Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
Santa Cruz County Super.Ct.Nos. DP001181, DP001182
Duffy, J.
Annie B. (mother) appeals from the juvenile court’s order terminating her parental rights under Welfare and Institutions Code section 366.26 (all statutory references in this opinion are to this code). Mother contends on appeal that the court failed to determine adequately whether the Indian Child Welfare Act (ICWA) applies to her case. We disagree, and will affirm the order.
BACKGROUND
Mother’s grave personal problems brought her and her two children, Lucas H. and Lily H. (the minors) to the attention of the Santa Cruz County Human Resources Agency (the agency), and on January 21, 2005, the agency filed petitions alleging that the minors fell within the ambit of section 300, subdivision (b) (failure to protect the minors). The petitions alleged such deficiencies in the home environment as domestic violence between mother and the minors’ alleged father, Nathan H., and substance abuse issues affecting both mother and Nathan H. The petitions stated that the minors had not been removed from the home.
At the initial detention hearing, held on February 3, 2005, the juvenile court was alerted that the minors might have Indian heritage, and the agency began to inquire into the matter. While those inquiries were underway, on March 3, 2005, following a jurisdiction and disposition hearing, the children were declared dependents of the court. At that hearing, the court stated it found that “proper notice has been given to the Indian Tribes and the Bureau of Indian Affairs.” The record supports this finding.
At the six-month review hearing held on September 2, 2005, the juvenile court found that the tribe then in question, the Pascua Yaqui tribe in Arizona, and the Bureau of Indian Affairs had received proper notice and that ICWA did not apply to either of the minors. Again the record supports this finding.
On October 19, 2005, the agency filed a petition under section 387 indicating that it had removed the minors from mother’s home two days beforehand because of her failure to rectify her substance abuse and the deficiencies in the home environment.
Around this time, on receipt of further information regarding the possible applicability of ICWA, the agency made additional inquiries. This time the agency contacted the Blackfeet in Montana, the Cherokee Nation of Oklahoma and the United Keetoowah Band of Cherokee Indians in Oklahoma, the Eastern Band of Cherokee Indians in North Carolina, and, for the second time, the Pascua Yaqui and the Bureau of Indian Affairs. The tribes all responded in the negative, the Bureau of Indian Affairs replied that the matter was for the tribes to determine, and on the basis of the totality of its inquiries the agency informed the court on December 29, 2005, June 2, 2006, and February 9, 2007, that ICWA still did not apply. In its June 2, 2006 report, the agency stated that it “has now received responses from all tribes noticed, indicating that the minors are neither members nor eligible for membership,” and asked the court to find that “the minors are not Indian children and ICWA does not apply to these matters.” The court signed the agency report on June 2, 2006, stating that it had “read and considered” it. And on that same day, the court stated in court papers that it had been “advised the Indian Child Welfare Act does not apply.” But the court did not explicitly affirm on the record that ICWA did not apply.
DISCUSSION
Notwithstanding the lack of an explicit reaffirmation by the juvenile court that ICWA did not apply to the minors, it is plain that the court implicitly reaffirmed that the federal act did not apply, and it is also plain on this record that its implicit finding was correct. The tribes all replied that the minors are neither members nor eligible for membership. Under section 224.3, subdivision (e)(1), “A determination by an Indian tribe that a child is or is not a member of or eligible for membership in that tribe, or testimony attesting to that status by a person authorized by the tribe to provide that determination, shall be conclusive.”
Mother contends that the tribes did not make an unequivocal determination that the minors were not Indians, but our reading of the record leads U.S. to the ineluctable conclusion that the tribes spoke plainly and in the negative. To be sure, some of the tribal responses to which the mother refers were careful to include qualifying language (amounting to a reservation of tribal rights) that the tribe’s determination was based on information provided by the agency—evidently referring to names and dates of birth—but obviously the tribes could not be expected to act on information not accurately provided, and mother does not argue that the inquiry letters misnamed the minors or their kin or provided any incorrect vital statistics. (Cf. In re Jennifer A. (2002) 103 Cal.App.4th 692, 705.) We have no doubt on this record that ICWA does not apply to the minors.
The more demanding questions are whether the juvenile court erred in failing to affirm explicitly the inapplicability of ICWA after all of the tribes in question had been contacted, and if so, whether we may conclude that the error is harmless or whether jurisdictional requirements compel a remand for an explicit finding. The agency argues that any error was harmless, but mother argues that it is a jurisdictional question and that the court below was required to rule on the issue before it could terminate her parental rights.
We conclude that the juvenile court’s implicit ruling, though less than ideally set forth in the record, sufficed and fell short of error. The record makes plain that the court considered the relevant information, which established that ICWA does not apply to the minors. “While the record must reflect that the court considered the issue and decided whether ICWA applies, its finding may be either express or implied.” (In re Asia L. (2003) 107 Cal.App.4th 498, 506, see In re Antoinette S. (2002) 104 Cal.App.4th 1401, 1413 [although “juvenile courts should make an explicit rather than implicit determination as to the applicability of the ICWA,” error occurred only on the juvenile court’s failure to rule either explicitly or implicitly]; In re Jennifer A., supra, 103 Cal.App.4th at p. 706, fn. 5 [“the court must decide, one way or the other, whether the ICWA applies”].) We agree with these decisions that an implicit ruling suffices, at least as long as the reviewing court can be confident that the juvenile court considered the issue and there is no question but that an explicit ruling would conform to the implicit one. Nevertheless, juvenile courts should make their rulings on ICWA’s applicability explicit. It is the better practice.
Accordingly, we need not consider the parties’ argument regarding jurisdictional matters and prejudicial error, because we conclude there was no defect or error in the proceedings. Nor need we address the parties’ arguments regarding how the case should be treated on remand. There is no need for a remand.
DISPOSITION
The order is affirmed.
WE CONCUR: Mihara, Acting P. J., McAdams, J.