Filed 11/20/17 In re R.J. CA5



NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
FIFTH APPELLATE DISTRICT

In re R.J., et al., Persons Coming Under the Juvenile Court Law.

FRESNO COUNTY DEPARTMENT OF SOCIAL SERVICES,

Plaintiff and Respondent,

v.

M.V.,

Defendant and Appellant.

F075345

(Super. Ct. Nos. 0097997-4, 0097997-5)


OPINION

THE COURT*
APPEAL from an order of the Superior Court of Fresno County. Gary Green, Judge.
Darlene Azevedo Kelly, under appointment by the Court of Appeal, for Defendant and Appellant.
Daniel C. Cederborg, County Counsel, and Brent C. Woodward, Deputy County Counsel, for Plaintiff and Respondent.
-ooOoo-
M.V. (mother), appeals from the Welfare and Institutions Code section 366.26 order, issued on March 15, 2017, terminating her parental rights to her children, R.J., born in 2012, and S.J., born in 2014. Mother’s only challenge on appeal is that the juvenile court failed to comply with the inquiry and notice requirements of the Indian Child Welfare Act (ICWA) (25 U.S.C. § 1901 et seq.). The error is alleged to have occurred during the jurisdiction and disposition phase of this case, which was concluded in September of 2015. Under California law, mother is permitted to raise this challenge now, despite not having raised the issue in an appeal from the disposition order at the time. (See In re Isaiah W. (2016) 1 Cal.5th 1, 6.) We affirm.
PROCEDURAL AND FACTUAL HISTORY
Prior Dependency Action
In September of 2014, as part of an earlier dependency proceeding, both mother and father filed a Parental Notification of Indian Status form (ICWA-020). Father denied Indian ancestry, but mother’s claimed she “may” have “Tule River” tribal ancestry.
In October 2014, the Santa Rosa Rancheria Tachi Yokut Tribe sent letters to the juvenile court, “in response to the ICWA-030” notice, stating neither mother nor father, nor R.J. or S.J., was an enrolled member or had applied for membership in the Tribe.
The dependency action was dismissed March 3, 2015, with orders for sole physical custody to father and third party supervised visits for mother.
Current Dependency Proceeding
A month later, on April 2, 2015, R.J. and S.J. were placed into protective custody after father was arrested and incarcerated for domestic violence against mother, and it was learned father allowed mother to care for the children, in violation of the earlier dependency order made the previous month.
As part of the section 300 petition filed April 6, 2015, ICWA-10(A) forms completed for both R.J. and S.J. state mother reported on April 2, 2015, that neither child had any known Indian ancestry. The detention report filed in anticipation of the April 7, 2015, detention hearing states, “The Indian Child Welfare Act does not apply.”
At jurisdiction May 12, 2015, the juvenile court was in receipt of mother’s completed ICWA-020 form on which she states, “I have no Indian ancestry as far as I know.” At the continued jurisdiction hearing May 19, 2015, the following exchange took place between county counsel and the juvenile court:
“[COUNTY COUNSEL]: I noted on March 3rd, 2015, at the last time the Court had jurisdiction of this case prior to dismissing dependency, I believe it was, the Court made a finding that the Indian Child Welfare Act was not applicable and I know my office filed a motion January 5, 2015, based on information provided to the Court. So since there’s been such a short time between the two hearing dates when the Court dismissed dependency and granted sole legal and physical custody to [father], I’m thinking it’s possible we don’t need to restart the Indian Child Welfare Act notice proceedings. But I’m submitting that issue to the Court because at this time I’m of the opinion that we can proceed since there’s been jurisdictional – where the Court had jurisdiction, dismissed dependency, made a specific finding that the Indian Child Welfare Act was not applicable. But if the other parties disagrees and the Court disagrees, we can start the process. [¶] Thank you.
“THE COURT: So are you representing the Department filed a motion?
“[COUNTY COUNSEL]: Well, there was one motion earlier filed in the earlier case.
“THE COURT: And that motion was filed by County Counsel indicating what?
“[COUNTY COUNSEL]: That the Indian Child Welfare Act was not applicable and that was based on information provided by [mother], that she may have Cherokee and Yokut Tribe Indian ancestry. So we sent notices to the Bureau of Indian Affairs and to the federally recognized Cherokee tribes in the United States as well as the Yokut YOKUT tribes, and there were several of them, and one of them responded, Santa Rosa Rancheria Tribe, two that didn’t respond, Table Mountain Rancheria. We haven’t received any responses since the Court made its ruling on March 3, 201[5], that the Indian Child Welfare Act is not applicable. So with no new information – if the parents have no new information, I believe that it’s possible for us to not have to refile new motions in this case. But I’ll submit it on that record to the Court.”
The juvenile court then asked both father and mother’s counsel for their response: father’s counsel stated, “No. Submitting on the report,” and mother’s counsel stated, “I would submit it to the Court as to the ICWA issue. Mother does not have any new information.”
At the contested jurisdiction/disposition hearing held September 1 and 2, 2015, the juvenile court amended the section 300 petition and sustained it as amended, both children were removed from parental custody and a reunification plan ordered for mother and father. The juvenile court found ICWA was not applicable.
Eventually, on March 15, 2017, following the six and 12-month review hearings, as well as a contested permanency planning hearing, the juvenile court terminated mother and father’s parental rights, found the children likely to be adopted, and selected adoption by the relative caretakers as the permanent plan.
DISCUSSION
Mother asserts that the juvenile court failed to make adequate inquiries concerning her Indian ancestry and, as a result, there is insufficient evidence to uphold the juvenile court’s finding that ICWA was not applicable.
