Opinion
NOT TO BE PUBLISHED
Superior Court County No. J-1285434 of Santa Barbara, James E. Herman, Judge
Cameryn Schmidt, under appointment by the Court of Appeal, for Defendant and Appellant.
Dennis A. Marshall, County Counsel, Toni Lorien, Deputy, for Plaintiff and Respondent.
GILBERT, P.J.
Carmelita G. (Mother) appeals an order of the juvenile court declaring that her child J. is adoptable and that the Indian Child Welfare Act (25 U.S.C. 1901 et seq.) (ICWA) is inapplicable, and terminating her parental rights. We affirm.
FACTS AND PROCEDURAL HISTORY
During her pregnancy, Mother used heroin and methamphetamine. On May 18, 2008, she gave birth to J., who suffered from drug withdrawal symptoms, interuterine growth retardation, and hepatitis. On June 11, 2008, Santa Barbara County Child Welfare Services (CWS) filed a dependency petition on behalf of the newborn. CWS alleged that J. suffered withdrawal symptoms from Mother's drug abuse, that Mother has a lengthy criminal record, and that the whereabouts of J.'s alleged father were unknown. (Welf. & Inst. Code, § 300, subds. (a), (b), (g).)
All statutory references are to the Welfare and Institutions Code unless stated otherwise.
The juvenile court detained J. and ordered the infant placed in foster care or in the home of a suitable relative. On July 7, 2008, Mother submitted to dependency jurisdiction and the court sustained the allegations of the petition.
Prior to the disposition hearing, CWS recommended that Mother not be provided with family reunification services pursuant to section 361.5, subdivisions (b)(12) (parent convicted of violent felony) and (b)(13) (parent resists court-ordered treatment for drug abuse within three years of dependency petition). CWS reported that in 1993, Mother had been convicted by plea of robbery with an allegation of firearm use. She received a prison sentence of five years. Mother also had a long history of drug abuse. In 2006, the criminal court ordered that she participate in drug rehabilitation, but she did not comply. In an addendum report, CWS reported that Mother was presently on felony probation with a condition of drug treatment.
On October 23, 2008, the juvenile court held a contested disposition hearing. Mother's whereabouts were then unknown. The court ordered that CWS need not provide family reunification services to Mother pursuant to section 361.5, subdivisions (b)(12) and (b)(13). It then set the matter for a permanent plan hearing.
ICWA Notices and Proceedings
At the detention hearing held on June 12, 2008, Mother completed form ICWA-020, stating that she had no Indian ancestry according to her knowledge. The juvenile court then found that the ICWA did not apply.
At the permanent plan hearing held on April 13, 2009, Mother testified that she recently learned from her mother that she may have Navajo Indian ancestry. Mother then completed a second form ICWA-020, regarding her possible Navajo Indian ancestry. Thereafter, CWS sent form ICWA-030, "Notice of Child Custody Proceeding for Indian Child, " addressed to "ICWA Representative" to two Navajo tribes, the Bureau of Indian Affairs, and to 20 Pueblo Indian tribes in New Mexico, home of Mother's ancestors. The form contained information regarding Mother, her mother, and her great grandfather. CWS later filed return postal receipts with the juvenile court.
CWS later received additional information regarding Mother's possible Indian ancestry. On June 18, 2009, CWS sent a second form ICWA-30 to the Navajo and Pueblo Indian tribes. CWS attached a photocopy of J.'s birth certificate and information regarding Mother's maternal ancestors, MacEndonio Rael, Fedel Rael, and Juan Rael. The 1860 United States Census stated that Juan Rael was born in 1854, and his home in 1860 was Zuni, Valencia, New Mexico. Juan Rael was listed as "Indian, " but the form did not state a specific Indian tribe. Subsequently, CWS filed return postal receipts with the juvenile court regarding the second form ICWA-30, along with written responses from many of the Indian tribes. The Indian tribes responding to the ICWA-30 form with its attachments, including the Colorado River Council, the Navajo Nation, and the Zuni Pueblo, stated that J. was neither enrolled nor eligible for enrollment. Six Indian tribes did not respond to the second form notice.
