Filed 10/2/18 In re M.M. CA3

NOT TO BE PUBLISHED

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE DISTRICT

(Sacramento)

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N.A., mother of minors M.M. and S.R. (minors), appeals from the juvenile court’s order terminating parental rights. (Welf. & Inst. Code, §§ 366.26 & 395.)[1] Mother contends the juvenile court and the Sacramento County Department of Child, Family, and Adult Services (Department) failed to comply with the Indian Child Welfare Act (ICWA). (25 U.S.C. § 1901 et seq.)

We affirm the juvenile court’s (order) judgment.

I. BACKGROUND[2]

On October 16, 2015, the Department filed a juvenile dependency petition as to M.M. (7 months old) pursuant to section 300, subdivisions (a) and (b), alleging serious physical harm due to a history of domestic violence between mother and K.M.[3] in the presence of M.M., and failure to protect due to mother and K.M.’s history of domestic violence and mother and K.M.’s substance abuse problems despite their previous participation in substance abuse treatment programs. The petition indicated ICWA inquiry of mother revealed M.M. is or may be a member of or eligible for membership in the “Salish and Kootenai; Blackfoot and Apache” Tribes, and M.M.’s grandparents or great-grandparents are or were members of the “Salish and Kootenai (mother); Blackfoot and Apache (father)” Tribes. The petition also indicated “[M.M.] or [M.M.’s] family has received services or benefits from a tribe or services that are available to Indians from tribes or the federal government, such as the Indian Health Service or Tribal Temporary Assistance to Needy Families.” It was also noted that mother “reported she is a member of the Salish and Kootenai Tribes” and “showed the undersigned a document of record,” and that K.M. “reported he has Blackfoot and Apache heritage.”

The Department also filed a dependency petition as to S.R. (7 years old) pursuant to section 300, subdivision (b), alleging failure to protect due to mother and K.M.’s history of domestic violence and mother’s substance abuse problem despite her previous participation in a substance abuse treatment program. The petition indicated ICWA inquiry of mother revealed S.R. is or may be a member of or eligible for membership in the “Salish and Kootenai” Tribes, and S.R.’s grandparents or great-grandparents are or were members of the “Salish and Kootenai” Tribes. The petition also indicated “[S.R.] or [S.R.’s] family has received services or benefits from a tribe or services that are available to Indians from tribes or the federal government, such as the Indian Health Service or Tribal Temporary Assistance to Needy Families.” It was also noted that mother “reported she is a member of the Salish and Kootenai Tribes” and “showed the undersigned a document of record.”

According to the detention report, mother reported having Native American ancestry with the Salish and Kootenai Tribes “and is an enrolled member of the Tribe.” K.M. reported Native American ancestry with the Blackfoot and Apache Tribes. Parental Notification of Indian Status forms (ICWA-020) filed by K.M. and mother confirmed the ICWA information contained in the petitions and the detention report.

On October 23, 2015, the juvenile court ordered both minors detained and placed separately pending jurisdiction and disposition. The court found K.M. to be the presumed father of M.M. The court ordered the Department to conduct a due diligence search for M.R. and, among other things, inquire as to his Native American heritage. With respect to the ICWA, the court found there was insufficient evidence to determine if the minors were Indian children within the meaning of the ICWA and, based on the information provided, ordered the Department to provide notice to any federally recognized tribes and the Bureau of Indian Affairs (BIA).

On November 13, 2015, the Department filed a declaration regarding its ICWA investigation and noticing efforts. According to the declaration, the ICWA paralegal contacted the maternal great-grandmother, who claimed she had no Indian heritage but affirmed the maternal great-grandfather was enrolled with the Confederated Salish and Kootenai Tribes. The paralegal made three separate attempts to contact the paternal great-grandmother, each time leaving a voice message, but received no response. Based on the information provided in mother’s ancestry questionnaire, the paralegal provided ICWA notice on November 12, 2015, to the Confederated Salish and Kootneai Tribes of the Flathead Reservation, the Blackfeet Tribe of Montana, the Apache Tribe of Oklahoma, the Jicarilla Apache Nation, the San Carlos Apache Tribe, the White Mountain Apache Tribe, the Fort Sill Apache Tribe of Oklahoma, the Mescalero Apache Tribe, the Tonto Apache Tribe, and the Yavapai-Apache Nation, as well as the BIA and the Secretary of the Interior. The declaration included information regarding the tribal enrollment numbers for mother and the maternal great-grandfather.

