Opinion
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Los Angeles County No. CK53438, D. Zeke Zeidler, Judge.
Christopher R. Booth, under appointment by the Court of Appeal, for Defendant and Appellant.
Andrea Sheridan Ordin, County Counsel, James M. Owens, Assistant County Counsel, and Kim Nemoy, Principal Deputy County Counsel, for Plaintiff and Respondent.
WILLHITE, J.
INTRODUCTION
Mother, K.C., appeals from a dependency court order denying her reunification services with her minor child, Jasiah J. Her sole contention on appeal is that the Department of Children and Family services (DCFS) and the dependency court failed to comply with the Indian Child Welfare Act (the ICWA) (25 U.S.C. § 1901 et seq.) by making an insufficient inquiry into whether Jasiah had Blackfeet tribal ancestry. She contends that the matter must be remanded to the dependency court for compliance with the ICWA. We disagree and affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
Background
Two year-old Jasiah first came to the attention of DCFS in November 2009 when he was found wandering alone on a public sidewalk near his residence; Mother said she left the child at home with a 13-year old relative while she went to a neighbor’s house to make a telephone call, but the 13-year old left Jasiah sleeping on the couch and went to a friend’s house. Two days later, a stranger brought Jasiah to the police station after finding the toddler once again unattended outside. Mother stated she left Jasiah at home to be supervised by her boyfriend, Joshua, while she went to the store to “cool off” after an argument with Joshua. One month earlier, police had responded to a call from Mother, who reported that Joshua had punched her in the face, cutting her lip.
Joshua is not Jasiah’s father, but he is the father of Mother’s first child, Arlene, who was removed from Mother’s custody in 2003 because Mother left her with a relative without making appropriate provisions for her care and because of severe domestic violence between Mother and Joshua. Mother apparently had begun seeing Joshua again in 2009 while Jasiah’s father, Walter (Father), was incarcerated pending trial on murder charges.
The dependency court ordered Jasiah detained and temporarily placed in foster care. Jasiah was found to be a dependent child under Welfare and Institutions Code section 300, subdivisions (a) and (b), based on the history of domestic violence between Mother and Joshua, Mother’s failure to provide appropriate supervision for Jasiah, Mother’s history of mental and emotional problems for which she failed to seek treatment, Father’s failure to provide for Jasiah while he was incarcerated, and Father’s substance abuse and criminal history.
While the court granted reunification services for Father, it denied them for Mother pursuant to Welfare and Institutions Code section 361.5, subdivisions (b)(10) and (b)(11), based on the court’s findings that Mother failed to reunify with Arlene, Jasiah’s half sibling, that her parental rights as to Arlene had been terminated, and that Mother had not subsequently made a reasonable effort to treat the problems that led to Arlene’s removal. On appeal, Mother does not challenge the substance of the dependency court’s decision to deny her reunification services. Rather, she challenges only the court’s determination that Jasiah was not an “Indian child” under the ICWA, a finding that has implications for the evidentiary burden that DCFS must meet before Mother’s parental rights can be terminated.
Except where otherwise noted, all further references herein to code sections are to the Welfare and Institutions Code. Section 361.5, subdivision (b)(10) provides, in relevant part, that reunification services need not be provided to a parent when the court finds by clear and convincing evidence that the court previously terminated reunification services for a half sibling of the child in question because the parent failed to reunify with the half sibling, and the parent has not subsequently made a reasonable effort to treat the problems that led to the sibling’s removal. Similarly, under section 351.5, subdivision (b)(11), reunification services need not be provided where a parent has had their parental rights permanently severed as to a half sibling of the child, where the court finds that the parent has not made a reasonable effort to treat the problems that led to the removal of the half sibling.
If the ICWA applies, parental rights cannot be terminated unless DCFS can show that (1) “active efforts have been made to provide remedial services and rehabilitative programs designed to prevent the breakup of the Indian family”; and (2) evidence supports the determination beyond a reasonable doubt that the continued custody of the child by the parent is “likely to result in serious emotional or physical damage to the child.” (25 U.S.C. § 1912, subds. (d), (f).)
ICWA Issues
At the December 17, 2009 detention hearing, Mother stated that she had Native American heritage through the Cherokee and Blackfeet tribes, both through her mother and her father. Mother indicated that her grandmother had information and documentation regarding this heritage, and the court ordered DCFS to immediately communicate with the grandmother before January 6, 2010, to determine whether the ICWA applied. The court also ordered DCFS to notice the Cherokee and Blackfeet tribes.
Father reported that he did not have Indian ancestry.
Despite this order, DCFS did not consult with Mother’s grandmother on the family’s Indian heritage or issue DCFS notices; rather, DCFS reported that during dependency proceedings in 2003 as to Mother’s first child, Arlene, DCFS mailed notices to all Cherokee and Blackfeet tribes and received responses from all the tribes indicating that the ICWA did not apply. On January 28, 2010, the court issued an order to show cause why sanctions should not be imposed against DCFS for its failure to comply with the order to send ICWA notices on Jasiah’s behalf. The court again ordered DCFS to send ICWA notices.
