Opinion
F077217
08-21-2018
In re S.O., a Person Coming Under the Juvenile Court Law. KINGS COUNTY HUMAN SERVICES AGENCY, Plaintiff and Respondent, v. M.O. et al., Defendants and Appellants.
Elizabeth C. Alexander, under appointment by the Court of Appeal for M.O., Defendant and Appellant. Caitlin Christian, under appointment by the Court of Appeal for D.A., Defendant and Appellant. Colleen Carlson, County Counsel, and Risé A. Donlon, 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. 17JD0160)
OPINION
THE COURT APPEAL from an order of the Superior Court of Kings County. Jennifer Lee Giuliani, Judge. Elizabeth C. Alexander, under appointment by the Court of Appeal for M.O., Defendant and Appellant. Caitlin Christian, under appointment by the Court of Appeal for D.A., Defendant and Appellant. Colleen Carlson, County Counsel, and Risé A. Donlon, Deputy County Counsel, for Plaintiff and Respondent.
Before Smith, Acting P.J., Meehan, J. and Snauffer, J.
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INTRODUCTION
Appellants D.A. and M.O. are the biological father and mother, respectively, of S.O. The juvenile court found the Indian Child Welfare Act (ICWA), 25 U.S.C. § 1901 et seq., did not apply, denied reunification services, and terminated parental rights. Father appeals, contending the matter must be conditionally reversed for the Kings County Human Services Agency (agency) to fully comply with the ICWA by taking affirmative steps to learn more about father's potential Iroquois Nation heritage. Mother, who claimed no Indian ancestry, joins in the appeal.
We affirm.
FACTUAL AND PROCEDURAL SUMMARY
The only issue raised in this appeal is whether the agency fully complied with the ICWA notice requirements. "Because compliance with the ICWA is the only issue raised in this appeal, our discussion of the facts and procedural background focuses on the facts relevant to compliance with the ICWA." (In re I.B. (2015) 239 Cal.App.4th 367, 370.)
On September 1, 2017, the agency filed a Welfare and Institutions Code section 300 petition on behalf of the infant, S.O. The petition alleged that the minor came within the provisions of section 300 because of mother's continued use of methamphetamine, numerous positive drug tests while pregnant, and failure to reunify with five other children. Mother had previously been the subject of 16 referrals to the agency. M.B. was listed as the alleged father; he also had a history of methamphetamine use and failed to reunify with a child. The petition alleged that the minor had no known Indian ancestry, although mother had informed the agency that M.B. was not the biological father of the minor.
References to code sections are to the Welfare and Institutions Code, unless otherwise specified.
On October 5, 2017, mother participated in a paternity voir dire. Mother's ICWA-020 form indicated she had no Indian ancestry. Mother knew M.B. was not the minor's biological father, but she declined to name the biological father. The juvenile court scheduled a contempt hearing for October 26, 2017.
The second amended section 300 petition, filed October 17, 2017, continued to allege the minor had no known Indian ancestry.
At the October 26, 2017 hearing, the juvenile court ordered paternity testing for M.B. and the minor. During a further paternity voir dire, mother identified D.A. as the biological father. Notice of the proceedings apparently was served on father on October 31, 2017.
Father made his first appearance before the juvenile court in this case on November 2, 2017. Father indicated he believed he had Indian ancestry on his father's side, through the Iroquois Nation. Father believed there was a strong possibility he was the minor's biological father. Father requested DNA testing to determine paternity.
"Until biological paternity is established, an alleged father's claims of Indian heritage do not trigger any ICWA notice requirement because, absent a biological connection, the child cannot claim Indian heritage through the alleged father." (In re E.G. (2009) 170 Cal.App.4th 1530, 1533.)
Father testified he was born and raised in the Philippines; his "real father" was Danny W. He had been told Danny W. was from West Virginia and had Indian heritage through the Iroquois. The agency responded that there was insufficient information for a "reasonable inquiry." Father's attorney stated that as she was "sitting here with my laptop I checked and there is, in fact, a Danny W. in West Virginia. And it looks like it's Ranell, West Virginia."
Father provided the full first and last names of his biological father.
We are unable to find Ranell, West Virginia; there is a Rainelle, West Virginia. General Highway Map State of West Virginia (2011) <http://ontheworldmap.com/usa/state/west-virginia/large-detailed-map-of-west-virginia-with-cities-and-towns.html> (as of Aug. 2018).
