as: 130 Cal.App.4th 1148, 30 Cal.Rptr.3d 726)
of Appeal, Fourth District, Division 2, California.
re S.B., a Person Coming Under the Juvenile Court Law.
Bernardino County Department Of Children's Services, Plaintiff and
V., Defendant and Appellant.
for Partial Publication.
Pursuant to California Rules of Court, rules 976(b) and 976.1,
this opinion is certified for publication with the exception of
As Modified July 28, 2005.
Review Denied Oct. 12, 2005.
Linda S. Rehm, under appointment by the Court of Appeal,
for Defendant and Appellant.
Ronald D. Reitz, County Counsel, and Ramona E. Verduzco, Deputy
County Counsel, for Plaintiff and Respondent.
Konrad S. Lee, under appointment by the Court of Appeal,
Riverside, for Minor.
Jeannie V. (mother) appeals from an order terminating parental rights
to her daughter, S.B. At the preceding hearing, at which
the juvenile court set the termination hearing, the social worker
learned for the first time that S.B. had Indian ancestry.
At that point, the social worker attempted to give notice
pursuant to the Indian Child Welfare Act (25 U.S.C. § 1901
et seq.) (the ICWA). Although the notice did not comply
fully with all applicable requirements, it did reach the Cherokee
Nation (the Tribe), and the Tribe did respond. As a
result, the mother and S.B. became members of the Tribe;
the Tribe intervened; and, with the Tribe's approval, S.B. was
placed with Indian foster parents who wanted to adopt her.
In the published portion of this opinion, we consider the
mother's contention that the juvenile court and the social worker
complied only belatedly *1154
with their duty under the ICWA to inquire into S.B.'s
Indian ancestry. We will reject this contention for three reasons.
First, the mother waived it by failing to raise it
at the first opportunity; although a parent cannot waive an
Indian tribe's rights under the ICWA, the parent can waive
his or her own rights. Second, the fact that the
social worker's reports stated that
the ICWA did not apply, along with the fact that
the ICWA checkboxes on the petition were left blank, constituted
sufficient evidence that an inquiry was made. Third, at least
as to the mother, the asserted error was harmless. The
detention hearing did not involve a foster care placement within
the meaning of the ICWA; hence, the substantive provisions of
the ICWA did not apply. The jurisdictional/dispositional hearing did involve
a foster care placement, and we may assume the review
hearings did as well, but there is no reasonable probability
that, if the substantive provisions of the ICWA had been
applied, the mother would have enjoyed a more favorable result.
In the unpublished portion of this opinion, we find no
other error. Accordingly, we will affirm.
AND PROCEDURAL BACKGROUND
When this dependency proceeding was originally filed, S.B. was two,
going on three. She is now five.
On November 7, 2002, because both of her parents were
found to be under the influence of drugs, and because
of hazardous conditions in the home, S.B. was detained. On
November 8, 2002, the Department of Children's Services (the Department)
filed a dependency petition concerning her. Initially, she was placed
in a group foster home. Within weeks, however, she was
moved to a foster family home.
Both the report for the detention hearing and the report
for the jurisdictional/dispositional hearing stated, "The Indian Child Welfare Act
does not apply."
On December 2, 2002, at the jurisdictional/dispositional hearing, the parents
submitted on the social worker's reports. The juvenile court found
jurisdiction based on failure to protect. (Welf. & Inst.Code, § 300,
subd. (b).) It ordered reunification services.
On January 14, 2004, at the 12-month review hearing, the
juvenile court terminated **729
reunification services and set a hearing pursuant to Welfare and
Institutions Code section 366.26 (section 366.26 hearing). At that same
hearing, however, the social worker learned (apparently from the mother,
but possibly from the maternal grandmother, who was at the
hearing) that S.B. had Indian heritage.
On February 2, 2004, after obtaining the necessary information from
the maternal grandmother, the social worker mailed a form SOC
318 to the Bureau of Indian Affairs (the BIA). That
form would have provided information about S.B.'s ancestry. There is
no indication, however, that the social worker sent a form
SOC 319, which would have provided notice of the dependency
proceeding. (See In
(2003) 110 Cal.App.4th 214, 223-226, 1 Cal.Rptr.3d 578.)
