Opinion
NOT TO BE PUBLISHED
Superior Court County of Santa Barbara Nos. J-1174874, J-1174875, Arthur A. Garcia, Judge
Maureen L. Keaney, under appointment by the Court of Appeal, for Defendant and Appellant.
Stephen Shane Stark, County Counsel, County of Santa Barbara and Toni Lorien Deputy, for Respondent.
YEGAN, J.
Gloria Y. appeals from a juvenile court order terminating her parental rights to Isaac G. and A.G. (Welf. & Inst. Code, § 366. 26.) Appellant argues that Santa Barbara County Child Welfare Services (CWS) failed to comply with the notice requirements of the Indian Child Welfare Act (ICWA; 25 USC § 1901 et seq.). We affirm on the ground that the ICWA notice defect was cured after the appeal was filed. (See e.g, Alicia B. v. Superior Court (2004) 116 Cal.App.4th 856, 866-867.) The Pascua Yaqui Tribe has confirmed that the children are not members of the tribe or eligible for membership in the tribe. The tribe's response to the ICWA notice is entitled to full faith and credit. (§ 224.5.)
Unless otherwise stated, all statutory references are to the Welfare and Institutions Code
Section 224.5 provides: "In an Indian child custody proceeding, the court shall give full faith and credit to the public acts, records, judicial proceedings, and judgments of any Indian tribe applicable to the proceeding to the same extent that such entities give full faith and credit to the pubic acts, records, judicial proceedings, and judgments of any other entity." (Emphasis added.)
Facts
On February 17, 2006, CWS detained the children after appellant was arrested for sales and possession of methamphetamine and being under the influence of methamphetamine. Appellant was sentenced to state prison.
A dependency petition was filed alleging failure to protect, failure to support, and sibling abuse involving 25 prior referrals. (§ 300, subds. (b), (g), & (j).) The petition stated appellant had a long history of drug use. The children's father, Lorenzo G., was serving a four year prison sentence.
At the March 23, 2006 detention hearing, appellant filed a Parental Notification of Indian Status (Form JV-130) indicating possible Yaqui heritage. The father indicated that he was of Cherokee heritage.
Appellant checked boxes on the JIV–130 form stating that "I may have Indian ancestry" and that the children may be members of, or eligible for membership in the Yaqui tribe.
At the June 1, 2006 jurisdictional/disposition hearing, the trial court found that the children were persons described by section 300, subdivisions (b), (g), and (j) and denied reunification services. CWS served ICWA notices on three Cherokee tribes, the Blackfoot Tribe, and the Bureau of Indian Affairs but not the Yaqui tribe.
The trial court found that the ICWA did not apply. After a contested hearing, the court determined that the children were likely to be adopted and terminated parental rights. (§ 366.26.)
ICWA
The ICWA provides that "'[i]n 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.' (25 U.S.C. § 1912(a), italics added.)" (In re H.A. (2002) 103 Cal.App.4th 1206, 1210.)
The notice requirement is to enable the tribe to investigate and determine whether the minor is an Indian child. (In re Pedro N. (1995) 35 Cal.App.4th 183, 186.)
"Congress was not only concerned about the interest of individual members of a tribe but of the tribe itself. [Citations.] The [IWCA] clearly protects the right of the tribe independent from any rights held by either parent. [Citations.]" (In re Kahlen W. (1991) 233 Cal.App.3d 1414, 1425.)
Appellant complains that ICWA notice was not given to the Yaqui tribe before parental rights were terminated. (See In re Nikki R. (2003) 106 Cal.App.4th 844, 849 [ICWA notice defect may be raised first time on appeal]; Dwyane P. v. Superior Court (2002) 103 Cal.App.4th 247, 259-260 [same].) In ICWA noncompliance cases, the reviewing court typically reverses with directions to issue ICWA notice and reinstate the judgment if the tribe does not intervene. (In re Francisco W. (2006) 139 Cal.App.4th 695, 705-706 [describing limited reversal procedure].)
An agency's failure to comply with ICWA notice requirements may, however, be cured while a writ or appeal is pending. (See Alice B. v. Superior Court, supra, 116 Cal.App.4th at pp. 866-867 [augmented record showed proper notice sent to tribes]; In re Christopher I. (2003) 106 Cal.App.4th 533, 564-565 [ failure to give notice harmless where no evidence child had Indian heritage]; In re S.M. (2004) 118 Cal.App.4th at 1108, 1117, fn 5.) This is especially so where a limited reversal would be "counterproductive to 'the state's strong interest in the expeditiousness and finality of juvenile court dependency proceedings.' [Citation.]" (Alicia B. v. Superior Court, supra, 116 Cal.App.4th at p. 867.) Lengthy and unnecessary delays in providing for the permanency of dependent children are to be avoided. (In re Marilyn H. (1993) 5 Cal.4th 295, 310.)
