1

Filed 9/12/13 In re Z.R. CA1/4 

NOT TO BE PUBLISHED IN OFFICIAL REPORTS 

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 This opinion has not been certified for publication 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. 

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA 

FIRST APPELLATE DISTRICT 

DIVISION FOUR 

In re Z.R., a Person Coming Under the 

Juvenile Court Law. 

DEL NORTE COUNTY DEPARTMENT 

OF HEALTH AND SOCIAL SERVICES, 

 Plaintiff and Respondent, 

v. 

B.R. et al., 

 Defendants and Appellants. 

 A135645, A136929 

 (Del Norte County 

 Super. Ct. Nos. JVSQ12-6041, 

JVSQ12-6042, JVSQ12-6043, JVSQ12-

6044, JVSQ12-6045, JVSQ12-6046, 

JVSQ12-6047, JVSQ12-6048, JVSQ12-

6049) 

 Appellants J.R. (mother) and B.R. (father) challenge jurisdictional and 

dispositional orders as to their nine children. Their sole argument is that the orders 

should be reversed because of a failure to comply with the notice provisions of the Indian 

Child Welfare Act of 1979 (25 U.S.C.A. § 1901 et seq.) (ICWA). We disagree and 

affirm. 

I. 

PROCEDURAL AND FACTUAL

BACKGROUND

 This case began when respondent Del Norte County Department of Health and 

Human Services (Department) filed nine separate juvenile dependency petitions in 
2

March 20121

 alleging that mother and father had abused their nine children. In 

jurisdictional orders, the juvenile court concluded that all nine minors were children 

described by Welfare and Institutions Code section 300.2

 Father filed a premature appeal 

from these orders (A135645). Following a dispositional hearing, the juvenile court 

adjudged the minors to be dependent children, ordered that they remain out of their 

parents’ physical custody, and ordered family reunification services. Both mother and 

father filed a timely appeal from the dispositional orders (A136929), which we resolve in 

this opinion.3

 While these appeals were pending, further proceedings ensued. At the conclusion 

of a contested six-month review hearing, the juvenile court terminated reunification 

services and set a selection-and-implementation hearing. Mother petitioned for 

extraordinary writ review of this order, which we denied. (J.R. v. Superior Court (May 8, 

2013, A137755) [nonpub. opn.].) In our opinion denying the petition, we summarized 

the reasons for the Department’s involvement in this case, which we need not repeat here 

except to say that they involved allegations of incest and molestation. After we denied 

the petition, the juvenile court terminated mother’s and father’s parental rights. Both 

parents timely appealed from that order and that separate appeal remains pending. 

(A139174.) 

 In this opinion, our discussion of the proceedings below is limited to the sole issue 

raised: whether the Department complied with ICWA’s notification provisions. Early in 

the proceedings, mother notified the juvenile court that she might have Native American 

 

1

 All further date references are to the 2012 calendar year. 

2

 All statutory references are to the Welfare and Institutions Code. 

3

 Although mother did not join father in filing an appeal from the jurisdictional orders 

(A135645), she was appointed appellate counsel, who candidly acknowledged in motions 

filed in this court that jurisdictional orders are nonappealable. Mother and father 

requested extensions of time so that appeals could be filed from the dispositional orders 

before they filed appellate briefs. After these appeals were filed (A136929), this court 

granted mother’s request to consolidate them with the appeal from the jurisdictional 

orders. We now dismiss father’s appeal from the jurisdictional orders because we lack 

jurisdiction over it. (In re Javier G. (2005) 130 Cal.App.4th 1195, 1200-1201.) 
3

ancestry. When the court questioned mother about it at the detention hearing on March 2, 

mother responded, “It’s questionable on my mom’s side.” Mother explained that she did 

not have any information about a particular tribe, and she had no way to contact her 

mother (the maternal grandmother), who was “supposedly deceased, but possibly still 

alive, but in the records she’s deceased.” The juvenile court directed mother to complete 

a form used to assist with the investigation of whether a child in a dependency 

proceeding may be an Indian child (ICWA-020), and mother filed one later that day. On 

the ICWA-020, two boxes are checked: one states, “I have no Indian ancestry as far as I 

know,” and the other states, “I may have Indian ancestry.” Handwritten notes indicate 

that the names of possible tribes or bands were “UNKNOWN.” The same form was filed 

in all nine cases. About two weeks later, the Department filed jurisdiction reports stating 

that ICWA did not apply. In disposition reports filed on June 7, the Department again 

asserted that ICWA did not apply. 

