Opinion
F078449
09-24-2019
In re G.G., a Person Coming Under the Juvenile Court Law. FRESNO COUNTY DEPARTMENT OF SOCIAL SERVICES, Plaintiff and Respondent, v. G.G., Defendant and Appellant.
Carolyn S. Hurley, under appointment by the Court of Appeal, for Defendant and Appellant. Daniel C. Cederborg, County Counsel, and Kevin A. Stimmel, Deputy County Counsel, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 18CEJ300041-1)
OPINION
APPEAL from orders of the Superior Court of Fresno County. Brian M. Arax, Judge. Carolyn S. Hurley, under appointment by the Court of Appeal, for Defendant and Appellant. Daniel C. Cederborg, County Counsel, and Kevin A. Stimmel, Deputy County Counsel, for Plaintiff and Respondent.
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G.G. (father) is the biological father of G.G., born in February of 2018. Father was the noncustodial parent, but G.G. was not placed with him and his parental rights were eventually terminated. Father's only contention on appeal is that the November 15, 2018, order terminating his parental rights to G.G. must be reversed for failure to fully comply with the notice requirements of the Indian Child Welfare Act of 1978 (ICWA) (25 U.S.C. § 1901 et seq.) Finding no error, we affirm.
All further dates are to the year 2018, unless otherwise stated.
FACTUAL AND PROCEDURAL BACKGROUND
Because of the nature of father's arguments on appeal, an exhaustive factual summary is unnecessary. We limit our discussion to those matters directly relevant to father's claims of error, or necessary to provide context.
Detention
When G.G. was born, his mother, Elizabeth S., tested positive for methamphetamine. Mother at first accepted voluntary services, but then stated she could not care for the child and did not want services. On February 7, mother completed a Parental Notification of Indian Status (ICWA-020) form claiming possible Indian ancestry through the Chinook and Cherokee tribes.
Mother is not a party to this appeal.
On February 21, the Fresno County Department of Social Services (department) filed a Welfare and Institutions Code section 300 petition alleging mother's substance abuse put G.G. at risk of harm. Alleged father's whereabouts were unknown. An Indian Child Inquiry Attachment (ICWA-010) form, completed by the social worker and attached to the petition, stated that G.G. might be an Indian child as mother stated she had Chinook Indian ancestry.
All further statutory references are to the Welfare and Institutions Code unless otherwise stated.
According to the report prepared in anticipation of detention, mother had five other children, all in the care of their father. Mother reported G.G.'s alleged father smoked marijuana and used methamphetamine, and there was a restraining order against him, as a result of domestic violence by father against mother. Various paternal relatives submitted their names to be assessed for placement.
At the detention hearing on February 22, the juvenile court noted mother's claim of possible Chinook ancestry, a tribe unfamiliar to the court. Mother's counsel stated that the tribe was located in Washington state. After what appeared to be an internet search during the hearing, the juvenile court found that the Chinook tribe was a "definite tribe. Definite established. Definite historical tribal territory and grounds in Washington. Uncertain federal recognition," and that the ICWA "may apply to these proceedings."
Mother reported that father was "present earlier" at the detention hearing, but he did not stay for the proceedings. A contested jurisdiction hearing was scheduled for the end of March 2018. A paternity test was ordered for father.
The Notice of Child Custody Proceeding for Indian Children (ICWA-030) listed mother's name, address, birthdate, birthplace, and claimed Cherokee ancestry through maternal grandmother, who is listed by married and maiden names and was deceased in 1996. Maternal grandmother's birth year and tribal membership or enrollment number were listed as unknown. Maternal great-grandmother's name, both maiden and married, was listed, but birthdate, date of death, former address, or tribal membership or enrollment number was not known.
We refer to the various family members by their relationship to the child, G.G.
The ICWA-030 stated that mother claimed Chinook ancestry through her father's side. Maternal grandfather's name was listed, but the entry also stated that "the Chinook tribe is not federally recognized." There was no information listed on maternal grandfather's current or former address, and only a month and date, but no birth year, were listed for him. Information for maternal great-grandmother, who mother claimed had Chinook ancestry, was equally bare—her full name and the fact that she was deceased in Fresno in 1998, without further information.
Under "additional information," the ICWA-030 reported that mother received dental treatment at an Indian health clinic in Clovis in 1999.
