In re Mason A. CA4/1 ( 2014 )

Filed 1/21/14 In re Mason A. CA4/1
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California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
In re MASON A., a Person Coming Under
the Juvenile Court Law.
D064472
SAN DIEGO COUNTY HEALTH AND
HUMAN SERVICES AGENCY,
(Super. Ct. No. EJ2242B)
Plaintiff and Respondent,
v.
N.A.,
Defendant and Appellant.
APPEAL from orders of the Superior Court of San Diego County, Garry G.
Haehnle, Judge. Affirmed.
Marisa L. D. Conroy, under appointment by the Court of Appeal, for Defendant
and Appellant.
Thomas E. Montgomery, County Counsel, John E. Philips, Chief Deputy County
Counsel, and Erica R. Cortez, Deputy County Counsel, for Plaintiff and Respondent.
N.A. appeals juvenile court dispositional and jurisdictional orders concerning his
son, Mason A. He contends the court erred by ruling Indian Child Welfare Act (ICWA)
(25 U.S.C. § 1901) notice was not required because ICWA does not apply in this case.
We affirm the orders.
FACTUAL AND PROCEDURAL BACKGROUND
On June 4, 2013, the San Diego County Health and Human Services Agency (the
Agency) petitioned under Welfare and Institutions Code section 300, subdivision (b) 1 on
behalf of infant Mason, alleging he was at substantial risk because his mother, Audrey H.,
used drugs, N.A. had a history of drug use and both parents had engaged in domestic
violence.
When questioned about whether she had American Indian heritage, Audrey said
her paternal grandmother was a Yaqui Indian from Sonora, Mexico. N.A. denied Indian
heritage. At the detention hearing, each parent filled out a parental notification of Indian
status form. Audrey wrote that she may have had Yaqui Indian heritage. She told the
court her paternal grandmother may have Yaqui ancestry, but her grandmother had died
and she did not know to which band her grandmother may have belonged. The court
directed her to fill out the longer ICWA form.
The social worker reported Audrey said her father, Luis H., has some Yaqui Indian
heritage, but she had not spoken with him and did not have sufficient information to fill
out the form. When the social worker telephoned Luis, he said his mother was born in
1 Statutory references are to the Welfare and Institutions Code unless otherwise
specified.
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Sonora, Mexico, and his mother's father was Yaqui. He said he did not know if any
family member was registered with a tribe, but reported no family member practiced any
tribal customs.
At the jurisdictional/dispositional hearing on June 26, the court asked Audrey
whether her possible Yaqui ancestry was from Mexico or from the United States. Audrey
responded the ancestry was from the Mexican Yaqui Tribe and her paternal grandmother
was from Mexico. The court deferred ICWA findings.
At the contested jurisdictional/dispositional hearing on July 30, Audrey again
indicated her only potential Indian heritage was from the Yaqui Tribe in Mexico. County
Counsel said as a precautionary measure the Agency would provide ICWA notice to the
Yaqui Tribe in the United States and, on August 1, it sent notice to the Pascua Yaqui
Tribe in Arizona. The court, however, found ICWA notice was not required because
there was no reason to believe Mason is an Indian child in that Audrey had indicated her
only potential Indian heritage is through the Mexican Yaqui Tribe, and the Mexican
Yaqui Tribe is not a federally recognized tribe governed by ICWA.
At a further hearing on August 9, the court found the allegations of the petition to
be true, declared Mason a dependent child of the juvenile court and ordered him placed in
foster care.
DISCUSSION
N.A. contends the court erred by ruling ICWA notice was not required and ICWA
did not apply.
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Legal Authority
When a court knows or has reason to know that an Indian child is involved in a
juvenile dependency proceeding, a duty arises under ICWA to provide notice to the
Indian child's tribe of the pending proceedings and the tribe's right to intervene.
(25 U.S.C. § 1912(a); § 224.3, subds. (a) & (d).) "Alternatively, if there is insufficient
reason to believe a child is an Indian child, notice need not be given." (In re Shane G.
(2008) 166 Cal. App. 4th 1532, 1538.) Notice requirements are meant to ensure that the
child's Indian tribe will have the opportunity to intervene and assert its rights in the
proceedings. (In re Kahlen W. (1991) 233 Cal. App. 3d 1414, 1421.)
An Indian child is defined as any unmarried person under age 18 and either (a) a
member of an Indian tribe, or (b) eligible for membership in an Indian tribe and the
biological child of a member of an Indian tribe. (25 U.S.C. § 1903(4).) The Indian tribe
in question must be recognized by and eligible to receive funding from the United States
Bureau of Indian Affairs. (In re John V. (1992) 5 Cal. App. 4th 1201, 1217; In re B.R.
(2009) 176 Cal. App. 4th 773, 781.) The federal register lists recognized Indian tribal
entities eligible to receive such services. (53 Fed.Reg. 52829 (Dec. 29, 1988).)
Application
The information Audrey supplied, that she may have possible Indian heritage
through the Mexican Yaqui Tribe, did not trigger a duty of notice under ICWA. When
the court asked Audrey if her possible Indian heritage could be only through the Mexican
Yaqui Tribe, she agreed it was the Mexican Yaqui Tribe, not the Yaqui Tribe in the
United States. Audrey's father said his mother was born in Sonora, Mexico, and she was
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half Yaqui. The Yaqui Tribe in Sonora, Mexico is not listed in the federal registry
because it is not a recognized American Indian tribal entity. (53 Fed.Reg. 52829 (Dec.
29, 1988).) The fact that the Agency, out of an abundance of caution, decided to provide
notice to the Pascua Yaqui Tribe in Arizona does not show that notice was required.
The Agency and the court conducted proper inquiry and no information was
supplied to indicate that Mason is a member or eligible for membership in a federally
recognized American Indian tribe. N.A. has not shown error by the court finding ICWA
notice was not required in this case because ICWA does not apply.
DISPOSITION
The orders are affirmed.
NARES, Acting P. J.
WE CONCUR:
MCDONALD, J.
AARON, J.
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