Opinion
C081548
02-24-2017
In re J.B. et al., Persons Coming Under the Juvenile Court Law. SAN JOAQUIN COUNTY HUMAN SERVICES AGENCY, Plaintiff and Respondent, v. T.W., Defendant and Appellant.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. J06043, STKJVDP20120000147)
T.W., mother of the minors D.G., A.M., R.R., A.R., and J.B., appeals from the juvenile court's orders terminating her parental rights as to A.R. and J.B. (Welf. & Inst. Code, §§ 395, 366.26.) She contends there was a failure to comply with the notice provisions of the Indian Child Welfare Act (ICWA) (25 U.S.C. § 1901 et seq.). We shall affirm.
Undesignated statutory references are to the Welfare and Institutions Code.
I. BACKGROUND
Since the only issue in this case regards ICWA notice and investigation, we give an abbreviated summary of the facts and procedures of the nearly four-year long dependency proceedings in the juvenile court.
In July 2012, mother lived at the home of her boyfriend's sister along with her children, D.G. (age 15), A.M. (age 11), R.R. (age 8), and A.R. (age 5). She had a history of social welfare referrals. Mother gave birth to J.B. in July 2012. Both mother and J.B. tested positive for amphetamine, and mother admitted using amphetamine while pregnant.
The San Joaquin County Human Services Agency (Agency) filed dependency petitions as to all of the minors later that month. (§ 300.) The juvenile court detained the minors the following day.
The juvenile court sustained the petitions in January 2013. The juvenile court ordered reunification services for mother and two of the minors' fathers (J.M., father of A.M., and Jo.B., father of J.B.) at the February 2013 dispositional hearing. At the August 2013 review hearing, additional services were ordered for mother, Jo.B.'s services were terminated, and family maintenance services were ordered for J.M., who had taken A.M. into his custody under the supervision of the Agency.
In a July 2012 interview with a social worker, mother stated that she had no Indian ancestry, but there was Cherokee ancestry on her mother's side of the family. In February 2013, the Agency filed ICWA notices with the Bureau of Indian Affairs (BIA), the Cherokee Nation, the Eastern Band of Cherokee Indians, and the United Keetoowah Band of Cherokee Indians. The BIA and the tribes sent replies stating that the minors were not eligible for membership. The juvenile court found the ICWA did not apply at an April 2013 hearing.
In May 2014, A.M.'s dependency was transferred to Sacramento County, where she lived with her father. In June 2014, a section 387 supplemental petition was filed in Sacramento County on behalf of A.M. for placement back into a foster home. The Sacramento County Department of Health and Human Services (DHHS) conducted an ICWA inquiry as part of the proceedings under the amended petition. In June 2014, A.M.'s father claimed Blackfeet or Blackfoot ancestry and mother, through an ICWA-010(A) form filed with DHHS, claimed Cherokee ancestry. The ICWA paralegal for DHHS called both parents several times, but received no response. On July 3, 2014, the paralegal received an ICWA questionnaire from mother in which she indicated Cherokee or Chiricahua heritage. In the space for listing the names of the children, none of the minors' names were given.
The paralegal left a message with mother on July 15, 2014, in an attempt to clarify the information on the questionnaire. Mother never replied, so the paralegal contacted the maternal grandmother who said mother's Indian ancestry came from the maternal grandmother's side of the family. The maternal grandmother told the paralegal mother's Indian heritage was Cherokee or Chickasaw, and she did not know where her daughter's claim of Chiricahua heritage came from.
The DHHS paralegal subsequently sent notice of the proceeding involving A.M. to the BIA, the Department of Interior, the "Ft. Sill Apache (Chiricahua)," and the Blackfeet, Cherokee, and Chickasaw tribes. The tribes and government departments either did not reply or stated that A.M. was not eligible for membership.
Mother's reunification services were continued at the February 2014 twelve-month review hearing. Services were terminated as to A.R. and J.B. at the July 2014 eighteen-month review hearing.
During the course of the next year, A.R. and J.B. remained in foster care while the Agency sought a prospective adoptive home for them. A prospective adoptive home was found in December 2015.
The juvenile court terminated parental rights of A.R. and J.B. at an April 2016 hearing.
II. DISCUSSION
Mother contends the Agency and juvenile court failed to comply with the ICWA because not all of the tribes associated with the Chiricahua were sent notice.
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); see also Welf. & Inst. Code, § 224.2; Cal. Rules of Court, rule 5.481(b).) "Failure to comply with the notice provisions and determine whether the ICWA applies is prejudicial error. [Citations.]" (In re L.S. (2014) 230 Cal.App.4th 1183, 1197.)
