Filed 9/24/15 In re J.B. CA3
                                           NOT TO BE PUBLISHED
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 This opinion has not been certified for publication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.



                                                       COPY

               IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
                                      THIRD APPELLATE DISTRICT
                                                     (Sacramento)
                                                            ----




In re J.B., a Person Coming Under the Juvenile Court                                         C077866
Law.

SACRAMENTO COUNTY DEPARTMENT OF                                                  (Super. Ct. No. JD233717)
HEALTH AND HUMAN SERVICES,

                   Plaintiff and Respondent,

         v.

T.T. et al.,

                   Defendants and Appellants.




         T.T. and John B., parents of the minor, appeal from orders of the juvenile court
terminating their parental rights. (Welf. & Inst. Code, §§ 366.26, 395 [unless otherwise
stated, statutory references that follow are to the Welfare and Institutions Code].) The
parents contend that the court erred in making a finding at the six-month review hearing



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that the Indian Child Welfare Act (ICWA) (25 U.S.C. 1901, et seq.) did not apply to the
case and ordering that further notice need not be sent to the tribe. The parents also argue
that the Sacramento County Department of Health and Human Services (Department)
failed to provide active efforts in that it did not assist the minor in securing membership
in the tribe. We affirm the juvenile court’s orders.

                                 FACTS AND PROCEEDINGS

       The Department filed a petition to remove six-week-old J.B. from parental custody
in August 2013. The petition alleged mother had a drug problem, had used drugs while
pregnant with the minor, failed to comply with informal services and her current
whereabouts were unknown. The minor was placed with the maternal grandmother. At
the detention hearing on September 4, 2013, the court ordered the minor detained and
directed the Department to make a paternity inquiry. The maternal grandmother told the
court there was no Indian heritage on the maternal side.
       The report for the jurisdiction/disposition hearing said the social worker had not
had any contact with either parent. However, father appeared at the September 26, 2013,
prejurisdiction status conference and informed the court he had both Sioux and Creek
ancestry. Father completed the ICWA-020 form regarding his Indian status and asked for
a paternity test. At the November 7, 2013, hearing, the court found father to be the
minor’s biological father and directed the Department to provide notice to the relevant
tribes. The court subsequently entered a judgment of paternity. At the next hearing in
November 2013, father was present and reviewed the ICWA-030 notice form for
accuracy. Father informed the court he was an enrolled member of the Muscogee
(Creek) Nation but had lost his card.
       The Department filed an ICWA declaration in November 2013 which stated the
social worker spoke to the paternal aunt who is an enrolled member of the Muscogee
(Creek) Nation and said that father enrolled about the same time she did. The paternal


                                              2
aunt said the paternal grandmother, now deceased, had been a member of the Muscogee
(Creek) Nation and a paternal great-grandmother was a member of a Sioux tribe. She
also said the paternal grandfather did not have any Indian heritage. The social worker
spoke to the paternal great-grandmother who confirmed she was half Sioux and had an
enrollment number with the Standing Rock Sioux tribe. She also told the social worker
that the paternal great-grandfather was enrolled with the Muscogee (Creek) Nation. A
copy of the ICWA-030 notice form was attached to the declaration along with copies of
the paternal aunt’s enrollment information. The notice documents were sent to the
relevant tribes. By mid-December 2013, all the return receipts were filed and ICWA
notice of the proceedings was complete. An addendum filed in December 2013 again
stated father told the social worker he was a registered member of the Creek tribe but had
lost his card and did not know how to get another.
       In December 2013, the court sustained the petition as amended and noted that the
minor had not yet been identified as an Indian child. At disposition, the court adopted the
recommended findings and orders, placed the minor with the maternal grandmother and
ordered reunification services for the parents.
       In a declaration filed in January 2014, the Department’s paralegal stated that she
had spoken to Donna Hamilton of the Muscogee (Creek) Nation on January 2, 2014.
Ms. Hamilton indicated the minor and father were not enrolled members at that time and
that the ICWA did not apply to the minor. The Muscogee (Creek) Nation had sent a
letter to the paralegal in December 2013 which stated that, while the minor could be
traced in their records to a paternal great-grandmother, “The Muscogee (Creek) Nation is
NOT empowered to intervene in this matter unless the child/children or eligible
parent(s) apply and receive membership.” (Original emphasis.) The letter included the
address of the tribe and the telephone number of the Citizenship Office for the tribe.
       At the ICWA compliance hearing, the court reviewed the letter from the
Muscogee (Creek) Nation. The court observed that the minor was eligible for

