1

Filed 2/16/23

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION TWO

In re A.A. et al., Persons Coming Under 

the Juvenile Court Law.

RIVERSIDE COUNTY DEPARTMENT 

OF PUBLIC SOCIAL SERVICES,

Plaintiff and Respondent,

v.

C.G. et al.,

Defendants and Appellants.

E079176

(Super. Ct. No. INJ1800358)

OPINION

APPEAL from the Superior Court of Riverside County. Susanne S. Cho, Judge. 

Affirmed.

Pamela Rae Tripp, under appointment by the Court of Appeal, for Defendant and 

Appellant, C.G.

Megan Turkat Schirn, under appointment by the Court of Appeal, for Defendant 

and Appellant, R.A.

Teresa K.B. Beecham, County Counsel, Minh C. Tran and Julie K. Jarvi, 

Deputy County Counsel, for Plaintiff and Respondent
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I.

INTRODUCTION

C.G. (Mother) and R.A. (Father) appeal the juvenile court’s order terminating their 

parental rights to three of their minor children. They contend the juvenile court

erroneously found that the Indian Child Welfare Act (ICWA) does not apply because the 

children are not Indian children.

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 We disagree and affirm.

II.

FACTUAL AND PROCEDURAL BACKGROUND

The parents’ five children, P., A., Ro., Ri., and N., were detained, removed from 

Mother’s care, and adjudged dependents of the juvenile court.2 (See Welf. & Inst. Code, 

§ 300.) The court ordered reunification services for Mother while the children were 

placed in foster care.

Father’s parents repeatedly denied any Indian ancestry, but Mother reported she 

was affiliated with the Jemez Pueblo tribe in New Mexico. Father’s whereabouts were 

unknown at the time so he could not be contacted to discuss whether he had Indian 

ancestry, although he eventually denied having any Indian ancestry or tribal affiliation. 

1

Unless otherwise noted, all statutory references are to the Welfare and 

Institutions Code. Because ICWA uses the term “Indian,” we do so on occasion as well, 

not out of disrespect, but because of the need for clarity and consistency, even though we 

recognize that other terms, such as “Native American” or “indigenous,” are preferrable.

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This appeal concerns only N., H., and A., and whether the juvenile court 

properly found that ICWA does not apply because they are not Indian children. We 

therefore discuss only the facts relevant to the issue as it relates to N., H., and A.
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The juvenile court found that the children may be Indian children and ordered notice to 

be reported to the Jemez Pueblo tribe and the Bureau of Indian Affairs (BIA).

An ICWA notice was mailed to the Jemez Pueblo tribe and the BIA in January 

2019. The Jemez Pueblo tribe requires individuals to have a 1/4 Jemez Pueblo blood 

quantum. About a week later, Mother provided verification of her tribal registration 

status with the Jemez Pueblo tribe, which confirmed she is an enrolled member of the 

tribe because her Jemez Pueblo blood quantum is over 1/4.

Around the same time, a social worker from the Riverside County Department of 

Public Social Services (the Department) contacted the Jemez Pueblo and was told that 

none of the children were registered members of the tribe. The Department later received 

a letter from the Governor of the Jemez Pueblo, which stated that the children “are 

eligible to be naturalized members with the Pueblo of Jemez.” (Italics added.)

Mother gave birth to H. in April 2019. He remained in Mother’s care until he was 

detained and removed from her care about two months later.

Mother subsequently told the juvenile court that she was a member of the Jemez 

Pueblo and that P. was the only one of her children who was a registered member. 

Mother said that P. had to go to New Mexico to enroll with the tribe, but she had not 

done so.

The social worker reported she had contacted Annette Gachupin, a Child Advocate

for the Jemez Pueblo and the tribe’s ICWA Representative, about the children’s tribal 

status and was awaiting a response. The juvenile court found that ICWA might apply and 
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ordered reunification services for Mother. In the meantime, the social worker called 

Gachupin several times to discuss the children’s ICWA placement approval but was still 

awaiting a response.

In May 2020, the social worker spoke with Gachupin. Gachupin stated that she 

agreed with the children’s placement and confirmed that Mother is an enrolled member 

of the Jemez Pueblo tribe. She explained, however, that the children were not eligible to 

become registered members of the tribe because their blood quantum was too low to meet 

the Jemez Pueblo’s requirements for tribal membership. Instead, the children were 

eligible for “naturalization,” which would only qualify them for tribal health services

while excluding them from receiving federal funds that Jemez Pueblo members receive. 