On February 18, 2004, the juvenile court held a "notice
review" hearing. The maternal
grandmother appeared and stated that she was a member of
the Tribe. Counsel for the Department indicated that it was
going to give notice pursuant to the ICWA.
Meanwhile, the Tribe responded to the notice already sent to
the BIA. In a letter dated February 20, 2004, it
confirmed that the maternal grandmother was a member of the
Tribe and that S.B. was eligible for membership. A membership
application was enclosed. The letter also stated: "The Cherokee Nation
is not empowered to intervene in this matter unless the
eligible parent(s) apply and receive membership."
On June 18, 2004, the mother filed a "motion to
invalidate jurisdictional, dispositional, 366.21(e) and 366.21(f) findings and orders for
failure to comply with the Indian Child Welfare Act and
Welfare & Inst.Code section 360.6." (Capitalization altered.)
On July 2, 2004, the prospective adoptive parents indicated that
they had changed their minds about adoption; they asked that
S.B. be removed from their home.
On or about July 15, 2004, both the mother and
S.B. became members of the Tribe. On July 27 (or
29), 2004, the Tribe filed a "Notice of Intervention." (Capitalization
On August 9, 2004, S.B. was placed with a family
that wanted to adopt her. The prospective adoptive mother had
both Cherokee and Navajo ancestry; the prospective
adoptive father had both Cherokee and Cheyenne ancestry. Although not
members of any tribe, they were "actively involved in cultural
events" such as powwows. The Tribe took the position that,
although it would have preferred a placement in the home
of members of the Cherokee Nation, S.B.'s current placement was
in her best interest because she "has *1156
adjusted to her community [and] school environment, and she will
be raised attending cultural events with her foster/adoptive parents...."
On August 26, 2004, the juvenile court denied the mother's
motion to invalidate prior orders. It then proceeded to hold
a contested section 366.26 hearing. For purposes of the ICWA,
it specifically found, beyond a reasonable doubt, that continued custody
of the child by the parents was likely to cause
serious emotional or physical damage to the child (see 25
U.S.C. § 1912(f))
and, by clear and convincing evidence, that active efforts had
been made to provide remedial services and rehabilitative programs designed
to prevent the breakup of the Indian family (see 25
U.S.C. § 1912(d)).
It also found that S.B. was adoptable and that none
of the exceptions to termination of parental rights applied. It
therefore terminated parental rights.
The mother filed a timely notice of appeal. The Tribe
has been given notice of the appeal, including copies of
all of the briefs. It has notified us, however, that
it does not wish to participate in the appeal.
TO INQUIRE INTO S.B.'S INDIAN ANCESTRY
The mother contends the juvenile court should have granted her
motion to invalidate previous findings and orders because the juvenile
court and the Department had failed to inquire into whether
S.B. was an Indian child.
Among the stated purposes of the ICWA are "to protect
the best interests of Indian children and to promote the
stability and security of Indian tribes and families by the
establishment of minimum Federal standards for the removal of Indian
children from their families and the placement of such children
in foster or adoptive homes which will reflect the unique
values of Indian culture...." (25 U.S.C.1902.)
In general, the ICWA applies to any state court proceeding
involving the foster care or adoptive placement of, or the
termination of parental rights to, an Indian child. (25 U.S.C.
1911(1)-(3), 1912-1918, 1920, 1921.) "Indian child" is defined as a
child who is either (1) "a member of an Indian
tribe" or (2) "eligible for membership in an Indian tribe
and ... the biological child of a member of an
Indian tribe...." (25 U.S.C.1903(4).)
We are concerned with three types of ICWA provisions, which
we will call the "notice provisions," the "substantive provisions," and
the "enforcement provision."
First, under the notice provisions, if "the court knows or
has reason to know that an Indian child is involved,"
the social services agency must " notify ... the Indian
child's tribe, by registered mail with return receipt requested, of
the pending proceedings and of their right of intervention." (25
U.S.C. § 1912(a).)
"if the identity or location of ... the tribe cannot
be determined," the notice need only be given to the
"No foster care placement or termination of parental rights proceeding
shall be held until at least ten days after receipt
of notice by ... the tribe or the [BIA]." (Ibid.)
