Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of Riverside County No. RIJ116851. Matthew C. Perantoni, Temporary Judge. (Pursuant to Cal. Const., art. VI, § 21.)
Linda Rehm, under appointment by the Court of Appeal, for Defendant and Appellant.
Pamela J. Walls, County Counsel, and Julie Koons Jarvi, Deputy County Counsel, for Plaintiff and Respondent.
RICHLI Acting P.J.
A.H. (the mother) appeals from an order terminating her parental rights to her infant daughter, A.K.H. (the child). Her sole appellate contention is that proper notice was not given as required by the Indian Child Welfare Act (ICWA) (25 U.S.C. § 1901 et seq.) and related federal and state law. We will hold that no such notice was required; but, alternatively, even assuming it was, the trial court could reasonably find that the notice that was given was proper. Accordingly, we will affirm.
I
FACTUAL AND PROCEDURAL BACKGROUND
The child was born in December 2009. At that time, the mother had been hospitalized involuntarily for two months for schizophrenia and bipolar disorder. She admitted using methamphetamine during her pregnancy. Her parental rights to an older daughter had already been terminated.
The Department of Public Social Services (the Department) immediately detained the child and filed a dependency petition regarding her.
In February 2010, at the jurisdictional/dispositional hearing, the juvenile court found jurisdiction based on failure to protect, failure to support, and abuse of a sibling. (Welf. & Inst. Code, § 300, subds. (b), (g), & (j).) It denied reunification services and set a hearing pursuant to Welfare and Institutions Code section 366.26 (section 366.26).
In June 2010, at the section 366.26 hearing, the juvenile court terminated parental rights.
II
THE ICWA
A. Additional Factual and Procedural Background.
The mother identified two potential fathers. However, they were never located.
When the child was first detained, Marianne C. — the mother’s grandmother (i.e., the child’s maternal great-grandmother) — told the social worker that her grandmother (i.e., the child’s maternal great-great-great-grandmother) was a registered member of an Indian tribe located in Maryland. She could not provide any other information about this ancestor.
In December 2009, the Department gave notice of the proceedings to the Bureau of Indian Affairs (BIA) by certified mail. It used Judicial Council Form ICWA 030 (Notice of Child Custody Proceeding for Indian Child).
The notice specifically stated that the maternal great-great-great-grandmother was allegedly a registered member of a Maryland Indian tribe.
With respect to the mother, the notice listed her name, birthdate, and birthplace.
With respect to the mother’s mother, Christine P., it listed her name; all other information regarding her was listed as, “No information available.”
With respect to the mother’s grandmother, Marianne C., it listed her name; all other information regarding her was listed as, “No information provided, ” “Unknown, ” or “Does not apply.” (Capitalization omitted.)
The notice did not include any information about any male ancestors.
At the end of the notice, the social worker stated, under penalty of perjury, “... I/we have given all information I/we have about the relatives... of the child....”
The Department received a return receipt from the BIA, but it never received a response.
In January 2010, the Department once again gave notice of the proceedings to the BIA by certified mail. This notice was, in all substantive respects, identical to the December 2009 notice. Once again, the Department received a return receipt from the BIA, but it never received a response.
At the section 366.26 hearing, the juvenile court found that the ICWA did not apply.
B. Analysis.
In most dependency proceedings (see 25 U.S.C. § 1903(1); see also Welf. & Inst. Code, § 224.1, subd. (c); Cal. Rules of Court, rule 5.480), under federal law, if the court or the social worker “knows or has reason to know that an Indian child is involved, ” the social worker must give notice of the proceedings to the child’s tribe. (25 U.S.C. § 1912(a); 25 C.F.R. § 23.11(a); accord, Welf. & Inst. Code, §§ 224.2, subd. (a), 224.3, subd. (d); Cal. Rules of Court, rule 5.481(b).) If the identity of the tribe cannot be determined, the notice must be given to the BIA. (25 U.S.C. § 1912(a); 25 C.F.R. § 23.11(b).) The notice must be sent by registered or certified mail, return receipt requested. (25 U.S.C. § 1912(a); 25 C.F.R. § 23.11(a); Welf. & Inst. Code, § 224.2, subd. (a)(1).)
An “Indian child, ” for this purpose, is defined 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....” (25 U.S.C. § 1903(4); see also Welf. & Inst. Code, § 224.1, subd. (a).)
Under California law, the notice must be given by using Judicial Council Form ICWA 030. (Cal. Rules of Court, rule 5.481(b)(2).) The notice must include “[a]ll names known of the Indian child’s biological parents, grandparents, and great-grandparents, ... including maiden, married and former names or aliases, as well as their current and former addresses, birthdates, places of birth and death, tribal enrollment numbers, and any other identifying information, if known.” (Welf. & Inst. Code, § 224.2, subd. (a)(5)(C).) The social worker must file proof of notice, including a copy of the notice itself, any return receipts, and any responses. (Welf. & Inst. Code, § 224.2, subd. (c); Cal. Rules of Court, rule 5.482(b).)
In addition, as a matter of California law, if the court or the social worker “knows or has reason to know that an Indian child is involved, ” the social worker must “make further inquiry regarding the possible Indian status of the child... by interviewing the parents... and extended family members... and contacting... any other person that reasonably can be expected to have information regarding the child’s membership status or eligibility.” (Welf. & Inst. Code, § 224.3, subd. (c); see also Cal. Rules of Court, rule 5.481(a)(4).)
