In re J.S. CA4/2

Filed 4/16/13 In re J.S. CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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

FOURTH APPELLATE DISTRICT

DIVISION TWO

In re J.S., a Person Coming Under the
Juvenile Court Law.

SAN BERNARDINO COUNTY
CHILDREN AND FAMILY SERVICES, E057431

Plaintiff and Respondent, (Super.Ct.No. J240577)

v. OPINION

J.S.,

Defendant and Appellant.

APPEAL from the Superior Court of San Bernardino County. Christopher B.

Marshall, Judge. Affirmed.

Roni Keller, under appointment by the Court of Appeal, for Defendant and

Appellant.

Jean-Rene Basle, County Counsel, Dawn M. Messer, Deputy County Counsel, for

Plaintiff and Respondent.

No appearance for Minor.

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 J.S. (minor) (born July 2011) came to the attention of plaintiff and respondent San

Bernardino County Department of Children and Family Services (the department) after

an incident of domestic violence between defendant and appellant J.S. (father) and

minor‟s mother.1 The department placed minor in foster care with his half sibling (R.K.),

whom the department had previously removed.

Mother filed an Indian Child Welfare Act (ICWA) form indicating she might be a

member of the Piute-Shoshone Indian Tribe. After the department completed notification

to numerous potentially applicable Indian tribes, it indicated it had either received no

response or was informed that mother was not a member of any of the Indian tribes so

noticed. The juvenile court found ICWA did not apply.

The juvenile court eventually terminated father‟s parental rights. On appeal,

father contends the juvenile court failed in its duty to determine whether ICWA applied

because the department did not obtain return receipts from two of the noticed tribes, did

not determine whether minor could have become eligible for membership in one of the

responding tribes, and did not ensure another responding tribe had evaluated minor‟s

maternal great-grandmother (MGG) for membership in the tribe.2 We affirm the

judgment.

1 Mother is not a party to this appeal.

2 “[A]ny parent whose parental rights were terminated may challenge the lack of
ICWA compliance. [Citation.]” (In re A.B. (2008) 164 Cal.App.4th 832, 839, fn. 4;
accord In re B.R. (2009) 176 Cal.App.4th 773, 779-780; In re Jonathon S. (2005) 129
Cal.App.4th 334, 339.)

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 FACTUAL AND PROCEDURAL HISTORY

On September 2, 2011, father entered the room where mother, minor, and maternal

grandmother were sleeping. Father became extremely loud. Maternal grandmother told

him to leave. She and father began to argue and push each other. Both fell to the ground.

Mother intervened and was taken to the ground. Father punched mother in the nose;

mother punched him back. Maternal grandmother picked up minor, left the room, and

called the police. Father was arrested for domestic violence. Minor was taken into

protective custody and placed in foster care with R.K., whom the department had

previously removed.

The department filed a juvenile dependency petition alleging mother and father

had substance abuse problems interfering with their ability to parent minor, had engaged

in acts of domestic violence in the presence of minor thereby endangering him, the

juvenile court had previously adjudicated R.K. as a dependent of the court due to physical

abuse, and father was incarcerated. Mother filed an ICWA-020 form indicating she may

be a member of the Piute-Shoshone Indian Tribe. Father filed an ICWA-020 reflecting

he had no Indian ancestry, so far as he knew.

On September 8, 2011, the juvenile court detained minor and acknowledged

mother‟s claim to Indian ancestry. In the jurisdiction and disposition report dated

September 23, 2011, the social worker noted, “The Court found ICWA did not apply for

[R.K.] on December 29, 2010. . . . Mother . . . did not give any new tribes that

child/mother may have heritage.”

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 On October 19, 2011, the social worker filed an ICWA declaration of due

diligence reflecting notice to father and 45 entities including the Bureau of Indian Affairs

(BIA), and over three dozen Indian tribes. The social worker declared that efforts to

notify all potential Indian tribes had been completed; no confirmation of tribal

membership had yet been received; all original certified receipts, return receipts, and

tribal letters received were attached to the declaration.