Second, under the substantive provisions, the Indian child's tribe has
"a right to intervene at any point in the proceeding."
(25 U.S.C.1911(c).) As a condition of any foster care placement
or termination of parental rights, the court must find "that
active efforts have been made to provide remedial services and
rehabilitative programs designed to prevent the breakup of the Indian
family and that these efforts have proved unsuccessful." (25 U.S.C.
The court also must find, based at least in part
on the "testimony of qualified expert witnesses," that "the continued
custody of the child by the parent ... is likely
to result in serious emotional or physical damage to the
child." (25 U.S.C. §§ 1912(e),
(f).) For a foster care placement, this must be proven
"by clear and convincing evidence." (25 U.S.C. § 1912(e).)
For termination of parental rights, it must be proven "beyond
a reasonable doubt."
(25 U.S.C. § 1912(f).)
Third and finally, under the enforcement provision, on the petition
of the Indian child, a parent from whose custody an
Indian child has been removed, or the Indian child's tribe,
"any court of competent jurisdiction" must invalidate any "action for
foster care placement or termination of parental rights" that violated
the notice provision or any of the substantive provisions. (25
U.S.C. § 1914.)
A host of subsidiary requirements have been adopted to implement,
interpret, and enlarge upon this statutory language. These requirements are
embodied in: (1) federal regulations (25 C.F.R. § 23.1
et seq.), which are binding in all federal and state
courts by virtue of the Supremacy Clause (see Olszewski
v. Scripps Health
(2003) 30 Cal.4th 798, 814, 135 Cal.Rptr.2d 1, 69 P.3d
927); (2) federal "Guidelines for State Courts" (Guidelines) (44 Fed.Reg.
67584 (Nov. 26, 1979)), which by their terms are "not
intended to have binding legislative effect" (ibid.);
(3) a state rule of court (Cal. Rules of Court,
rule 1439); (4) several "mandatory" state Judicial Council forms (JV-130,
JV-135; see also Gov.Code, § 68511);
and (5) sections 31- 515 and 31-520 of the state
Child Welfare Services Manual of Policies and Procedures (CWS Manual)
re Asia L.
(2003) 107 Cal.App.4th 498, 506, 132 Cal.Rptr.2d 733).
Available at <http://www.cdss.ca.gov/getinfo/pdf/cws4.pdf>, as of June 30, 2005.
For example, the ICWA notice provisions, by their terms, apply
if " the court knows or has reason to know
that an Indian child is involved...." (25 u.s.c. § 1912(a).)
the icwa does not define "reaSON to know." neither do
the controlling federal regulations. (See 25 C.F.R. § 23.11(a).)
The Guidelines, however, require "the state court [to]
to determine if the child involved is a member of
an Indian tribe or if a parent of the child
is a member of an Indian tribe and the child
is eligible for membership in an Indian tribe." (Guidelines, § B.5.a,
44 Fed.Reg. at p. 67588, italics added.) The state rule
of court provides that "[t]he court [and
county welfare department ... have an affirmative duty to inquire
whether a child for whom a [dependency] petition ... is
to be, or has been, filed is or may be
an Indian child." (Cal. Rules of Court, rule 1439(d).) Judicial
Council form JV-135, effective January 1, 2005, provides for a
parent to indicate whether the child is or might be
an Indian child.
The CWS Manual, finally, provides that "the social worker shall:
... [i]dentify in the petition that the child is or
may be an Indian child as defined by the ICWA."
(CWS Manual, § 31-515.)
"To make such a determination, the social worker shall ask
the child, his parent or custodian whether the child
is or may be a member of an Indian tribe,
or whether the child identifies himself/herself as a member of
a particular Indian organization." (CWS Manual, § 31-515.111.)
If the child's Indian status cannot be determined before the
first hearing, the social worker must "[a]dvise the court of
all information which indicates that the child may be an
Indian child," "[a]dvise the court of all efforts made to
establish the child's status as an Indian child," and "[c]ontinue
contacts with the BIA until the question of the child's
status as an Indian child ... has been resolved and
the resolution is documented in the case record for future
reference." (CWS Manual, § 31-515.2.)
