Opinion
F075433
11-20-2017
In re E.D., a Person Coming Under the Juvenile Court Law. TULARE COUNTY HEALTH AND HUMAN SERVICES AGENCY, Plaintiff and Respondent, v. DIANA D. et al., Defendants and Appellants.
Jacob I. Olson, under appointment by the Court of Appeal, for Defendant and Appellant Diana D. Christopher Blake, under appointment by the Court of Appeal, for Defendant and Appellant Gabriel A. Deanne H. Peterson, County Counsel, John A. Rozum and Jason Chu, Deputy County Counsel, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. JJV069784A)
OPINION
THE COURT APPEAL from an order of the Superior Court of Tulare County. Juliet L. Boccone, Judge. Jacob I. Olson, under appointment by the Court of Appeal, for Defendant and Appellant Diana D. Christopher Blake, under appointment by the Court of Appeal, for Defendant and Appellant Gabriel A. Deanne H. Peterson, County Counsel, John A. Rozum and Jason Chu, Deputy County Counsel, for Plaintiff and Respondent.
Before Gomes, Acting P.J., Franson, J. and Meehan, J.
-ooOoo-
Gabriel A. (father) and Diana D. (mother) appeal from the Welfare and Institutions Code section 366.26 orders, issued on March 20, 2017, terminating their parental rights to their child E.D., born in 2015. In this case, the juvenile court and Tulare County Health and Human Services (agency) had sufficient information to trigger the notice requirements of the Indian Child Welfare Act (ICWA) (25 U.S.C. § 1901 et seq. and California law implementing ICWA. Father and mother's only challenge on appeal is that the department sent inadequate notice to comply with the law, as it did not include all relevant Indian tribes. We disagree and affirm.
All further statutory references are to the Welfare and Institutions Code unless otherwise stated.
PROCEDURAL AND FACTUAL HISTORY
Because father and mother only contest the issue of ICWA inquiry and notice, we give an abbreviated summary of the facts and procedures of the dependency proceedings in the juvenile court.
Dependency Action
In early May of 2016, seven-month-old E.D. was brought to Kaweah Delta Medical Center by mother and paternal grandfather because he had a bump on his head. He was transferred to Valley Children's Hospital and found to have a subgaleal hematoma, fractures of his femurs and tibia, and a healing fracture on his right forearm. A physician at Valley Children's Hospital found all of E.D.'s injuries were very recent and indicative of classic non-accidental trauma. The physician suspected the scalp injury was likely caused by someone pulling the minor's hair so hard that the scalp became detached. Father admitted, but later recanted, causing the various injuries to E.D. because he was angry and E.D. would not stop crying.
E.D. was placed into protective custody and the agency filed a section 300 petition on May 6, 2016. Attached to the petition were mother and father's completed Parental Notification of Indian Status, ICWA-020 forms, stating neither had any known Indian ancestry. Corresponding ICWA-010 forms were completed by the investigating social worker and attached to the petition stating E.D. had no known Indian ancestry.
At the detention hearing May 9, 2016, mother, when asked by the juvenile court, confirmed she had no Indian ancestry. When father was asked, he stated, "Yes. From my mom, she's Lakota Sioux, something like that." Father stated he did not know where the tribe was located, but that his mother was registered in 2009. The juvenile court then ascertained both the paternal grandmother's married and maiden names and the year she was born. The juvenile court found there was reason to believe E.D. may be an Indian child.
On May 17, 2016, the social worker contacted E.D.'s paternal grandmother by telephone. Paternal grandmother reported she was a registered member of the "Lakota Sioux" Tribe and gave her enrollment number. She stated her father (paternal great-grandfather) was also a registered member of the Lakota Sioux Tribe and gave his name and birthplace, but she did not have any contact information for him. Paternal grandmother also reported her mother (paternal great grandmother) was a member of the Mono Indian Tribe and gave her name, full birthdate, and birthplace. Although paternal grandmother stated her mother had an enrollment number, she did not know it and had no contact information for her.
