Filed 8/22/14 In re J.C. CA2/8
                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     SECOND APPELLATE DISTRICT

                                                 DIVISION EIGHT


In re J.C., a Person Coming Under the                                B253599
Juvenile Court Law.

LOS ANGELES COUNTY                                                   (Los Angeles County
DEPARTMENT OF CHILDREN AND                                           Super. Ct. No. CK91384)
FAMILY SERVICES,

         Plaintiff and Respondent,

         v.

APRIL P.,

         Defendant and Appellant.



         APPEAL from an order of the Superior Court of Los Angeles County.
Annabelle Cortez, Judge. Conditionally reversed and remanded.

         Christy C. Peterson, under appointment by the Court of Appeal, for Appellant.

         John F. Krattli, County Counsel, Dawyn R. Harrison, Assistant County Counsel,
and Melinda A. Green, Deputy County Counsel.


                                                ________________
       April P. (Mother) appeals from the order terminating her parental rights to her son,
J.C., and implementing a permanent plan of adoption. Mother’s sole contention on
appeal is that respondent Department of Children and Family Services (DCFS) failed to
comply with notice requirements of the Indian Child Welfare Act (25 U.S.C. § 1901 et
seq.) (ICWA). We reverse and remand with instructions.

                 FACTUAL AND PROCEDURAL BACKGROUND

       The issue on appeal makes a detailed recitation of the facts unnecessary. It is
sufficient to observe that J.C. was 18 months old when a general neglect referral led to
his detention in January 2012. As sustained on April 16, 2012, an amended section 300
petition alleged mother left J.C. with maternal great-grandmother for extended periods
without making an appropriate plan for his ongoing care (paragraph b-1) and mother had
an unresolved history of drug abuse (paragraph b-3).1 J.C. was eventually placed with a
paternal great-aunt. By April 2013, mother had not complied with any aspect of the case
plan and the paternal great-aunt wanted to adopt J.C. Mother’s reunification services
were terminated and a section 366.26 permanent plan selection hearing (.26 hearing) was
scheduled for July 2013. Following a number of continuances, the .26 hearing occurred
on December 27, 2013.2 The juvenile court terminated parental rights and selected
adoption as the permanent placement plan. Mother timely appealed.




1       All undesignated statutory references are to the Welfare and Institutions Code.
J.C.’s father was incarcerated during the dependency proceedings with an expected
release date in 2016. The petition did not include any allegations against him and he is
not a party to the appeal.

2      During the intervening months, mother gave birth to twin girls (the half-siblings)
who were detained and placed with J.C. in the home of the paternal great-aunt. A
section 300 petition was later sustained as to the half-siblings; reunification services were
ordered for their father, but not for mother.


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A.     ICWA Compliance

       At the detention hearing on January 11, 2012, paternal great-grandmother
(PGGM) stated that her great-grandmother had been a “full-blood” Iroquois, but the
family was not enrolled.
       In February 2012, DCFS gave ICWA notice to the “ICWA Representative” of the
following tribes designated as Iroquois-affiliated in the then current list of Indian tribes
published in the Federal Register: (1) Cayuga Nation; (2) Oneida Indian Nation of New
York; (3) Onondaga Nation; (4) Saint Regis Band of Mohawk Indians; (5) Seneca Nation
of Indians; and (6) Tuscarora Nation of New York. (See 76 Fed.Reg. 30438 et seq.)
DCFS did not send any notice to a seventh tribe designated in the Federal Register as
Iroquois-affiliated: the Tonawanda Band of Seneca. The notice to the Cayuga Nation of
New York was sent to an incorrect address.3
       In a letter dated February 7, 2012, the Federal Bureau of Indian Affairs notified
DCFS that it was returning the ICWA notice sent to it because “it does not require a
response or action. The county has provided an appropriate notice to the tribe or tribes.”
The following tribes notified DCFS that J.C. was not enrolled or eligible for enrollment:
(1) Oneida Indian Nation, (2) Saint Regis Mohawk Tribe, (3) Seneca Nation of Indians,
and (4) Tuscarora Nation. Although a return receipt was received from the Onondaga
Nation of New York, that tribe did not respond to the notice. On February 9, 2012, the
notice sent to “Cayuga Nation” was returned to DCFS marked:
              “FORWARD TIME EXP RTN TO SEND
              : CAYUGA NATION
               P.O. BOX 803
               SENECA FALLS, NY 13148-0803
              RETURN TO SENDER”

On April 16, 2012, the juvenile court found ICWA did not apply.