On March 7, the department sent the ICWA-030 to three Cherokee Indian tribes (the Eastern Band of Cherokee Indians, the Cherokee Nation, and the United Keetoowah Band of Cherokee), as well as the Bureau of Indian Affairs, with certified or return receipt requested. Return receipts were received from all three tribes and the Bureau of Indian Affairs. Jurisdiction/Disposition Report
The March 29 jurisdiction/disposition report prepared by the department recommended no services be offered father, pursuant to section 361.5, subdivision (a), presumably because father was only an alleged and not presumed father. He did not sign a declaration of paternity and was not listed on G.G.'s birth certificate. Father was located on March 16 in the county jail.
The department did not recommend services for mother as she had failed previous court-ordered treatment numerous times and was not visiting G.G. consistently. She was basically homeless.
G.G. was in a relative placement with a maternal great aunt, pending completion of the Resource Family Approval (RFA) process. Several of father's relatives were also interested in placement and would be assessed if they completed the RFA process.
Under the heading on ICWA status, the report stated that the "Chinook Tribe and the Bureau of Indian Affairs" was noticed on March 7, but there is no other allegation or documentation in the record that the Chinook tribe was ever noticed. No mention was made in the report of mother's claim of Cherokee ancestry. Contested Jurisdiction/Disposition Hearing
The scheduled March 29 jurisdiction/disposition hearing was continued to May 10 at mother's request for a contested hearing. A settlement conference was scheduled for a week earlier on May 3. DNA testing on father, who was in custody, had not yet occurred.
The May 10 contested hearing was rescheduled for May 16. Prior to dismissal at the May 10 hearing, father waived his appearance for the following hearing, stating he did not want to interfere with his custody time credits, and wished to be released from custody as soon as he could. His anticipated release date was November. When asked, father stated that he thought he had Indian ancestry, but did not know what tribe and did not think any of his family members were members of federally recognized tribes. Paternal grandfather, who was present, also did not know and said he would have to go home and ask.
Also, on May 8 the department filed a notice of motion to declare the ICWA inapplicable. As stated in the motion, "mother ... has reported that she may have Indian heritage, including that she may be of the Cherokee and Chinook Tribes. Because the Chinook Tribe is not federally recognized, no notice was sent." The Eastern Band of Cherokee Indians had acknowledged notice and sent a letter dated March 19, stating that, based on the information received, G.G. was not eligible for membership. The Cherokee Nation and the United Keetoowah Band of Cherokee Indians both sent return receipts, but nothing further as yet.
At the contested May 16 jurisdiction hearing, mother testified she was ready to change and wanted to reunify with G.G. The juvenile court, however, bypassed mother for services and ordered a section 366.26 hearing for September 6.
Father, who was present at the hearing, did not request services, only paternity testing. Father again acknowledged that he did not know the name of a tribe he was affiliated with, or that there were any other people the department could talk to about possible heritage. Paternal grandfather, who was again present, did not offer any information.
The juvenile court stated that, if new information came to light, the ICWA could be revisited, but that, at this time, it did not appear to apply. The section 366.26 permanency planning hearing was scheduled for September 6.
On June 4 the Cherokee Nation sent a letter stating that G.G. was not an Indian child in relation to the Cherokee Nation. Report Prepared for the Section 366 .26 Hearing
The report prepared for the section 366.26 hearing recommended mother and father's parental rights be terminated and G.G. be placed for adoption. Father's DNA testing showed a 99.9 percent probability that he was G.G.'s father. G.G. was still in the care of a relative care provider, with whom he had bonded.
Under the information on ICWA status, the department recommended the juvenile court continue to find that the ICWA did not apply. Aside from the earlier information previously reported, the report stated the social worker made a "new inquiry" of mother on June 25 regarding any Indian ancestry and mother "stated the same information previously reported which included that her father, ... is registered with the Chinook Tribe in Washington, but does not have his registration number."
The section 366.26 hearing was rescheduled to October and then November. Section 388 Petition
Father was released from custody on October 11. On October 26 he filed a section 388 petition requesting placement of G.G. or family reunification services with visits. The petition stated he was living with his sister, who could help him, and that he could attend any classes required. The petition stated that it would be in G.G.'s best interests to be placed with father as father was substantially younger than the current caregivers, who were both retired.
Mother also filed a section 388 petition asking for placement of G.G. or services, alleging she had been clean and sober for seven months and consistently tested negative. She had completed inpatient treatment, a therapeutic bonding class, and food and nutrition education. Section 388 and Section 366 .26 Hearing
On November 8 father was elevated to presumed father status. A contested hearing was eventually set for November 15.