On October 27, 2011, the social worker filed another ICWA declaration of due

diligence. On November 1, 2011, the juvenile court found the allegations in the petition

true, found jurisdiction over minor, and removed him from parents‟ custody. The court

additionally found minor “may come under [the] provisions of [ICWA] and noticing

requirements under ICWA have been initiated.” The court offered parents reunification

services.

At a hearing on January 3, 2012, the social worker submitted all responses

received from the noticed Indian tribes. The social worker confirmed ICWA notices

were sent via certified mail, return receipt requested, to all pertinent Indian tribes. The

social worker requested the court find notice had been conducted as required by ICWA to

all relevant tribes and that ICWA did not apply. The court found ICWA did not apply.

In a status review report filed April 23, 2012, the social worker noted that

reunification services as to R.K. had been terminated on February 28, 2012, and the

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Welfare and Institutions Code section 366.263 hearing was now scheduled for June 27,

2012. At the six-month review hearing on June 12, 2012, the court terminated parents‟

reunification services and set the section 366.26 hearing as to minor.

On July 6, 2012, father filed a notice of intent to file a writ petition from the order

terminating his reunification services. On August 20, 2012, father‟s counsel filed a

“Non-Issue Writ” notice. On August 23, 2012, this court dismissed father‟s petition. On

October 31, 2012, the juvenile court terminated parents‟ parental rights as to minor.

DISCUSSION

Father contends the juvenile court erred in ensuring proper notice to all pertinent

Indian tribes because (1) no return receipts or responses were presented on behalf of the

Lone Pine Paiute Shoshone (Lone Pine) and Timbi-Sha Shoshone (Timbi-Sha); (2) the

response received from the Las Vegas Paiute (LV Paiute) Tribe failed to note it had

checked for membership or eligibility on behalf of MGG; and (3) the response from the

Fallon Paiute-Shoshone (Fallon) Tribe, which indicated mother was eligible for

membership but that minor was not, failed to indicate whether and how minor could

become eligible. Hence, father contends the department had a duty to make further

inquiry to determine whether minor was an Indian child within the meaning of ICWA.

We hold father forfeited the issues raised on appeal by failing to raise them in his

petition for extraordinary writ. We further hold the department fulfilled its statutory duty

by giving notification containing the appropriate information to the relevant tribes, by

3 All further statutory references are to the Welfare and Institutions Code unless
otherwise indicated.

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certified mail with return receipts requested. Thus, because the department did not

receive any response that minor was either a member or eligible for membership in any

tribe, the juvenile court‟s determination that minor was not an Indian child within the

meaning of ICWA was supported by substantial evidence. Moreover, to the extent the

court committed any error, it was harmless because a previous court had determined

R.K., who shared the same mother, was not an Indian child within the meaning of ICWA.

“Congress enacted ICWA to further the federal policy „“that, where possible, an

Indian child should remain in the Indian community . . . .”‟ [Citation.]” (In re W.B., Jr.

(2012) 55 Cal.4th 30, 48.) “In certain respects, California‟s Indian child custody

framework sets forth greater protections for Indian children, their tribes and parents than

ICWA. [Citations.] Both federal and state law expressly provide that if a state or federal

law provides a higher level of protection to the rights [of] the parent or Indian guardian of

an Indian child, the higher standard shall prevail. [Citations.]” (In re Jack C. (2011) 192

Cal.App.4th 967, 977.)

“ICWA requires that when a court knows or has reason to know that an Indian

child is involved in a dependency matter, it must ensure that notice is given to the

relevant tribe or tribes. [Citation.]” (In re J.O . (2009) 178 Cal.App.4th 139, 154.)

ICWA defines an “Indian child” as an “unmarried person who is under age eighteen 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).)

However, “[t]he juvenile court „“needs only a suggestion of Indian ancestry to trigger the

notice requirement.”‟ [Citation.]” (In re J.M. (2012) 206 Cal.App.4th 375, 380.)