The agency's attorney indicated notice would be given to the "Iroquois tribe. To say that I'm less than hopeful is an understatement."
The juvenile court ordered that paternity testing be done for father and the minor. The matter was set for a continued hearing on November 16, 2017.
Father completed a statement of parentage on November 2, 2017, indicating he did not know if he was the biological father of the minor, and requesting a paternity test. Also on that date, father completed an ICWA-020 form, indicating he may have Indian ancestry. Father indicated he believed his biological father, Danny W., had Indian ancestry through the Iroquois; and Danny W. had been stationed in Subic Bay with the U.S. Navy in 1967.
Subic Bay is the location of a U.S. Naval Base in the Philippines. U.S. Naval Base Subic Bay (July 23, 2018) <https://en.wikipedia.org/wiki/U.S._Naval_Base_Subic_Bay> (as of Aug. 2018).
On November 14, 2017, the agency filed an interim review report. The interim report represents that on November 13, 2017, ICWA notices were sent to the Bureau of Indian Affairs (BIA), Department of the Interior, Cayuga Nation of New York, Oneida Nation of New York, Onondaga Nation, Seneca Nation of New York, Seneca-Cayuga Tribe of Oklahoma, Saint Regis Band of Mohawk, Tonawanda Band of Senecas, Tuscarora Nation of New York, and the Blackfeet.
The ICWA-030 form completed by the agency that was filed November 15, 2017, misspells the name of the Iroquois Nation as "Iroquio," but notes the proper spelling in a footnote. It lists the full name for father's biological father, stating his address is "Unknown, West Virginia." There is no information about Danny W. having served in the U.S. Navy, or that he was stationed in Subic Bay in 1967. The ICWA-030 form was served on The Secretary of the Interior (secretary), BIA, Cayuga Nation of New York, Onondaga Nation, Oneida Indian Nation, Seneca Nation of Indians, Tuscarora Nation of New York, Saint Regis Band of Mohawk Indians, Tonawanda Band of Senecas, Seneca-Cayuga Tribe of Oklahoma, and the Blackfeet Tribe.
On November 16, 2017, the juvenile court held a contested jurisdiction and disposition hearing. The juvenile court found the allegations of the petition true and declared S.O. a dependent of the court, pursuant to the provisions of section 300, subdivisions (b) and (j). The juvenile court ordered that mother not be provided reunification services pursuant to section 361.5, subdivision (b)(10) and (11).
The results of the paternity testing were filed with the juvenile court. The tests revealed that M.B. could not be the father of S.O., and there was a 99.99 percent probability that father was the biological father of S.O.
Responses to the ICWA-030 notice were received from multiple tribes, including the Oneida Nation, Tuscarora, Tonawanda Seneca Nation, Cayuga, Seneca, Seneca-Cayuga, and Saint Regis Mohawk. Every response stated that based upon the information received, S.O. was not a member of the tribe and not eligible for membership in the tribe.
On February 8, 2018, a hearing was held to determine paternity and compliance with the ICWA. Father was found to be the biological father of S.O. The juvenile court found that offering father reunification services would not be in S.O.'s best interests. The juvenile court also found the agency had made inquiry as to S.O.'s status as an Indian child and that the ICWA did not apply.
At the March 14, 2018 hearing, pursuant to section 366.26, the juvenile court found that even if father had been a presumed father, he would come within the bypass provisions of section 361.5, subdivision (b)(10) and (11), and no reunification services would be offered. The juvenile court terminated the parental rights of mother and father and ordered a permanent plan of adoption for S.O.
Father and mother appealed from the order terminating parental rights and setting a permanent plan of adoption.
DISCUSSION
The only issue raised in this appeal is that the agency failed to take affirmative steps to learn more about father's family in order to provide adequate notice to the tribes to assist in determining S.O.'s status as an Indian child. Consequently, father contends the matter must be conditionally reversed and remanded for the agency to fully comply with the ICWA. Mother joins in father's appeal. The Supreme Court issued its decision in In re Isaiah W. (2016) 1 Cal.5th 1, 6, 15, holding that a parent can raise the issue of the ICWA compliance at any stage of the proceedings, including in an appeal after termination of parental rights.
To the extent we reference materials not included in the appellate record, we do so on our own motion pursuant to California Rules of Court, rules 8.252(a) and 8.410(b)(1).
