Opinion
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of San Diego County No. J516903, Yvonne E. Campos, Judge.
McINTYRE, J.
Sandy W. and Logan B. appeal from an order terminating their parental rights under Welfare and Institutions Code section 366.26. (Unless otherwise indicated, further statutory references are to the Welfare and Institutions Code.) They contend the court did not comply with inquiry and notice provisions of the Indian Child Welfare Act, title 25 United States Code section 1901 et seq. and section 224 et seq. (ICWA). We affirm the order.
FACTUAL AND PROCEDURAL BACKGROUND
The sole issue on appeal is whether the San Diego County Health and Human Services Agency (the Agency) and the juvenile court complied with ICWA inquiry and notice requirements. Therefore our recitation of the facts is brief.
Melissa B. was born in October 2007 to Sandy W. and Logan B. (together, parents). Four weeks later she was hospitalized with life-threatening injuries indicative of multiple episodes of inflicted injuries by an adult. Melissa's mother, Sandy, stated she saw Logan hit and shake the baby on multiple occasions. Logan was arrested. He later pleaded guilty to felony child abuse charges and was sentenced to 13 years in prison.
We fully describe the social worker's and court's ICWA inquiries and the parents' and maternal grandmother's responses in our Discussion, section D, post.
At the jurisdiction and disposition hearing, the court reviewed JV-130 forms, Parental Notification of Indian Status, and the social worker's report of her interviews with Sandy, Logan and maternal grandmother (Grandmother). The court made an additional inquiry and determined that ICWA did not apply.
The court found that Melissa had been seriously physically abused, denied reunification services to the parents, and scheduled a section 366.26 hearing. Melissa was placed with Grandmother, who was willing and able to adopt her. The court made no further ICWA findings. At the section 366.26 hearing, the court terminated parental rights.
DISCUSSION
A
Sandy contends the court did not comply with ICWA inquiry and notice provisions, and asserts the error requires reversal of the order terminating parental rights and the jurisdictional and dispositional orders and judgment. Logan joins with Sandy's arguments.
Minor's counsel generally joins with Sandy's arguments. Counsel asks this court to issue a limited reversal and remand the matter to the trial court to provide proper ICWA notice.
The Agency asserts the parents did not seek review of the ICWA findings after the dispositional hearing and have waived or forfeited the right to challenge the findings on appeal from the section 366.26 hearing. On the merits, the Agency maintains the social worker conducted an adequate inquiry and received no information indicating Melissa was or may be an Indian child. The Agency argues the court did not err when it determined a reasonable inquiry had been made and ICWA did not apply.
B
The Agency contends the parents have waived or forfeited the right to challenge the findings on appeal from the section 366.26 hearing. It acknowledges the generally accepted rule is that the forfeiture doctrine does not bar consideration of ICWA notice issues on appeal. (In re Alice M. (2008) 161 Cal.App.4th 1189, 1195; Dwayne P. v. Superior Court (2002) 103 Cal.App.4th 247, 257-258 (Dwayne P.).)
We are not persuaded by the Agency's argument that section 224.2, subdivision (e) supports the application of the doctrines of waiver and forfeiture to ICWA notice issues. That provision states "[w]ith respect to giving notice to Indian tribes, a party shall be subject to court sanctions if that person knowingly and willfully falsifies or conceals a material fact concerning whether the child is an Indian child, or counsels a party to do so." (§ 224.2, subd. (e).)
Section 224.2, subdivision (e) applies to all parties, including the Agency and county counsel, with respect to ICWA notice. It provides for "court sanctions," and does not support the Agency's contention the waiver and forfeiture doctrines now apply to ICWA notice issues raised on review. (See Dwayne P., supra, 103 Cal.App.4th at p. 258 [ICWA "is designed to protect Indian children and tribes notwithstanding the parents' inaction."].)
C
In 1978 the United States Congress enacted 25 United States Code section 1901 et seq. "to protect the best interests of Indian children and to promote the stability and security of Indian tribes and families." (25 U.S.C. § 1902.) An "Indian child" is defined as any unmarried person under age 18 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).)
Under federal law, in any involuntary child custody proceeding in a state court, where the court knows or has reason to know an Indian child is involved, the court must notify the parent and the child's Indian tribe of the pending proceedings and their right to intervene. If the identity or location of the parent and Indian tribe cannot be determined, the court is required to notice the Bureau of Indian Affairs (BIA). (25 U.S.C. § 1912(a).)
Guidelines promulgated by the Secretary of the Interior for state courts in Indian Child Custody Proceedings (Guidelines) suggest the state court should make inquiries to determine if the child is a member of an Indian tribe, or if a parent of the child is a member of an Indian tribe and the child is eligible for membership in an Indian tribe. (44 Fed.Reg. 67584 § B.5(a) (Nov. 26, 1979).) When a court has reason to believe the child is an Indian child, the court should seek verification of the child's status from either the BIA or the child's tribe. (Id. at § B.1(a).) The Guidelines are not binding on state courts. (Id. at Introduction.)