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 A. LACK OF RETURN RECEIPTS FOR LONE PINE AND TIMBI-SHA

As discussed ante, father maintains the department‟s non-receipt of return receipts

for its notifications to Lone Pine and Timbi-Sha fell short of its duty to ensure receipt of

notification by all applicable tribes. Therefore, father argues substantial evidence fails to

support the juvenile court‟s determination minor was not an Indian child within the

meaning of ICWA because the court could not be sure those tribes even received

notification, let alone made a determination of membership or eligibility.

First, we hold father forfeited the issue by failing to raise it in his petition for

extraordinary writ. Although issues regarding adequate ICWA notification may be raised

for the first time on appeal, a party may be deemed to have forfeited the issue if it is

raised in a second appeal in the same case and the party could have but failed to assign

any error in the first appeal. (In re Z.W. (2011) 194 Cal.App.4th 54, 67 (Z.W.) [“If the

Department gets a „free pass‟ in a second appeal concerning ICWA notice defects, it is

only because the parent fails to register an objection. [¶] . . . [¶] A line has to be drawn.

At some point, there must be finality to the ICWA noticing process”].) Second, we hold

the department‟s statutory burden does not extend to ensuring the tribes‟ receipt of the

notification; rather, the department‟s statutory burden requires only that it notify the

appropriate tribes, at the correct addresses, with the relevant information. Third, we note

that contrary to father‟s contention, and the department‟s concession, the record does

contain return receipts for the notification of Lone Pine and Timbi-Sha. Finally, as we

will discuss below, any error was harmless because the juvenile court made a previous

determination that R.K. was not an Indian child within the meaning of ICWA.

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 “Under the implementing federal regulation, the required ICWA notices must

include “[a]ll names known, and current and former addresses of the Indian child‟s

biological mother, biological father, maternal and paternal grandparents and great

grandparents or Indian custodians, including maiden, married and former names or

aliases; birthdates; places of birth and death; tribal enrollment numbers, and/or other

identifying information.‟ [Citation.] California law requires that the notices contain

substantially the same data, including „any other identifying information, if known.‟

[Citation.]” (In re C.B. (2010) 190 Cal.App.4th 102, 140, italics omitted.)

It is now widely accepted that in order “[t]o satisfy the notice provisions of

[ICWA] and to provide a proper record for the juvenile court and appellate courts, [the

department] should follow a two-step procedure. First, it should identify any possible

tribal affiliations and send proper notice to those entities, return receipt requested.

[Citation.] Second, [the department] should provide to the juvenile court a copy of the

notice sent and the return receipt, as well as any correspondence received from the Indian

entity relevant to the minor‟s status. If the identity or location of the tribe cannot be

determined, the same procedure should be used with respect to the notice to [the BIA].”

(In re Marinna J. (2001) 90 Cal.App.4th 731, 739, fn. 4.)

Here, father raises no dispute with the department as to which tribes it sent the

notices, the information contained in those notices, the manner in which they were

mailed, or any failure of the department to request return receipts. Rather, father alleges

the department apparently had a further duty to ensure receipt by the tribes of the

notification when no return receipt is received. Father cites no authority for such an

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obligation. Moreover, father does not suggest what steps the department should take

when a return receipt is not recovered.

It is clear from both statutory and case authority that the department‟s obligation

ends when it has notified the tribe at the proper address with the proper information by

certified mail with return receipt requested. (Welf. & Inst. Code, § 224.2; Cal. Rules of

Court, rule 5.480; Z.W., supra, 194 Cal.App.4th 54, 62-63; cf. In re Alice M. (2008) 161

Cal.App.4th 1189, 1201 [department did not comply with notice requirements where

notices were inaccurately addressed and the department did not receive return receipts].)

Moreover, letters correctly addressed and properly mailed are presumed to have been

received in the ordinary course of mail. (Evid. Code, § 641.) Here, the department

notified both Lone Pine and Timbi-Sha at the correct addresses with the proper

information by certified mail with return receipts requested. Thus, the department

fulfilled its statutory obligation.

