IN RE: CARLOS G. (1999)

John G., the father of Carlos, appeals from an order of the juvenile court terminating his parental rights.  (Welf. & Inst.Code, §§ 366.26, 395;  further unspecified section references are to the Welfare and Institutions Code.) Appellant contends the dependency proceedings violated the Indian Child Welfare Act (the Act).  (25 U.S.C. § 1901 et seq.)   We disagree with that contention and shall affirm the order terminating parental rights.

FACTUAL AND PROCEDURAL BACKGROUND 1

On January 5, 1998, the Department of Social Services (DSS) filed an amended section 300 petition on behalf of the days-old minor.   That petition alleged the minor had suffered, or there was a substantial risk he would suffer, serious physical harm or illness, as a result of the failure or inability of appellant and the mother of the minor to supervise or protect the minor adequately, and due to their inability to provide regular care for the minor due to their substance abuse.   According to the petition, at the time of his birth, the minor tested positive for amphetamines and methamphetamine, and appellant and the mother also tested positive for illegal drugs.   The petition alleged appellant had a history of domestic violence.   The petition also averred the minor might fall under the provisions of the Act.

In his detention report, the social worker noted that the minor's mother believed her mother might be of “Miwok Heritage.”   Appellant told the social worker he had “native American heritage on the maternal side of his family, but [was] unsure of what tribe he may be affiliated with.”   In its detention order, the juvenile court directed DSS to provide notice pursuant to the Act, and ordered placement of the minor under various arrangements in accordance with the Act.

On January 21, 1998, DSS sent notices of the jurisdiction hearing to 11 Indian tribes and rancherias.   At the conclusion of the January 29, 1998, jurisdiction hearing, the juvenile court sustained the petition.   On February 4, 1998, DSS sent notices of the disposition hearing to 10 tribes.   Thereafter, the court adjudged the minor a dependent child, ordered him removed from parental custody, and directed DSS to provide appellant with reunification services.   Appellant's reunification plan included participation in parenting classes and correspondence with the minor.

According to the social worker, in a January 22, 1998, letter, the Berry Creek Rancheria reported the minor was not an Indian child pursuant to the Act. In a letter dated February 2, 1998, the Mechoopda Indian Tribe also reported the minor was not an Indian child pursuant to the Act. Thereafter, in a letter dated February 13, 1998, the Chicken Ranch Rancheria reported the minor was not a member of that Rancheria.²

On July 22, 1998, DSS sent notices of a review hearing to nine tribes and rancherias.   On January 7, 1999, DSS sent notices of the section 366.26 hearing to 14 tribes and rancherias.   The record does not contain any more responses to those notices.

In his January 1999 report, the social worker noted it was “unclear” whether the minor was or might be an Indian child.   According to the social worker, the minor's mother told him that she believed she was Maidu Indian.   The minor's mother also advised the social worker she was not enrolled in any tribe, nor had she ever been on a reservation or received any services.   The minor's mother also stated she believed her mother was “registered,” presumably meaning with a tribe, but was unable to provide proof, and that in the past her mother had taken the minor's mother's first child to an Indian clinic.

The social worker noted the maternal great aunt and uncle of the minor had requested placement of the minor with them.   According to the social worker's report, the great aunt and uncle formed a stable family unit.   However, they suffered from cardiovascular problems, which their doctor described as “significant.”   The daughter of the great aunt and uncle expressed a willingness to assist them in the minor's care and to provide for him if necessary.   The social worker opined that placement with the great aunt and uncle would not be in the best interests of the minor.

The social worker's report stated appellant and the minor's mother had been provided “remedial services and rehabilitative programs designed to prevent the breakup of the Indian family․”   The report also noted DSS made “ active efforts to provide these services and programs and these efforts were unsuccessful.”   The social worker opined there was proof beyond a reasonable doubt, in accordance with the Act, that continued parental custody likely would result in serious emotional or physical damage to the minor.

Appellant had a long criminal history.   For much of the reunification period, he was incarcerated.   Appellant sent correspondence to the minor.   However, according to the social worker, he did not know the minor.

According to a November 1998 adoption assessment report, it was “unclear” whether the minor was within the Act. The report recited that the minor's mother had disclosed she was one-half Caucasian and one-half Maidu Indian.   The report recommended adoption.