The ICWA expressly permits "[s]tate or [f]ederal law [to] provide[
] a higher standard of protection ... than the rights
provided under" the ICWA. (25 U.S.C. § 1921.)
This simply means, however, that the ICWA does not preempt
such higher state standards. It does not incorporate such higher
state standards into the ICWA itself. The enforcement provision, by
its terms, applies only to violations "of sections 1911, 1912,
and 1913 of this title" (25 U.S.C. § 1914);
it does not purport to address the penalty for other
violations of federal or state law.
a general rule, a party is precluded from urging on appeal any point **732
not raised in the trial court. Any other rule would permit a party
to play *1159
fast and loose with the administration of justice by deliberately standing
by without making an objection of which he is aware. [Citation.]"
(In re Richard
K. (1994) 25 Cal.App.4th
580, 590, 30 Cal.Rptr.2d 575.) Similar principles apply to a belated
attempt to raise a point in the trial court. For example, "[t]he
rule is well settled that when at any time during trial a party or his
counsel becomes aware of facts constituting misconduct or irregularity
in the proceedings of the jury, he must promptly bring such matters to
the attention of the court, if he desires to object to it, or he will
be deemed to have waived the point as a ground for a motion for a new
trial. [Citations.]" (Weathers
v. Kaiser Foundation Hospitals
(1971) 5 Cal.3d 98, 103, 95 Cal.Rptr. 516, 485 P.2d 1132.)
the mother raised her present contention for the first time by filing
a motion to invalidate prior orders pursuant to the enforcement provision
of the ICWA. (25 U.S.C. § 1914.) Previously, she had appeared
(or waived her appearance) at every hearing that she now claims was held
without the notice required by the ICWA. Nevertheless, she failed to object
on ICWA grounds until those hearings were over and the section 366.26
hearing loomed. She does not offer any excuse for her previous failure
to object; for example, she does not claim that she was unaware
of her own Indian ancestry. We conclude that she thereby forfeited any
right she might otherwise have had to invoke the enforcement provision.
Admittedly, it has been held--including by this court-that a parent
does not necessarily waive an ICWA notice issue by failing
to raise it below. (In
re Suzanna L.
(2002) 104 Cal.App.4th 223, 231-232, 127 Cal.Rptr.2d 860 [Fourth Dist.,
Div. Two]; In
re Jennifer A.
(2002) 103 Cal.App.4th 692, 706, 127 Cal.Rptr.2d 54; Dwayne
P. v. Superior Court
(2002) 103 Cal.App.4th 247, 257-258, 126 Cal.Rptr.2d 639; In
re Samuel P.
(2002) 99 Cal.App.4th 1259, 1267-1268, 121 Cal.Rptr.2d 820; In
re Marinna J.
(2001) 90 Cal.App.4th 731, 738-739, 109 Cal.Rptr.2d 267; In
re Desiree F.
(2000) 83 Cal.App.4th 460, 471-472, 99 Cal.Rptr.2d 688.) These cases,
however, reason that " '[t]he notice requirements serve the interests
of the Indian tribes "irrespective of the position of the
parents" and cannot be waived by the parent. [Citation.]' [Citation.]"
at pp. 231-232, 127 Cal.Rptr.2d 860, quoting Samuel
at p. 1267, 121 Cal.Rptr.2d 820, quoting In
re Kahlen W.
(1991) 233 Cal.App.3d 1414, 1421, 285 Cal.Rptr. 507.)
Once the child's tribe has appeared
and has not asked, on its own behalf, that any prior actions be invalidated,
this rationale does not apply. The parent has an independent right to
invalidate prior actions, but there is every reason to hold that this
can be waived. As in other cases, "... '[i]t would seem ...
intolerable to permit a party to play fast and loose with the administration
of justice by deliberately standing by without making an objection of
which he *1160
is aware and thereby permitting the proceedings to
go to a conclusion which he may acquiesce in, if favorable, and which
he may avoid, if not.' " (Caminetti
v. Pac. Mutual L. Ins. Co. of California
(1943) 22 Cal.2d 386, 392, 139 P.2d 930, quoting Lindsay-Strathmore
Irr. Dist. v. Superior Court of Tulare County
(1920) 182 Cal. 315, 338, 187 P. 1056 (conc. opn. of Onley, J.).)