B. FAILURE OF DEPARTMENT TO ENSURE LV PAIUTE CHECKED

FOR MEMBERSHIP OR ELIGIBILITY OF MGG

Father maintains LV Paiute‟s response reflecting none of the named individuals

were registered members of the tribe failed to list MGG; thus, he contends the department

had an obligation to ensure the tribe checked for membership or eligibility of MGG.

“The United States Supreme Court noted that „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,‟ and cautioned against intrusion into tribal traditions by

the courts. [Citation.] ICWA applies to children who are „members‟ of a tribe. . . .

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[Citations.]” (In re Jack C., supra, 192 Cal.App.4th at p. 978.) “„It is the tribe‟s

prerogative to determine membership criteria.‟ [Citations.]” (Ibid.; § 224.3, subd. (e)(1)

[“A determination by an Indian tribe that a child is or is not a member of or eligible for

membership in that tribe, . . . shall be conclusive”].) “The decision whether a child is a

member of, or eligible for membership in, the tribe is the sole province of the tribe.

[Citation.]” (Jack C., at p. 980.) “[T]he determination [of] whether the child is an Indian

child within the meaning of ICWA depends in large part on the tribe‟s membership

criteria. Because of differences in tribal membership criteria and enrollment procedures,

whether a child is an Indian child is dependent on the singular facts of each case.

[Citation.]” (Id. at p. 979.)

As discussed above, we hold father forfeited the issue by failing to raise it in his

petition for extraordinary writ. (Z.W., supra, 194 Cal.App.4th at p. 67.) Second, we hold

the department‟s obligation with regard to notice extends only insofar as ensuring notice

to the relevant tribes with the pertinent information by certified mail with return receipt

requested. Here, the department fulfilled that obligation with respect to LV Paiute. That

notification included MGG‟s name, address, birth date, and place of birth. The

department was not required to ensure that it received a response from each tribe, that

each response met its own subjective criteria for determining eligibility for membership

in the tribe, or had the ability to compel the sovereign tribe to provide such a response.

Contrary to In re Jack C., none of the tribes in the instant case considered minor to

be an Indian child, none of them intervened, and none of them stated there was “„no

doubt‟” minor would be enrolled. (In re Jack C., supra, 192 Cal.App.4th at pp. 979-981.)

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The purpose of ICWA is “„to give tribes the opportunity to investigate and determine

whether a child is an Indian child, and to advise the tribe of the pending proceeding and

its right to intervene.‟ [Citation.]” (In re Z.N. (2009) 181 Cal.app.4th 282, 301, italics

added.) ICWA does not compel tribes to investigate and intervene in a manner dictated

by states, the department, or the parties.

Moreover, LV Paiute responded that none of the named individuals were

registered or enrolled with the tribe. Furthermore, LV Paiute wrote that it “is very small

and applicants must be able to prove they possess 1/4 Las Vegas Paiute Indian Blood

and are descendants of someone on the 1940 Census Roll.” One may logically deduce

that if mother did not qualify for membership in the tribe, then minor, whose father

indicated no Indian ancestry, would not either because he would have been one degree of

consanguinity removed from mother. Thus, substantial evidence supported the court‟s

determination minor was not a member or eligible for membership in LV Paiute.

C. ELIGIBILITY OF MINOR FOR MEMBERSHIP IN FALLON

Father contends the department was required to determine whether minor was

eligible for membership in Fallon since that tribe responded that mother was eligible. We

disagree.

As discussed above, we hold father forfeited the issue by failing to raise it in his

petition for extraordinary writ. (Z.W., supra, 194 Cal.App.4th at p. 67.) Moreover, we

hold the department‟s obligation with regard to notice extends only insofar as ensuring

notice to the relevant tribes with the pertinent information by certified mail with return

receipt requested. Here, the department fulfilled that obligation with respect to Fallon.

