In re C.R.

Filed 8/14/07 In re C.R. 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

(Sacramento)

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In these consolidated proceedings, appellant, the mother of C.R., Jr., and Ca.R. (the minors), appeals from the juvenile courts orders terminating her parental rights. (Welf. & Inst. Code,  366.26, 395.)^[1] Appellant seeks remand of the matters for compliance with recent amendments to California law concerning child custody proceedings involving Indian children. Concluding that remand is unnecessary, we shall affirm.

FACTUAL AND PROCEDURAL BACKGROUND

As the facts underlying dependency jurisdiction and reunification efforts are immaterial to the issues before us, we touch upon them only briefly. In March 2006, C.R., Jr., was made a dependent of the juvenile court based on sustained allegations that he had been the victim of shaken baby syndrome. Both parents were denied reunification services.

Following the jurisdictional hearing in the matter of C.R., Jr., appellant gave birth to Ca.R. A dependency petition was filed concerning Ca.R. in July 2006 based on the injuries to C.R., Jr., and the juvenile court ultimately sustained the allegations in this petition and, again, denied the parents reunification services.

At the subsequent permanent plan hearings in each matter, the juvenile court ordered adoption as the permanent plan and terminated parental rights.

With regard to the minors alleged Indian heritage, when proceedings were initiated in the matter of C.R., Jr., appellant and the minors father both claimed they had Cherokee heritage. In compliance with the Indian Child Welfare Act of 1978 (ICWA) (25 U.S.C.  1901 et seq.), notices were sent in each minors matter to the three federally recognized Cherokee tribes‑‑the United Keetoowah Band of Cherokee Indians, the Cherokee Nation of Oklahoma and the Eastern Band of Cherokee Indians‑‑as well as the Bureau of Indian Affairs.

The following responses were received from the three noticed tribes: The United Keetoowah Band of Cherokee Indians stated there was no evidence the minors were descendants from anyone on the Keetoowah Roll and, therefore, they were not eligible for enrollment; the Eastern Band of Cherokee Indians determined that each of the minors was not registered nor eligible to register as a member of this tribe and was not considered an Indian [c]hild in relation to [the tribe] as defined in [the ICWA]; the Cherokee Nation of Oklahoma responded that the minors could not be traced in [its] tribal records and would not be considered Indian children in relation to the tribe.

In each minors matter, the juvenile court determined that the ICWA did not apply.

DISCUSSION

Appellant does not contend that the notices to the tribes were defective. Rather, she claims the minors matters must be remanded for compliance with newly enacted state statutes governing custody proceedings involving Indian children. Appellant is incorrect.

Appellant maintains that the responses from the tribes did not comply with the requirements of section 224.3, subdivision (e)(1), which went into effect in 2007 and provides in relevant part: Information that the child is not enrolled or eligible for enrollment in the tribe is not determinative of the childs membership status unless the tribe also confirms in writing that enrollment is a prerequisite for membership under tribal law or custom. Appellant maintains that this legislation must be applied retroactively [b]ecause the duty of compliance with [the] ICWA is a continuing duty that lasts throughout the dependency proceedings both in the trial and appellate courts. Respondent Sacramento County Department of Health and Human Services (DHHS) argues that the new legislation should not be applied retroactively in the absence of clear legislative intent.

We find it unnecessary to address the question of retroactivity in order to resolve the issue before us. Even assuming that the response from one or more of the tribes was not determinative of the childs membership status ( 224.3, subd. (e)(1)) because they reported only that the minors were not enrolled, section 224.3, subdivision (e)(3) provides that if neither a tribe nor the Bureau of Indian Affairs has provided a determinative response within 60 days after receiving [the ICWA] notice, the court may determine that [the ICWA] does not apply to the proceedings. Here (again assuming that the responses from the tribes were not determinative), the juvenile court was entitled to find that the ICWA did not apply because, in each minors case, 60 days had passed since notice was received by the tribes.

Appellant also suggests that this court should resolve some of these questions posed by section 306.6, which gives a juvenile court discretion to allow tribes that have not been federally recognized to participate in dependency proceedings. There is no evidence in the record that any such tribe sought to participate in these proceedings. Accordingly, we agree with DHHS that appellant presents no actual controversy on this issue, and we decline to address it.^[2]

DISPOSITION

The judgments (orders terminating parental rights) are affirmed.

BUTZ , J.

We concur:

DAVIS , Acting P. J.

ROBIE , J.

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

^[2] However, to the extent DHHS is claiming that appellants argument regarding section 224.3, subdivision (e) is not based on an actual controversy, we disagree.