 At a hearing on June 15, father’s counsel stated that on her way to court she was 

“given paperwork that indicates that the mother’s grandfather is full-blooded Cherokee.” 

The juvenile court questioned mother about this, and mother reported that she had learned 

from talking with her sister and stepgrandmother as well as doing internet research that 

her maternal “grandpa [O.R.] is in the Cherokee tribe, and I can’t find out my grandma 

[I.R.]’s maiden name, but she is possibly also and my dad is a quarter from his dad.” She 

stated that O.R. was from “Marysville or whatever, California. And he’s—he’s on the 

roll.” Father’s counsel stated that she (the attorney) had “a roll number, identification 

number” as well as a birth certificate to help the Department track down information. 

The juvenile court vacated a scheduled disposition hearing so that the Department could 

investigate possible Native American heritage. 

 Later that day, mother filed an additional ICWA-020, stating that she might have 

Indian ancestry through the Cherokee tribe. A few days later, father’s counsel filed three 

documents regarding mother’s possible Native American lineage. One was mother’s 

birth certificate. The second contained handwritten notes about mother’s relatives, 

including her father’s name and the fact he was “quarter Cherokee,” her grandmother’s 
4

married name, the date of her mother’s “supposed death,” and a comment that her 

maternal grandfather was “full blooded Cherokee.” The third listed various Cherokee 

roll numbers, including one for someone with the name of mother’s grandfather. 

 On June 29, the Department filed a judicial council form used to notify tribes that 

a child in a dependency proceeding may be an Indian child (ICWA-030), along with a list 

of more than 50 tribes to which notice had been mailed.4

 Notice also was sent to the 

Bureau of Indian Affairs (BIA). Consistent with information provided by mother and 

father, the form identified possible eligibility for membership in the Cherokee tribe, and 

the Department mailed notice to the three Cherokee tribes listed in the then-current 

version of the Federal Register. (76 Fed.Reg. 30438, 30461 (May 25, 2011).) 

 For reasons that elude us, the ICWA-030 was also sent to dozens of Paiute and 

Pomo tribes listed in the Federal Register. (76 Fed.Reg. 30438, 30461, 30469-30472 

(May 25, 2011).) On appeal, the parties shed no light on why notice was sent to these 

tribes. The Department states in its brief that “[t]he record is devoid of information 

concerning why the Paiute and Pomo tribes were noticed,” and mother did not file a reply 

brief. 

 On July 10, the Department filed return receipts from various tribes that had 

received the ICWA-030 notice. That same day, a contested jurisdiction hearing began on 

supplemental petitions filed as to seven of the nine children. The juvenile court sustained 

the petitions. County counsel requested the court to schedule the disposition hearing for 

the following month, in part to allow time to receive responses to all ICWA notices. The 

disposition hearing was then scheduled for August 24. 

 Over the next month, the Department filed letters from various tribal 

representatives, all reporting that the minors were not members of, or eligible for 

membership in, the tribes. The Department reported in its disposition report filed on 

August 29 that the Department was still awaiting responses from 20 tribes. 

 

4

 The relevant tribes were notified regarding all nine children, and proof of notice was 

filed in all nine proceedings, a significant undertaking for the Department. 
5

 After a continuance because of scheduling issues, the disposition hearing began on 

August 31, and the juvenile court inquired about the status of ICWA notification. 

Mother’s counsel stated that mother had informed her that day that “the wrong tribes are 

being notified. She’s saying—she’s telling me it’s a different tribe.” The following 

exchange then took place: 

 “[County counsel]: Well, there were notices sent to 52 tribes. 

 “[Mother’s counsel]: She’s saying she went through that list. She’s telling 

me that it’s a different tribe, not the ones on the list. 

 “THE COURT: Which tribe? 

 “[Mother’s counsel]: Tell the court which tribe. 