The ICWA-030, Notice of Child Custody Proceeding for Indian Child, was completed with all of the above mentioned information, as well as paternal grandmother's current address and complete birthdate and birthplace, and listed both paternal grandmother and paternal great grandfather as members of the Oglala Sioux Tribe. As for paternal great grandmother, it stated she was a member of the Big Sandy Rancheria, Cold Springs Rancheria, and North Fork Rancheria. The ICWA-030 was sent by certified mail on May 25, 2016, to 16 Sioux Indian Tribes and three Mono Indian Tribes, as well as the Bureau of Indian Affairs (BIA) and the U.S. Department of the Interior.
The Sioux Tribes noticed were the Assiniboine/Sioux Fort Peck Reservation, Cheyenne River Sioux Tribe, Crow Creek Sioux Tribe, Flandreau Santee Sioux Tribe, Lower Brule Sioux Tribe, Lower Sioux Indian Community, Oglala Sioux Tribe, Prairie Island Indian Community, Rosebud Sioux Tribe, Santee Sioux Nation, Shakopee Mdewakanton Sioux, Sisseton-Wahpeton Oyate, Spirit Lake Tribe, Standing Rock Sioux Tribe, Upper Sioux Community and Yankton Sioux Tribe.
The Mono Tribes noticed were the Big Sandy Rancheria, Cold Springs Rancheria, and North Fork Rancheria.
On September 22, 2016, the agency filed a report stating 16 of the 19 tribes noticed had responded that E.D. was not a member or eligible to be a member of their tribe. Copies of the response letters were attached. Subsequently, the agency filed copies of letters from two of the remaining three tribes that had yet to respond, also indicating E.D. was not a member or eligible to be a member of their tribe. The only tribe that did not respond was the North Fork Rancheria.
A jurisdiction and disposition hearing was eventually heard on November 21, 2016. The juvenile court found there was insufficient reason to believe ICWA applied, both mother and father were denied reunification services, and a section 366.26 hearing set. On March 20, 2017, the juvenile court again found ICWA was not applicable. It also found E.D. to be adoptable and parental rights were terminated for both mother and father.
DISCUSSION
Father and mother contend ICWA notice was incomplete because the agency did not conduct research to determine additional tribes that might be historically affiliated with the Tribes named by father (through paternal grandmother) and send notice to those tribes as well. We disagree. Applicable Law
The ICWA protects the interests of Indian children and promotes the stability and security of Indian tribes by establishing minimum standards for, and permitting tribal participation in, dependency actions. (25 U.S.C. §§ 1901, 1902, 1903(1), 1911(c), 1912.) The juvenile court and the agency have an affirmative duty to inquire at the outset of the proceedings whether a child who is subject to the proceedings is, or may be, an Indian child. (Cal. Rules of Court, rule 5.481(a).) If, after the petition is filed, the court "knows or has reason to know that an Indian child is involved," notice of the pending proceeding and the right to intervene must be sent to the tribe. (25 U.S.C. § 1912(a); rule 5.481.) Under California law, the agency must send notice, return receipt requested, to "all tribes of which the child may be a member or eligible for membership." (§ 224.2, subd. (a)(3).) If the identity or location of the tribe cannot be determined, the same procedure should be used with respect to notice to the BIA. (In re Marinna J. (2001) 90 Cal.App.4th 731, 739-740, fn. 4.)
All further references to the rules are to the California Rules of Court. --------
An "Indian tribe" is defined as "any Indian tribe, band, nation, or other organized group or community of Indians recognized as eligible for the services provided to Indians by the Secretary [of the Interior] because of their status as Indians ...." (25 U.S.C. § 1903(8); § 224.1, subd. (a).) If there is more than one possible tribal affiliation, the agency must provide notice to each tribe through the tribe's chairperson or its designated agent for service of process, as published in the Federal Register. (In re H.A. (2002) 103 Cal.App.4th 1206, 1213; 25 U.S.C. § 1912(a); § 224.2, subd. (a); rule 5.481(b)(4).) The Department of the Interior publishes a list of "Designated Tribal Agents by Tribal Affiliation" in the Federal Register, and the California Department of Social Services, Children and Family Services Division, publishes a list of tribes entitled to ICWA notice on its website, which it states must be used in conjunction with the BIA list. (See In re J.T. (2007) 154 Cal.App.4th 986, 992; 82 Fed.Reg. 12986 (Mar. 8, 2017); <http://www.childsworld.ca.gov/Res/pdf/CDSSTribes.pdf> [as of Oct. 24, 2017].)