An addendum report and a response to the section 388 petitions stated that adoption was the most appropriate plan for G.G. and the department continued to recommend termination of parental rights. G.G. remained with a maternal great-aunt, pending completion of the RFA process. Father had not visited G.G. since he was removed and had no parent-child relationship with him. Father had not participated in any services while incarcerated and had not sought any services since being released. Father also had an extensive criminal history, which most recently included felony domestic violence. Father presented no testimony or evidence at the hearing.
The juvenile court denied both section 388 petitions, finding no changed circumstances for either mother or father, and no significant relationship between either parent and G.G. The juvenile court terminated parental rights, finding no exception to adoption.
DISCUSSION
Father contends that the juvenile court's termination of his parental rights must be reversed due to errors in the ICWA investigation and notice requirements. Specifically, he contends: (1) the Quinault tribe in Washington should have been noticed because "a simple Google search" would show that the Quinault tribe absorbed some of the members of the nearby Chinook tribe, which mother claimed through G.G.'s paternal grandfather but which was not federally recognized; (2) family members were not questioned for necessary information; and (3) notices were sent to incorrect addresses for the Cherokee tribes, requiring notice be sent again to the one tribe that did not respond.
I. THE ICWA
Congress enacted the ICWA "'to promote the stability and security of Indian tribes and families by establishing minimum standards for removal of Indian children from their families and placement of such children "in foster or adoptive homes that will reflect the unique values of Indian culture ...."' (In re Levi U. (2000) 78 Cal.App.4th 191, 195; [Citations.].)" (In re C.Y. (2012) 208 Cal.App.4th 34, 39.) An "'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).)" (In re Jonathon S. (2005) 129 Cal.App.4th 334, 338.) The ICWA applies only to federally recognized tribes. (25 U.S.C. § 1903(8); In re Jonathon S., supra, at p. 338; In re B.R. (2009) 176 Cal.App.4th 773, 781, 783.)
In state court proceedings involving the foster care placement of, or termination of parental rights to, an Indian child, the Indian custodian of the child and the Indian child's tribe have the right to intervene at any point in the proceeding. (25 U.S.C. § 1911(c).) But this right is meaningless unless the tribe is notified of the proceedings. (In re Hunter W. (2011) 200 Cal.App.4th 1454, 1466.) Notice serves the dual purpose of (1) enabling the tribe to investigate and determine whether a child is an Indian child; and (2) advising the tribe of the pending proceeding and its right to intervene. (In re Desiree F. (2000) 83 Cal.App.4th 460, 470.)
Section 224.3, subdivision (a)(3) requires that notice be sent to all tribes of which the child may be a member or eligible for membership, until the court makes a determination as to which tribe is the child's tribe. Courts have construed this language to require "notice to all federally recognized tribes within the general umbrella identified by the child's parents or relatives." (In re O.C. (2016) 5 Cal.App.5th 1173, 1183; In re Alice M. (2008) 161 Cal.App.4th 1189, 1202 (Alice M.).) Notice is sufficient if there was substantial compliance with the ICWA. (In re Christopher I. (2003) 106 Cal.App.4th 533, 566.)
The ICWA applies to children who are eligible to become or who are members of a tribe but does not limit the manner by which membership is to be defined. (In re Jack C. (2011) 192 Cal.App.4th 967, 978, disagreed with on another point in In re Abbigail A. (2016) 1 Cal.5th 83, 96.) A "tribe's right to define its own membership for tribal purposes has long been recognized as central to its existence as an independent political community." (Santa Clara Pueblo v. Martinez (1978) 436 U.S. 49, 72, fn. 32.) The tribe's determination that a child is a member of or eligible for membership in the tribe is conclusive. (§ 224.2, subd. (h).)
A. Standard of Review
Where, as here, the trial court has made a finding that the ICWA is inapplicable, the finding is reviewed under the substantial evidence standard. (In re Rebecca R. (2006) 143 Cal.App.4th 1426, 1430.) Thus, we must uphold the court's orders and findings if any substantial evidence, contradicted or uncontradicted, supports them, and we must indulge all legitimate inferences in favor of affirmance. (In re John V. (1992) 5 Cal.App.4th 1201, 1212.) We review compliance with the ICWA notice requirements under the harmless error standard. (In re E.W. (2009) 170 Cal.App.4th 396, 402-403; In re Alexis H. (2005) 132 Cal.App.4th 11, 16.)