 “[Mother]: They are in Oklahoma and Texas, all the—the eastern states. 

 “THE COURT: Well, which specific tribes are you saying should have been 

given notice? 

 “[Mother]: The only reason why I said that was because last time they were only 

doing California. We’re not from California.” 

 After more prodding from her attorney, mother stated that the Department should 

have notified “Blackfoot.” The court then stated that “what I’d like is for the mother to 

sit down with a representative of the department who is responsible for giving notice. I’d 

like her attorney to be involved in that conversation as well as [county counsel] and see 

[if there are] any other tribes that she feels need—that should have been addressed. 

[¶] And if it turns out that there really [are] such tribes, then you need to be looking at 

getting an Indian expert.” 

 The parties returned to court the following week, and county counsel stated it was 

her understanding that mother had provided the Department with names of additional 

family members and potential tribes. The social worker stated that mother believed she 

was affiliated with “Choctaw, Blackfoot and Cherokee and Pomo and Paiute. Choctaw 

and Blackfoot have not been noticed so those will have to be noticed.” County counsel 

acknowledged it was necessary to provide notices to the additional tribes and stated, 
6

“We’re going to need an ICWA expert on board just in case.” The disposition hearing 

was continued until September 28. 

 On September 11, the Department filed another ICWA-030, which provided 

additional information about mother’s family members. Notice was mailed to the three 

Cherokee tribes that previously had been notified, along with the four Blackfoot and 

Choctaw tribes listed in the then-current edition of the Federal Register. (77 Fed.Reg. 

45816, 45837, 45839 (Aug. 1, 2012).) Later that month, the Department filed return 

receipts from all seven noticed tribes. Throughout this time, the Department continued to 

file responses from various tribes stating that the minors were not members of, or eligible 

for membership in, the tribes. 

 An ICWA expert submitted a report based on the expert’s review of the three 

Department reports filed as of that date. The expert concluded that active efforts were 

being made to provide the family with a variety of reunification services (Cal. Rules of 

Court, rule 5.484(c)) and that the children should not be returned to their parents at that 

time because to do so would cause the children psychological, emotional, and physical 

harm. 

 At a hearing on September 28, the court and mother’s counsel expressed doubt 

that ICWA applied, seeing as no tribe had indicated the minors were eligible for 

membership. But because not all tribes had responded to the Department’s notices and 

fewer than 60 days had passed since notice had been provided (§ 224.3, subd. (e)(3)), the 

juvenile court indicated it would proceed as if ICWA applied. This meant that a qualified 

expert witness would testify under section 224.6, subdivision (b) whether continued 

custody of the children by the parents was likely to result in serious emotional and 

physical damage, and the court would take into consideration evidence about prevailing 

tribal social and cultural standards. Mother was willing to submit the ICWA expert’s 

declaration in lieu of live testimony (§ 224.6, subds. (b)(1), (e)), but father was not. The 

court therefore continued the disposition hearing until October 2 when the ICWA expert 

was available to testify. 
7

 At the continued hearing, the ICWA expert testified that it was his understanding 

that neither the minors nor the parents were enrolled in an Indian tribe and that they 

“[we]ren’t necessarily involved with or part of the Native community.” He opined, 

consistent with his written report, that active efforts were being made to help the family 

reunify and that continued out-of-home placement for the minors was appropriate in light 

of the serious allegations that previously had been sustained. The witness had testified in 

more than 100 cases as an ICWA expert, and he stated, “I’d also like to comment on the 

fact that just the amount of work that went into trying to contact all these tribes, this is the 

first time I’ve seen so much extensive work with so many tribes trying to make contact 

with so many tribes. I’ve never seen that before.” He acknowledged on crossexamination that different tribes have “different cultures and social rules,” but he stated 

that incest and molestation were “not appropriate in any tribal sense or any family sense. 

So based on that alone I know all the tribes I’ve had contact with or had knowledge of in 

my work, that’s not a part of our collective social standard or customs. So I feel 

comfortable speaking on that.” 