DCFS subsequently reported to the court that the ICWA notices previously sent in the case involving Jasiah’s half sibling pertained only to possible Indian heritage on the paternal side of the sibling’s family; Mother had disclaimed any Indian ancestry at that time. DCFS acknowledged that it mistakenly had assumed that the previous non-ICWA finding as to Mother applied in Jasiah’s case. DCFS reported that it had been unable to speak further with Mother regarding her potential Indian heritage.
On February 4, 2010, Mother provided additional information about her family history to enable DCFS to send ICWA notices to the relevant Indian tribes. On February 8, 2010, DCFS sent ICWA notices to the Bureau of Indian Affairs, the Department of the Interior, the Eastern Band of Cherokee Indians, the United Keetowah Band of Cherokee Indians, Cherokee Nation of Oklahoma, and the Blackfeet tribe. On April 14, 2010, the court received into evidence the return receipts for all these ICWA notices as well as the two responses received from the noticed tribes. The response from the Blackfeet tribe stated, “In researching the Blackfeet Tribal Enrollment records, I was not able to find the above named child [Jasiah], or [Jasiah’s extended family] on the tribal rolls.... Therefore, the above named child is not an ‘Indian Child’ as defined by [the ICWA].” The response from the Cherokee Nation of Oklahoma stated that DCFS had provided insufficient information on the birth dates and maiden names of Jasiah’s extended family members to permit it to determine whether Jasiah had Cherokee heritage. The court also received into evidence a DCFS report indicating that DCFS contacted the ICWA representative for the United Keetowah Band of Indians, who stated that she would get to Jasiah’s ICWA notice when she could, but that she had a stack of them to which she had yet to respond. Finding that the relevant tribes had been properly noticed and all had 60 days to respond to the notices, the court concluded that it had no reason to know that Jasiah is an Indian child as defined by the ICWA, and thus the ICWA did not apply.
Mother acknowledges that she failed to provide DCFS with the missing information, and on appeal does not challenge the adequacy of the ICWA notices to the Cherokee Nation.
Mother timely appealed. Father is not a party to the appeal.
DISCUSSION
Mother contends that the dependency court erred in concluding that Jasiah was not an Indian child. Although Mother claimed possible Cherokee and Blackfeet ancestry, on appeal she focuses solely on Jasiah’s potential membership in the Blackfeet tribe. She argues that we must remand the matter and order the dependency court to proceed in compliance with the ICWA and specifically to make further inquiries to determine if Jasiah is an Indian child because of possible Blackfeet ancestry. We disagree.
“In 1978, Congress passed the [ICWA], which is designed 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 which will reflect the unique values of Indian culture, and by providing for assistance to Indian tribes in the operation of child and family services programs.’ [Citations.]” (In re Marinna J. (2001) 90 Cal.App.4th 731, 734.) “The ICWA presumes it is in the best interests of the child to retain tribal ties and cultural heritage and in the interest of the tribe to preserve its future generations, a most important resource.” (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. [Citations.] ‘Of course, the tribe’s right to assert jurisdiction over the proceeding or to intervene in it is meaningless if the tribe has no notice that the action is pending.’” (Dwayne P. v. Superior Court (2002) 103 Cal.App.4th 247, 253.) The ICWA thus sets forth specific notice requirements that apply when DCFS and the court have reason to know the proceeding involves an Indian child, requiring that the tribe in which the child may have ancestry be notified of the pending proceedings, and of the tribe’s right to intervene. (25 U.S.C. § 1912(a); In re Marinna J., supra, 90 Cal.App.4th at pp. 739-740, fn. 4.) Both the court and DCFS have “an affirmative duty to inquire whether a dependent child is or may be an Indian child.” (In re Nikki R. (2003) 106 Cal.App.4th 844, 848; see Cal. Rules of Court, rule 5.481(a).) DCFS is obligated to inquire into the possibility of Indian ancestry and to act upon the information the family provides; “the obligation is only one of inquiry and not an absolute duty to ascertain or refute Native American ancestry.” (In re Antoinette S. (2002) 104 Cal.App.4th 1401, 1413.) If a tribe does not respond within 60 days after receiving a notice, the court may determine that the ICWA does not apply to the proceedings. (§ 224.3, subd. (e)(3); Cal. Rules of Court, rule 5.482(d)(1).)
“Indian child” is defined under both federal and California law as “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); § 224.1, subd. (a).) “‘Each Indian tribe has sole authority to determine its membership criteria, and to decide who meets those criteria. [Citation.] Formal membership requirements differ from tribe to tribe, as does each tribe’s method of keeping track of its own membership. [Citation.]’ [Citation.]” (Dwayne P. v. Superior Court, supra, 103 Cal.App.4th at p. 255.) “Enrollment is not required in order to be considered a member of a tribe; many tribes do not have written rolls. [Citation.] While enrollment can be one means of establishing membership, it is not the only means, nor is it determinative.” (In re Desiree F., supra, 83 Cal.App.4th at pp. 470-471.) “‘A tribe’s determination that the child is or is not a member of or eligible for membership in the tribe is conclusive.’ [Citation.]” (Dwayne P. v. Superior Court, supra, 103 Cal.App.4th at p. 255; see § 224.3, subd. (e)(1).)
