In re M.M. CA2/6 ( 2020 )

Filed 12/15/20 In re M.M. 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been
certified for publication or ordered published for purposes of rule 8.1115.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 M.M., a Person Coming 2d Juv. No. B306644
Under the Juvenile Court Law. (Super. Ct. No. 18JV00200)
(Santa Barbara County)
SANTA BARBARA COUNTY
CHILD WELFARE SERVICES,
Plaintiff and Respondent,
v.
R.Q.,
Defendant and Appellant.
R.Q. (Mother) appeals from the juvenile court’s order
terminating parental rights to her minor daughter, M.M., and
selecting adoption as the permanent plan. (Welf. & Inst. Code,1
§ 366.26.) She contends the termination order must be vacated
1 Further
statutory references are to the Welfare and
Institutions Code.
because the court failed to comply with the Indian Child Welfare
Act (ICWA). We affirm.
FACTUAL AND PROCEDURAL HISTORY
In May 2018, the juvenile court detained M.M. after
Santa Barbara County Child Welfare Services (the County)
showed that Mother had failed to protect M.M. and had abused
her siblings. At the detention hearing, Mother told the court that
she may have Pomo ancestry. She believed that her ancestral
tribe’s reservation was located in northern California.
The County initiated an ICWA inquiry the day after
the hearing. From the records in Mother’s previous dependency
cases it found the names, addresses, birthdates, and phone
numbers of several of Mother’s relatives. Those records specified
that Mother’s adoptive father, S.Q., was a member of the
Robinson Rancheria of Pomo Indians, and listed his enrollment
number. The records also indicated that the Robinson Rancheria
had determined that Mother’s other children were not eligible for
enrollment in the tribe.
The County located obituaries for two of S.Q.’s half-
sisters, P.T. and L.Q. P.T.’s obituary included her dates of birth
and death, and an assertion that she was the “last of the full-
blood Pomo Nation of Lake County.” L.Q.’s obituary included the
dates and locations of her birth and death, and said that she led
her “entire” family’s fight against disenrollment from the
Robinson Rancheria. It also stated that L.Q. had “Eastern Pomo”
ancestry.
The County later spoke with S.Q.’s brother and
sister-in-law, M.Q. and D.Q. M.Q. said that he was a member of
the Robinson Rancheria and provided his enrollment number.
He also said that his mother, M.B., had been a member of the
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tribe. D.Q. said that Mother was adopted and was not eligible for
enrollment in the Robinson Rancheria. The County asked if
there were any additional family members who might have
information regarding M.M.’s potential Indian ancestry, but M.Q.
and D.Q. said that there were not.
At the June jurisdiction hearing, Mother said that
the sole Indian ancestry she claimed was through her adoptive
father; she did not “have any Indian blood” herself. The juvenile
court told Mother that it was the tribe, not the court, that would
make the final ICWA determination.
Later that month, the County filed a Notice of Child
Custody Proceedings (ICWA-030). The notice identified Mother
as M.M.’s biological mother, and mistakenly identified S.Q. as
her biological grandfather. The notice asserted that S.Q.
belonged to the Robinson Rancheria and provided his enrollment
number. It did the same for M.Q. It listed M.B. and said she too
belonged to the Robinson Rancheria, but did not provide her
enrollment number. Attached to the notice were the obituaries
for P.T. and L.Q. The County mailed copies of the notice and its
attachments to Mother, the Department of the Interior, and the
Robinson Rancheria’s ICWA Coordinator. The cover letter to the
Robinson Rancheria requested that the tribe search its records
and report to the County whether M.M. was eligible for
enrollment.
At the three-month interim review hearing held in
October, the County told the juvenile court that no person or
agency had responded to its ICWA notice, and asked the court to
find that ICWA did not apply. When no one objected, the court
made the requested finding. Neither Mother nor anyone else
raised an ICWA issue in the proceedings that followed.
3
The juvenile court held a section 366.26 hearing in
July 2020. At the conclusion of the hearing the court found M.M.
adoptable, found that the beneficial relationship exception to
adoption did not apply, and terminated Mother’s parental rights.
DISCUSSION
Applicable law
Before considering the merits of Mother’s
contentions, we must first determine which version of the state’s
ICWA statutes applies here. In 2018, the Legislature enacted a
number of changes to the statutes, including changes to the
notice requirements relevant to this appeal. (See In re Austin J.
(2020) 47 Cal.App.5th 870, 884 (Austin J.).) Those changes took
effect January 1, 2019. (Ibid.) Mother argues that, because the
juvenile court made its ICWA finding in October 2018—three
months before the amended statutes’ effective date—the former
notice requirements apply.
But “ICWA and the corresponding provisions of
California law impose an affirmative and continuing duty on the
juvenile court to inquire whether the child is an Indian child.”
(In re A.M. (2020) 47 Cal.App.5th 303, 319 (A.M.).) An interim
determination that ICWA does not apply has no effect on that
duty. (Id. at p. 320.) The relevant date is when the court holds
the section 366.26 hearing. (Ibid.) At that date the court must
be convinced, based on the circumstances that exist at that time,
that ICWA does or does not apply. (Ibid.)
