Filed 5/19/22 In re A.M. CA2/6

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION SIX

S.A. (Mother) appeals from the juvenile court order terminating her parental rights to her son, A.M., and selecting adoption as the permanent plan. (Welf. & Inst. Code, § 366.26.)[1] Mother contends the court abused its discretion when it failed to continue the case to allow A.M. to apply for enrollment in an Indian tribe. We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

A.M. was born in August 2020 at 27 weeks. He weighed two pounds, three ounces, and was kept in the neonatal intensive care unit for 12 weeks. Mother tested positive for methamphetamine two weeks before the birth and again at both one and two months after the birth. Mother had an extensive history of child welfare referrals, drug offenses, and other criminal offenses.

Mother visited A.M. in the hospital only 13 times in the first 66 days of his life. Her conduct in the hospital was inappropriate, including cursing at a social worker and attempting to steal a wheelchair. Mother was referred to substance abuse treatment but did not participate.

At the detention hearing in October, Mother said she had Cherokee ancestry through her mother. Mother told the Department of Social Services (“the Department”) she was eligible for membership in the Cherokee Nation. She said she had several lineal ancestors who were members.

A.M.’s maternal grandmother, M.A., told the social worker she was eligible for membership in the Cherokee Nation. She said she had a letter from the tribe stating that she was going through the eligibility process but was not yet a member. M.A.’s sister, L.A., provided membership cards for herself, her mother, and her mother’s mother. ICWA-030 notices were sent to Cherokee tribes.[2]

The eligibility supervisor for the Cherokee Nation told the social worker in October that she needed additional information to make an ICWA determination as to A.M., including his parents’ names and birth dates and the “direct biological links” between A.M. and his maternal great‑grandmother. The December ICWA Compliance/Due Diligence Report concluded that there was reason to know A.M. is or may be an Indian child.

The juvenile court sustained the petition (§ 300, subd. (b)(1)), declared A.M. a dependent, and ordered that Mother receive reunification services.

A letter from the Cherokee Nation in April 2021 stated that A.M. was not an Indian child pursuant to ICWA at that time, but he “can be traced in our tribal records” based on M.A. The letter said the tribe did not have legal standing to intervene or participate unless Mother or A.M. received membership. It enclosed a “courtesy membership application” for A.M. The Department filed the letter with the court. In a later conversation, a tribal representative told the Department that the tribe was “not asking the child to be treated as an Indian Child” and “was not requiring the Department to complete the enrollment application.”

In a report prepared for the six-month review hearing in June, the Department requested that Mother be ordered to make herself available to meet with the Department and a notary to complete an application to enroll A.M. in the Cherokee Nation. The court did not make such an order. The court found that Mother had made no progress toward alleviating or mitigating the causes necessitating placement. The court terminated Mother’s reunification services and set a section 366.26 hearing.

In a report for the section 366.26 hearing, the Department described the services and benefits A.M. could receive if enrolled in the Cherokee Nation, and “request[ed] an order from the Court to assist in enrolling [A.M.].” The court did not make the requested order.

At the section 366.26 hearing on October 7, the Department requested the court find that ICWA did not apply. A.M.’s counsel concurred. Mother’s counsel submitted the matter. No request was made to continue the hearing for the purpose of enrolling A.M. in the tribe. The court found that ICWA did not apply. The court continued the case for three weeks for a pretrial conference to allow Mother to receive delivered service logs and to submit an offer of proof.[3]

At the pretrial conference, no offer of proof was submitted and no request was made to continue the case. The court terminated both parents’ parental rights and ordered adoption as the permanent plan.

DISCUSSION

ICWA serves “to protect the best interests of Indian children and to promote the stability and security of Indian tribes and families by the establishment of minimum Federal standards for the removal of Indian children from their families.” (25 U.S.C. § 1902; see Welf. & Inst. Code, § 224.)

“‘Indian child’ means any unmarried person who is under age eighteen and is either (a) a member of an Indian tribe or (b) is eligible for membership in an Indian tribe and is the biological child of a member of an Indian tribe.” (25 U.S.C. § 1903(4), italics added; Welf. & Inst. Code, § 224.1, subd. (a).) Whether a child is a member of, or eligible for membership in, an Indian tribe is conclusively determined by the tribe. (§ 224.2, subd. (h).)

When the facts are undisputed, we independently review whether there has been compliance with ICWA. (In re A.M. (2020) 47 Cal.App.5th 303, 314.) We review the juvenile court’s determination that ICWA does not apply for substantial evidence. (In re A.M., at p. 314; § 224.2, subd. (i)(2).) A.M. was not an Indian child because he did not meet either criterion for membership. (25 U.S.C. § 1903(4).) The Cherokee Nation determined that he was not a member. And although he may have been eligible for membership, he was not the biological child of a member.