Applicable Law
Congress enacted ICWA to promote the stability and security of Indian tribes and families by establishing minimum standards for removal of Indian children from their families and placement of such children in foster or adoptive homes that will reflect the unique values of Indian culture. (In re C.Y. (2012) 208 Cal.App.4th 34, 39; In re Levi U. (2000) 78 Cal.App.4th 191, 195.) An “‘Indian child’ is defined 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).)” (In re Jonathon S. (2005) 129 Cal.App.4th 334, 338.) ICWA applies only to federally recognized tribes. (25 U.S.C. § 1903(8); In re Jonathon S., supra, at p. 338; In re B.R. (2009) 176 Cal.App.4th 773, 783 [federal definition of “‘Indian’” includes “Eskimos and other aboriginal peoples of Alaska”; see also 25 U.S.C. § 479]; In re Wanomi P. (1989) 216 Cal.App.3d 156, 166-168 [Canadian tribe is not federally recognized tribe under ICWA].)
In state court proceedings involving the foster care placement of, or termination of parental rights to, an Indian child, the Indian custodian of the child and the Indian child’s tribe have the right to intervene at any point in the proceeding. (25 U.S.C. § 1911(c).) But this right is meaningless unless the tribe is notified of the proceedings. (In re Hunter W. (2011) 200 Cal.App.4th 1454, 1466.) Notice serves the dual purpose of (1) enabling the tribe to investigate and determine whether a child is an Indian child and (2) advising the tribe of the pending proceeding and its right to intervene. (In re Desiree F. (2000) 83 Cal.App.4th 460, 470.)
In every dependency proceeding, the department and the juvenile court have an “affirmative and continuing duty to inquire whether a child ... is or may be an Indian child ....” (§ 224.3, subd. (a); Cal. Rules of Court, rule 5.481(a); In re W.B. (2012) 55 Cal.4th 30, 53; In re Gabriel G. (2012) 206 Cal.App.4th 1160, 1165.) Once the court or department “knows or has reason to know that an Indian child is involved, the social worker ... is required to make further inquiry regarding the possible Indian status of the child, and to do so as soon as practicable....” (§ 224.3, subd. (c); Cal. Rules of Court, rule 5.481(a)(4); Gabriel G., supra, at p. 1165.) The department’s duty of “further inquiry” requires “interviewing the parents, Indian custodian, and extended family members ..., contacting the Bureau of Indian Affairs ... and contacting the tribes and any other person that reasonably can be expected to have information regarding the child’s membership status or eligibility.” (§ 224.3, subd. (c); Cal. Rules of Court, rule 5.481(a)(4); Gabriel G., supra, at p. 1165.)
ICWA applies to children who are eligible to become or who are members of a tribe but does not limit the manner by which membership is to be defined. (In re Jack C. (2011) 192 Cal.App.4th 967, 978, disapproved on another point in In re Abbigail A. (2016) 1 Cal.5th 83, 96, fn. 3; see also Nelson v. Hunter (1995) 132 Or.App. 361 [888 P.2d 124, 126, fn. 4] [observing that Congress rejected proposed language that would have limited ICWA protection to enrolled members of Indian tribes].) A “tribe’s right to define its own membership for tribal purposes has long been recognized as central to its existence as an independent political community.” (Santa Clara Pueblo v. Martinez (1978) 436 U.S. 49, 72, fn. 32.) The tribe’s determination that a child is a member of or eligible for membership in the tribe is conclusive. (§ 224.3, subd. (e)(1).)
Where, as here, the trial court has made a finding that ICWA is inapplicable, the finding is reviewed under the substantial evidence standard. (In re Rebecca R. (2006) 143 Cal.App.4th 1426, 1430; In re Karla C. (2003) 113 Cal.App.4th 166, 178-179.) Thus, we must uphold the court's orders and findings if any substantial evidence, contradicted or uncontradicted, supports them, and we must indulge all legitimate inferences in favor of affirmance. (In re John V. (1992) 5 Cal.App.4th 1201, 1212.) A juvenile court’s ICWA finding is also subject to harmless error analysis. (In re Alexis H. (2005) 132 Cal.App.4th 11, 16.)
Analysis
In this case, the evidence supports the juvenile court’s determination that it had no reason to know R.J. and S.J. were Indian children and therefore the ICWA notice requirement was never triggered. The information provided by mother, as well as the information contained in mother’s prior dependency record, suggest no reason to believe R.J. and S.J. had Indian ancestry.
Mother objects to the fact that the ICWA documents in the prior dependency proceedings, in which she claimed she might have Indian ancestry, were not provided the juvenile court in the current dependency proceedings, and, as a result, the ICWA inapplicability finding in the current case is therefore not supported by substantial evidence. We disagree.
While it is not certain whether the juvenile court at the current detention proceedings had mother’s prior dependency record before it in making the finding that ICWA was not applicable, the information before the juvenile court was that, in the dependency proceeding commenced April 2, 2015: (1) the ICWA-010(A) forms dated April 6, 2015, state mother, interviewed on April 2, 2015, stated neither R.J. nor S.J. had any known Indian ancestry ; (2) the detention report signed and filed April 7, 2015, stated the ICWA was inapplicable ; (3) the ICWA-020 form signed by mother and filed May 12, 2015, stated mother had no Indian ancestry “as far as I know” ; (4) at a jurisdiction/disposition hearing May 19, 2015, county counsel stated ICWA was found not applicable in a very recent dependency case involving mother and father ; and (5) after hearing county counsel’s statement, and knowing the contents of mother’s ICWA-020 filed the week prior, mother’s counsel stated, “Mother does not have any new information.” Taken together, these facts show there was clearly “no reason to know” the children are or may be Indian children, and the notice requirement was not triggered.
Substantial evidence supports the juvenile court’s finding and we reject mother’s claim to the contrary.
DISPOSITION
The order is affirmed.