Effective January 1, 2007, the California Legislature enacted a statutory framework for ICWA mirroring federal law in most aspects, and imposing higher standards in some areas, as suggested by the Guidelines. (§ 224 et seq.; see 25 U.S.C. § 1921.) For example, with respect to inquiry, section 224.3, subdivision (a) imposes on the court and social worker an "affirmative and continuing duty to inquire whether a child for whom a petition under Section 300... is to be, or has been, filed is or may be an Indian child." If the court or social worker knows or has reason to know an Indian child is involved, notice is required and the social worker must make further inquiry to gather information required for notice. (§§ 224.2, 224.3, subd. (c).) The child's Indian status need not be certain to invoke the notice requirement. (cf. Dwayne P., supra, 103 Cal.App.4th at p. 254 [discussing notice requirements under 25 U.S.C. § 1912(a) and former § 360.6].)
The circumstances that may "provide reason to know the child is an Indian child" includes, but is not limited to, information suggesting the child is a tribal member or eligible for membership or one or more of the child's biological parents, grandparents, or great-grandparents are or were a tribal member, the child or child's parents reside in a predominantly Indian community, or the child or child's family has received services or benefits from a tribe. (§ 224.3, subd. (b)(1)-(3).)
Courts have interpreted the ICWA notice provision broadly. (Dwayne P., supra, 103 Cal.App.4th at p. 256 (citing Guidelines).) However, if there is insufficient reason to believe a child is or may be an Indian child, notice need not be given and the requirement for further inquiry to gather information required for notice is not triggered. (§§ 224.2, subd. (a), 224.3, subd. (c); cf. In re Shane G. (2008) 166 Cal.App.4th 1532, 1538.)
D
The record shows the social worker and court fulfilled their affirmative and continuing duty to inquire whether Melissa was or may be an Indian child. (§ 224.3, subd. (a).) Before the detention hearing, the parents each completed a JV-130 form. The social worker interviewed the parents. Logan denied Indian heritage. Sandy informed the social worker she had Indian heritage but could not identify a tribe. Both parents denied they or any family member was a tribal member or received tribal benefits.
The social worker contacted Grandmother, who said the family was not aware of any Indian heritage until they researched their genealogy and discovered an Indian ancestor (Melissa's great-great-great-great-grandmother). Grandmother was unable to name a tribe. Grandmother stated that no one in the family was an actual tribal member and no one had ever received any tribal benefits. She reported their Indian heritage was "way, way far back."
At the jurisdictional and dispositional hearing, the court asked Grandmother for any information regarding "any possible Indian heritage." Grandmother did not have any additional information. Through counsel, the parents stated they had nothing to add.
The court correctly determined there was no information or circumstances to suggest Melissa was a member of a tribe or eligible for membership in a tribe, or that one or more of her biological parents, grandparents or great-grandparents are or were a member of a tribe. (§ 224.3, subd. (b).) We conclude that the unspecified Indian ancestry of a child's great-great-great-great-grandparent, of which the family was unaware until it traced its genealogy, by itself, did not give the court or social worker "reason to know an Indian child is involved." (§ 224.3, subd. (c).)
Our conclusion is supported by case law. Generally, appellate courts have required ICWA notice where the trial court had information suggesting or hinting that the child, or the child's parent, grandparent or great-grandparent may have some connection to a tribe. (See, e.g., In re S.B. (2008) 164 Cal.App.4th 289, 293-294, 302 [father claimed membership or eligibility for membership in "Blackfoot Lakota Sioux" and his grandfather was a member of the Apache Mescalero Tribe]; In re Alice M. (2008) 161 Cal.App.4th 1189, 1200 [parent stated the child was a member or eligible for membership in one of the federally recognized Apache or Navajo Tribes]; In re D.T. (2003) 113 Cal.App.4th 1449, 1451 [father's tribal affiliation was "Cherokee (Tennessee)" and mother claimed Cherokee heritage]; In re Desiree F. (2000) 83 Cal.App.4th 460, 467-468 [parent not a member of the tribe but the child's aunt, uncle, grandparent and great-grandparent were tribal members, and the child was eligible for membership]; In re Kahlen W. (1991) 233 Cal.App.3d 1414, 1420 [parent was a member of the Miwok Tribe]; In Interest of H.D. (1986) 729 P.2d 1234, 1236 [parent was 15/32 degree Indian blood of the Cherokee Tribe]; In re Junious M. (1983) 144 Cal.App.3d 786, 791-792 [mother's maternal grandfather was Nooksack Indian]; In re J.T. (1997) 693 A.2d 283, 288 [father stated his father was "full-blooded Mohican"].)
This court has previously stated the policy of maintaining stability for dependent children in out-of-home care makes it "preferable to err on the side of giving notice and examining thoroughly whether the juvenile is an Indian child." (Dwayne P., supra, 103 Cal.App.4th at pp. 256-257.) We reaffirm that policy.
At the same time, we recognize that "[r]esources available to the juvenile court are not unlimited." (In re Alanna A. (2005) 135 Cal.App.4th 555, 566.) Where information does not suggest the child is or may be "a member of a tribe or eligible for membership in a tribe or one or more of the child's biological parents, grandparents or great-grandparents are or were a member of a tribe" (§ 224.3, subd. (b)), available resources are better utilized by focusing on the primary purposes of the dependency system—the well-being of children at risk of harm and the preservation of the family—rather than by requiring an "empty formality." (In re E.W. (2009) 170 Cal.App.4th 396, 401-402; § 300.2.)
We conclude that unspecified Indian heritage in a remote ancestor of the child, without more, is not sufficient to invoke ICWA notice requirements, including the duty of further inquiry. There is no error.
DISPOSITION
The order terminating parental rights is affirmed.
WE CONCUR: McDONALD, Acting P. J., IRION, J.