While the social worker and the trial court have a
duty to inquire into the child's Indian ancestry, a parent
has superior access to this information. Moreover, a parent has
a right to counsel, including appointed counsel, if necessary (Welf.Inst.Code,
317, subds.(a), (b)), who has not only **733
the ability but also the duty to protect the parent's
rights under the ICWA. As the trial court in this
case observed, if a parent has Indian ancestry, "I would
think as officers [of] the court, counsel for parents would
have [a] similar interest [in] bring[ing] that information forward at
the earliest possible time."
We recognize that, in a proceeding for foster care placement
of, or termination of parental rights to, an Indian child,
a parent's failure to object does not waive the substantive
provisions (as opposed to the notice provisions) of the ICWA
unless "the court is satisfied that the [parent] has been
fully advised of the requirements of the Act, and has
knowingly, intelligently, and voluntarily waived them." (Cal. Rules of Court,
rule 1439(i)(2), (i)(4), (j)(2), (m)(2), (m)(4); see In
re Jennifer A., supra,
Cal.App.4th at pp. 707-708, 127 Cal.Rptr.2d 54.) Here, however, S.B.
was not yet an Indian child. The substantive provisions of
the ICWA did not yet apply. There is no state
rule of court similarly restricting waiver of the notice
provisions, which are the source of the duty of inquiry.
Accordingly, the mother could and did waive the supposed failure
to inquire concerning S.B.'s Indian ancestry.
Sufficiency of the Evidence.
Separately and alternatively,
the record indicates that the Department did inquire as to whether S.B.
was an Indian child. In
re Aaliyah G. (2003)
109 Cal.App.4th 939, 135 Cal.Rptr.2d 680 is practically on point. There,
the petition application was marked "No" to indicate that the
child did not have Indian heritage. All subsequent reports stated
that the ICWA did not apply. (Id.
at p. 942, 135 Cal.Rptr.2d 680.) On appeal, the father argued that
the juvenile court and the social services agency had "failed to
satisfy their affirmative duty to inquire as to ICWA's applicability."
at p. 941, 135 Cal.Rptr.2d 680.) The appellate court disagreed:
"Checking the No box suggests that an inquiry as to Aaliyah's
heritage was made. There is no indication to the contrary. The
court had no obligation to make a further or additional inquiry absent
any information or suggestion that *1161
the child might have Indian heritage." (Id.
at p. 942, 135 Cal.Rptr.2d 680.) It concluded: "Based
on the record, there is sufficient evidence that an inquiry was
made as to whether Aaliyah is an Indian child." (Ibid.)
Here, the Judicial Council form petition, JV-100 (Jan. 1, 1999
rev.), provided two checkboxes for indicating the child's Indian status.
One box meant: "Child may be a member of, or
eligible for[ ] membership in[,] a federally recognized Indian tribe."
The other meant: "Child may be of Indian ancestry." Neither
was checked. The report for the detention hearing stated, "The
Indian Child Welfare Act does not apply." The report for
the jurisdictional/dispositional hearing likewise stated, "The Indian Child Welfare Act
does not apply." The mother appeared in court, with her
appointed counsel, but she never objected to these statements. Indeed,
at the jurisdictional/dispositional hearing, she submitted on the reports.
From the affirmative representation that the ICWA did not apply,
it is fairly inferable that the social worker did make
the necessary inquiry. The only even arguable distinction between Aaliyah
and this case is that there, a box indicating that
the ICWA did
checked, whereas here, boxes indicating that the ICWA did
apply were not
checked. The form in this case, however, did not provide
a box for indicating that the ICWA did not apply.