B. Standing
Standing to challenge an ICWA notice is set forth in title 25 United States Code section 1914 and California Rules of Court, rule 5.486(a). A non-Indian parent has standing to challenge the ICWA notice. (In re B.R., supra, 176 Cal.App.4th at p. 779; In re Jonathon S., supra, 129 Cal.App.4th at p. 339.)
All further references to the rules are to the California Rules of Court.
Any challenge to the ICWA notice is not forfeited by failing to raise it in the juvenile court; ICWA notice may be challenged for the first time on appeal. (In re Isaiah W. (2016) 1 Cal.5th 1, 15.)
C. Analysis
1. Failure to Notice the Quinault Indian Nation
Father first alleged that the juvenile court failed to notify the Quinault Indian Nation. Here, mother claimed ancestry, through her father (G.G.'s paternal grandfather), in the Chinook Tribe located in Washington State. Father alleges that, while the Chinook Tribe is not federally recognized, a search of "Chinook Tribe" on the Internet reveals that some of its members were subsumed into the federally recognized Quinault tribe, and the Quinault tribe should have been noticed.
We deny father's, April 9, 2019, request that we take judicial notice of facts his counsel located on the Internet. This factual material was not presented below and is improper. (In re K.P. (2009) 175 Cal.App.4th 1, 5 [disregarding Internet information, outside the appellate court record purporting to indicate that parent's reported tribe might be affiliated with federally recognized Indian tribe; judicial notice of material not before the juvenile court would not be proper].)
Father relies in part on In re Louis S. (2004) 117 Cal.App.4th 622 (Louis S.) for the proposition that the social worker here "should have researched if any tribes had subsumed the Chinook tribe." We find his reliance misplaced.
In Louis S., the mother stated she had Apache heritage through the maternal great-grandmother, and the maternal grandmother said the maternal great-grandmother "was eligible for membership in the Chiricahua Tribe, a branch of the Apache Tribe, but she never registered with any tribe." (Louis S., supra, 117 Cal.App.4th at p. 627.) At the time Louis S. was decided, the Chiricahua was not a federally recognized tribe. (Id. at p. 632.) However, the record contained evidence based on the work of the social worker that members of the Chiricahua had blended with the San Carlos Apache Tribe, a federally recognized tribe in Arizona. (Id. at p. 632.) The Court of Appeal, which reversed for ICWA notice error on other grounds (id. at p. 631), held that on remand, the social worker was to determine whether all the Chiricahua were absorbed by the San Carlos Apache, or if any were absorbed by the other Apache tribes in Arizona, the Tonto and White Mountain Apache tribes. (Id. at p. 632.) "Once the social worker learns which tribe or tribes absorbed the Chiricahua, she need notice only those tribes. [Citations.] If the social worker cannot determine which tribes absorbed the Chiricahua, she should give notice to the BIA and the tribes she knows absorbed members of the Chiricahua tribe. [Citations.] Serving the BIA eliminates the need to serve the remaining Apache Tribes." (Id. at pp. 632-633.) Based on Louis S., father claims that the failure to notify the Quinault tribe here violated the ICWA notification requirements. We disagree.
Louis S. is distinguishable from this case. Requiring the department to investigate a claim related to a tribe that is not federally recognized, but that might have been absorbed into another federally recognized tribe or tribes at some point in time, can only be justified by the unusual facts present in Louis S. Those facts, consisting of clear claims of Apache and Chiricahua ancestry, plus independent research by the social worker regarding the Chiricahua being absorbed into at least one Apache tribe, are not present here.
Events subsequent to Louis S. further distinguish that case. Whether a tribe is federally recognized, and therefore subject to ICWA notice, is determined by the Department of Interior, which periodically publishes lists of federally recognized tribes in the Federal Register. (See In re J.T. (2007) 154 Cal.App.4th 986, 992.) The Chiricahua at issue in Louis S. were identified by the Department of the Interior in the list of designated tribal agents found in the Federal Register. Specifically, the section labeled "List of Designated Tribal Agents by Tribal Affiliation" contains the listing "Chiricahua, (See Apache)," followed by the contact information for the designated agent for the Fort Sill Apache Tribe. (Updated Nov. 28, 2015.) Here, the Chinook are not listed in the list of federally recognized tribes operative at the time of the juvenile court's finding that ICWA was not applicable. (See 83 Fed. Reg. 25685 [Jun. 4, 2018]), nor are they listed in the "List of Designated Tribal Agents by Tribal Affiliation."