References to rules are to the California Rules of Court, unless otherwise specified.
Applicable Law
Congress enacted the ICWA 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 that will reflect the unique values of Indian culture. (In re C.Y. (2012) 208 Cal.App.4th 34, 39; In re Levi U. (2000) 78 Cal.App.4th 191, 195.) An " 'Indian child' is defined as a child who is either (1) 'a member of an Indian tribe' or (2) 'eligible for membership in an Indian tribe and ... the biological child of a member of an Indian tribe ....' (25 U.S.C. § 1903(4).)" (In re Jonathon S. (2005) 129 Cal.App.4th 334, 338.) The ICWA applies only to federally recognized tribes. (25 U.S.C. § 1903(8); In re Jonathon S., supra, at p. 338; In re B.R. (2009) 176 Cal.App.4th 773, 783; In re Wanomi P. (1989) 216 Cal.App.3d 156, 166-168.)
In state court proceedings involving the foster care placement of, or termination of parental rights to, an Indian child, the Indian custodian of the child and the Indian child's tribe have the right to intervene at any point in the proceeding. (25 U.S.C. § 1911(c).) But this right is meaningless unless the tribe is notified of the proceedings. (In re Hunter W. (2011) 200 Cal.App.4th 1454, 1466.) Notice serves the dual purpose of (1) enabling the tribe to investigate and determine whether a child is an Indian child; and (2) advising the tribe of the pending proceeding and its right to intervene. (In re Desiree F. (2000) 83 Cal.App.4th 460, 470.)
In every dependency proceeding, the agency and the juvenile court have an "affirmative and continuing duty to inquire whether a child ... is or may be an Indian child ...." (§ 224.3, subd. (a); rule 5.481(a); In re Gabriel G. (2012) 206 Cal.App.4th 1160, 1165 (Gabriel G.); In re W.B. (2012) 55 Cal.4th 30, 53.) Once the court or agency "knows or has reason to know that an Indian child is involved, the social worker ... is required to make further inquiry regarding the possible Indian status of the child, and to do so as soon as practicable ...." (§ 224.3, subd. (c); rule 5.481(a)(4); Gabriel G., supra, at p. 1165.) The agency's duty of "further inquiry" requires " 'interviewing the parents, Indian custodian, and extended family members ..., contacting the Bureau of Indian Affairs ... [and contacting] the tribes and any other person that reasonably can be expected to have information regarding the child's membership status or eligibility.' " (§ 224.3, subd. (c); rule 5.481(a)(4); Gabriel G., supra, at p. 1165.)
The ICWA applies to children who are eligible to become or who are members of a tribe but does not limit the manner by which membership is to be defined. (In re Jack C. (2011) 192 Cal.App.4th 967, 978.) A "tribe's right to define its own membership for tribal purposes has long been recognized as central to its existence as an independent political community." (Santa Clara Pueblo v. Martinez (1978) 436 U.S. 49, 72, fn. 32.) The tribe's determination that a child is a member of or eligible for membership in the tribe is conclusive. (§ 224.3, subd. (e)(1).)
Standard of Review
Where, as here, the trial court has made a finding that the ICWA is inapplicable, the finding is reviewed under the substantial evidence standard. (In re Rebecca R. (2006) 143 Cal.App.4th 1426, 1430; In re Karla C. (2003) 113 Cal.App.4th 166, 178-179.) Thus, we must uphold the court's orders and findings if any substantial evidence, contradicted or uncontradicted, supports them, and we must indulge all legitimate inferences in favor of affirmance. (In re John V. (1992) 5 Cal.App.4th 1201, 1212.) We review compliance with the ICWA notice requirements under the harmless error standard. (In re E.W. (2009) 170 Cal.App.4th 396, 402-403.)
Matrilineal Bloodline Determines Membership
Father's appeal is based on the premise that if information is uncovered establishing his Indian heritage through the Iroquois Nation, S.O. will be eligible for membership and qualify as an Indian child. Mother apparently assumes father's premise is correct. However, several of the responses received from the various Iroquois Nation tribes reflect the Iroquois are matrilineal and follow the mother's bloodline to establish membership and eligibility for membership in the tribe. Consequently, for matrilineal tribes father's Indian heritage is not relevant to a determination of eligibility for membership.
