Opinion
F076650
08-02-2018
In re M.P., a Person Coming Under the Juvenile Court Law. FRESNO COUNTY DEPARTMENT OF SOCIAL SERVICES, Plaintiff and Respondent, v. T.T., Defendant and Appellant.
Gino de Solenni, under appointment by the Court of Appeal, for Defendant and Appellant. Daniel C. Cederborg, County Counsel, and Brent C. Woodward, Deputy County Counsel, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 07CEJ300157-4)
OPINION
THE COURT APPEAL from orders of the Superior Court of Fresno County. Brian M. Arax, Judge. Gino de Solenni, under appointment by the Court of Appeal, for Defendant and Appellant. Daniel C. Cederborg, County Counsel, and Brent C. Woodward, Deputy County Counsel, for Plaintiff and Respondent.
Before Levy, Acting P.J., Detjen, J., and Smith, J.
-ooOoo-
Appellant T.T. (mother) was the noncustodial parent of her daughter, M.P., when, in March 2017, the Fresno County Department of Social Services (department) removed then three-year-old M.P. from the custody of her father, Phillip P. Following a contested dispositional hearing, the juvenile court denied mother placement, ordered reunification services for both parents and found the Indian Child Welfare Act (ICWA; 25 U.S.C. § 1901 et seq.) did not apply. Mother contends the court's ICWA finding was error because the department did not comply with the ICWA notice and inquiry provisions. We affirm.
Phillip is not a party to this appeal.
FACTUAL AND PROCEDURAL BACKGROUND
M.P. was removed from Phillip's custody because she had injuries he could not explain; a black eye, scratches all over her back and stomach, a bald spot behind her ear as if someone pulled her hair out, a loop mark on her arm, a notch in her hymen area, a mark on her left thigh and an abrasion on the right bottom side of her neck. The department placed her in foster care and filed a dependency petition, indicating Phillip was her presumed father.
The parents completed an ICWA-020 form, "Parental Notification of Indian Status." Mother indicated she had no Indian ancestry. Phillip indicated he may but did not identify the name of any tribe.
The juvenile court asked Phillip about his Indian heritage at the detention hearing. Phillip's only source of information came from his aunt, Sheryl W., who said he might have Indian ancestry but she did not identify a tribe. No other family member mentioned Indian heritage to him and he was not aware of any family members that were enrolled in a tribe. He did not personally know whether he had Indian ancestry or to which tribe he may have membership.
On May 1, 2017, the department mailed a copy of the petition along with the ICWA-030 form, "Notice of Child Custody Proceeding for Indian Child," to the Bureau of Indian Affairs (BIA) by certified mail, return receipt requested. The department provided Phillip's full name, address and date and place of his birth, typed in "Bureau of Indian Affairs" in the space designated for the tribe or band and location, and "Unknown" in the space designated for the tribal membership or enrollment number. The department also included the names, birthdates and places of birth for Phillip's parents and checked boxes marked "Unknown" beside statements concerning whether Phillip was named on the birth certificate or acknowledged parentage and whether there has been a judicial declaration of parentage.
On May 12, 2017, the BIA responded in a form letter, advising the department that it was returning its letter of inquiry "due to insufficient information to determine tribal affiliation (25 CFR 23.11 (d)) or you have not identified a tribe." Based on the BIA's response, the department filed a motion asking the juvenile court to find the ICWA inapplicable.
Title 25 of the Code of Federal Regulations part 23.11(d) (2018) provides, "Upon request from a party to an Indian child-custody proceeding, the Secretary will make a reasonable attempt to identify and locate the child's Tribe, parents, or Indian custodians to assist the party seeking the information." --------
In November 2017, following a contested jurisdictional/dispositional hearing, the juvenile court exercised its dependency jurisdiction over M.P., denied mother's request for placement, ordered reunification services for the parents and set a six-month review hearing for April 2018. The court found the ICWA did not apply.
DISCUSSION
Mother contends the department's ICWA notice was defective because it erroneously reported that Phillip's paternity was unknown instead of ascertaining whether he was named on M.P.'s birth certificate and acknowledged parentage and/or whether there was a declaration of parentage. This failure to inquire and provide adequate information about Phillip's paternity, mother further contends, deprived the BIA the information it needed to determine whether M.P. was an Indian child. Consequently, the juvenile court's finding the ICWA did not apply was error and its dispositional order must be reversed. We disagree.
"Under the ICWA, where a state court 'knows or has reason to know' that an Indian child is involved, statutorily prescribed notice must be given to any tribe with which the child has, or is eligible to have, an affiliation. [Citation.] The court and the social services agency have 'an affirmative duty to inquire whether a child for whom a petition under section 300 is to be, or has been, filed is or may be an Indian child.' [Citation.] 'In any involuntary proceeding in a State court, where the court knows or has reason to know that an Indian child is involved, the party seeking the foster care placement of, or termination of parental rights to, an Indian child shall notify the parent or Indian custodian and the Indian child's tribe, by registered mail with return receipt requested, of the pending proceedings and of their right of intervention.' " (In re Samuel P. (2002) 99 Cal.App.4th 1259, 1264-1265 (Samuel P.).)
" '[P]arent' means any biological parent or parents of an Indian child .... It does not include the unwed father where paternity has not been acknowledged or established." (25 U.S.C. § 1903(9).) If the tribe is unknown, the notice must be given to the BIA as the agent for the Secretary of the Interior. (25 U.S.C. § 1912(a); In re Edward H. (2002) 100 Cal.App.4th 1, 4, superseded by statute on another issue.)
" 'Notice is a key component of the congressional goal to protect and preserve Indian tribes and Indian families. Notice ensures the tribe will be afforded the opportunity to assert its rights under the Act irrespective of the position of the parents, Indian custodian or state agencies.' [Citation.] The failure to comply with the notice requirements of the ICWA constitutes prejudicial error unless the tribe has participated in or indicated no interest in the proceedings." (Samuel P., supra, 99 Cal.App.4th at p. 1265.)
Here, the department complied with the ICWA notice requirements by providing all known information about M.P.'s biological family to the BIA. Further, there is no evidence that the BIA's inability to process the notice inquiry was due to lack of paternity information. Despite the department's "Unknown" answers on the notice, the petition indicated Phillip was M.P.'s presumed father, which made him her parent. Further, nothing in the statutory scheme suggests that the tribe, if known, could not find M.P. eligible for enrollment subject to verification. (See, e.g., In re N.M. (2009) 174 Cal.App.4th 328, 331 [after indicating the minor was eligible for enrollment, tribe requested a paternity test to confirm the minor's tribal eligibility].) Rather, the logical inference is that the BIA returned the notice inquiry because the department was unable to identify a tribe. The BIA stated as much in its letter.
DISPOSITION
The dispositional orders and finding that the Indian Child Welfare Act (25 U.S.C. § 1901 et seq.) does not apply are affirmed.