3       The notice was sent to: “Cayuga Nation, P.O. Box 11, Versailles, NY [zip code
illegible].” The address designated in the Federal Register was: “Cayuga Nation of New
York, P.O. Box. 803, Versailles, New York, 14168.”

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                                      DISCUSSION

       Mother’s sole contention on appeal is that the juvenile court’s finding that ICWA
did not apply was not supported by substantial evidence. She argues that this is because
notice was inadequate to the following Iroquois-affiliated tribes: Cayuga Nation of New
York, Tonawanda Band of Seneca, Seneca-Cayuga Tribe of Oklahoma, and Oneida Tribe
of Wisconsin. We find insufficient evidence of proper ICWA notice to the Cayuga
Nation of New York, the Onondaga Nation of New York and the Tonawanda Band of
Seneca. Mother has not shown the other two tribes are Iroquios-affilated.
       Mother has standing to challenge ICWA compliance even though she is not the
parent with alleged Indian heritage. (In re B.R. (2009) 176 Cal.App.4th 773, 779-780.)
We review the trial court’s ICWA notice findings for substantial evidence. (In re E.W.
(2009) 170 Cal.App.4th 396, 404.) Deficiencies in ICWA notice are generally
prejudicial, but “[w]here notice has been received by the tribe, errors or omissions in the
notice are reviewed under the harmless error standard.” (In re S.E. (2013)
217 Cal.App.4th 610, 615.)
       Where the state knows or has reason to know that an Indian child is involved in
dependency proceedings, ICWA requires that the relevant tribes be given notice of the
proceedings by registered mail with return receipt requested. (25 U.S.C. § 1912(a).) In
California, ICWA’s notice requirements are set forth in Welfare and Institutions Code
section 224.2. Subdivision (a)(3) of section 224.2 requires notice to be sent to “all tribes
of which the child may be a member or eligible for membership . . . .” The California
Rules of Court require the social worker to contact “the Bureau of Indian Affairs and the
California Department of Social Services for assistance in identifying the names and
contact information of the tribes in which the child may be a member or eligible for
membership” and contact “the tribes and any other person that reasonably can be
expected to have information regarding the child’s membership status or eligibility.”




                                              4
(Rule 5.481(a)(4)(B) & (C).) 4 Notice must be sent to the tribal chairperson unless the
tribe has designated another agent for service. (Rule 5.481(b)(4).)
       An official list of all federally recognized tribes is published periodically in the
Federal Register. (25 U.S.C. § 479a-1; see Agua Caliente Band of Cahuilla Indians v.
Superior Court (2006) 40 Cal.4th 239, 243.) When DCFS was giving ICWA notice in
this case, the most current list had been published on May 25, 2011. (76 Fed.Reg. 30438
et seq.) It listed tribes in two different formats: (A) alphabetically by tribe within each
region and (B) by tribal affiliation. In the tribal affiliation section, the following seven
tribes were identified as Iroquois-affiliated: (1) Cayuga Nation of New York, (2) Oneida
Indian Nation, (3) Onondaga Nation of New York, (4) Saint Regis Mohawk Tribe,
(5) Seneca Nation of Indians, (6) Tonawanda Band of Seneca and (7) Tuscarora Nation
of New York. (76 Fed.Reg. 30348 et seq.)
       In determining whether ICWA notice was sufficient in this case, we take guidance
from In re Alice M. (2008) 161 Cal.App.4th 1189, in which the mother challenged ICWA
compliance where a social worker sent ICWA notice to eight tribes in the manner
required by the statute. Although the social worker received eight return receipts, three
of the eight tribes did not respond to the notice (the other five tribes found the child not
eligible for membership). Rejecting the trial court’s finding of substantial compliance
with ICWA, the appellate court held that a return receipt was not sufficient to show that
the three tribes actually received notice. (Id. at p. 1201.)
       Here, PGGM’s statement at the January 2012 detention hearing that her own great
grandmother was a “full blood” Iroquois gave the DCFS social worker reason to know
that J.C. may be an Indian child. (See rule 5.481(a)(5)(A).) This knowledge triggered
the social worker’s duty to contact “the tribes and any other person that reasonably can be
expected to have information regarding the child’s membership status or eligibility.”
(Rule 5.481(a)(4)(C).) The social worker was required to give ICWA notice to the seven
tribes identified as Iroquois-affiliated in the Federal Register, including the Cayuga


