In re S.J. CA2/6 ( 2013 )

Filed 2/25/13 In re S.J. CA2/6
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SIX
In re S.J. et al., Persons Coming Under the
Juvenile Court Law.
2d Juv. No. B242550
SANTA BARBARA COUNTY CHILD (Super. Ct. Nos. J1395309, J1395310,
WELFARE SERVICES, J1395311)
(Santa Barbara County)
Plaintiff and Respondent,
v.
J.C.,
Defendant and Appellant.
J.C. appeals a judgment of the juvenile court terminating her parental rights
to her children, S.J., Jo.J. and Ja.J. (Welf. & Inst. Code, §§ 300, 366.26.) We conclude,
among other things, that: 1) the Santa Barbara County Child Welfare Services (CWS)
gave proper notice under the Indian Child Welfare Act (ICWA) (25 U.S.C., § 1901 et
seq.) to the Jena Band of Choctaw Indians (JBCI), the Choctaw Nation of Oklahoma
(CNO), the Mississippi Band of Choctaw Indians (MBCI), and the Bureau of Indian
Affairs (BIA); and 2) the court's finding that ICWA does not apply is supported by the
documentary evidence in the record and in the recently augmented record on appeal. We
affirm.
FACTS
On March 10, 2011, the police notified CWS that J.C. "had left her three
children in the care of" a "heavily intoxicated" man. The children - S.J., seven years old;
Jo. J., four years old; and Ja.J., eight months old - had no "clean clothing, food, or
supervision." The intoxicated man did not know where J.C. was or how to contact her.
The motel room where the children resided was "extremely unkempt" with "spoiled food
on the floor, dressers, bathroom sink, and on top of the toilet." Vicodin and bottles of
pain medication "were left within the reach of the children."
CWS determined that J.C.'s "Child Welfare history place[d] the children at
risk [for] abuse and neglect." It removed the children from the home.
CWS filed a juvenile dependency petition (Welf. & Inst., § 300) alleging,
among other things, that the children will suffer "serious physical harm" as a result of
J.C.'s failure "to supervise or protect" them. On April 18, 2011, the juvenile court
sustained the petition. On November 3, 2011, the court found CWS had provided
appropriate reunification services, but J.C. did not comply with her requirements under
the case plan. It terminated family reunification services. On June 4, 2012, the court
terminated J.C.'s parental rights to the children.
ICWA
On a "parental notification of Indian status" form, J.C. stated that she had
no Indian ancestry. M.J., the children's father, stated that he "may have Indian ancestry,"
but he did not know the name of the tribe. M.J. claimed D.G., his mother, would have
the information. D.G. contacted CWS. She claimed the children's Indian ancestry
originated from L.R., their great-great-great-great-grandmother, who was a Choctaw
Indian born in 1841.
CWS sent notices of "child custody proceeding for Indian child" forms
(Judicial Council form ICWA-030) to the three Choctaw tribes - the JBCI, the CNO and
the MBCI. It also sent notice to the BIA.
These forms included a family tree attachment which listed the names,
dates of birth and dates of death of 11 ancestors on the children's paternal grandmother's
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side of the family. It listed family ancestors who may have been members of the
Choctaw tribes. The family tree included a span of the various generations of ancestors
born between 1803 and 1961. For four of the ancestors, the family tree included the
cities and states where they resided at birth and death. This chart included L.R., the
children's great-great-great-great-grandmother, and D.G., the children's paternal
grandmother. For L.R., the chart listed both the city and state where she was born and
the city and state where she resided at her death. It listed her tribal affiliation as
"Choctaw." It listed D.G.'s date of birth and her tribal affiliation as "Choctaw."
Between April 5, 2011, and April 12, 2011, CWS received certified return
mail receipts from the three tribes and the BIA acknowledging receipt of the ICWA
notices.
In an October 17, 2011, "status review report," CWS stated that all three
tribes had determined that the children were "not eligible for enrollment" in their
respective tribes. It said the BIA determined that CWS "has provided appropriate notice
to the tribes." CWS requested the court "to find that ICWA does not apply."
The juvenile court found CWS gave proper notice of "the proceeding[s] and
the right . . . to intervene" to the tribes and the BIA. It found ICWA did not apply.
