determine enrollment. None of the relatives listed were members.” The Department argues the tribe’s use of the terms “enrollment” and “membership” confirms that enrollment in the tribe is required for membership, thus the response is a conclusive determination that L.N. is not an Indian child for purposes of this tribe. Mother disagrees, asserting that the tribe’s use of those words is unclear and therefore the response is not determinative of L.N.’s membership in the tribe.

We agree with mother that there is possible ambiguity in the Kialegee Tribal Town’s use of the words enrollment and membership. Moreover, the tribe’s response notes there was “insufficient information to determine enrollment” and did not expressly conclude L.N. was not an Indian child with respect to the Kialegee Tribal Town. We will direct that ICWA compliance as to the Kialagee Tribal Town be included in the proceedings on remand.

DISPOSITION

The juvenile court’s order terminating parental rights as to minor C.P. is affirmed. The juvenile court’s order terminating parental rights as to minor L.N. is conditionally reversed and the matter is remanded to the juvenile court for further ICWA proceedings consistent with this opinion. If, at the completion of those proceedings, L.N. is determined to be an Indian child as defined by ICWA, the juvenile court must conduct a new section 366.26 hearing in conformity with all provisions of ICWA. If all relevant tribes determine the minor is not an Indian child, the juvenile court shall reinstate all previous findings and orders. In all other respects, the order is affirmed.

/S/

MAURO, J.

We concur:

/S/

ROBIE, Acting P. J.

/S/

HOCH, J.