In re S.J.
Filed 2/25/13 In re S.J. 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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opinion has not been certified for publication or ordered published for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
In re S.J. et al., Persons Coming Under the Juvenile Court
Law.
SANTA BARBARA COUNTY
CHILD WELFARE SERVICES,
Plaintiff and
Respondent,
v.
J.C.,
Defendant and
Appellant.
2d Juv. No. B242550
(Super. Ct.
Nos. J1395309, J1395310, J1395311)
(Santa
Barbara County)
J.C. appeals a judgment
of the juvenile court terminating her parental
rights to her children, S.J., Jo.J. and Ja.J. (Welf. & Inst. Code, §§ 300,
366.26.) We conclude, among other
things, that: 1) the Santa Barbara
County Child Welfare Services (CWS) gave proper notice under the Indian Child
Welfare Act (ICWA) (25 U.S.C., § 1901 et seq.) to the Jena Band of Choctaw
Indians (JBCI), the Choctaw Nation of Oklahoma (CNO), the Mississippi Band of
Choctaw Indians (MBCI), and the Bureau of Indian Affairs (BIA); and 2) the
court's finding that ICWA does not apply is supported by the documentary
evidence in the record and in the recently augmented record on appeal. We affirm.
FACTS
On March 10, 2011, the police notified CWS that J.C.
"had left her three children in the care of" a "heavily
intoxicated" man. The children -
S.J., seven years old; Jo. J., four years old; and Ja.J., eight months old -
had no "clean clothing, food, or supervision." The intoxicated man did not know where J.C.
was or how to contact her. The motel
room where the children resided was "extremely unkempt" with
"spoiled food on the floor, dressers, bathroom sink, and on top of the
toilet." Vicodin and bottles of
pain medication "were left within the reach of the children."
CWS determined that
J.C.'s "Child Welfare history place[d] the children at risk [for] abuse
and neglect." It removed the
children from the home.
CWS filed a
& Inst., § 300) alleging, among other things, that the children will
suffer "serious physical harm" as a result of J.C.'s failure "to
supervise or protect" them. On April 18, 2011, the juvenile court
sustained the petition. On November 3, 2011, the court found CWS
had provided appropriate reunification services, but J.C. did not comply with
her requirements under the case plan. It
terminated family reunification services.
On June 4, 2012, the
court terminated J.C.'s parental rights to the children.
ICWA
On a "parental
notification of Indian status" form, J.C. stated that she had no Indian
ancestry. M.J., the children's father,
stated that he "may have Indian ancestry," but he did not know the name
of the tribe. M.J. claimed D.G., his
mother, would have the information. D.G.
contacted CWS. She claimed the
children's Indian ancestry originated from L.R., their
great-great-great-great-grandmother, who was a Choctaw Indian born in 1841.
CWS sent notices of
"child custody proceeding for Indian child" forms (Judicial Council
form ICWA-030) to the three Choctaw tribes - the JBCI, the CNO and the
MBCI. It also sent notice to the BIA.
These forms included a
family tree attachment which listed the names, dates of birth and dates of
death of 11 ancestors on the children's paternal grandmother's side of the
family. It listed family ancestors who
may have been members of the Choctaw tribes.
The family tree included a span of the various generations of ancestors
born between 1803 and 1961. For four of
the ancestors, the family tree included the cities and states where they
resided at birth and death. This chart
included L.R., the children's great-great-great-great-grandmother, and D.G.,
the children's paternal grandmother. For
L.R., the chart listed both the city and state where she was born and the city
and state where she resided at her death.
It listed her tribal affiliation as "Choctaw." It listed D.G.'s date of birth and her tribal
affiliation as "Choctaw."
Between April 5, 2011,
and April 12, 2011, CWS received certified return mail receipts from the three
tribes and the BIA acknowledging receipt of the ICWA notices.
In an October 17, 2011,
"status review report," CWS stated that all three tribes had
determined that the children were "not eligible for enrollment" in
their respective tribes. It said the BIA
determined that CWS "has provided appropriate notice to the
tribes." CWS requested the court
"to find that ICWA does not apply."
The juvenile court found
CWS gave proper notice of "the proceeding[s] and the right . . .
to intervene" to the tribes and the BIA.