The November 2015 jurisdiction/disposition report stated the Department’s due diligence efforts to locate M.R. were unsuccessful. The report also detailed the Department’s ICWA noticing efforts regarding the Salish and Kootenai Tribes, including a reported response from “Amanda Manley ICWA, TSSD CSKT” who wrote, “ ‘It appears that [the minors] appear to be 3^rd generation descendants based on [mother] being a 2^nd generation descendant with our Tribe. Unfortunately, we will decline in the matter.’ ”

At the November 17, 2015, jurisdiction/disposition hearing, K.M.’s counsel reported new information regarding K.M.’s possible Native American heritage, including K.M.’s statement that “he found out that the tribe was Trail of Tears.” The Department agreed to attempt to determine whether the Trail of Tears was a federally-recognized tribe requiring ICWA notice.

A second parental notification of Indian status (form ICWA-020) was filed by K.M. on November 18, 2015, stating he had possible Indian heritage with the “Black Foot Hapachee” Tribe and the minor M.M. had possible Indian heritage with the “Black Foot Hapachee, Salish and Koot” Tribes.

The addendum report filed December 2, 2015, provided the court with information regarding the Department’s efforts to locate M.R., to no avail.

The Department filed a declaration of receipt of ICWA correspondence on December 8, 2015, and another one on December 18, 2015. Attached to the declarations was a return receipt from the Confederated Salish and Kootenai Tribes of the Flathead Reservation signed on November 18, 2015. Meanwhile, the Department continued its efforts to locate M.R.

At the December 8, 2015, continued jurisdiction/disposition hearing, the court confirmed its receipt of the Department’s ICWA declarations and noted the last tribe to receive notice was the Apache Tribe of Oklahoma, which received notice on November 30, 2015. The court continued the hearing for continued ICWA compliance.

At the December 22, 2015, continued hearing, the juvenile court found the Department had exercised diligent efforts to locate M.R. and that no further notice was required. Mother presented letters purporting to state the maternal great-grandfather was an enrolled member of the Confederated Salish and Kootenai Tribe. The Department confirmed the enrollment information had already been provided in notices previously sent to the Tribe, and the court noted the Tribe had not yet responded. The court asked mother whether she herself was eligible for enrollment, to which mother responded, “I would have to go down there to see if I was.” The court set the matter for another ICWA compliance hearing.

The Department filed declarations of receipt of ICWA correspondence with attached responses on December 23, 2015, and February 5, 2016. Four of the noticed tribes had yet to respond, including the Confederated Salish & Kootenai Tribes of the Flathead Reservation.

On February 9, 2016, the court found K.M. to be the presumed father of S.R. The court acknowledged receipt of the Department’s declarations of receipt of ICWA correspondence and concluded noticing was complete. The court also noted that more than 60 days had passed since receipt of notice by the respective tribes and found the ICWA did not apply to either minor. Both mother and K.M. were present at the hearing and did not object to the court’s findings.

On February 19, 2016, the court sustained the allegations in the dependency petitions and adjudged the minors dependents of the juvenile court.

Over one year later, at the 18-month review hearing, the court terminated mother’s reunification services and set the matter for a section 366.26 hearing.

The December 2016 permanency report, the March 2017 permanency review report, and the September 2017 selection and implementation hearing report all stated the ICWA “does not apply.” In three informational memos to the court, the Department’s CPS/adoptions paralegal reported she was “unaware of any information before the Court that would indicate [the minors] are Indian Children as defined by the [ICWA].”

The section 366.26 hearing commenced on January 9, 2018. The court terminated the parental rights of mother, K.M., and “all unknown fathers” and ordered a permanent plan of adoption for both minors.