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membership based on the letter which triggered the Department’s responsibility to do
what it could to assist the child in becoming a member. The court also stated that the
letter clarified that while there was tribal heritage, the tribe concluded that neither the
minor nor the father was actually an enrolled member. The court emphasized it was
father’s responsibility to do what he could to receive membership, thereby allowing the
Muscogee (Creek) Nation to intervene. Until the matter was clarified, the Department
was required to continue notice to the tribe. The court expected to receive information
from the Department on their efforts to work with the Muscogee (Creek) Nation to have
the minor enrolled and what they learned from the tribe. The Department’s position was
that the child was not eligible because the eligible parent was not a member of the tribe
and that it would confirm the meaning of the letter with the tribe. The court agreed that
such confirmation was the Department’s only duty at this point.
       In an ICWA declaration filed in February 2014, the Department’s paralegal stated
she had called the case management specialist for the Muscogee (Creek) Nation to clarify
the tribe’s letter but got no response. The paralegal then called the Citizenship Office for
the tribe and spoke to the Manager of Citizenship, Ms. Wade, who confirmed that father
was not a member of the tribe but that the paternal grandmother was. Ms. Wade told the
paralegal that, in order for a child to be an enrolled member of the tribe, a completed
membership application and Certificate of Degree of Indian Blood application as well as
state certified copies of the child’s and father’s birth certificates that established a link to
an enrolled member would need to be sent to the tribe. The paralegal also spoke to a
representative of the Standing Rock Sioux tribe who indicated no one in the minor’s
family was enrolled in the tribe and no family affiliation with the tribe was found.
       The report for the six-month review hearing filed in June 2014 recommended
termination of the parents’ services. Mother’s whereabouts remained unknown and there
was no indication she had participated in or completed any services. Father’s
whereabouts were also unknown and he never contacted the Department to arrange visits

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with the minor, although he did attend three medical appointments but never asked to
hold or touch the minor. Regarding ICWA matters, the social worker stated that the
minor could be traced in the records of the Muscogee (Creek) Nation but the tribe could
not intervene until the father or the minor applied for, and received, membership.
Currently neither was enrolled. The Department had been unsuccessful in “securing the
father’s interest in enrollment” for the minor’s benefit.
       At the review hearing, the court adopted the Department’s recommendation,
terminating services and setting a selection and implementation hearing. The court
further found the minor was not an Indian child and no further ICWA notice was
required.
       The report for the selection and implementation hearing stated that ICWA did not
apply based on the court’s findings at the six-month review hearing. Mother had
contacted the social worker who arranged a supervised visit for her. Father also asked for
a visit but was unavailable when the social worker tried to inform him of the arranged
visit. Finally, both parents came to a visit arranged for mother, but they interacted
minimally with the minor. The report stated the minor was likely to be adopted by the
maternal grandparents and there were no exceptions to termination of parental rights.
The minor’s birth certificate was attached to the report.
       At the selection and implementation hearing in November 2014, the court denied
mother’s request to set the matter for trial and adopted the recommended findings and
orders terminating parental rights as to both parents. Neither parent raised any ICWA-
related claim at the selection and implementation hearing or presented any evidence of a
change in father’s status with the Muscogee (Creek) tribe.




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                                        DISCUSSION

                                              I

                                        ICWA Notice

       The parents argue the juvenile court erred in finding at the review hearing when
services were terminated that the ICWA did not apply and that further notice to the tribe
was not required.
       Initially, we observe that the finding ICWA did not apply and the order that
further notice was not required occurred at a review hearing where a section 366.26
hearing was set. Findings and orders made at such a hearing are not appealable unless a
writ pursuant to California Rules of Court, rule 8.450 was taken. (§ 366.26, subd. (l).)
       We recognize that, where the record reflects there was no notice or defective
notice to the tribes of the proceedings, the notice issue can be raised at any time. (In re
Marinna J. (2001) 90 Cal.App.4th 731, 739.) This is not such a case. Proper notice was
sent pursuant to section 224.2, subdivision (a) and the relevant tribes responded.
Appellant did not file a writ contesting the court’s findings and orders made at the
hearing setting the section 366.26 hearing and has forfeited the challenge.
       Assuming arguendo that we could reach the issue, the parents cannot prevail. The
notice requirement of section 224.2 is not without limit. Ongoing notice to the identified
tribes is required only until it is determined that ICWA does not apply to the case.
(§ 224.2, subd. (b).) The Muscogee (Creek) Nation advised that the child could be traced
through the paternal great-grandmother and paternal grandmother but that the tribe was
not empowered to intervene unless father or the minor applied for, and received,
membership. The tribe’s position is consistent with the definition of “Indian child” found
in the ICWA, i.e., “any unmarried person who is under age eighteen and is either (a) a
member of an Indian tribe or (b) eligible for membership in an Indian tribe and is the