Gachupin informed the Department that the children did not need to go to New Mexico to 

be naturalized and that Mother could complete the process through paperwork. Gachupin 

stated that “the Jemez Pueblo Tribe would not be intervening on the behalf of the 

children as they would only be naturalized.”

In May 2020, the social worker explained the naturalization process to Mother, 

who wanted to naturalize the children. The social worker gave Mother the contact 

information for the Jemez Pueblo representative who could assist her with the 

naturalization process. Mother, however, had yet to begin the process by December 

2020.

In January 2021, the juvenile court found that ICWA applied and that the children 

were Indian children. The children were returned to Mother’s care.
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In June 2021, however, the children were again removed from Mother’s care. The 

juvenile court ordered them detained. In doing so, the juvenile court found that ICWA 

applied and that the children were Indian children.

The social worker later asked Mother whether she intended to naturalize the 

children with the Jemez Pueblo tribe. She said she did not intend to because she would 

not receive any benefits from the tribe and she was already receiving benefits from a 

local tribe. Mother never completed the paperwork to have the children naturalized with 

the Jemez Pueblo tribe.

In September 2021, the Department contacted Gachupin again to clarify the 

children’s status with the tribe. Gachupin stated that P. was previously enrolled with the 

tribe, but her membership was updated to “naturalized member” because her blood 

quantum was too low. Gachupin again confirmed that the Jemez Pueblo tribe would not 

intervene because the children could only be naturalized members of the tribe.

Shortly afterward, the Department asked the juvenile court to find that ICWA did 

not apply because the children are not Indian children. The parents did not object, nor 

did the children’s attorney. The juvenile court found that the children are not Indian 

children and therefore ICWA does not apply.

After a hearing under Welfare and Institutions Code section 366.26, the juvenile 

court terminated the parents’ parental rights to A., N., and H., and freed them for 

adoption. The proceedings for the three other children were continued. Parents timely 

appealed.
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III.

DISCUSSION

Mother, with Father joining, argues that the juvenile court erroneously found that 

ICWA does not apply and thus the dispositional orders and the order terminating their 

parental rights must be reversed. We disagree.3

We first reject parents’ challenge to the dispositional orders made before the 

section 366.26 hearing. “The first appealable order in a dependency case is the 

dispositional order.” (In re T.W. (2011) 197 Cal.App.4th 723, 729.) The 60-day deadline 

to appeal the dispositional orders expired long ago. (See California Rules of Court, rule 

8.406(a)(1).) “An appeal from the most recent order in a dependency matter may not 

challenge earlier orders for which the time for filing an appeal has passed.” (Sara M. v. 

Superior Court (2005) 36 Cal.4th 998, 1018.) Rather, “an unappealed disposition or 

postdisposition order is final and binding and may not be attacked on an appeal from a 

later appealable order.” (In re Jesse W. (2001) 93 Cal.App.4th 349, 355.) Because 

parents did not timely appeal from the dispositional orders, they forfeited any challenge 

to the orders, which we lack jurisdiction to review. (Ibid.; accord, In re Meranda P. 

(1997) 56 Cal.App.4th 1143, 1149-1151.)

As for parents’ ICWA challenge, we reject it on the merits. ICWA applies in a 

dependency proceeding only if an “Indian child” is involved. (In re O.K. (2003) 106 

3 We assume without deciding that parents did not forfeit the issue, as the 

Department contends.
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Cal.App.4th 152, 155.) “ICWA defines an ‘Indian child’ 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.’ [Citation.] Conversely, if the child is 

not a tribe member, and the mother and the biological father are not tribe members, the 

child simply is not an Indian child.” (In re Jeremiah G. (2009) 172 Cal.App.4th 1514, 

1520.)