As the Department aptly argues, the "slight difference in the
[forms] does **734
not undermine the legal rationale." The mother did not introduce
any contrary evidence. Although her counsel argued
that the social worker had not made any inquiry, the
mother did not submit a declaration or otherwise testify
The mother could argue that the social worker evidently did
not make any inquiry to the maternal grandmother, because if
she had, she would have learned that S.B. had Indian
ancestry. However, as long as the social worker did inquire
of the parents, and as long as the parents failed
to provide any information requiring follow-up, she had no further
duty of inquiry. The Guidelines require "the state court [to]
make inquiries...." (Guidelines, § B.5.a,
44 Fed.Reg. at p. 67588.) The court could hardly make
inquiries of persons not parties to the proceeding. Although the
state rule of court imposes a duty of inquiry on
both the court and the social services agency (Cal. Rules
of Court, rule 1439(d)), the Judicial Council form designed to
implement this rule indicates that the initial inquiry need only
be made to the parents. As the Judicial Council writes
the rules of court, its interpretation seems definitive. Even the
CWS Manual merely requires the social worker to "ask the
child [and] his parent or custodian...." (CWS Manual, § 31-515.111.)
We conclude that there was sufficient evidence that the juvenile
court and the Department met their duty of inquiry.
again, separately and alternatively--the asserted error was harmless.
An ICWA notice violation may be held harmless when the child's tribe
has actually participated in the proceedings (see In
re Kahlen W., supra,
233 Cal.App.3d at p. 1424, 285 Cal.Rptr. 507) [FN2]
or when, even if notice had been given, the child would not have been
found to be an Indian child, and hence the substantive provisions of the
ICWA would not have applied (ibid.;
In re Antoinette S.
(2002) 104 Cal.App.4th 1401, 1411-1413, 129 Cal.Rptr.2d 15). Moreover,
any failure to comply with a higher state standard, above and beyond what
the ICWA itself requires, must be held harmless unless the appellant can
show a reasonable probability that he or she would have enjoyed a more
favorable result in the absence of the error. (Cal. Const., art.
VI, 13; People
v. Watson (1956) 46
Cal.2d 818, 836, 299 P.2d 243.)
Here, for example, the mother asserts (in a single sentence)
that the notice given was inadequate. Any such error, however,
is moot and/or harmless, because the Tribe did intervene and
did participate below.
As already noted, to be an Indian child, a child
must be either (1) a member of an Indian tribe,
or (2) both
eligible for membership in an Indian tribe and
the biological child of a member of an Indian tribe.
(25 U.S.C.1903(4).) Neither the mother nor S.B. was a member
of the Tribe until July 2004. Hence, at the hearings
up to and including the 12-month hearing, S.B. was not
an Indian child. As soon as S.B. did become an
Indian child, the Tribe intervened. Thereafter, the juvenile court complied
with all of the substantive
provisions of the ICWA. Accordingly, the mother essentially argues that
the failure to inquire was prejudicial because it prevented S.B.
from becoming an Indian child--and hence it prevented the substantive
provisions of the ICWA from applying--earlier.
Effect of the Asserted Error at the Detention Hearing.
Preliminarily, we do not believe that all of the provisions
of the ICWA apply to a detention hearing. We recognize
that the ICWA defines a "foster care placement" as "any
action removing an Indian child from **735
its parent ... for temporary placement in a foster home
or institution or the home of a guardian or conservator
where the parent ... cannot have the child returned upon
demand, but where parental rights have not been terminated[.]" (25
U.S.C. § 1903(1)(i).)
A detention hearing might appear to fit this description. Such
a construction, however, would result in absurdities.
In most cases, a detention occurs only because a social worker has determined
that the child cannot be left in a parent's custody without endangering
the child's health or safety. (Welf. & Inst.Code, § 306,
subds. (a)(2), (b); see also Welf. & Inst.Code, §§ 305,
306, subd. (a)(1).) It is an emergency removal; it results
in an emergency placement. The detention hearing then provides for judicial
review of the detention. Most provisions of the ICWA clearly are
not intended to apply to such emergency removals or placements. For
example, under California law, a detention hearing must
be held within 48 hours, plus one court day, after the child is detained;
otherwise, the child must be returned to the parents. (Welf. &
Inst.Code, §§ 313, 315; see also Welf. & Inst.Code,
§§ 215, 272, subd. (a)(1).) If the notice provisions of
the ICWA applied, however, such an emergency hearing could not be held
until at least 10 days after the parent and the tribe received notice
by registered mail.