At the January 20, 1999, section 366.26 hearing, the juvenile court noted no Indian tribe had come forward in response to the notice of that hearing.   The court found by proof beyond a reasonable doubt that continued parental custody of the minor likely would result in serious emotional or physical damage to the minor.   The court also found by proof beyond a reasonable doubt that DSS made active efforts to prevent or eliminate the need for removal of the minor.   According to the court, “[r]emedial services and rehabilitative services have been given to prevent the break-up of the family, and these efforts were unsuccessful.”   The court found it likely the minor would be adopted and terminated appellant's parental rights.

DISCUSSION

Appellant contends DSS failed to comply with the notice and placement requirements of the Act, requiring invalidation of all orders entered by the juvenile court in this dependency proceeding.   According to appellant, the record establishes the Act applied to the proceeding.   Appellant suggests the court should have directed DSS to send notice to the Bureau of Indian Affairs (BIA), and asserts the notices sent to the tribes by DSS were not sent in a timely fashion.   Appellant also argues the placement preference requirements of the Act were violated.

In 1978, Congress passed the Act, which is designed to promote the stability and security of Indian tribes and families by establishing minimum standards for removal of Indian children from their families and placement of such children “in foster or adoptive homes which will reflect the unique values of Indian culture, and by providing for assistance to Indian tribes in the operation of child and family service programs.”  (25 U.S.C. § 1902;  Mississippi Choctaw v. Holyfield (1989) 490 U.S. 30, 109 S.Ct. 1597, 104 L.Ed.2d 29.)

To effectuate the purposes of the Act, “child custody proceeding[s]” (25 U.S.C. § 1903(1)) involving, among other proceedings, the “termination of parental rights” to an Indian child, are subject to special federal procedures (25 U.S.C. § 1903(1)(i)-(iv)).  “Termination of parental rights” means “any action resulting in the termination of the parent-child relationship.”  (25 U.S.C. § 1903(1)(ii).)

Among the procedural safeguards imposed by the Act is the provision of notice to various parties.   Section 1912(a) provides as follows:  “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.   If the identity or location of the parent or Indian custodian and the tribe cannot be determined, such notice shall be given to the Secretary in like manner, who shall have fifteen days after receipt to provide the requisite notice to the parent or Indian custodian and the tribe.   No foster care placement or termination of parental rights proceeding shall be held until at least ten days after receipt of notice by the parent or Indian custodian and the tribe or the Secretary:  Provided, That the parent or Indian custodian or the tribe shall, upon request, be granted up to twenty additional days to prepare for such proceeding.”  (Original italics.)

The Act provides for invalidation of a termination action for violation of the notice provision in a proceeding brought by the Indian child, parent, Indian custodian, or the Indian child's tribe.  (25 U.S.C. § 1914.)   The Act also contains various evidentiary and other requirements which may be different from state law and procedure.  (25 U.S.C. §§ 1912(d), (f), 1915.)

A major purpose of the Act is to protect “․ Indian children who are members of or are eligible for membership in an Indian tribe.” (§ 1901(3).)   For purposes of the Act, “ ‘Indian child’ means any 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.” (§ 1903(4).)

In support of his claims, appellant relies in part on In re Kahlen W. (1991) 233 Cal.App.3d 1414, 285 Cal.Rptr. 507.   In that case, the court stated:  “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.   Specifically, the tribe has the right to obtain jurisdiction over the proceedings by transfer to the tribal court or may intervene in the state court proceedings.   Without notice, these important rights granted by the Act would become meaningless.  [Citation.]”  (Id. at p. 1421, 285 Cal.Rptr. 507.)

In Kahlen W., supra, a social services employee spoke with three different groups of Miwok Indians, attempting to determine the minor's status.   In granting the writ sought by the mother of the minor, the appellate court held the department had failed to notify the tribe of its right to intervene in the proceedings, as required by the Act. (233 Cal.App.3d at pp. 1418, 1420, 1424, 1426, 285 Cal.Rptr. 507.)

