In re Se. T., C037875.

• Decision Date: 11 January 2002
• Docket Number: No. C037875.,C037875.
• Citation: 95 Cal.App.4th 168,115 Cal.Rptr.2d 335
• Parties: In re SE. T. et al., Persons Coming Under the Juvenile Court Law. Sacramento County Department of Health and Human Services, Plaintiff and Respondent, v. L. T., Defendant and Appellant.
• Court: California Court of Appeals Court of Appeals

115 Cal.Rptr.2d 335

95 Cal.App.4th 168

In re SE. T. et al., Persons Coming Under the Juvenile Court Law.

Sacramento County Department of Health and Human Services, Plaintiff and Respondent, v. L. T., Defendant and Appellant.

No. C037875.

Court of Appeal, Third District.

January 11, 2002.

As Modified January 31, 2002.

Review Denied March 20, 2002.^*

Allen, Polgar, Proietti & Fagalde and Michael A. Fagalde, Merced, for Defendant and Appellant.

Robert A. Ryan, Jr., County Counsel, Loni Montgomery, Supervising Deputy County Counsel, for Plaintiff and Respondent.

DAVIS, J.

L.T. (appellant), the mother of Se., Sh., and D.T. (the minors), appeals from the orders of the juvenile court adjudging the minors dependent children.¹ She contends that the notice provisions of the Indian Child Welfare Act (ICWA)² were not complied with, that the court failed to determine whether the other provisions of the ICWA applied, and that there was insufficient evidence presented to support jurisdiction. We disagree with each of these contentions and shall affirm the orders. In so doing we hold that when a vague Indian tribal designation such as Cherokee is the only information the Sacramento County Department of Health and Human Services (Department) and the juvenile court have a minor's Indian ancestry, the notice provisions of the ICWA are complied with by sending notice to the Bureau of Indian Affairs (BIA). Once the notice provisions of the ICWA were complied with, neither the Department nor the court had reason to know that the minors were Indian children as defined by the ICWA, and the court had no basis for applying the ICWA's other provisions. Finally, we hold that the statements of the minors, evidence of physical injuries to them, and accounts of appellant's inability to control her anger constitute substantial evidence supporting jurisdiction.

Facts and Procedural History

In August 2000, dependency petitions were filed concerning three and one-half-year-old twins Se. T. (Se.) and Sh. T. (Sh.) and five-year-old D.T. (D.) based on allegations that appellant burned Se. with a cigarette lighter, burned Sh. on his nose on two occasions, and slapped him across the face. According to the petitions, four marks were observed on Se.'s back, one of which was red and blistering.

The social worker's jurisdictional report states that Se.'s burns were discovered when he asked his daycare teacher for an ice pack for his back. Se. told the daycare teacher, and subsequently the social worker, that appellant had burned him on his back with a lighter. D. confirmed that appellant had burned Se.'s back with a lighter. Sh. and D. reported that appellant had told them not to talk to anyone about the incident.

Se. was examined two weeks later. The examination revealed non-specific injuries that could not be ruled out as lighter burns. During the examination, Se. stated he was burned with a green lighter.

The daycare teacher reported that, approximately four months earlier, Sh. had a scab on his nose and, when asked how he hurt himself, he stated appellant burned him because he said a bad word. On another occasion, appellant slapped Sh. after she was told by daycare staff that Sh. had been acting out in class. According to the detention report, appellant slapped Sh. "with full force." Sh.'s teacher reported appellant also "began verbally attacking [Sh. and] cursing at him...."

Appellant told the social worker Sh. had bumped into her cigarette with his arm. She maintained she had never burned the minors with a lighter. Appellant explained the marks on Se.'s back by stating the boys were "very overly active." She denied slapping Sh. across the face, but acknowledged she raised her voice and "pop[ped] him a little bit on the mouth."

The minors' father resided in the home of a pastor of the Gospel Christian Fellowship. The pastor told the social worker that appellant had arrived unannounced at his residence on two occasions and created disturbances requiring him to call the police. The minors' father reported that, on these occasions, appellant was "irate and out of control."