Moreover, in an emergency, providing services typically is not a
reasonable alternative to removal. Here, for example, the family had
no prior referrals; it came to the attention of the
Department when both parents were arrested, and the Department had
no option other than to take S.B. into custody. Under
the substantive provisions of the ICWA, however, the Department would
have to show that it made "active efforts" to prevent
removal. Moreover, if it could not make such a showing,
the juvenile court would have to return the child to
the parents, even if that meant placing the child back
into imminent danger.
The only provision of the ICWA that is demonstrably intended
to apply to an emergency placement provides, as relevant here:
"Nothing in this subchapter shall be construed to prevent the
emergency removal of an Indian child who is a resident
of or is domiciled on a reservation, but temporarily located
off the reservation, from his parent ... or the emergency
placement of such child in a foster home or institution,
under applicable State law, in order to prevent imminent physical
damage or harm to the child. The State authority, official,
agency involved shall insure that the emergency removal or placement
terminates immediately when such removal or placement is no longer
necessary to prevent imminent physical damage or harm to the
child and shall expeditiously initiate a child custody proceeding subject
to the provisions of this subchapter, transfer the child to
the jurisdiction of the appropriate Indian tribe, or restore the
child to the parent or Indian custodian, as may be
appropriate." (25 U.S.C.1922.)
literally, this would appear to apply only to "an Indian child who
is a resident of or is domiciled on a reservation, but temporarily located
off the reservation...." If this reading were correct, however, the
statute would not *1164
then go on to allow the social services agency to initiate a child custody
to transfer the child to the jurisdiction of the appropriate Indian tribe;
an Indian tribe has exclusive
jurisdiction over any child custody proceeding involving an Indian child
who is a resident of or domiciled on a reservation. (25 U.S.C. § 1911(a).)
it would make no sense to give a state more
power to make an emergency placement of an Indian child who lives on
a reservation than one who lives off
the reservation. Thus, as the legislative history confirms, Congress
intended this section to apply to emergency removals and placements of
Indian children. (H.R.Rep. No. 95-1386, 2d Sess., p. 25 (1978), reprinted
in 1978 U.S.Code Cong. & Admin. News, 7530, 7548.)
As far as we can tell, only two courts have
considered whether a detention hearing is a "foster care placement"
within the meaning of the ICWA. Both have held it
is not. (In
the Matter of the Welfare of J.A.S.
(Minn.Ct.App.1992) 488 N.W.2d 332, 334-335; State
ex rel. Juvenile Department of Multnomah County v. Charles
(1984) 70 Or.App. 10, 13, 14, fn. 2, 688 P.2d
1354 ["[e]mergency removal ... is initially
purely a state law matter and is not subject to
all of the ICWA requirements"].) For the reasons we have
discussed, we agree. It follows that, in this case, the
failure to inquire sooner into S.B.'s Indian ancestry could not
have had an effect on the detention hearing.
Effect of the Asserted Error at the Jurisdictional/Dispositional Hearing.
brings us to the jurisdictional/dispositional hearing. At that hearing,
the juvenile court for the first time formally removed S.B. from her parents'
custody (Welf. & Inst.Code, § 361, subd. (c)) and placed
her in the custody of the Department. This vested the Department
with the authority to place her in foster care. (Welf. & Inst.Code,
§ 361.2, subd. (e).) The juvenile court also approved
her existing placement. (See Welf. & Inst.Code, §§ 361,
subd. (e), 366, subd. (a)(1)(A).) Thus, the jurisdictional/dispositional
hearing did effect a foster care placement within the meaning of the ICWA.
The applicable substantive provisions of the ICWA are twofold. First,
making a foster care placement, the juvenile court would have
had to find, based on clear and convincing evidence, "that
active efforts ha[d] been made to provide remedial services and
rehabilitative programs designed to prevent the breakup of the Indian
family and that these efforts ha[d] proved unsuccessful." (25 U.S.C.
see also In
re Michael G.
(1998) 63 Cal.App.4th 700, 709-712, 74 Cal.Rptr.2d 642.)