The court rejected the department's contention that the record showed substantial compliance with the notice provisions of the Act. It noted that all pertinent authority plainly required “actual notice to the tribe of both the proceedings and of the right to intervene.”  (Id. at pp. 1421, 1422, 285 Cal.Rptr. 507;  original italics.)   Mere “ ‘awareness' ” of the proceedings is not sufficient under the Act. (Id. at p. 1422, 285 Cal.Rptr. 507.)

Kahlen W., supra, emphasized notice is mandatory, and that ordinarily failure in the juvenile court to secure compliance with the Act's notice provisions is prejudicial error.   The only exceptions lie in situations where “the tribe has participated in the proceedings or expressly indicated [it has] no interest in the proceedings.”  (233 Cal.App.3d at p. 1424, 285 Cal.Rptr. 507;  but see In re Junious M. (1983) 144 Cal.App.3d 786, 794, fn. 8, 193 Cal.Rptr. 40.)

The Kahlen W. court rejected a suggestion by the department that its noncompliance with the notice provisions of the Act was a result of the mother's failure to cooperate by not providing the department with the roll number and by not timely communicating her ancestry.  (233 Cal.App.3d at p. 1424, 285 Cal.Rptr. 507.)   As the court pointed out, the Act is intended to protect the interests of the tribe as well as those of the minor's parents.   (Id. at p. 1425, 285 Cal.Rptr. 507.)   Moreover, the minor is entitled to the protection of the Act irrespective of the actions of the parents.   (Ibid.) Finally, the court rejected the claim that by her silence the mother waived her rights under the Act. (Ibid.)

California Rules of Court, rule 1439(f) [further references to rules are to the California Rules of Court] provides in part:  “(3) Notice shall be sent to all tribes of which the child may be a member or eligible for membership.  [¶] (4) If the identity or location of the parent or Indian custodian or the tribe cannot be determined, notice shall be sent to the specified office of the Secretary of the Interior, which has 15 days to provide notice as required.  [¶] (5) Notice shall be sent whenever there is reason to believe the child may be an Indian child, and for every hearing thereafter unless and until it is determined that the child is not an Indian child.”

Rule 1439(g) provides in part:  “Determination of tribal membership or eligibility for membership is made exclusively by the tribe.  [¶] A tribe's determination that the child is or is not a member of or eligible for membership in the tribe is conclusive.”

 We reject appellant's claim that the record contained sufficient information to warrant sending notice of the proceeding to BIA. Of course, to the extent the identity of possible tribal affiliations was known from information supplied by the minor's mother, no need for BIA assistance was shown.   More importantly, appellant failed to state the name of any tribe with which he claimed affiliation.   With this paucity of information, it is difficult to perceive how BIA could be of help to the inquiry.

As the Act makes clear, its provisions apply only to an “Indian child,” defined by the Act as one who is eligible for membership in a tribe and is the child of a member of a tribe. (§ 1903(4).)   Here, DSS obtained information suggesting the mother of the minor was Miwok or Maidu Indian.   Acting pursuant to that information, DSS sent notices to branches of various tribes, including Miwok and Maidu tribal units.   DSS did so at various times during the dependency proceedings.

The responses DSS received were not especially helpful.   Moreover, the lack of response on the part of nearly all the tribes was most troubling.   In general, the three tribes responding apparently indicated only that the minor was not an Indian child.   On this record, we perceive no further obligation on the part of either the juvenile court or DSS to contact BIA in search of still more possible tribal names.

 The timing of notice is controlled by 25 United States Code section 1912(a), not, as appellant suggests, by provisions of state law.   That federal statute provides generally for a 10-day notice period.   Pursuant to that provision, DSS provided proper notice of the section 366.26 hearing.   Appellant is correct that DSS provided only eight days notice to the tribe of the jurisdictional hearing.   However, it is too late for appellant to raise this claim of error now.   He should have made the claim in an appeal from the dispositional order.   By failing to do so, appellant has waived any error.  (In re Pedro N. (1995) 35 Cal.App.4th 183, 189-191, 41 Cal.Rptr.2d 819.)