Mother does not contend that the Department or the court failed to comply with ICWA. She argues instead that the court abused its discretion when it failed to continue the section 366.26 hearing to allow Mother to apply on A.M.’s behalf to enroll him in the Cherokee Nation. We disagree.

The juvenile court may continue a hearing at the request of counsel if good cause is shown and the continuance is not “contrary to the interest of the minor.” (§ 352, subds. (a) & (b).) The juvenile court may also continue a hearing on its own motion. (In re Dino E. (1992) 6 Cal.App.4th 1768, 1779.)

Mother did not request that the court continue the section 366.26 hearing. In a dependency case, a party’s failure to raise an issue in the trial court generally forfeits their right to raise it on appeal. (In re Lorenzo C. (1997) 54 Cal.App.4th 1330, 1338-1339.) Mother contends that there was no forfeiture here because “Indian tribes have interests protected by ICWA that are separate and distinct from the interests of parents of Indian children,” and “‘the parents’ inaction does not constitute a waiver or otherwise preclude appellate review.’” (In re Isaiah W. (2016) 1 Cal.5th 1, 13.) But here, the record is clear that A.M. was not an Indian child.

Because Mother “never made a request for an extension of time under ICWA . . . the court never had an opportunity to consider a possible conflict between the requirements of ICWA and [the requirements of] section 352.” (In re David H. (2008) 165 Cal.App.4th 1626, 1636.) Accordingly, Mother forfeited the issue. (Ibid.)

Nor is Mother entitled to relief on the merits. We review denial of a continuance for abuse of discretion. (In re Giovanni F. (2010) 184 Cal.App.4th 594, 605.) The court did not abuse its discretion.

In re Abbigail A. (2016) 1 Cal.5th 83 (Abbigail A.), upon which Mother relies, did not require a continuance here. Abbigail A. invalidated a court rule that required the court to “‘direct the appropriate individual or agency to provide active efforts . . . to secure tribal membership for the child.’” (Id. at p. 92, italics omitted.) The court held that ICWA does not “require membership applications be made on behalf of [] children who are not Indian children as defined in ICWA.” (Abbigail A., at p. 93.) The court is not required “to make efforts to secure tribal membership for children who are not Indian children, apparently without regard to the family’s wishes.” (Id. at p. 95.)

In Abbigail A., as is the case here, the child was eligible for enrollment in the Cherokee Nation, but neither biological parent was a member. (Abbigail A., supra, 1 Cal.5th at p. 89.) But there, father “informed the court he intended to apply for membership.” (Ibid.) The court noted, “to wait a few days or weeks while a parent or child pursues an application for tribal membership might in some cases save time in the long run.” (Id. at p. 95.) In contrast here, there is no evidence that Mother wished to apply for A.M. to become a member or that, if given more time, she would have done so. Nor is there any evidence of the duration of time needed to obtain a determination from the tribe.

“‘[C]ontinuances are discouraged in dependency cases.’” (Abbigail A., supra, 1 Cal.5th at p. 95.) In considering a continuance, “the court shall give substantial weight to a minor’s need for prompt resolution of his or her custody status, the need to provide children with stable environments, and the damage to a minor of prolonged temporary placements.” (§ 352, subd. (a)(1).) Given the compelling need for a prompt permanency determination, the court properly proceeded with termination of parental rights and selection of a permanency plan.

DISPOSITION

The order is affirmed.

NOT TO BE PUBLISHED.

TANGEMAN, J.

We concur:

GILBERT, P. J.

YEGAN, J.

Arthur A. Garcia, Judge

Superior Court County of Santa Barbara

______________________________

Johanna R. Shargel, under appointment by the Court of Appeal, for Defendant and Appellant.

Rachel Van Mullem, County Counsel, Lisa A. Rothstein, Deputy County Counsel, for Plaintiff and Respondent.

[1] Undesignated statutory references are to the Welfare and Institutions Code.

[2] Judicial Council Forms, form ICWA-030, is the Notice of Child Custody Proceeding for Indian Child pursuant to ICWA, the Indian Child Welfare Act (25 U.S.C. § 1901 et seq.; Welf. & Inst. Code, § 224 et seq.).

[3] Delivered service logs may be obtained in discovery to detail the social worker’s information that forms the basis for the Department’s reports. The juvenile court may require a parent to submit an offer of proof to specify the evidence to be produced at the section 366.26 hearing to determine whether there is evidence of sufficient probative value to warrant expenditure of judicial and attorney resources at a contested evidentiary hearing. (In re Tamika T. (2002) 97 Cal.App.4th 1114, 1122, 1124.)