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biological child of a member of an Indian tribe.” (25 U.S.C. § 1903 (4).) At the time of
the review hearing, the minor satisfied neither condition.
       The social worker’s contact with the tribe clarified that the minor could apply for
membership consideration if various documents, including proof that the minor was
descended from an enrolled member, were provided to the tribe, but made it clear that,
until such time as the proper documents were sent to the tribe, considered by the tribe and
membership status granted, the tribe was not empowered to intervene. It is clear from the
tribe’s responses to the Department that membership for the minor was not a foregone
conclusion but rather depended upon the information in the application, and other
documents. Based on the evidence of the tribe’s determination of the minor’s status, and
father’s failure to cooperate with securing either membership or proof of the minor’s
lineage by providing his own birth certificate, the court correctly determined, pursuant to
section 224.3, subdivision (e)(1), that ICWA did not apply and that further notice of
ongoing hearings was not required. (§ 224.2, subd. (b).)

                                             II

                                       Active Efforts

       The parents also argue that the Department failed to comply with the requirement
of California Rules of Court, rule 5.484(c) to provide active efforts to prevent the breakup
of the Indian family, including “pursuit of any steps necessary to secure tribal
membership for a child if the child is eligible for membership in a given tribe.” The
parents recognize that the scope of the social worker’s duty to provide services to secure
tribal membership is an issue pending in the Supreme Court in In re Abbigail A. (2014)
226 Cal.App.4th 1450, review granted September 10, 2014. We need not address the
issues in Abbigail A. in this case. Further, we need not address recent changes in the
Federal Guidelines on application of ICWA which relate to this issue because the




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changes were not in effect at the time of the termination hearing. (80 Fed.Reg. 10146-
10159 (Feb. 25, 2015).)
       “Aside from its notice provisions, the ICWA applies only to Indian Children.
Only when information before the juvenile court is sufficient to show that the child is a
member of a tribe, or is eligible for membership and is the child of a member, does
[California Rules of Court,] rule [5.482(d)(2)] require compliance with all of the
provisions of the ICWA.” (In re L.B. (2003) 110 Cal.App.4th 1420, 1427 [internal cites
omitted, superseded by rule on other grounds].) The requirement to provide active efforts
applies only to an Indian child. At the time of the review hearing and later at the section
366.26 hearing the minor did not meet the ICWA definition of Indian child and no
“active efforts” were required.
       Nonetheless, assuming, without deciding, that active efforts to enroll the minor
were required, the record reflects that the Department did make active efforts on the
minor’s behalf. After the Muscogee (Creek) Nation responded to the notice of the
proceedings, the social worker contacted the tribe several times to clarify the meaning of
the response and determine what the tribe required to consider the minor’s application for
membership. While the social worker presumably could have completed the application
and other documents, proving the lineage to an enrolled member was not entirely in the
social worker’s power. The social worker had obtained the minor’s birth certificate and
would have had access to the court’s orders regarding paternity, but the social worker
needed father’s cooperation to prove the link between the minor and an enrolled member.
Father was unavailable or uncooperative. Insofar as was possible, the record shows that
the Department did make efforts to determine whether the minor could be enrolled
without the father first enrolling and what steps were necessary to do so. Under the
circumstances, the Department was not required to do more.




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                                            III

                                   Additional Evidence

       Father filed a request to take additional evidence which was denied April 16,
2015. Respondent has filed a motion to partially strike those portions of the parent’s
opening briefs which are “predicated on the documents that were the subject of” the
motion to take additional evidence. Respondent’s motion is denied as unnecessary.

                                       DISPOSITION

       The orders of the juvenile court are affirmed.



                                                        HULL                 , Acting P. J.



We concur:



      BUTZ                  , J.



      DUARTE                , J.




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