The Iroquois, or Haudenosaunee, are comprised of six nations: Mohawk, Onondaga, Oneida, Cayuga, Seneca, and the Tuscarora. The Iroquois historically followed a matriarchal system, with women holding property and hereditary leadership passing through their lines. The clans are matrilineal, with clan ties traced through the mother's bloodline.
Iroquois (Aug. 11, 2018) <https://en.wikipedia.org/wiki/Iroquois> (as of Aug. 2018).
The federally recognized tribes for ICWA purposes in the Iroquois Nation are the Cayuga Nation of New York, Oneida Indian Nation, Onondaga Nation, Saint Regis Band of Mohawk Indians, Seneca Nation of Indians, Tonawanda Band of Senecas, Tuscarora Nation of New York, and Seneca-Cayuga Nation of Oklahoma. The record discloses the agency served the ICWA-030 form on all these tribes at the addresses designated for service of the ICWA notices.
Federal Register: Indian Child Welfare Act; Designated Tribal Agents for Service of Notice (June 4, 2018) <https://www.federalregister.gov/documents/2018/06/04/2018-11924/indian-child-welfare-act> (as of Aug. 2018).
The response from the Cayuga Nation states, "The Cayuga Nation of New York is a matrilineal nation meaning we follow the mother's bloodline." The letter states S.O. is not eligible for membership in the tribe. The response from the Tuscarora Nation states, "Enrollment in the Tuscarora Nation follows the mothers [sic] lineage." The response from the Oneida Indian Nation states that a child is not eligible for enrollment if the mother is not enrolled. The Seneca Nation response sets forth the language of the enrollment ordinance, which states clearly:
"In conformity with the tribal customs of the matrilineal descent, ONLY a person whose mother is an enrolled member of the Seneca Nation of Indians shall be eligible for enrollment."
There is no response from the Onondaga Nation in the record. However, the tribal website for the Onondaga Nation states clearly that, "enrollment/membership in the Onondaga Nation is based on MATRILINEAL descent. In other words, the mother must be an enrolled member in order for the children to be enrolled."
Genealogy Inquiries <https://www.onondaganation.org/aboutus/geneology-inquirieso> (as of Aug. 2018).
Therefore, because mother has no Indian ancestry, and specifically no Iroquois ancestry, S.O. is not eligible for membership in the Cayuga Nation, Tuscarora Nation, Oneida Indian Nation, Seneca Nation, or Onondaga Nation, regardless of any Indian ancestry from father.
Substantial Compliance with the ICWA
Having determined that the majority of Iroquois tribes follow a matrilineal system for determining membership, which excludes S.O. from being eligible for membership in these tribes, we address the remaining three tribes.
The responses from the Saint Regis Band of Mohawk, Tonawanda Seneca Nation, and Seneca-Cayuga Nation, do not state whether these tribes follow a matrilineal bloodline. Available information, however, discloses that the Tonawanda follow tradition, which would indicate a matrilineal bloodline is followed.
Tonawanda Band of Seneca (May 30, 2018) <https://en.wikipedia.org/wiki/Tonawanda_Band_of_Seneca> (as of Aug. 2018).
The response from the Saint Regis Mohawk Tribe states that it has researched the names of both listed parents, as well as other named relatives, and was "unable to find any link of tribal affiliation." The website for the Saint Regis Band of Mohawk states that membership, or eligibility for membership, requires a minimum "25% Akwesasne Mohawk blood quantum" and submission of a "four generation biological family tree." In order for S.O. to potentially have "25% Akwesasne Mohawk blood quantum," her paternal grandfather would have to have 100 percent Akwesasne blood quantum, because S.O.'s mother and paternal grandmother had no Indian heritage.
Saint Regis Mohawk Tribe Membership <https://www.srmt-nsn.gov/membership> (as of Aug. 2018).
The constitution of the Seneca-Cayuga Nation provides membership to: "Any child born of a marriage between a member of the Seneca-Cayuga Nation and any other person, if such child is admitted to membership by the Council of the Seneca-Cayuga Nation." If marriage of the parents is a condition of enrollment, S.O. is not eligible because mother and father never married.
Constitution and By-Laws of the Seneca-Cayuga Nation (April 26, 1937) <http://sctribe.com/wp-content/uploads/2016/05/NEW-SENECA-CAYUGA-NATION-CONSTITUTION> (as of Aug. 2018).