Under state law, however, the juvenile court was already required
to "make a determination as to whether reasonable efforts were
made to prevent or to eliminate the need for removal
of the minor from his or her home...." (Welf. &
Inst.Code, § 361,
subd. (d).) It has been said that "the standards in
assessing whether 'active efforts' were made to prevent the breakup
of the Indian family, and whether reasonable services under state
law were provided, are essentially undifferentiable." (In
re Michael G., supra,
63 Cal.App.4th at p. 714, 74 Cal.Rptr.2d 642; see also
V. v. Superior Court
(2000) 81 Cal.App.4th 1009, 1016, 97 Cal.Rptr.2d 303.) Certainly they
were undifferentiable as applied to this case. Both parents submitted
on the social worker's reports. Accordingly, the juvenile court found
that such reasonable efforts had been made. The mother did
not appeal this finding, and it is now res judicata.
re Matthew C.
(1993) 6 Cal.4th 386, 393, 24 Cal.Rptr.2d 765, 862 P.2d
765.) On this record, we see no reason to suppose
that the juvenile court had been asked to find whether
"active efforts" had been made, rather
than "reasonable **737
efforts," it would have made a different finding.
The mother notes that, under California Rules of Court, rule
1439(i)(4)(B), "[e]fforts to provide services shall include attempts to utilize
the available resources of extended family members, the tribe, Indian
social service agencies, and individual Indian caregivers." [FN3]
She argues that, if S.B. had been an Indian child,
she herself would have been entitled to different or additional
services. The family's problems, however, consisted of drug abuse and
hazardous conditions in the home. There is no reason to
suppose that Indian services would have been any more successful
in eliminating these problems than non-Indian services were. Ultimately, at
the section 366.26 hearing, the Department's expert testified, and the
juvenile court found, that the active efforts required by the
ICWA had been made.
The Guidelines contain a similar provision. (Guidelines § D.2,
44 Fed.Reg. at p. 67592.)
Second, before making a foster care placement, the juvenile court
would have had to find, based at least in part
on the testimony of a qualified expert witness, that parental
custody was likely to result in serious emotional or physical
damage to the child. (25 U.S.C. §§ 1912(e).)
Again, however, as a matter
of state law, it had to find, by clear and
convincing evidence, the existence of one of several specified imminent
threats to S.B.'s well-being. (Welf. & Inst.Code, § 361,
subd. (c).) Both parents, again, submitted on the social worker's
reports. Accordingly, the juvenile court found that: "There is a
substantial danger to the physical health, safety, protection, or physical
or emotional well-being of [S.B.] or would be if [S.B.]
were returned home...." When an expert witness ultimately did testify,
at the section 366.26 *1166
hearing, she opined that returning S.B. to her parents' custody
was likely to result in serious emotional or physical damage
because they were still using drugs. Thus, there is no
reason to suppose that, if an expert witness had testified
at the jurisdictional/dispositional hearing, the juvenile court would have made
a different finding.
Effect of the Asserted Error at the Six- and 12-month
The six- and 12-month review hearings did not result in
S.B. being removed from a parent and placed in a
foster home or institution. (See 25 U.S.C. § 1903(l
)(i).) She simply remained in the same foster care placement
made previously at the jurisdictional/dispositional hearing. Nevertheless, we may assume,
without deciding, that these review hearings involved a foster care
placement within the meaning of the ICWA. (See In
re Bridget R.
(1996) 41 Cal.App.4th 1483, 1520-1521, fn. 24.)
If so, the juvenile court was required to make both
"active efforts" and "serious
damage" findings. Nevertheless, at the six-month review hearing, both parents
once again submitted on the social worker's report. At the
12-month hearing, the mother's counsel conceded that "the social worker's
representations are very close to accurate [and] at the present
time she isn't able to take this child into her
home." Both times, the juvenile court found, as state law
required, that reasonable services had been offered or provided and
that returning S.B. to her parents would create a substantial
risk of detriment. (Welf. & Inst.Code, § 366.21,
subds. (e), (f).) Thus, it would appear that, if "active
efforts" and "serious damage" findings had been required, the juvenile
court would have made them.
See footnote *, ante.
The order appealed from is affirmed.
We concur: RAMIREZ, P.J., and KING, J.