In February 2001, at the contested jurisdictional hearing, the social worker testified Se. had told her he had gotten in trouble and then got a burn on his back. She stated that Se. was an active child and that the foster mother had reported that Se. and Sh. were very aggressive with each other. The social worker testified Sh. had told his teacher that appellant had burned his nose because he was being a bad boy. She testified further that, on another occasion when Sh. had a sore on his nose, he told his teacher appellant had burned him again.

Appellant testified both Se. and Sh. had "come into contact with lit cigarettes" in her home, but she denied ever burning them. Appellant testified there had been eight injuries involving the minors at school, including the injury to Sh.'s nose.

The pediatric nurse practitioner who examined Se. testified his injuries could have been caused by a burn. She was not absolutely sure they were burns; it was possible they were accidental injuries. The nurse confirmed Se. had told her and, later, the doctor, that appellant had burned him with a lighter. She testified that the marks on Se.'s back were next to the spine, not on top of the spine where accidental injuries more commonly occur.

The juvenile court sustained the petitions under section 300, subdivisions (a), (b), (i), and (j), and ordered reunification services.

Discussion

I

Appellant contends that the notice provisions of the ICWA were not complied with and that the court failed to determine whether the other provisions of the ICWA applied. We disagree.

According to the detention report, appellant claimed to be of Cherokee descent. At the detention hearing, the juvenile court directed that notice be provided pursuant to the ICWA. The jurisdictional report indicated that notice had been sent to the BIA by certified mail, return receipt requested.

In 1978, Congress passed the ICWA, 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.³ Among the procedural safeguards included in the ICWA is the provision for notice, which states in part: "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. // the identity or location of the parent or Indian custodian and the tribe cannot be determined, such notice shall be given to the Secretary [of the Interior] in like manner, who shall have fifteen days after receipt to provide the requisite notice to the parent or Indian custodian and the tribe...."⁴ An "Indian child" is defined by the ICWA as "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."⁵ "Indian tribe" is defined by the ICWA as "any Indian tribe, band, nation, or other organized group or community of Indians recognized as eligible for the services provided to Indians by the Secretary [of the Interior] because of their status as Indians, including any Alaska Native village. ..."⁶

Appellant contends notice was deficient under the ICWA because "[t]he Department failed to provide notice to the Cherokee Tribe." In her reply brief she belatedly contends that the Department should have also sent notice to the "Blackfoot" tribe based on a notation in the court's minutes from the detention hearing that appellant "has been identified as being of Native American Heritage (Blackfoot) ..." Except for this one unsupported notation, all other references in the record state that the appellant's Indian heritage was "Cherokee." The single notation in the court's minutes appears to be a typographical error and in any event, appellant cannot raise this new contention for the first time in her reply brief.⁷

Appellant reported she is of Cherokee descent but provided no information as to the name or location of the Cherokee tribe from which her ancestors may have descended. Since there are several federally registered tribes that are associated with the term "Cherokee," appellant's vague reference to her ancestry did not present the court with a basis for determining "the identity or location of the ... tribe" from which the minors are descended.⁸ Under such circumstances, the ICWA does not require the Department or the court to cull from the Federal Register the names and locations of all tribes that may be associated with a vague term such as Cherokee and then give each notice of the proceedings. Rather, the statute provides, under these circumstances, that "such notice shall be given to the Secretary [of the Interior] ...,"⁹ which is satisfied by notice to the BIA.¹⁰

The Federal Register is a lengthy and confusing list containing the names of hundreds of tribes that meet the requirements for an "Indian tribe" as defined by the ICWA.¹¹ Neither the Department nor the juvenile court has the expertise to determine which tribes listed on the Federal Register are affiliated with a general Indian designation, such as "Cherokee." The BIA has many years of experience in determining who is an Indian for a variety of purposes.¹² It is therefore not surprising that the ICWA delegates to the BIA the task of determining which tribe or tribes to notify when the information available to the Department and the juvenile court does not identify a federally registered Indian tribe.¹³ Here, the Department complied with the ICWA's directive by giving notice to the BIA.¹⁴ We presume that...