The Department of Interior no longer lists agents by tribal affiliation in the Federal Register but can be found on the Web <https://www.bia.gov/>.
The highly fact-bound holding of Louis S. is not applicable, and we reject father's claim that the social worker should have researched the Chinook tribe further or that notice should have been sent to the Quinault Indian Nation.
2. Failure to Further Question Family Members
Father next contends the juvenile court's finding that the ICWA was inapplicable must be reversed due to inadequate inquiry of mother and her extended family regarding Indian heritage. Specifically, father contends there is an absence of evidence that the department attempted to contact various maternal relatives, leading to a lack of information being included in the notice to the tribes. Because we have determined, above, that possible Chinook heritage does not trigger ICWA notice requirements, we address the issue only as it pertains to mother's claim of Cherokee ancestry.
In every dependency proceeding, the agency and the juvenile court have an "affirmative and continuing duty to inquire whether a child is or may be an Indian child ...." (Rule 5.481(a); see also § 224.2, subd. (a); In re W.B. (2012) 55 Cal.4th 30, 53; In re Gabriel G. (2012) 206 Cal.App.4th 1160, 1165.) Once the court or agency "knows or has reason to know that an Indian child is involved, the social worker ... is required to make further inquiry regarding the possible Indian status of the child, and to do so as soon as practicable ...." (Gabriel G., supra, at p. 1165; rule 5.481(a)(4); § 224.2, subd. (e).) The agency's duty of "'further inquiry'" requires "'interviewing the parents, Indian custodian, and extended family members ..., contacting the Bureau of Indian Affairs ... [and contacting] the tribes and any other person that reasonably can be expected to have information regarding the child's membership status or eligibility.'" (Gabriel G, supra, at p. 1165; rule 5.481(a)(4); § 224.2, subd. (e).) But "the obligation is only one of inquiry and not an absolute duty to ascertain or refute Native American ancestry." (In re Antoinette S. (2002) 104 Cal.App.4th 1401, 1413.)
In essence, father is claiming there was no substantial evidence to show that the duty of inquiry was satisfied. We review factual findings in the light most favorable to the trial court's order. (In re Rebecca R., supra, 143 Cal.App.4th at p. 1430.) "Deficiencies or errors in an ICWA notice are subject to harmless error review." (In re Charlotte V. (2016) 6 Cal.App.5th 51, 57.)
Mother claimed maternal grandmother and maternal great-grandmother were thought to have Cherokee ancestry. On the ICWA-030 completed by the department, maternal grandmother is listed by maiden and married name; month and date of birth, but not year; place of birth; and place and year of death. Maternal great-grandmother is listed by maiden and married name; month of birth, but not date or year; place of birth; month and date of death, but not year; and place of death.
As argued by father, the notice is lacking maternal grandmother and maternal great-grandmother's birth year, tribal membership or enrollment number for either, and the maternal great-grandmother's year of death. However, there is no indication in the record that anyone had the information father alleges was missing. Mother was not always forthcoming or easily accessible. When she was first contacted by the department, she was belligerent with the social worker and she was difficult to locate, as she was basically homeless. According to mother, who was now in her mid-thirties, her mother died before she was 16 or 17 years old; her father moved out of state in 2013 and she did not have contact information for him. Mother herself said that she had limited support, did not talk to her siblings, and had limited contact with extended family. The social worker signed a declaration under penalty of perjury that the information provided in the notice included all of the known information about the relative of the child on March 8. The September 6 report prepared in anticipation of the section 366.26 hearing stated that the social worker made a new inquiry of mother regarding Indian ancestry on June 25, and that mother "stated the same information previously reported."
Father also argues that the department failed to question the maternal great aunt who had custody of G.G., as she might have information on the child's possible Indian ancestry. However, there is no indication in the record as to whether this maternal aunt was related to mother on maternal grandmother or maternal grandfather's side. As such, the record does not support father's assumption that the maternal great aunt most likely had important information about mother's Cherokee ancestry, that she was even related to that side of the family, or if she was, that the department failed to question her in order to acquire "the missing information" or otherwise thoroughly investigate mother's lineal ancestry and claims of Cherokee heritage through the maternal grandmother.