Through an interview with paternal grandmother, the social worker was able to ascertain that paternal grandmother, as well as paternal grandmother's father identified with the Oglala Sioux Tribe, and that parental grandmother's mother identified with the Big Sandy Rancheria, Cold Springs Rancheria, and North Fork Rancheria, all Mono Tribes. Both the California and Federal Registries identify 16 Sioux Tribes and three Mono tribes - all were noticed here. Neither father nor mother contest the accuracy of these notices. However, they contend, because "some reservations are home to more than one Native American Nation," the agency is required to also send notice to any tribe that either shares a reservation with a tribe named by the parent, or which has some historical affiliation, either recent or ancient, with a tribe named by the parent. Father and mother suggest this can be done by using Wikipedia to inquire about heritage/affiliation.
As argued by father, with respect to his Sioux ancestry, the Assiniboine/Sioux Fort Peck Reservation was noticed. In the Federal Registry, it is listed under both Assiniboine and Sioux Tribes; in the California Registry, it is listed under Sioux (See Assiniboine) and visa versa. Father contends, because Fort Belknap Community is also listed as an Assiniboine Tribe, it should have been noticed, as "it is highly likely that members of the Assiniboine Tribe could also be members of the Sioux Tribe as well."
We note Fort Belknap Community is listed in the California and Federal Registries as either Gros Ventre or Assiniboine Tribes, with no mention of the Sioux Tribe.
As for his Mono ancestry, father argues, "[a]ccording to Wikipedia," the Mono Tribe was sometimes known as the Monache tribe and was divided into two basic groups. Of these, the Western Branch has five federally recognized branches, of which three were specifically identified by paternal grandmother as the tribes paternal great grandmother had membership in and were noticed (Big Sandy Rancheria, Cold Springs Rancheria, and North Fork Mono Rancheria). However, father contends the other two in the Western Branch (Table Mountain Rancheria and Tule River Reservation) were not noticed, but should have been. He further claims the five federally recognized branches of the Eastern Branch of the Mono Tribe (Bishop Indian Colony, Big Pine Reservation, Lone Pine Community, Utu Utu Gwaitu of the Benton Paiute Reservation, and Fort Independency Community) should also have been noticed. Father contends his Wikipedia search indicates each of these reservations is closely related to the Mono and are linguistically related "in the sense that the ancestral language is a dialect of the Mono language."
We note that both Table Mountain Rancheria and Tule River Reservation are listed in the California and Federal Registries as Yokut Tribes, and Bishop Indian Colony, Big Pine Reservation, Lone Pine Community, Utu Utu Gwaitu of the Benton Paiute Reservation and Fort Independence Community are all listed as either Paiute or Shoshone Tribes, with no mention of the Mono Tribe.
We agree with respondent that following the procedures suggested by father would "lead down an endless and serpentine rabbit hole of research, resulting in dozens, if not hundreds of useless notices being sent out ...." Paternal grandmother specifically identified her own and paternal great grandfather's Indian ancestry as Sioux Tribe, as she specifically named three Mono Tribes as paternal great grandmother's Indian ancestry. Without more specific information, the agency is not required to guess which additional tribes paternal grandmother might have been referring to, or to send a multitude of notices to tribes which fit some but not all of the information she provided. To require such a shotgun approach would not serve the purpose of protecting tribal ties and Indian cultural heritage, but rather would bury specific Indian tribes in the task of shifting through a barrage of notices with little to no chance that they actually have an interest in the noticed proceeding. Instead, in such a case, the notice requirement may be satisfied by sending notice to the BIA, which the agency did. (See In re C.D. (2003) 110 Cal.App.4th 214, 227; In re Edward H. (2002) 100 Cal.App.4th 1, 6.)
Since the relevant tribes were notified, father and mother's claim of inadequate ICWA notice is without merit.
DISPOSITION
The judgment is affirmed.