It found ICWA did not apply.
DISCUSSION
J.C. contends the
judgment of the juvenile court must be reversed because CWS did not comply with
ICWA. We disagree.
Congress enacted ICWA
with the intent that the best interests of Indian children are served by
retaining their Indian tribal ties and cultural heritage. (In re
Desiree F. (2000) 83 Cal.App.4th
460, 469.) "'The ICWA confers on
tribes the right to intervene at any point in state court dependency
proceedings.'" (
Cal.App.4th 166, 174.) Proper notice to
tribes is of critical importance, and courts strictly construe ICWA notice
requirements. (Ibid.) "Under the ICWA,
the tribe determines whether the child is an Indian child and its determination
is conclusive." (
J.C. contends the record
is incomplete because it does not contain the tribes' responses to CWS's ICWA
notices. She notes that some courts have
suggested the preferred procedure is for the trial court to receive the tribal
letters on membership eligibility before making an ICWA finding. (In re
Elizabeth W. (2004) 120 Cal.App.4th 900, 906.) But here there was uncontradicted evidence
that the tribes were properly notified as shown by their certified mail return
receipts in the record. In addition,
there was evidence to support the finding that the children were not eligible
for tribal membership in the CWS's October 17th status review report. It describes the tribes' eligibility
determinations and it was not contradicted.
CWS recently filed a
of the letters from the three Choctaw tribes confirming that the children are
not eligible for tribal membership. We
grant that motion. (In re C.D. (2003) 110 Cal.App.4th 214, 226 [record may be augmented
to show ICWA compliance while the appeal is pending].) In addition, on December 3, 2012, the
juvenile court held a supplemental hearing on ICWA compliance. CWS filed a new ICWA status report, the
tribal letters and an "ICWA Matrix" document showing the history of
the ICWA correspondence. The court again
found that ICWA did not apply.
J.C. contends CWS did
not comply with its ICWA obligations because the family tree should have been
more complete by expressly listing the relationship of each of the 11 ancestors
to the children. But the family tree
showed D.G.'s linear family history back to 1803. It showed the names of her parents, her
grandparents, her great-grandparents, her great-great-grandparents and her
great-great-great-grandparents. The
chart provided the dates of birth of all relatives that were alleged to have
Indian heritage. It provided known
information about where they lived at birth, death and their tribe. This gave the tribes the opportunity to check
these names with their records to verify membership. The juvenile court could reasonably find that
nobody would be confused about the family relationships of all the ancestors
when reading this chart.
J.C. claims CWS did not
obtain the address of D.G who was the parental grandmother. She suggests that information had to be
included in the ICWA notices sent to the tribes. But the BIA determined that CWS provided
sufficient information. J.C. did not
introduce evidence to contradict that finding.
Nor did she show how the missing address information would change the
result. (In re I.W. (2009) 180 Cal.App.4th 1517, 1531 [deficiencies in ICWA
notices do not require reversal if they would not have made a difference in the
result].) D.G. claimed Indian ancestry
from L.R. But the tribes determined that
L.R. was not a tribal member. This
disproved D.G.'s claim of Indian ancestry.
In addition, we must
defer to the expertise of the tribes in determining membership. A tribe's determination is conclusive. (In re
Karla C., supra, 113
Cal.App.4th at p. 174.) They know the
information they need to make eligibility determinations. If they needed additional information, we
presume they would have asked for it. Or
that they would have stated they lacked sufficient information to make a
determination. Instead, they reviewed
their records and unequivocally determined that the ancestors listed on the
family tree were never enrolled tribal members and the children were not
eligible for membership. The juvenile
court's finding that ICWA does not apply is supported by the record.
The judgment is
affirmed.
NOT TO BE PUBLISHED.
GILBERT,
P.J.
We concur:
YEGAN, J.
PERREN, J.
Arthur
A. Garcia, Judge
Superior
Court County of Santa Barbara
______________________________
Jonathan B. Steiner,
under appointment by the Court of Appeal, for Defendant and Appellant.
Dennis A. Marshall,
County Counsel, Toni Lorien, Deputy, for Plaintiff and Respondent.