To be sure, once mother claimed that she may have Cherokee ancestry through the maternal grandmother, the department was required to "make further inquiry regarding the possible Indian status" of G.G. by interviewing mother, the maternal relatives, and any other persons who reasonably could have been expected to have information concerning G.G.'s Indian ancestry. (§ 224.2, subd. (e); rule 5.481(a)(5)(A).) And, as the department notes, Evidence Code section 664 provides, "It is presumed that official duty has been regularly performed[,]" and the presumption is conclusive in the absence of evidence that the official duty was not performed. (In re Angelina E. (2015) 233 Cal.App.4th 583, 588.) As such, the department argues that official duty has been performed because there is no evidence to the contrary and because father must take the record as he finds it because he did not challenge the ICWA notice below.
Similar logic was recently refuted in In re K.R. (2018) 20 Cal.App.5th 701 (K.R.). The court there stated: "[I]n general, an appellant has the burden of producing an adequate record that demonstrates reversible error. [Citation.] However, ICWA compliance presents a unique situation, in that ..., although the parent has no burden to object to deficiencies in ICWA compliance in the juvenile court, the parent may nevertheless raise the issue on appeal. [Citation.] The purpose of ICWA and the California statutes is to provide notice to the tribe sufficient to allow it to determine whether the child is an Indian child and whether it wishes to intervene in the proceedings. [Citation.] The parent is in effect acting as a surrogate for the tribe in raising compliance issues on appeal. Appellate review of procedures and rulings that are preserved for review irrespective of any action or inaction on the part of the parent should not be derailed simply because the parent is unable to produce an adequate record." (Id. at p. 708.)
We find the facts of K.R. distinguishable. In K.R. the mother claimed inadequacy of the investigation and of the resulting notices to the Cherokee tribes. Notices sent to the three Cherokee tribes included the name of the children's father, R.R., his dates of birth and death, and his birthplace, as well as the names of the tribes he might have been affiliated with. The notices identified R.R.'s father by name as possibly affiliated with the same tribes, and gave his last known address, birth date and birthplace. "The notices further identified R.R.'s paternal grandfather, John 'Unknown' R., as possibly affiliated with the same tribes, but listed all other information about him as 'unknown' or 'no information available.' (In each instance, the 'R.' stands for the same surname.)" (K.R., supra, 20 Cal.App.5th at p. 707.)
The mother claimed this information demonstrated that the department did not comply with its duty to interview extended family members to gather pertinent information. She pointed out that both the paternal grandmother and the paternal aunt were readily available and might have been able to provide additional information. She also pointed out that the department had a last known address for the paternal grandfather and, if contacted, "'certainly' 'could have supplied some of the biographical information for his father ... , the other relative with purported Cherokee heritage.'" The mother asserted that the department "'clearly'" performed no such investigation because the paternal great-grandfather's biographical information was essentially blank, including whether he was living or deceased. (K.R., supra, 20 Cal.App.5th at p. 707.)
The court in K.R. found that the mother was correct that it was likely the paternal grandfather would have had some information about his father's Indian heritage, and that he could possibly have put the department in touch with his father, i.e., the children's paternal great-grandfather, or provided information as to the date and place of his father's birth, as well as further biographical information concerning himself. Yet, there is no information in the record that the department wrote to the paternal grandfather at his last known address to seek that information or that it made any other effort to contact him. Nor was there any evidence that the department attempted to contact the children's paternal great-grandmother. The notices identified both of the father's grandmothers, one living and one deceased. As to the living paternal great-grandmother, the notices gave her last known address and birth date, but no further information. Because neither paternal great-grandmother shared the "R." family surname, it is not possible to determine whether the living great-grandmother might have been a source of further information about the children's paternal grandfather or great-grandfather. However, there was no information in the record that the department attempted to contact the living great-grandmother in order to determine whether she had any relevant information. The court in K.R. found that these were actions that the department was required to undertake and failed to do so. (K.R., supra, 20 Cal.App.5th at pp. 708-709, citing In re Michael V. (2016) 3 Cal.App.5th 225, 235-236.)
Here, unlike in K.R., nothing in the record indicates that the department did not discharge its official duty to thoroughly investigate G.G.'s possible Cherokee ancestry. (§ 224.3, subd. (c).) Father provides no evidence that anyone might have had the "missing" information he alleges, aside from the maternal great-aunt, who is not identified as relating to mother's maternal or paternal side. Thus, we presume here that the department discharged its official duty of inquiry and, on this record, father has not shown that the department failed to interview relevant individuals or otherwise failed to investigate mother's claim of Cherokee Indian ancestry. (§ 224.2, subd. (e).)