 At the close of evidence, a discussion ensued whether the expert’s testimony was 

sufficiently linked to a particular tribe. County counsel acknowledged that it would have 

been appropriate to provide expert testimony about the culture of a particular tribe if one 

tribe had been identified with ties to the family. She argued that, since no such tribe had 

been located, the Department had met its burden in this case. Counsel then requested the 

juvenile court to make appropriate findings, including those necessary in an Indian child 

custody proceeding, because of the “potential” applicability of ICWA. (§ 361, 

subd. (c)(6) [continued custody with parent or Indian custodian likely to result in serious 

emotional or physical damage to Indian child].) Mother’s counsel responded, “I think 

we’re just in agreement. I think there’s a presumption there’s always a tribe that is 

identified in these ICWA cases. I don’t think ICWA law have [sic] these situations 

where—consider the situation where there’s not a tribe to consider. But if there had been 

a tribe I think the expert has to be knowledgeable in that tribe’s culture and social 
8

aspects. If one is eventually identified then we’d argue [the expert] is not qualified,” 

unless it was the tribe in which he was enrolled. 

 The juvenile court found that “the children may be Indian children, although I 

doubt it at this point. But, therefore, the Act may apply.” The court found by clear and 

convincing evidence that continued custody of the children in their parents’ home was 

likely to result in serious emotional or physical damage to the minors, and it adjudged all 

nine minors to be dependent children and ordered reunification services. Over the next 

month, the Department filed seven additional letters from Indian tribes stating that the 

minors were not considered to be Indian children. 

II. 

DISCUSSION

 Mother (joined by father, who did not file a separate brief) argues that the 

dispositional orders must be reversed because the Department failed to provide proper 

notice to all relevant federally recognized Indian tribes. In her opening brief, she 

summarizes the importance of ICWA and the various duties it imposes on social services 

agencies, but she identifies only a few specific notification errors supposedly made in 

these proceedings. First, in an argument made for the first time on appeal and that 

contradicts her contentions below, mother claims that three tribes should have been, but 

were not, notified of the proceedings. Second, and again for the first time on appeal, she 

argues that there were deficiencies in some of the notices that were sent to the other 

tribes. Far from revealing ICWA error, our review of the record leads us to conclude that 

the Department and juvenile court did more than what was required to comply with the 

statute. 

 We begin with an overview of ICWA, which was enacted to “ ‘protect the best 

interests of Indian children and to promote the stability and security of Indian tribes and 

families.’ ” (In re Karla C. (2003) 113 Cal.App.4th 166, 173-174, quoting 25 U.S.C. 

§ 1902.) Under ICWA, an “ ‘Indian child’ ” is a person who is a member of an Indian 

tribe or is eligible for membership in an Indian tribe and is the biological child of a 

member of an Indian tribe. (25 U.S.C. § 1903(4).) “ICWA protects the interests of 
9

Indian children and promotes the stability and security of Indian tribes by establishing 

minimum standards for, and permitting tribal participation in, dependency actions. 

[Citations.] If there is reason to believe a child that is the subject of a dependency 

proceeding is an Indian child, ICWA requires that the child’s Indian tribe be notified of 

the proceeding and its right to intervene.” (In re A.G. (2012) 204 Cal.App.4th 1390, 

1396; see 25 U.S.C. § 1912(a).) These notice requirements are strictly construed because 

a tribe’s right to intervene is meaningless if the tribe is unaware of the proceeding. 

(Karla C., supra, at p. 174.) 

 Turning to her specific arguments, mother first claims that the Department 

erroneously neglected to notify one Paiute tribe and two Pomo tribes. At the time the 

notices were sent, the Federal Register recognized 28 Paiute tribes. (76 Fed.Reg. 30438, 

30470 (May 25, 2011).) Although notices were sent to 27 of these tribes, mother 

contends that the Department failed to notify one of them—the Northwestern Band of 

Shoshoni Nation in Pocatello, Idaho. The Federal Register also recognized 24 Pomo 

tribes. (76 Fed.Reg. 30438, 30471 (May 25, 2011).) Although notices were sent to 22 of 

these tribes, mother contends that the Department failed to notify two of them—the 

Buena Vista Rancheria of Me-Wuk Indians in Sacramento and the California Valley 

Miwok Tribe in Stockton. 