4      All undesignated rule references are to the California Rules of Court.

                                               5
Nation of New York, the Onondago Nation of New York and the Tonawanda Band of
Seneca. There is no dispute that the social worker failed to give any notice to the
Tonawanda Band of Seneca. Notice to the Cayuga Nation of New York at an incorrect
address was not sufficient where the notice was returned unopened; the proper course of
action in such case would be to resend the notice to the correct address. Finally, under
Alice M., supra, the absence of any response from the Onondago Nation of New York
constitutes insufficient evidence of notice to that tribe. The failure to comply with
ICWA’s notice requirements as to these three tribes requires conditional reversal.
       We are not persuaded otherwise by DCFS’s arguments that (1) the PGGM’s
identification of her own great-grandmother as an Iroquois was too vague and speculative
to require notification to any tribe, and (2) since the Cayuga Nation of New York
determines eligibility based on the mother’s eligibility, J.C. could not have been found
eligible even if his father was eligible.
       Regarding the first argument, DCFS relies on various cases in which information
that the child may have some nontribe specific Indian heritage was found insufficient to
trigger the ICWA notice requirements. (See e.g. In re Hunter W. (2011) 200 Cal.App.4th
1454, 1465; In re J.D. (2010) 189 Cal.App.4th 118, 123; In re O.K. (2003)
106 Cal.App.4th 152, 157.) This case is factually inapposite to those cases. Here,
PGGM’s identification of a specific ancestor and tribal affiliation was sufficient to trigger
the ICWA notice requirements.
       Regarding J.C.’s eligibility for membership in the Cayuga Nation of New York,
we decline DCFS’s request for judicial notice of a page captioned “Enrollment and
Genealogy” apparently printed from the Cayuga Nation of New York’s website. It is for
the Cayuga Nation of New York to determine whether a child is eligible for membership
in that tribe, not the state court. (In re B.R., supra, 176 Cal.App.4th at p. 781; but see In
re J.M. (2012) 206 Cal.App.4th 375, 381 [after taking judicial notice of the tribal
membership criteria, the appellate court found failure to name great-great-grandparents in
ICWA notice was harmless].)



                                              6
       Also unavailing is DCFS’s argument that the Tonawanda Band of Seneca is not
listed as an Iroquois-related tribe in the most recent Federal Register (79 Fed.Reg. 3225
et seq.) As we explained, at the time the social worker was sending ICWA notices in this
case, the Federal Register listed tribes in two different formats, one of which was by
tribal affiliation. (76 Fed.Reg. 30438 et seq.) The current list does not use the tribal-
affiliation format. That Bureau of Indian Affairs has abandoned the tribal-affiliation
format does not alter the fact that the Tonawanda Band of Seneca is Iroquois-affiliated.

                                      DISPOSITION

       The order terminating parental rights is reversed. The case is remanded to the
juvenile court with directions to order DCFS to send notice to the Cayuga Nation of New
York, the Onondaga Nation and the Tonawanda Band of Seneca in accordance with
ICWA. If, after proper notice, the court finds that J.C. is an Indian child, the court shall
proceed in conformity with ICWA. If, after proper notice, the court finds that J.C. is not
an Indian child, the order terminating parental rights and selecting adoption as the
permanent plan shall be reinstated.




                                                  RUBIN, J.
WE CONCUR:




              BIGELOW, P. J.




              FLIER, J.




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