Here, the juvenile court found ICWA inapplicable at
the October 2018 review hearing, and never explicitly revisited
that finding. Nevertheless, based on the court’s “affirmative and
continuing duty,” we presume that its July 2020 termination
order “‘subsumed a present determination’ of ICWA’s
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inapplicability. [Citation.]” (A.M., supra, 47 Cal.App.5th at p.
320.) Since the court made that determination well after the
current version of the ICWA statutes’ effective date, that version
applies here. (Id. at p. 321.) That is not the improper retroactive
application of the statutes, as Mother avers, but rather the
proper application of the statutes in effect when the court made
its final ICWA determination. (Ibid.) We thus apply them in our
review of Mother’s contentions.
Information contained in the notices
Mother contends the ICWA notices were defective
because they lacked all of the pertinent information about M.M.’s
relatives that was known to the County. We disagree.
If there is “reason to believe” that a child may be an
Indian child, but the juvenile court does not have sufficient
information to make a conclusive determination, it may order the
social services agency to undertake further inquiry. (§ 224.2,
subd. (e).) This includes interviewing the child’s family members
and contacting tribes that may have information on the child’s
membership status. (Id., subd. (e)(2).) When contacting a tribe,
the agency should “shar[e] information identified by the tribe as
necessary . . . to make a membership or eligibility determination,
as well as information on the current status of the child and the
case.” (Id., subd. (e)(2)(C).)
If the inquiry establishes a “‘reason to know’” that a
child may be an Indian child, the social services agency must
notify the relevant tribe. (Austin J., supra, 47 Cal.App.5th at p.
884.) “The notice must include enough information for the tribe
to ‘conduct a meaningful review of its records to determine the
child’s eligibility for membership’” (In re D.S. (2020) 46
Cal.App.5th 1041, 1050), including “[a]ll names known of the . . .
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child’s biological parents, grandparents, and great-grandparents
. . . as well as their current and former addresses, birth dates,
places of birth and death, tribal enrollment information of other
direct lineal ancestors of the child, and any other identifying
information, if known” (§ 224.3, subd. (a)(5)(C)). We review the
juvenile court’s finding for substantial evidence. (In re E.W.
(2009) 170 Cal.App.4th 396, 403-404.)
On this record it does not appear that the County was
required to provide notice to the Robinson Rancheria. No one
told the juvenile court that M.M. was an Indian child, nor did
anyone say that they had discovered information indicating that
she was. (§ 224.2, subds. (d)(1), (d)(3), & (e)(1).) And during its
inquiry, the County discovered records in which the Robinson
Rancheria stated that M.M.’s siblings were not eligible for
enrollment in the tribe. It thus appears that there was not
“reason to believe” that M.M. may be an Indian child. (Austin J.,
supra, 47 Cal.App.5th at pp. 888-889.) Accordingly, section
224.2’s notice requirements would not be triggered. (Id. at pp.
883-884.)
But even if they were triggered, substantial evidence
supports the juvenile court’s implied finding that the County’s
notice contained all of the required information. The notice
included the names of M.M.’s mother, grandfather, and great-
grandmother through which she had potential Robinson
Rancheria ancestry, and several great-aunts and uncles who may
have shared that ancestry. It listed addresses, birth dates, and
dates of death for each of these people. And it had possible tribal
enrollment numbers for S.Q. and M.Q. That the notice did not
also include enrollment numbers for other family members is not
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fatal; such information must be provided only “if known.”
(§ 224.3, subd. (a)(5)(C).) Mother does not show that it was.
Notice to all relevant tribes
Alternatively, Mother contends the ICWA notices
were defective because the County failed to send them to all
potentially relevant Pomo tribes, including the “Pomo Nation of
Lake County” and the “Eastern Pomo” that were referenced in
her aunts’ obituaries. (See § 224.3, subd. (a)(3)(A) [when there is
“reason to know” a child may be an Indian child, notice must be
sent to “[a]ll tribes of which the child may be a member or
citizen”].) But the obituaries’ references to the “Pomo Nation of
Lake County” and “Eastern Pomo” do not appear to be references
to specific tribes but rather colloquialisms for the Pomo more
generally. And even if the two tribes mentioned were distinct
tribes, neither is federally recognized. (See Indian Entities
Recognized by and Eligible to Receive Services from the United
States Bureau of Indian Affairs, 85 Fed.Reg. 5462-5467 (Jan. 30,
2020).) ICWA and its notice requirements apply only to federally
recognized Indian tribes. (In re K.P. (2009) 175 Cal.App.4th 1, 5;
see 25 U.S.C. § 1903(8) [defining “Indian tribe”].)
DISPOSITION
The juvenile court’s order terminating Mother’s
parental rights and selecting adoption as the permanent plan,
entered July 14, 2020, is affirmed.
NOT TO BE PUBLISHED.
TANGEMAN, J.
We concur:
YEGAN, Acting P. J. PERREN, J.
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Arthur A. Garcia, Judge
Superior Court County of Santa Barbara
______________________________
Aida Aslanian, under appointment by the Court of
Appeal, for Defendant and Appellant.
Michael C. Ghizzoni, County Counsel, Lisa A.
Rothstein, Deputy County Counsel, for Plaintiff and Respondent.