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 Moreover, again, the department had no obligation or authority to dictate to the

sovereign tribe the form of its response or how it should conduct the determination of

tribal membership or eligibility. Here, Fallon responded with its own eligibility criteria:

“In order to be an eligible member of the Fallon Paiute Shoshone Tribe, you must possess

1/8 Fallon Paiute and or 1/8 Fallon Shoshone Indian Blood, and be a direct

descendant of a person whose name appears on the 1940 Reservation Census, the

1940 Colony Census, or the Fallon Allotment Schedule.” It determined mother was

eligible for membership, but minor was not: “[T]he child does not meet the definition of

Indian Child. Therefore, there is no need for further notification to the Tribe.” Again,

this is logically due to the fact that minor was one degree of consanguinity removed from

mother. Thus, substantial evidence supported the juvenile court‟s determination minor

was not an Indian child.

D. HARMLESS ERROR

To the extent the department was required to make any further inquiries of the

Indian tribes, such that the juvenile court‟s determination that minor was not an Indian

child lacked sufficient evidence, we hold any error harmless.

“A deficiency in notice may be harmless when it can be said that, if proper notice

had been given, the child would not have been found to be an Indian child and the ICWA

would not have applied. [Citations.]” (In re I.W. (2009) 180 Cal.App.4th 1517, 1530.)

This court has previously held that defective ICWA notice as to one sibling is harmless

when there has been good ICWA notice as to another sibling who has been found not to

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be an Indian child. (In re E.W. (2009) 170 Cal.App.4th 396, 400-403 [Fourth Dist., Div.

Two].) That is the case here. We conclude the error was harmless.

Here, minor and R.K. share the same mother. It is through the minor‟s maternal

lineage that father makes his ICWA claims. The department noted in this case mother

“did not give any new tribes that child/mother may have heritage.” It noted the previous

juvenile court found ICWA did not apply to R.K.

The record in the prior case supports that conclusion.4 The department sent notice

to Timba-Sha in that case, which responded by letter that R.K. was neither enrolled nor

eligible for membership in the tribe and the tribe would not intervene. LV Paiute

responded the child was not enrolled and it would not intervene. Fallon responded R.K.

was neither enrolled nor eligible and it would not intervene. Notice was sent to Lone

Pine and the requested receipt was returned. On December 29, 2010, the juvenile court

found ICWA did not apply. Thus, even if insufficient evidence supported the juvenile

court‟s determination in the instant case that ICWA did not apply, any error was harmless

because substantial evidence supported the previous court‟s determination that R.K. was

not an Indian child; therefore, further notice would have been futile.

4 We take judicial notice of (1) mother‟s ICWA-020 form dated October 4, 2010;
(2) the department‟s notice of child custody proceeding for Indian Child dated October
20, 2010; (3) the department‟s ICWA declaration of due diligence dated October 20,
2010; (4) the department‟s ICWA declaration of due diligence dated November 23, 2010;
(5) the department‟s ICWA declaration of due diligence dated December 13, 2010; (6)
and the minute order dated December 29, 2010, in R.K.‟s dependency case, San
Bernardino Superior Court case No. J235159. (Evid. Code, § 452, subd. (d).)

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 We acknowledge this case differs from In re E.W., supra, in the fact it involves

siblings from separate dependency proceedings occurring at different times. Nonetheless,

we see no reason it should not apply here “based on considerations of judicial economy,

the assured futility of providing identical notice regarding [minor], and the [minor‟s]

need for stability. Even a conditional reversal with limited remand would be an empty

formality and a waste of ever-more-scarce judicial resources.” (In re E.W., supra, 170

Cal.App.4th at pp. 401-402.) Minor “deserve[s] permanence and stability as soon as

possible. We cannot condone delaying that permanence for an empty exercise with a pre-

ordained outcome, especially where that exercise does nothing concrete to further the

purposes of ICWA[.]” (Id. at p. 402.)

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

MILLER
J.

We concur:

KING
Acting P. J.

CODRINGTON
J.

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