 On the record before us, however, we cannot conclude that the Department was 

under an obligation to send notice to any of the Paiute or Pomo tribes and certainly not 

these specific ones. As discussed above, mother never identified Paiute or Pomo tribes 

on the ICWA-020 forms she completed, and there is nothing in the record showing that 

she ever claimed that she was a member of them. (In re H.B. (2008) 161 Cal.App.4th 

115, 122 [knowledge of Indian connection is matter “ ‘wholly within the appealing 

parent’s knowledge and disclosure is a matter entirely within the parent’s present 

control’ ”].) We recognize that a disposition report filed on August 29 (weeks after the 

first ICWA-030 forms were filed) stated that mother had at some unspecified time 

mentioned possible affiliation with the two tribes. But the accuracy of this statement in 
10

the report cannot be confirmed in the record and, given the evidence and course of 

proceedings that are contained in the record, it is clear that no error occurred. 

 The record shows that even though mother never identified Paiute or Pomo 

heritage on her ICWA-020 forms, the Department, for whatever reason, provided notice 

to almost all Paiute and Pomo tribes. At a hearing on August 31, mother’s counsel stated 

that mother “informs me today that the wrong tribes are being notified. She’s saying—

she’s telling me it’s a different tribe,” and mother then indicated that the Blackfoot tribe 

should be notified. (Italics added.) Mother told the court that notices should be directed 

to tribes “in Oklahoma and Texas, all the—the eastern states,” and she complained that 

California tribes had been notified even though “[w]e’re not from California.” In doing 

so, she failed to identify either the Pomo or Paiute tribes, disavowed any problem with 

the notices that had been sent to tribes in western states (including the three Paiute and 

Pomo tribes she identifies on appeal), and expressly disavowed membership in tribes 

located in California (such as the two Pomo tribes she identifies on appeal). 

 It is true that at a hearing about a week later, a social worker reported that she had 

met with the parents and that “she indicated they believe it’s Choctaw, Blackfoot and 

Cherokee and Pomo and Paiute.” But it is unclear from our review of the transcript who, 

exactly, indicated mother’s possible Pomo and Paiute affiliation. Mother was silent on 

the issue at the hearing, and the social worker could easily have been repeating 

information from the file. When the juvenile court asked for further information, the 

social worker did not mention either tribe, but instead stated, “The notes I have from last 

Friday[’s hearing] had said Blackfoot, Cherokee and Sioux, which they did not mention 

Sioux when I met with them. They said it was Choctaw.” (Italics added.) We also note 

that when the Department sent out a second round of ICWA-030 notices that included the 

additional information from mother about her family members, they were sent to the 

same three Cherokee tribes previously noticed in addition to the new tribes identified by 

mother, presumably to provide the most complete information to all relevant Indian 

tribes. The fact that they were not directed to any Paiute and Pomo tribes suggests that 

there was no reason to notify them. 
11

 In her second argument, mother contends that a few of the notices sent to the 

dozens of Paiute and Pomo tribes that were given notice were deficient for technical 

reasons.5

 She notes that 10 Paiute and Pomo tribes failed to respond to the notices that 

were sent to them, and she argues their notices were insufficient because they were 

addressed to “ICWA Representative” or “ICWA Coordinator” instead of the specific 

contact persons listed in the Federal Register. For example, a notice was sent to the 

“ICWA Representative” at the Lone Pine Paiute Shoshone Reservation in Lone Pine 

instead of “Kathy Bancroft, Enrollment Committee Chairperson.” (76 Fed.Reg. 30438, 

30469-30474 (May 25, 2011).) We recognize that there is support for the argument that 

ICWA notices must be sent to the designated tribal representative named in the Federal 

Register. (§ 224.2, subd. (a)(2) [notice shall be provided to tribal chairperson or 

designated agent for service]; In re Alice M. (2008) 161 Cal.App.4th 1189, 1201 

[improper ICWA notice where designated person not noticed and tribe failed to respond; 

fact that social services department received signed return receipts insufficient to 

demonstrate actual notice]; but cf. In re N.M. (2008) 161 Cal.App.4th 253, 268 

[substantial evidence of proper notice even though notices addressed to “ ‘ICWA 

Representative’ ” instead of designated representative; mandating “literal compliance 

solely by reference to the names and addresses listed in the last published Federal 