We take judicial notice of ICWA documents lodged in the juvenile court after the appeal was filed. While we rarely review evidence for the first time on appeal, we do so in this case because the documents do not require that we resolve factual issues or substitute our judgment for that of the trial court. (Code Civ. Proc., § 909; In re Louis B. (2004) 117 Cal.App.4th 622, 630, fn. 4.)
The ICWA documents, which were filed after parental rights were terminated on January 3, 2007, reflect the following:
On May 31, 2007, CWS gave ICWA notice (JV-135) to the Yaqui tribe. The Pascua Yaqui Tribe responded, stating that appellant and the children's father were not tribe members, and that the children were not tribe members or eligible for tribe membership.
At a June 21, 2007 hearing, the trial court found that the ICWA did not apply and that the children were not members of the Yaqui Tribe or eligible for membership. (§ 366.3.) Appellant's attorney was present and did not object.
Appellant argues that the ICWA notice is defective because it provides paternal heritage information but not maternal heritage information. The notice lists appellant's name, address, birthplace, and possible tribe membership. It also lists the father's name, address, birth date, and possible tribe affiliations, as well as the paternal grandparents and great grandparents, and their birth dates and birthplaces. Other boxes on the form are blank.
The ICWA notice provided enough information to enable the tribe to investigate and determine the children were not tribe members or eligible for membership in the tribe. (See e.g., In re Karla C. (2003) 113 Cal.App.4th 166, 175.) Any technical defects in the notice were harmless because the tribe, in its written response, stated it would not intervene. (See e.g., In re Antoinette S (2002) 104 Cal.App.4th 1401, 1413-1414 & fn. 4.) It is well settled that the tribe, not the state court, determines whether a child is a tribe member or eligible for tribal membership. ( In re Nikki R., supra, 106 Cal.App.4th at p. 848; Alicia B. v. Superior Court, supra, 116 Cal.App.4th at p. 865.)
Appellant is also estopped by her silence at the June 21, 2007 hearing at which the trial court found that the ICWA did not apply. Appellant did not object to the ICWA notice or the tribe response, or argue that new notices should be sent. Nor is there any evidence that the children are of Yaqui heritage, have received Indian services or reside on an Indian reservation, or have any affiliation with the Yaqui tribe.
Appellant's form-over-substance argument assumes that a ICWA notice defect, no matter how insignificant, is prejudicial. The notice provisions, however, are to protect the interests of Indian children and Indian tribes and their families. (Alicia B. v. Superior Court, supra, 116 Cal.App.4th at p. 864; In re Desiree F. (2000) 83 Cal.App.4th 460, 469.)
Here, the Yaqui tribe has determined that the children are not tribe members or eligible for tribal membership which is the whole purpose of the IWCA. Under the ICWA, the tribe has the definitive word. (Cal. Juvenile Dependency Practice (Cont. Ed. Bar 2007) § 9.12, p. 591.) The tribe's determination is conclusive and entitled to full faith and credit. (§§ 224.3, subd. (e)(1); 224.5; Cal. Rules of Ct., rule 5.664(g)(1).)
The Bureau of Indian Affairs has published guidelines for the assistance of statement courts in implementing the ICWA. (See Guidelines for State Courts; Indian Child Custody proceedings, 44 Fed. Reg. 67584, 67586 (Nov. 26, 1979; see CAL Juvenile Dependency Practice (Cont. Ed. Bar 2007) § 9.4, p. 579.) As an administrative interpretation of the ICWA, the guidelines are entitled to great weight. (In re H.A., supra, 103 Cal.App.4th at p. 1211.) BIA Guideline B.1. (b)(i) provides: "The determination by a tribe that a child is or is not a member of that tribe, is or is not eligible for membership in that tribe, or that the biological person is or is not a member of that tribe is conclusive." (West, Cal. Juvenile Laws and Rules, Bureau of Indian Affairs, Indian Child Custody Guidelines (2007) p. 1463.) The BIA "Commentary" to this guideline states: "This guideline makes clear that the best source of information of which a particular child is Indian is the tribe itself. It is the tribe's prerogative to determine membership criteria and to decide who meets those criteria. [Citation.]" ( Id ., at p. 1464.)
The judgment (order terminating parental rights) is affirmed.
We concur: GILBERT, P.J. PERREN, J.