Mother's claim is based on the questionnaire submitted by mother to DHHS in which she claimed Cherokee or Chiricahua heritage and In re Louis S. (2004) 117 Cal.App.4th 622 (Louis S.), which she asserts to be "precisely like" the present case. The mother in Louis S. stated she had Apache heritage through the maternal great-grandmother, and the maternal grandmother said the maternal great-grandmother "was eligible for membership in the Chiricahua Tribe, a branch of the Apache Tribe, but she never registered with any tribe." (Id. at p. 627.) At the time Louis S. was decided, the Chiricahua was not a federally recognized tribe. (Id. at p. 632.) However, the record contained evidence based on the work of the social worker that members of the Chiricahua had blended with the San Carlos Apache Tribe, a federally recognized tribe in Arizona. (Id. at p. 632.) The Court of Appeal, which reversed for ICWA notice error on other grounds (id. at p. 631), held that on remand, the social worker was to determine whether all the Chiricahua were absorbed by the San Carlos Apache, or if any were absorbed by the other Apache tribes in Arizona, the Tonto and White Mountain Apache Tribes. (Id. at p. 632.) "Once the social worker learns which tribe or tribes absorbed the Chiricahua, she need notice only those tribes. [Citations.] If the social worker cannot determine which tribes absorbed the Chiricahua, she should give notice to the BIA and the tribes she knows absorbed members of the Chiricahua Tribe. [Citations.] Serving the BIA eliminates the need to serve the remaining Apache Tribes." (Id. at pp. 632-633.) Based on Louis S., mother claims that the failure to notify the Mescalero Apache and San Carolos Apache tribes violates the ICWA notification requirements.
Louis S. is distinguishable from this case. At the time Louis S. was decided, the Chiricahua had not been a federally recognized tribe at least since 1886. (See United States v. Hardman (10 Cir. 2002) 297 F.3d 1116, 1119.) Requiring an agency to investigate a claim related to a tribe that is not federally recognized, but that might have been absorbed into another federally recognized tribe or tribes at some point in time, can only be justified by the unusual facts present in Louis S. Those facts, clear claims of Apache and Chiricahua ancestry, plus independent research by the social worker regarding the Chiricahua being absorbed into at least one Apache tribe, are not present here.
Events subsequent to Louis S. further distinguish that case. Whether a tribe is federally recognized, and therefore subject to ICWA notice, is determined by the Department of Interior, which periodically publishes lists of federally recognized tribes in the Federal Register. (See In re J.T. (2007) 154 Cal.App.4th 986, 992.) The Chiricahua are identified by the Department of the Interior in the list of designated tribal agents found in the Federal Register. Specifically, the section labeled "List of Designated Tribal Agents by Tribal Affiliation" contains the listing "Chiricahua, (See Apache)" followed by the contact information for the designated agent for the Fort Sill Apache Tribe. (77 Fed. Reg. 45837, 45839 (August 1, 2012).)
Unfortunately, the Department of Interior no longer lists agents by tribal affiliation in the Federal Register. Instead, the section "Tribal Agents by Tribal Affiliation" now refers to a web page, <http://www.bia.gov/WhoWeAre/BIA/OIS/HumanServices/index.htm.> [as of Feb. 23, 2017]. (81 Fed. Reg. 10909 (March 2, 2016).) That page contains a section titled "Indian Child Welfare Act," which in turn contains a link under the section "ICWA; Designated Tribal Agents for Service of Notice - Listing of Tribes by Historical Affiliation." Clicking on the link associated with that section downloads a document titled "List of Designated Tribal Agents By Tribal Affiliation (Updated 11/28/15)." Page 12 of the document restates same information for the Chiricahua as found in the August 1, 2012, Federal Register. --------
The highly fact-bound holding of Louis S. is not applicable here in light of the Department of Interior's decision to designate the Fort Sill Apache as the only tribe to be notified in cases of claimed Chiricahua ancestry. Mother gave conflicting claims of Indian ancestry, one of which indicated possible Chiricahua heritage. At most, the Fort Sill Apache had to be notified, which the DHHS social worker did. Since the only relevant tribe was notified, mother's claim of improper notice based on her claim of Chiricahua ancestry is without merit.
III. DISPOSITION
The judgment is affirmed.
/S/_________
RENNER, J.
We concur:
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MURRAY, Acting P. J.
/S/_________
HOCH, J.