3. Notice to Tribes Was Sufficient
Lastly, father contends that notices to the Cherokee tribes were deficient because they were sent to the "wrong address or addressed to the wrong person," although he contends only that the United Keetoowah Band must be re-noticed.
Notice sent in an Indian child custody proceeding shall be sent to "... the child's tribe" and comply with the listed requirements. (§ 224.3, subd. (a).) The requirements include notice addressed "to the tribal chairperson, unless the tribe has designated another agent for service." (§ 224.3, subd. (a)(2); see 25 C.F.R. § 23.12 (2019) [designated agents and addresses are published in the Federal Register].)
The failure to provide ICWA notice to the designated agent or address, without evidence of actual notice, cannot be considered harmless error. (Alice M., supra, 161 Cal.App.4th at p. 1201; Nicole K. v. Superior Court (2007) 146 Cal.App.4th 779, 784.) For instance, in Alice M., notices were sent to the wrong address for the Jicarilla Apache Nation and the wrong designated agents for three Apache tribes. The department received signed return receipts but no responses. (Alice M., supra, at p. 1201.) In Nicole K., notice was misaddressed to the United Keetoowah Band with no evidence that the signature on the return receipt was signed by a representative of the tribe. (Nicole K., supra, at pp. 783-784.) In both, the appellate courts reversed the prior ICWA finding since there was no proof that notices were correctly addressed or actual notice was accomplished. (Alice M., supra, at p. 1201; Nicole K., supra, at p. 784.)
Mother claimed possible Cherokee ancestry. There are three federally recognized Cherokee tribes: the Cherokee Nation of Oklahoma; the Eastern Band of Cherokee Indians of North Carolina; and the United Keetoowah Band of Cherokee Indians of Oklahoma. (In re C.D. (2003) 110 Cal.App.4th 214, 226.) According to the Certificate of Mailing and U.S. Postal Certified Mail Receipt, a copy of the ICWA-030 was sent by the department to Eastern Band of Cherokee Indians and Cherokee Nation. Responses to the department's notice were received from the Eastern Band of Cherokee Indians and the Cherokee Nation, and those responses were filed with the juvenile court on April 5, 2018, and June 19, 2018. Letters from both indicate that G.G. was not located in the enrollment records and not considered to be an "Indian child" by each tribe. We reject father's claim as to the Eastern Band of Cherokee Indians and Cherokee Nation because the record demonstrates that these two tribes had actual notice of the dependency proceedings and elected not to participate, rendering any alleged defect in the service of the ICWA notices harmless. (In re D.N. (2013) 218 Cal.App.4th 1246, 1251.)
This leaves notice to the United Keetoowah Band, which, according to the ICWA-030, was sent to Joe Bunch Chief, Raven Owl Director, Att: Ronnie Livers - Assistant to ICWA Representative, P.O. Box 746, Tahlequah, Oklahoma, 74465-0746. The Certified Mail Receipt for the United Keetoowah Band of Cherokee Indians contains two printed labels that list the names of the registered agents, the tribe's name, city, state, and zip code, but the labels omit the P.O. Box.
Father contends that the omission of the tribe's P.O. Box on the two labels establishes that notice was not sent to the correct address. However, the Certificate of Mailing does identify the correct P.O. Box and other information from the tribal registry in effect at the time the notice was sent. (82 C.F.R. 12986 (Mar. 8, 2017); <http://www.childsworld.ca.gov/Res/pdf/CDSSTribes.pdf> [as of Sept. 19, 2019].) The inference made by father that the notice was addressed as listed on the return receipt and still delivered without a physical address aside from the city, state and zip code is not reasonable.
We find the evidence shows that the department substantially complied with the ICWA's purpose of ensuring "that notice is received by someone trained and authorized to make the necessary ICWA determinations" (In re J.T., supra, 154 Cal.App.4th at p. 994), and the omission of the P.O. Box on the return receipt labels in this case was harmless.
DISPOSITION
The juvenile court's November 15, 2018, orders are affirmed.
/s/_________
FRANSON, J. WE CONCUR: /s/_________
DETJEN, Acting P.J. /s/_________
PEÑA, J.