 In support of his claim that the Act applied to this proceeding, appellant cites rule 1439(e).   The version of rule 1439(e) in effect at the time of commencement of this dependency proceeding stated:  “If section 1.1 of the Juvenile Dependency Petition (JV-100) is checked, or if, upon inquiry, or based on other information, the court has reason to believe the child may be an Indian child, the court shall proceed as if the child is an Indian child and shall proceed with all dependency hearings, observing the Welfare and Institutions Code time lines while complying with the Act and this rule.   A determination by the identified tribe or the Bureau of Indian Affairs (BIA) that the child is not an Indian child, shall be definitive.”

Although appellant does not tender the argument, it might be claimed that, pursuant to rule 1439(e), the juvenile court was obligated to apply the Act throughout this dependency proceeding.   In this case, the record contains some evidence suggesting the minor was an Indian child.   Appellant and the mother of the minor believed they had some Indian heritage, and the social worker used various provisions of the Act in his recommendations.   Moreover, the court itself made various findings pursuant to the Act.

We do not believe rule 1439(e) compels such a conclusion.   The last sentence of the rule states that “[a] determination by the identified tribe or [BIA] that the child is not an Indian child, shall be definitive.”   Of course, by its express terms that statement merely embodies existing law.  (See In re Junious M., supra, 144 Cal.App.3d at p. 793, 193 Cal.Rptr. 40.)   However, by its inclusion in subdivision (e) of rule 1439, the statement affects the sentence preceding it, which directs the juvenile court to comply with the Act if the section 300 petition alleges the minor might fall under the Act.

In this case, the juvenile court directed the sending of notices to numerous identified tribes.   The outcome of that process gave no indication that the minor was or could be an “Indian child.”   It would be absurd to conclude that the court nevertheless must apply the Act to its proceedings simply because the section 300 petition alleged the minor might come within the Act. We are persuaded that the court, presented with the responses and nonresponses contained in the record of this case, thereafter was not constrained to conduct the proceedings in accordance with the various evidentiary provisions of the Act. Thus, the fact the court did so conduct itself is of no legal consequence.

The responses received by DSS were tantamount to determinations that the minor was not an “Indian child” within the meaning of the Act. More specifically, the responses constituted determinations that, for whatever reason, appellant and the minor were not eligible to become tribal members.   Presumably, if it had been otherwise, one or more tribes would have responded accordingly.   As we have seen, such a determination is conclusive.  ( in rE juniouS M., supra, at p. 793, 193 caL.rptr. 40.)

Unless the juvenile court has some further basis on which to predicate the belief a child is an Indian under the Act, the court is not required to make further inquiry.  (See In re Junious M., supra, at p. 793, 193 Cal.Rptr. 40.)   One circumstance under which a court has reason to believe a child may be Indian includes the receipt of information by a party to the case suggesting the child is Indian.  (Ibid.) Here, apart from the rather vague information provided by appellant and the mother, the record contained no basis for continuing to assume the minor must be an “Indian child” within the meaning of the Act.

If appellant had additional information suggesting the minor was a member of another tribe, or if he had evidence indicating the minor was eligible for membership in one of the noticed tribes, he should have tendered that information to the court.   Neither the Act nor the various rules, regulations, and case law interpreting it required DSS or the juvenile court to cast about, attempting to learn the names of other tribal units to which to send notices, or to make inquiry with BIA.

We conclude that, except as to the claimed error regarding notice of the jurisdiction hearing, which was waived by appellant, the juvenile court and DSS complied with the notice requirements of the Act. In light of the responses by the tribes to the notices, neither the court nor DSS had any further obligations under the Act, because there was no showing the minor was an “Indian child” under the Act. Moreover, the fact that DSS continued to send notices to tribes throughout the proceedings does not weaken our conclusion.

In sum, since the Act did not apply, the court was not obliged to apply the Act, including its placement preference provisions.   Accordingly, we need not consider appellant's placement claim under the Act. There was no error.

DISPOSITION

The order terminating appellant's parental rights is affirmed.

FOOTNOTES

1.   Much of the background and discussion that follows is derived from our opinion in an appeal filed by the mother of the minor from an order terminating her parental rights.  (In re Carlos G. (June 15, 1999) C031818 [nonpub. opn.].) We take judicial notice of that opinion.  (Evid.Code, §§ 451, subd. (a), 459.)

2.   The letters from the tribes are not contained in the record.

MORRISON, J.

SIMS, Acting P.J, and HULL, J., concur.