However, ICWA does not define “member of a tribe” or “eligible for membership 

in an Indian tribe.” (In re K.P. (2015) 242 Cal.App.4th 1063, 1071.) Instead, Indian 

tribes determine whether a child is a member of the tribe or eligible for membership. (In 

re Francisco W. (2006) 139 Cal.App.4th 695, 702.) Each tribe has “sole authority” to 

determine tribal eligibility criteria and who meets them. (In re Santos Y. (2001) 92 

Cal.App.4th 1274, 1300.) A tribe’s determination a child is a tribal member or eligible 

for membership is therefore “‘conclusive.”’ (In re Francisco W., supra, at p. 702.) This 

means that “‘[t]he only relevant factor’” for determining tribal membership is “‘whether 

the tribe verifies that the child is a member or eligible for membership.’” (In re K.P., 

supra, at p. 1072.)

We review the juvenile court’s findings that a child is not an Indian child and thus 

ICWA does not apply for substantial evidence. (In re Austin J. (2020) 47 Cal.App.5th

870, 885.) “‘We must uphold the court’s orders and findings if any substantial evidence, 

contradicted or uncontradicted, supports them, and we resolve all conflicts in favor of 
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affirmance.’” (Ibid.) Parents therefore bear the burden of showing that the evidence was 

insufficient to support the juvenile court’s findings. (Ibid.)

Substantial evidence supports the juvenile court’s finding that N., H., and A. are 

not “Indian children” for ICWA purposes. There is no evidence in the record that Father 

has Indian ancestry and parents do not suggest that he may. Although Mother is a 

member of the Jemez Pueblo, her children are not eligible for membership with the tribe 

because their blood quantum is too low.

At oral argument, we advised the parties that we found the record on Mother and 

her children’s blood quantum levels to be conflicting and confusing. Mother’s 

“Certificate of Indian Blood” from the United States Department of the Interior states that 

Mother has 1⁄2 “Jemez Indian Blood,” but Gachupin repeatedly told the social worker that 

Mother’s Jemez Pueblo blood quantum was 3⁄4. Under either scenario, however, the 

children’s Jemez Pueblo blood quantum would satisfy the tribe’s 1⁄4 blood quantum 

requirement, but Mother never challenged the tribe’s conclusion that the children’s Jemez 

Pueblo blood quantum is too low to become a tribal member.

Mother argues that blood quantum is not the only factor tribes consider to 

determine membership. That may be, but the Jemez Pueblo requires a blood quantum of 

at least one-quarter Jemez Pueblo to enroll as a member of their tribe. In response to an 

ICWA inquiry, Gachupin confirmed that the children could not become enrolled or 

registered members of the tribe, but could only be “naturalized” with the tribe, because 

their Jemez Pueblo blood quantum is too low.
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Relying heavily on a law review article, Mother argues that this rendered the 

children Indian children under ICWA. (See American Indian Sovereignty and 

Naturalization: It’s a Race Thing (2001) 80 Neb. L. Rev. 171, 195.) But, again, the 

Jemez Pueblo confirmed that the children are ineligible to enroll as members of the tribe

because their blood quantum is too low. Thus, although the children are eligible to be 

“naturalized” with the tribe, they are not “eligible for membership in” the tribe. If the 

children were eligible to become members of the tribe, Gachupin presumably would have 

relayed that information to Mother or the Department.

The tribe has exclusive authority to determine eligibility criteria for membership.

(In re Francisco W., supra, 139 Cal.App.4th at p. 702.) We “may not substitute [our]

own determination for that of the tribe regarding a child’s membership or eligibility for 

membership in a tribe.” (In re K.P., supra, 242 Cal.App.4th at p. 1074.) The tribe 

unambiguously confirmed that Mother’s children are not members of the tribe and are not 

eligible to become members. That the children can become “naturalized members” of the 

tribe is insufficient to trigger “ICWA’s substantive and procedural safeguards.” (In re 

Ezequiel (2002) 81 Cal.App.5th 984, 1002.)

The Jemez Pueblo’s determination that N., H., and A. are not members of the tribe 

and are not eligible to become members was conclusive and binding on the trial court, 

and is conclusive and binding on us. (Ibid.) Substantial evidence thus supports the 

juvenile court’s findings that N., H., and A. are not Indian children and thus ICWA did

not apply to their dependency proceedings.
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IV.

DISPOSITION

The juvenile court’s dispositional orders and order terminating parental rights to 

N., H., and A. are affirmed.

CERTIFIED FOR PUBLICATION

CODRINGTON

Acting P. J.

We concur:

FIELDS

J.

RAPHAEL

J.