If “proper and adequate notice” has been given, and if there has been no response to the notice within 60 days, the juvenile court may determine that the ICWA does not apply. (Welf. & Inst. Code, § 224.3, subd. (e)(3); Cal. Rules of Court, rule 5.482(d).) “We review the trial court’s findings for substantial evidence. [Citation.]” (In re E.W. (2009) 170 Cal.App.4th 396, 404; accord, In re N.M. (2008) 161 Cal.App.4th 253, 264.)
Under state law, there is “reason to know the child is an Indian child” if (among other alternatives not relevant here) “[a] person having an interest in the child... provides information suggesting the child is a member of a tribe or eligible for membership in a tribe or one or more of the child’s biological parents, grandparents, or great-grandparents are or were a member of a tribe.” (Welf. & Inst. Code, § 224.3, subd. (b)(1); see also Cal. Rules of Court, rule 5.481(a)(5)(A).)
Some cases have indicated that the “reason to know” standard is met if there is information suggesting any Indian ancestry. (E.g., In re Nikki R. (2003) 106 Cal.App.4th 844, 848; In re Antoinette S. (2002) 104 Cal.App.4th 1401, 1407-1408.) This formulation, however, predates the adoption of the more specific definition of “reason to know” in Welfare and Institutions Code section 224.3. Under that section, information suggesting that a child’s great-grandmother was a member of a tribe is “reason to know.” However, information, as here, suggesting that the child’s great-great-great-grandmother was a member is too attenuated — by two degrees of kinship — to constitute “reason to know.”
Our analysis on this issue is largely consistent with In re Skyler H. (2010) 186 Cal.App.4th 1411. However, on September 9, 2010, a petition for review was filed in Skyler H. Accordingly, rather than rely on a case that may yet become uncitable, we analyze the issue independently.
Similarly, in In re Shane G. (2008) 166 Cal.App.4th 1532, the maternal grandmother reported that the child’s great-great-great-grandmother was a “Comanche princess.” (Id. at p. 1537.) The court held that this was insufficient to require that notice be given. (Id. at p. 1539.) Admittedly, in that case, the court also had evidence that having a Comanche great-great-great-grandmother was insufficient to qualify a child for membership in the Comanche tribe. (Ibid.) Here, however, there was not even any evidence of what tribe the child’s great-great-great-grandmother belonged to. Thus, there was no information suggesting that the child was eligible for membership in it.
Accordingly, the Department was not required to make any further inquiry regarding the status of the child. Moreover, although the Department did give notice (which the mother claims was defective) to the BIA, it was not required to do so. Any defects in the notice therefore are not grounds for reversal.
Separately and alternatively, the trial court could properly find that the notice was not defective. The mother argues that the notice failed to include (1) the birthdate, birthplace, and past and present addresses of the maternal great-grandmother; and (2) the birthdate and birthplace of the maternal grandmother. The notice, however, need only include information about parents, grandparents, and great-grandparents “if known.” (Welf. & Inst. Code, § 224.2, subd. (a)(5)(C).) The notice specifically recited that this information was unknown or unavailable. Moreover, the social worker stated, under penalty of perjury, that the Department had provided all the information it had.
The mother therefore argues that the Department violated its duty of inquiry. She notes that the social worker interviewed the maternal great-grandmother, who certainly would have known her own birthdate and birthplace, as well as the birthdate and birthplace of her own daughter. This initial interview, however, took place on the day the child was first detained. Apparently the maternal great-grandmother was visiting the mother at the hospital. There is no requirement that the social worker gather all of the information that may be needed for ICWA notice in a single interview with any given family member; this is particularly true on the day of the detention, when the social worker has other, more pressing matters to handle. There is no evidence that the social worker was ever able to interview the maternal great-grandmother again. Indeed, there is evidence that she was not able to do so — namely, the recitals in the notice that the information was not available. This was sufficient evidence to support the trial court’s finding. If the mother believed that these recitals were false or perjurious, she could have called the social worker to testify at the section 366.26 hearing. She did not.
The mother cites In re Francisco W. (2006) 139 Cal.App.4th 695 as holding that a social services agency violates its duty of inquiry by failing to contact a knowledgeable relative. There, however, the relative — the paternal grandmother — was not only interviewed by the social worker but also attended both the detention hearing and the jurisdictional hearing. (Id. at pp. 699-700.) Moreover, the agency conceded that the ICWA notices were inadequate because they did not include information that could have been obtained from the paternal grandmother. (Id. at pp. 703-704.) Here, by contrast, the juvenile court could reasonably find that the Department was unable to obtain any more information from the maternal great-grandmother.
Finally, the mother also argues that the notice was defective because it failed to include any information about any male ancestors. The omission of this information, if error at all, was harmless. The only evidence of Indian ancestry was through the mother, her mother, and her mother’s mother. Including information about non-Indian male ancestors could not have produced a different result. (In re Brandon T. (2008) 164 Cal.App.4th 1400, 1414-1415.)
We therefore conclude that the mother has not demonstrated any prejudicial violation of the ICWA or related state law.
III
DISPOSITION
The order appealed from is affirmed.
We concur: KING J., MILLER J.