Permanent Plan Hearing
On April 13, August 24, and August 31, 2009, the juvenile court held a contested permanent plan hearing. It received evidence from the CWS permanent plan report that J. had resided with the S. family since one month after birth, and was thriving. The S. family loved J. and was committed to the infant's adoption. The court also received testimony from Mother who was then serving a four-year prison term. The court found that ICWA did not apply. It concluded by clear and convincing evidence that J. was adoptable, and it terminated parental rights. (§ 366.26.)
Post-Order ICWA Notices and Proceedings
We have augmented the appellate record to include further trial court proceedings regarding ICWA notices. (Alicia B. v. Superior Court (2004) 116 Cal.App.4th 856, 867.)
On December 11, 2009, CWS mailed a third form ICWA-030 to the two Navajo Indian tribes, the Zuni Pueblo Indian tribe, and the Bureau of Indian Affairs. This third notice corrected typographical and factual errors found in the earlier two notices. CWS filed return postal receipts with the juvenile court on January 21, 2010. Subsequently, the three Indian tribes responded that J. is neither enrolled nor eligible for enrollment. The Colorado River tribe and the Zuni Pueblo tribe required the enrollment of one parent for a child to be eligible for membership. CWS submitted the responses to the juvenile court and following a noticed hearing, the court ruled on March 8, 2010, that the ICWA does not apply. Mother and J.'s attorney were present at the hearing.
Mother appeals and contends that the juvenile court erred by terminating parental rights without proper ICWA notice. The alleged father did not appear in the juvenile court and is not a party to this appeal.
DISCUSSION
Mother argues that CWS mailed the first and second ICWA forms to the ICWA representative for each tribe and not to the designated agent for service of process as listed in the Federal Register. She also asserts that notices to certain Pueblo tribes were addressed incorrectly, failed to include the grandmother's maiden name, misspelled grandfather's given name, misspelled "Rael" as "Real, " misstated Mother's place of birth and current address (prison), stated the alleged father's date and place of birth were unknown, and failed to mail Mother copies of the notices at her prison address.
CWS has corrected these errors in the third ICWA form mailed to the Navajo Indian tribes, the Zuni Pueblo Indian tribe, and the Bureau of Indian Affairs, following the termination of parental rights.
Mother argues that the third ICWA notices are deficient because they were not mailed to Pueblo Indian tribes other than the Zuni Pueblo. (e.g., In re S.B. (2008) 164 Cal.App.4th 289, 303 [agency must notify all Apache tribes where parent indicates Mescalero Apache ancestry].) She points out that a family friend "speculated" that J. may have Pueblo ancestry because Mother's ancestors were born, resided in, and died in New Mexico. Mother asserts that this failure requires reversal of the order terminating parental rights. (In re Marinna J. (2001) 90 Cal.App.4th 731, 739-740.)
The juvenile court properly determined that CWS satisfied the notice requirements of ICWA and that J. is not an Indian child pursuant to law. In post-order proceedings, CWS provided proper notice to the Navajo Indian tribes, the Zuni Pueblo Indian tribe, and the Bureau of Indian Affairs regarding Mother's maternal ancestors. (In re Francisco W. (2006) 139 Cal.App.4th 695, 703 [summarizing ICWA notice requirements and contents of form].) CWS attached photocopies of Mother's family tree and information from government census records.
We agree with CWS that it was not required to notify the Pueblo Indian tribes or every and all Indian tribes in New Mexico under the circumstances where Mother stated that she believed she had Navajo heritage and where a "family friend... speculated" that Mother and J. may have Pueblo heritage. CWS notified the Zuni Pueblo tribe based upon census information that one of Mother's ancestors resided in Zuni, New Mexico. The speculation of an unidentified family friend does not trigger CWS's duty to notify Indian tribes to which Mother does not claim affiliation.
CWS filed photocopies of the ICWA notices, return postal receipts and the tribal responses with the juvenile court. Following a noticed hearing at which Mother's attorney and J.'s attorney appeared, the court determined that ICWA did not apply. CWS properly fulfilled its duties of inquiry and notice pursuant to the ICWA.
The order is affirmed.
We concur: YEGAN, J., COFFEE, J.