Mother filed a timely notice of appeal.

II. DISCUSSION

Mother contends the juvenile court erred in finding the ICWA did not apply without first examining the full response from the Confederated Salish and Kootenai Tribes.[4] She claims the Tribe responded to the ICWA notice, as evidenced by the notation in the November 2015 jurisdiction/disposition report regarding a statement by “Amanda Manley ICWA, TSSD CSKT” that, “ ‘It appears that [the minors] appear to be 3^rd generation descendants based on [mother] being a 2^nd generation descendant with our Tribe. Unfortunately, we will decline in the matter.’ ” She further claims the response was not part of the record and was not before the court when it determined the ICWA did not apply.

The Department argues it sent “formal” ICWA notice to the Confederated Salish and Kootenai Tribes of the Flathead Reservation on November 12, 2015, and obtained a signed return receipt indicating notice was received by the Tribe on November 18, 2015. The Department further argues that, notwithstanding the statement by Amanda Manley that it would “ ‘decline in the matter’ ” made prior to the Tribe’s receipt of the formal ICWA notice, the Tribe did not provide a formal response after receipt of the formal notice. Therefore, given the passage of 60 days (§ 224.3, subd. (e)(3)), the juvenile court properly found the minors were not Indian children as to the Tribe. As we explain, we agree with the Department.

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.) When the juvenile court knows or has reason to know that a child involved in a dependency proceeding is an Indian child, the 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.)

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 the 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) [the 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).)

“If adequate and proper notice has been given, and if neither the BIA nor any tribe provides a determinative response within 60 days, then the court may determine that ICWA does not apply to the proceedings. (§ 224.3[, subd. ](e)(3).) At that point, the court is relieved of its duties of inquiry and notice (§ 224.2, subd. (b)), unless the BIA or a tribe subsequently confirms that the child is an Indian child (§ 224.3[, subd. ](e)(3)).” (In re Isaiah W. (2016) 1 Cal.5th 1, 14-15 (Isaiah W.).)

We review the juvenile court’s ICWA findings under the substantial evidence standard, which requires us to determine whether reasonable, credible evidence of solid value supports the court’s order. (In re Hunter W. (2011) 200 Cal.App.4th 1454, 1467; In re N.M. (2008) 161 Cal.App.4th 253, 264; In re H.B. (2008) 161 Cal.App.4th 115, 119-120.) “We review factual findings in the light most favorable to the trial court’s order.” (In re Rebecca R. (2006) 143 Cal.App.4th 1426, 1430.)

Here, ICWA inquiry was made prior to the filing of the dependency petitions in October 2015. As set forth in the petitions, mother claimed both minors are or may be members of or eligible for membership in the Salish and Kootenai Tribes, and the minor’s maternal grandparents or great-grandparents are or were members of the Salish and Kootenai Tribes. Mother also reported she was a member of the Salish and Kootenai Tribes and had shown the Department a “document of record,” although the record provides no additional information regarding the nature of that document. The detention report stated mother had Native American ancestry with the Salish and Kootenai Tribes “and is an enrolled member of the Tribe.” Mother’s parental notice of Indian status form reiterated the information contained in the petitions and the detention report.

On November 12, 2015, after having contacted the maternal great-grandmother and learning the maternal great-grandfather was enrolled with the Confederated Salish and Kootenai Tribes, the Department provided ICWA notice to the Confederated Salish and Kootenai Tribes of the Flathead Reservation. The notice contained all the information provided in mother’s ancestry questionnaire, including identical tribal enrollment numbers for mother and the maternal great-grandfather.

The jurisdiction/disposition report, signed on November 17, 2015, reported the statement from “Amanda Manley ICWA, TSSD CSKT” that “ ‘[the minors] appear to be 3^rd generation descendants based on [mother] being a 2^nd generation descendant with our Tribe. Unfortunately, we will decline in the matter.’ ” According to the ICWA paralegal’s subsequent declaration, the return receipt from the Tribe indicated the ICWA notice was received by the Tribe on November 18, 2015, after the statement by Manley.