DISCUSSION
ICWA Compliance
J.C. contends the judgment of the juvenile court must be reversed because
CWS did not comply with ICWA. We disagree.
Congress enacted ICWA with the intent that the best interests of Indian
children are served by retaining their Indian tribal ties and cultural heritage. (In re
Desiree F. (2000) 83 Cal.App.4th 460, 469.) "'The ICWA confers on tribes the right to
intervene at any point in state court dependency proceedings.'" (In re Karla C. (2003)
113 Cal.App.4th 166, 174.) Proper notice to tribes is of critical importance, and courts
strictly construe ICWA notice requirements. (Ibid.) "Under the ICWA, the tribe
determines whether the child is an Indian child and its determination is conclusive."
(Ibid.)
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J.C. contends the record is incomplete because it does not contain the tribes'
responses to CWS's ICWA notices. She notes that some courts have suggested the
preferred procedure is for the trial court to receive the tribal letters on membership
eligibility before making an ICWA finding. (In re Elizabeth W. (2004) 120 Cal.App.4th
900, 906.) But here there was uncontradicted evidence that the tribes were properly
notified as shown by their certified mail return receipts in the record. In addition, there
was evidence to support the finding that the children were not eligible for tribal
membership in the CWS's October 17th status review report. It describes the tribes'
eligibility determinations and it was not contradicted.
CWS recently filed a motion to augment the record with copies of the
letters from the three Choctaw tribes confirming that the children are not eligible for
tribal membership. We grant that motion. (In re C.D. (2003) 110 Cal.App.4th 214, 226
[record may be augmented to show ICWA compliance while the appeal is pending].) In
addition, on December 3, 2012, the juvenile court held a supplemental hearing on ICWA
compliance. CWS filed a new ICWA status report, the tribal letters and an "ICWA
Matrix" document showing the history of the ICWA correspondence. The court again
found that ICWA did not apply.
J.C. contends CWS did not comply with its ICWA obligations because the
family tree should have been more complete by expressly listing the relationship of each
of the 11 ancestors to the children. But the family tree showed D.G.'s linear family
history back to 1803. It showed the names of her parents, her grandparents, her great-
grandparents, her great-great-grandparents and her great-great-great-grandparents. The
chart provided the dates of birth of all relatives that were alleged to have Indian heritage.
It provided known information about where they lived at birth, death and their tribe. This
gave the tribes the opportunity to check these names with their records to verify
membership. The juvenile court could reasonably find that nobody would be confused
about the family relationships of all the ancestors when reading this chart.
J.C. claims CWS did not obtain the address of D.G who was the parental
grandmother. She suggests that information had to be included in the ICWA notices sent
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to the tribes. But the BIA determined that CWS provided sufficient information. J.C. did
not introduce evidence to contradict that finding. Nor did she show how the missing
address information would change the result. (In re I.W. (2009) 180 Cal.App.4th 1517,
1531 [deficiencies in ICWA notices do not require reversal if they would not have made
a difference in the result].) D.G. claimed Indian ancestry from L.R. But the tribes
determined that L.R. was not a tribal member. This disproved D.G.'s claim of Indian
ancestry.
In addition, we must defer to the expertise of the tribes in determining
membership. A tribe's determination is conclusive. (In re Karla C., supra, 113
Cal.App.4th at p. 174.) They know the information they need to make eligibility
determinations. If they needed additional information, we presume they would have
asked for it. Or that they would have stated they lacked sufficient information to make a
determination. Instead, they reviewed their records and unequivocally determined that
the ancestors listed on the family tree were never enrolled tribal members and the
children were not eligible for membership. The juvenile court's finding that ICWA does
not apply is supported by the record.
The judgment is affirmed.
NOT TO BE PUBLISHED.
GILBERT, P.J.
We concur:
YEGAN, J.
PERREN, J.
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Arthur A. Garcia, Judge
Superior Court County of Santa Barbara
______________________________
Jonathan B. Steiner, under appointment by the Court of Appeal, for
Defendant and Appellant.
Dennis A. Marshall, County Counsel, Toni Lorien, Deputy, for Plaintiff
and Respondent.
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