Register would exalt form over substance”].) But we need not decide the issue in this 

case because, again, we cannot conclude on the record before us that the Department had 

an obligation to send notices to these tribes in the first place. Accordingly, we decline to 

 

5

 Mother also states in her opening brief that Cherokee tribes received defective notices, 

but she does not specify any particular deficiencies. 
12

reverse the dispositional orders or require the Department to re-serve these tribes with 

notices directed to named representatives.6

 Mother also argues that the response received from one of the tribes, the Redwood 

Valley Rancheria in Redwood Valley, was insufficient evidence that the tribe received 

actual notice because the response was sent to the Department on a plain piece of paper 

that was unsigned. We decline mother’s invitation to deem this an unacceptable 

response. (In re William K. (2008) 161 Cal.App.4th 1, 12 [social worker under no duty to 

elicit particular response from noticed tribe].) 

 Finally, we cannot conceive how reversing the dispositional orders would serve 

any legitimate purpose because the juvenile court proceeded as if ICWA applied. Mother 

claims that “it was important for a proper determination in this case that the Indian expert 

be knowledgeable in tribal customs as they pertain to family organization and 

childrearing practices of the Paiute, Pomo, or Cherokee tribes, and have extensive 

knowledge of prevailing social and cultural standards and childrearing practices within 

any of those tribes,” and suggests the outcome might have been different if an expert 

familiar with a particular tribe affiliated with her family had been called to testify. This 

argument fails for at least two reasons. First, mother does not challenge the expert’s 

testimony that incest and molestation (the reasons for Department intervention) are 

unacceptable in any tribe, and she cannot claim that the juvenile court failed to consider 

this under section 224.6. Second, she does not affirmatively claim on appeal that she has 

Paiute or Pomo heritage. In short, even if we were to assume that there were errors in 

some of the notices, we would conclude that they were harmless. (In re N.E. (2008) 

 

6

 Furthermore, it would be pointless to require notices to be re-sent to a couple of the 

tribes. When the notices were mailed, the Federal Register listed a specific ICWA 

contact person (Cynthia Jefferson) for the Big Valley Rancheria in Lakeport. 

(76 Fed.Reg. 30438, 30471 (May 25, 2011).) But the most recent Federal Register 

simply lists “ICWA” for that tribe, with no specific name, consistent with the original 

notice. (77 Fed.Reg. 45816, 45849 (Aug. 1, 2012).) And, according to the Federal 

Register published in August 2012, there is no longer a recognized government of the 

California Valley Miwok Tribe, and thus there is currently no ICWA representative listed 

to whom notice could be directed. (77 Fed.Reg. 45816, 45849 (Aug. 1, 2012).) 
13

160 Cal.App.4th 766, 771 [no prejudice where appealing party does not suggest in his 

appellate brief that he has Indian heritage]; In re Rebecca R. (2006) 143 Cal.App.4th 

1426, 1431 [no prejudice in absence of appealing parent’s affirmative representation of 

Indian heritage].) 

 We are sympathetic to an argument made by one of the minor’s attorneys at the 

close of the disposition hearing that “[t]his case is sort of like a poster child for ICWA 

abuse. I think most of the tribal representatives that I’ve dealt with feel like they would 

really rather see ICWA saying there must be some relationship before ICWA comes into 

play. But the current state of the law—I think the department did a remarkable job of 

trying to find somebody. And so I—I support what they’ve done. And I think they’ve 

met the requirements.” We agree that the Department met its legal obligations under 

ICWA, and we commend both the Department and the juvenile court for the way they 

handled this aspect of the proceedings. (In re N.M., supra, 161 Cal.App.4th at p. 269 

[social services agency “made heroic efforts to give ICWA notice”].) 

III. 

DISPOSITION

 Appeal A135645 is dismissed. The dispositional orders appealed from in 

A136929 are affirmed. 

 _________________________ 

 Humes, J. 

We concur: 

_________________________ 

Ruvolo, P.J. 

_________________________ 

Reardon, J.