Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
APPEAL from the Superior Court of Riverside County No. JUV085065. Christian F. Thierbach, Judge.
Sharon S. Rollo, under appointment by the Court of Appeal, for Defendant and Appellant.
Joe S. Rank, County Counsel, and Carole A. Nunes Fong, Deputy County Counsel, for Plaintiff and Respondent.
Lori A. Fields, under appointment by the Court of Appeal, for Minor.
OPINION
McKinster J.
This is an appeal by Nanette G. (hereafter mother) from the trial court’s order under Welfare and Institutions Code section 366.26 on March 6, 2007, terminating her parental rights to her 16-month-old son, L. The only issue in this appeal is whether substantial evidence supports the trial court’s finding that the Indian Child Welfare Act (25 U.S.C. § 1901 et seq.) (ICWA) does not apply in this case. We conclude that notice was not required in this case because the tribe in which mother claims possible Indian ancestry is not federally recognized and ICWA only pertains to federally recognized tribes. Therefore, we will affirm the order terminating mother’s parental rights.
All further statutory references are to the Welfare and Institutions Code unless indicated otherwise.
FACTS
We limit our recitation of the facts to those pertinent to the issue mother raises on appeal, and those facts reveal that Riverside County Department of Public Social Services (DPSS) initiated this dependency by filing a section 300 petition on January 18, 2006. In the jurisdiction and disposition report prepared for a February 6, 2006 hearing, the social worker stated that ICWA might apply because mother “stated that her family may have Gabriella Indian Heritage. [Mother] was not able to provide enough information for ICWA mandated reporting at this time.” The social worker also stated that she gave mother “a list of the necessary information” and asked mother to provide that information as soon as possible. “Upon receipt of the information, required ICWA notifications will be made.” On February 9, 2006, the date originally set for the jurisdiction hearing, the trial court, among other things, noted mother’s claim of Gabriella Indian heritage and questioned whether that tribe is federally recognized. The court directed DPSS to notify the Bureau of Indian Affairs (BIA) which “can instruct us further.” The trial court set March 20, 2006, as the date for the contested jurisdiction hearing. Mother filed a Parental Notification of Indian Status on February 9, 2006, in which she claimed possible membership in the Gabriella tribe.
In an addendum report for the re-calendared jurisdiction hearing, the social worker stated, in pertinent part, that “[DPSS] was not able to locate a Tribe called the Gabriella Tribe. On March 9, 2006, notice and JV 135 forms were sent to the [BIA] and Indian Child & Family Services. As of this writing, no reply has been received from either agency.” Although the social worker attached the United States Postal Service certified mail receipts from both entities as Exhibit B to the report, she did not attach copies of the actual notice (sometimes referred to and referred to hereafter as JV-135). In a second addendum report, dated April 25, 2006, prepared for the May 2, 2006, contested jurisdiction hearing the social worker indicated that “ICWA may apply to this case.” At the contested jurisdiction hearing on May 2, 2006, the trial court found that ICWA does not apply, despite the statement in the social worker’s report. Despite the trial court’s finding, the social worker addressed the ICWA issue in the report prepared for the six-month review hearing. In that report the social worker stated, “The Indian Child Welfare Act does not apply, as the maternal great aunt/caretaker . . . stated, there is no known Indian Ancestry.”
DPSS asks that we take judicial notice of the JV-135 notification in question, which reflects that the social worker mailed the form on March 9, 2006, but it was not filed with the trial court until August 30, 2007. For reasons we later explain, we will grant that request for judicial notice.
DISCUSSION
As previously noted mother contends that the evidence does not support the trial court’s finding that ICWA does not apply. We will not address the particulars of mother’s claim. By its terms, ICWA applies only to an Indian child, and defines an Indian child as a member of an Indian tribe or a child eligible for membership in an Indian tribe and who is the biological child of a member of an Indian tribe. (25 U.S.C. § 1903(4).) An Indian tribe in turn means a federally recognized Indian tribe. (25 U.S.C. § 1903(8).) Mother does not dispute that there is no Gabriella tribe, the tribe in which she claimed to have Indian ancestry. Mother also does not dispute that the tribe closest in name, the Gabrieleno/Tongva Band of Mission Indians of San Gabriel, is not federally recognized. Because mother does not claim ancestry in a federally recognized Indian tribe, ICWA simply does not apply. The trial court, as previously noted, suspected at the outset that the tribe in question was not federally recognized.
We also reject mother’s assertion that under our recently enacted state version of ICWA, notice must be given to all tribes, even those that are not federally recognized. Section 306.6, on which mother relies, became effective in January 2007, and was not in effect at the time DPSS initiated this proceeding or sent ICWA notice to the BIA. Subdivision (a) of section 306.6 (added by Stats. 2006, ch. 838, § 45.) provides in pertinent part: “In a dependency proceeding involving a child who would otherwise be an Indian child, based on the definition contained in paragraph (4) of Section 1903 of the federal Indian Child Welfare Act . . . but is not an Indian child based on status of the child’s tribe, as defined in paragraph (8) of Section 1903 of the federal Indian Child Welfare Act . . . the court may permit the tribe from which the child is descended to participate in the proceeding upon request of the tribe.”
“Section 306.6 was enacted as a part of a comprehensive reorganization of statutes relating to application of [ICWA]. (Sen. Bill No. 678 (2005-2006 Reg. Sess.); Stats. 2006, ch. 838.) The requirements of the ICWA apply only to federally recognized tribes. (25 U.S.C. § 1903(8).) Section 306.6 permits the court in a dependency action to allow a tribe which is not federally recognized to appear in the proceeding and present information to the court. By its terms, the statute does not require that any notice be sent to a nonrecognized tribe. (§ 306.6.) Further, the statute specifically does not apply either notice provisions found in the ICWA or provisions in state law implementing notice provisions of the ICWA to this situation. (§ 306.6, subd. (d).)” (In re A.C. (2007) 155 Cal.App.4th 282, 286-287, fn. omitted.) Simply stated, section 306.6 does not pertain to notice and instead, specifies that tribes that are not federally recognized may participate in dependency proceedings at the discretion of the court.
For the reasons discussed, we reject mother’s challenge to the trial court’s finding that ICWA does not apply in this case.
DISPOSITION
The order terminating mother’s parental rights is affirmed.
We concur: Ramirez P.J., Richli J.