On December 22, 2015, the Department confirmed the notices previously sent to the relevant tribes and entities contained the enrollment number for the maternal great-grandfather. Mother was unable to confirm for the court whether she herself was eligible for enrollment, and the matter was continued for ICWA compliance. The Department’s December 23, 2015, and February 5, 2016, declarations reported the Tribe had yet to respond to the ICWA notices.

On February 9, 2016, without objection from mother or K.M., who were both present, the court concluded the ICWA did not apply to the minors based on the responses received, the absence of responses from some tribes including the Confederated Salish and Kootenai Tribes, and the passage of more than 60 days after receipt of ICWA notice by the last tribe on November 30, 2015. That finding was reiterated in three subsequent reports.

Mother does not contend that the ICWA notices were inadequate or that a tribe entitled to notice was not so provided. Instead, she focuses solely on the statement by the Tribe’s apparent representative, Amanda Manley, in the jurisdiction/disposition report, claiming it was “a response within the 60-day time period” and as such, the “full content of the response” should have been “independently reviewed” by the juvenile court before making its ICWA determination. We disagree for several reasons.

First, although it is not clear when the jurisdiction/disposition report containing the statement by Manley was filed with the court, it is clear it was signed by its author on November 17, 2015, prior to the Tribe’s receipt of the ICWA notice. While it would have been helpful if not preferable that the statement in the report be accompanied by the written document from which it was obtained or at the very least an explanation regarding the circumstances under which it was made, we perceive no prejudicial error in the failure to do so given that the Tribe, once provided with adequate information, did not respond to the formal ICWA notice. It was therefore reasonable to conclude that it was made prior to the Tribe having received the ICWA notice and thus was not made in response to the formal ICWA notice sent November 12, 2015.

Next, the Tribe did not respond, within 60 days, to the formal notice sent on November 12, 2015, and received by the Tribe on November 18, 2015. Indeed, the Tribe did not respond at all. As previously discussed, the notices contained all known relevant information, including mother’s family tree, the known enrollment numbers of mother and her relatives, and mother’s Indian ancestry questionnaire. Mother does not claim otherwise. Neither the Tribe nor the BIA subsequently confirmed that either minor was an Indian child, thus relieving the court of its duties of inquiry and notice. (§§ 224.2, subd. (b) & 224.3, subd. (e)(3); Isaiah W., supra, 1 Cal.5th pp. 14-15.)

Third, the Manley statement—that the Tribe declined to intervene in the matter in light of the fact that “ ‘[the minors] appear to be 3^rd generation descendants based on [mother] being a 2^nd generation descendant with our Tribe’ ”—was made prior to the Tribe’s receipt of the ICWA notice but is nonetheless consistent with the information provided by mother. Given the absence of evidence that the minors were anything other than lineal descendants of mother’s family and were not otherwise members or eligible for membership of the Tribe, the Manley statement was also consistent with the court’s conclusion that the ICWA did not apply to either minor.

Finally, “ ‘To satisfy the notice provisions of the [ICWA] and to provide a proper record for the juvenile court and appellate courts, [a social service agency] should follow a two-step procedure. First, it should identify any possible tribal affiliations and send proper notice to those entities, return receipt requested. [Citation.] Second, [the agency] should provide to the juvenile court a copy of the notice sent and the return receipt, as well as any correspondence received from the Indian entity relevant to the minor’s status.’ ” (In re Asia L. (2003) 107 Cal.App.4th 498, 507.) As discussed at length above, the Department satisfied each of these steps. While the actual correspondence from Manley was not attached to the report, the content of Manley’s statement was quoted in the report. Moreover, nothing in the record suggests the Department ever received correspondence from the Tribe, or any tribe, showing that the minors are members of, or eligible to be members of, the Tribe. On this record, mother has failed to establish that the inquiry and notice provisions of the ICWA were not satisfied.

We conclude the juvenile court’s ICWA findings are supported by substantial evidence.

III. DISPOSITION

The juvenile court’s (order) judgment is affirmed.

/S/

RENNER, J.

We concur:

/S/

HULL, Acting P. J.

/S/

MAURO, J.