Unlike many appeals concerning an alleged failure to comply with ICWA, Mother does not challenge the adequacy of the notices sent to the tribes in which she contends she might have ancestry. Rather, Mother contends that after the dependency court received the Blackfeet tribe’s response to the ICWA notice, it should have proceeded as if Jasiah were an Indian child because the response was inconclusive as to Jasiah’s eligibility for tribal membership. That response stated, “In researching the Blackfeet Tribal Enrollment records, I was not able to find the above named child [Jasiah], or [Jasiah’s extended family] on the tribal rolls.... Therefore, the above named child is not an ‘Indian Child’ as defined by [the ICWA].” Mother asserts that this response answered only the question whether Jasiah is an enrolled member of the Blackfeet tribe, and she contends that the court and DCFS had an affirmative and continuing duty to further ascertain: (1) whether Jasiah is eligible for membership in the Blackfeet tribe; (2) whether Mother is a Blackfeet tribe member; and (3) whether enrollment is a prerequisite for Blackfeet tribe membership.
In light of the response provided by the Blackfeet tribe to the ICWA notice, we disagree that the ICWA imposes any further duty on the DCFS or the court to make any additional inquiry into whether Jasiah had Blackfeet heritage. “The Indian tribe determines whether the child is an Indian child.” (In re Francisco W. (2006) 139 Cal.App.4th 695, 702.) Here, the Blackfeet tribe’s response not only stated that neither Jasiah nor any of his family members are found on the tribal rolls, but also affirmatively stated that Jasiah is not an Indian child as defined by the ICWA, thereby answering the ultimate question. Because the determination by the Blackfeet tribe that Jasiah is not an Indian child is conclusive, the court was obligated to find that Jasiah is not an Indian child as per the Blackfeet tribe. (§ 224.3, subd. (e)(1).)
Mother suggests, however, that a provision of the California Welfare and Institutions Code required the court to obtain more information from the Blackfeet tribe before making the determination that Jasiah is not an Indian child. Specifically, she relies on section 224.3, subdivision (e)(1), which provides that “[i]nformation that the child is not enrolled or eligible for enrollment in the tribe is not determinative of the child’s membership status unless the tribe also confirms in writing that enrollment is a prerequisite for membership under tribal law or custom.” (§ 224.3, subd. (e)(1).) Mother contends that because the Blackfeet tribe’s response did not confirm that enrollment was a prerequisite for Blackfeet membership, the response was not sufficient under California law to justify the finding that Jasiah was not an Indian child. For the reasons below, we disagree.
Section 224.3 was enacted in 2006 as part of the California legislature’s comprehensive reorganization of the state law provisions relating to compliance with the ICWA requirements. (In re William K. (2008) 161 Cal.App.4th 1, 11; see §§ 224-224.6.) Subdivision (e)(1) of section 224.3 “clarifies the evidentiary requirements” in California for determining whether a minor is an Indian child, establishing that a tribe’s response that a child is not enrolled or eligible for enrollment in a tribe is not a sufficient basis for finding that the child is not an Indian child unless the tribe confirms that enrollment is a prerequisite for membership. (In re William K., supra, 161 Cal.App.4th at p. 12.) In this case, Mother failed to object to the dependency court’s reliance on the Blackfeet tribe’s allegedly insufficient response. As such, she forfeited her claim on appeal that the response did not satisfy the requirements of section 224.3. (Ibid.)
Even if Mother had not forfeited her contention that the Blackfeet tribe’s response was insufficient under section 224.3, we would find that the Blackfeet tribe’s response was adequate under that provision to justify the court’s determination that Jasiah is not an Indian child. Rather than merely stating that Jasiah’s name was not found on the tribal rolls, which might leave some ambiguity as to the possibility that Jasiah still could be eligible for tribal membership, the response answered the fundamental question: whether the tribe considered Jasiah an Indian child. Having answered that question in the negative, no ambiguity was present. (Cf. In re Jack C. III (2011) __ Cal.App.4th __ [holding that section 224.3 subd. (e)(1) helps relieve ambiguity as to Indian status and finding that dependency court should have proceeded as if ICWA applied where tribal response stated that notwithstanding children’s lack of membership in the tribe, there was “‘no doubt the children were Indian children who would be enrolled’” in the tribe].) In sum, given the Blackfeets’ determination that Jasiah was not an Indian child, neither the ICWA nor California law require any further investigation into his possible Blackfeet heritage.
DISPOSITION
The judgment is affirmed.
We concur: EPSTEIN, P.J., SUZUKAWA, J.