The issue is whether there has been substantial compliance with the ICWA such that the tribes reasonably could determine whether S.O. was eligible for enrollment. The object of the ICWA notice is to enable a tribe to review enrollment records and determine whether a child is eligible for enrollment. (In re D.T. (2003) 113 Cal.App.4th 1449, 1455.) The notice must contain enough information to be meaningful. (In re Francisco W. (2006) 139 Cal.App.4th 695, 703.) Notice is sufficient if there was substantial compliance with the ICWA. (In re Christopher I. (2003) 106 Cal.App.4th 533, 566.)
Rule 5.481(a)(2) provides that in order to comply with the ICWA, the juvenile court "must order" the parent to complete the ICWA-020 form. Father completed the ICWA-020 form on November 2, 2017, identifying possible Iroquois ancestry through his biological father and provided his biological father's first and last names.
Both section 224.3, subdivision (c) and rule 5.481(a)(4) provide that if the social worker has reason to believe the child may be an Indian child, the social worker must "make further inquiry" by interviewing the parents and other relatives who may have information relevant to completing the ICWA-030 form. If known, the ICWA-030 form must include the child's name, birthdate, and birthplace; the names of the tribes in which the child may be eligible for enrollment; names and addresses of the child's parents, grandparents, and great-grandparents, and other identifying information; and a copy of the dependency petition. (In re Francisco W., supra, 139 Cal.App.4th at p. 703.)
On November 2, 2017, father was questioned regarding his Indian heritage. Father disclosed he was born and raised in the Philippines. When he was 25 years old, his mother told him his "real father" was in the military and of Indian heritage from West Virginia. Father provided his biological father's full first and last names, Danny W., but indicated he had no other information about biological paternal relatives. Father did not have any contact information for anyone who might have information about his biological father or his possible Indian heritage; father had tried to research his biological paternal relatives, but "didn't get no where." Father was "pretty specific" that he thought he had Iroquois Nation ancestry.
The ICWA-030 form subsequently prepared by the agency, includes all of the information provided by father and mother; identifies S.O.'s paternal grandfather by his full name and birth place of West Virginia; and identifies the Indian ancestry as Iroquois, naming each of the federally recognized Iroquois tribes. The ICWA-030 form included all the information provided by father that was relevant to a determination of eligibility; father provided no contact information for any other biological paternal relatives, or anyone else, who might be able to provide more information. The agency substantially complied with the ICWA requirements when it questioned father about his Indian heritage, completed the ICWA-030 with all available information, and served that form on all the tribes of the Iroquois Nation. (In re Christopher I., supra, 106 Cal.App.4th at p. 566.)
At the time of these proceedings, father was 50 years old. His biological father, presumably, was about 20 years older, making the paternal grandfather around 70 years of age. Father claims the agency should have contacted people named Danny W. to see if they were related to father, or contacted the U.S. Navy. The record is silent on this point. The agency may have attempted to gain further information from these sources without success.
In this case, the agency provided all the information it reasonably could obtain to the tribes to facilitate a determination of tribal membership eligibility. All three tribes, the Mohawk, Tonawanda, and Seneca-Cayuga, responded that S.O. was not a member or eligible for membership. They did not request additional information to determine eligibility. Presumably, the ICWA notice provided to the tribes included enough information for the tribes to determine eligibility, otherwise, they would have responded that insufficient information had been provided. The tribe's determination that S.O. is not a member of, and not eligible for, membership in the tribe is conclusive. (§ 224.3, subd. (e)(1).)
The ICWA-030 form was served on all the federally recognized tribes in the Iroquois Nation, the BIA, and the secretary. (25 U.S.C. § 1912(a); In re Desiree F., supra, 83 Cal.App.4th at p. 469.) Every single federally recognized tribe in the Iroquois Nation that responded had determined that the information provided was sufficient to determine eligibility for membership and that S.O. was not eligible; the one tribe that did not respond follows a matrilineal bloodline. Thus, the tribes were provided with sufficient information to enable them to make a meaningful review of their records to determine S.O.'s eligibility for membership and any deficiencies or omissions in the notice "were de minimus and not prejudicial." (In re I.W. (2009) 180 Cal.App.4th 1517, 1531-1532.)
DISPOSITION
The March 14, 2018 order, terminating parental rights and setting a permanent plan of adoption, is affirmed.