Opinion
NOT TO BE PUBLISHED
Superior Court County of Santa Barbara No. J 1285938 James E. Herman, Judge
Cameryn Schmidt, under appointment by the Court of Appeal, for Appellant John C.
Lee Gulliver, under appointment by the Court of Appeal, for Appellant Anna G.
Dennis A. Marshall, County Counsel, Maria Salido Novatt, Senior Deputy County Counsel for Respondent
PERREN, J.
Anna G. and John C. appeal an order of the juvenile court terminating parental rights and finding their child adoptable. (Welf. & Inst. Code, § 366.26.) Their sole contention on appeal is that respondent Santa Barbara County Child Welfare Services (CWS) did not comply with the notice provisions of the Indian Child Welfare Act. (ICWA; 25 U.S.C. § 1901 et seq.) We affirm.
All statutory references are to the Welfare and Institutions Code unless otherwise stated.
FACTS AND PROCEDURAL HISTORY
On March 18, 2009, CWS detained John C., Jr. because his parents were arrested for drug possession and use. Both parents were incarcerated and remained incarcerated throughout the dependency proceeding.
At the detention hearing on March 23, 2009, both parents filled out a parental notification of Indian status form. Father claimed that he had "Navajo-New Mexico/Guadalupe" Indian ancestry. Mother claimed "Chumash Coastal Band" Indian ancestry.
On April 9, 2008, CWS sent a notice of child custody proceedings to the parents, the Colorado River Tribal Council, the Navajo Nation, the Bureau of Indian Affairs (BIA), and the U.S. Department of the Interior. The notices contained only the names and addresses of mother and father and the name of the child.
The Chumash tribe was not notified as it is not a federally-recognized tribe subject to the ICWA.
In its jurisdiction/disposition report of April 23, 2009, CWS informed the court of the parents' claimed Indian heritage and that notices had been sent to the named tribes. As of the writing of the report, no additional information had been obtained, although CWS sent a letter to father requesting additional information.
CWS recommended that family reunification services not be offered to mother and father as they had three pending felony charges and two misdemeanor charges. The deputy district attorney prosecuting the parents advised that both parents were facing significant jail time in light of their long criminal histories. A contested jurisdiction/disposition hearing was held on May 14, 2009. Based on mother and father's extensive criminal history and incarceration, the juvenile court denied reunification services to both parents and scheduled a permanency planning hearing for September 10, 2009.
On June 25, 2009, CWS filed return receipts with the court for the notices sent on April 9 to the Colorado River Tribal Council, the Navajo Nation, and the BIA. In the report prepared for the September 10 hearing, CWS stated it had received a letter from the Navajo Nation on April 27 indicating that they were unable to verify the child's eligibility for enrollment with the Navajo Indian Tribe based on the information provided. CWS received a letter on May 4 from the Colorado River Indian Tribes stating that the child was not an enrolled member and was not eligible for enrollment with the tribe.
At the hearing on September 10, the court found that the ICWA did not apply. The court terminated the parental rights of both parents. At the time of the hearing, the child had been in the same placement since detention and his foster parents wanted to adopt him.
Mother and father filed notices of appeal. After the notices of appeal were filed, CWS obtained information from the child's maternal grandmother that mother might have Pascua Yaqui heritage. CWS sent two additional notices to the BIA, the Cherokee Nation, the United Keetoowah Band, the Colorado River Tribal Council, the Eastern Band of Cherokee Indians, the Navajo Nation, and the Pascua Yaqui Tribal Council. The notices contained information regarding the child's parents, his maternal and paternal grandparents, and his maternal great-grandparents.
CWS filed interim review reports and an addendum report regarding the ICWA noticing issues for a March 4, 2010, hearing. In this report, CWS informed the court that CWS had sent and/or resent the notices to both parents, the BIA, the Cherokee Nation, the Colorado River Tribal Council, the Department of the Interior, the Eastern Band of Cherokee Indians, the Navajo Nation, the Pascua Yaqui Tribal Council and the United Keetoowah Band of Cherokee Indians. The report contained a detailed recitation of the efforts made by CWS to obtain information concerning the child's possible Indian heritage and the responses received from the tribes. On March 3, 2010, CWS received a letter from the Pascua Yaqui Tribe stating that the child was not a member and not eligible for membership in the tribe. CWS also received a letter from the Cherokee Nation on March 3, 2010, stating the child was not an Indian child. CWS did not receive a response letter from the Navajo Nation prior to the March 4, 2010, hearing at which the court found ICWA did not apply. However, CWS reported that the social worker had numerous conversations with a Navajo Nation representative who stated that a child would have to be at least one-fourth Navajo to be eligible for membership in the tribe. CWS also reported having a telephone conversation with a representative of the Colorado River Indian Tribe who stated that a child would have to be at least one-fourth Navajo to be eligible for enrollment and that one parent would need to be enrolled.
Based on this information, the juvenile court made a finding that the child was not an Indian child and the ICWA did not apply.
DISCUSSION
Standard of Review
We review ICWA compliance under the harmless error standard. (See, e.g., In re E.W. (2009) 170 Cal.App.4th 396, 402-403 [where notice has been received by the tribe, errors and omissions are reviewed under the harmless error standard].) Notice is sufficient if there was substantial compliance with the ICWA. (In re Christopher I. (2003) 106 Cal.App.4th 533, 566.)
ICWA
The ICWA protects the interests of Indian children and promotes the stability and security of Indian tribes by establishing minimum standards for, and permitting tribal participation in, dependency actions. (25 U.S.C. §§ 1901, 1902, 1903(1), 1911(c), 1912.) "The ICWA presumes it is in the best interests of the child to retain tribal ties and cultural heritage and in the interest of the tribe to preserve its future generations, a most important resource." (In re Desiree F. (2000) 83 Cal.App.4th 460, 469.) The juvenile court and social services agencies have an affirmative duty to inquire at the outset of the proceedings whether a child who is subject to the proceedings is, or may be, an Indian child. (Id., at p. 470.)
The duty to provide notice under the ICWA arises when "the court knows or has reason to know that an Indian child is involved." (25 U.S.C. § 1912(a).) For purposes of the ICWA, an "Indian child" is one who is either 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).)
Only a hint or suggestion of Indian ancestry is required to trigger the ICWA notice requirements. (See In re Miguel E. (2004) 120 Cal.App.4th 521, 549 ["'The determination of a child's Indian status is up to the tribe; therefore, the juvenile court needs only a suggestion of Indian ancestry to trigger the notice requirement'"].) As the court explained in Dwayne P. v. Superior Court (2002) 103 Cal.App.4th 247, 257, "We agree that '[t]o maintain stability in placements of children in juvenile proceedings, it is preferable to err on the side of giving notice and examining thoroughly whether the juvenile is an Indian child....'"
Once the ICWA notice provisions are triggered, notice must be sent to the Indian child's tribe and, if the tribe is unknown, to the BIA. (25 U.S.C. § 1912(a).) The BIA and the tribe have the right to determine whether a child is an Indian child. (In re Junious M. (1983) 144 Cal.App.3d 786, 794.)
CWS and the Court Complied with the ICWA
Father asserts that CWS did not comply with the ICWA because (1) the court did not wait 60 days from the tribes' receipt of notice before making the ICWA finding on May 4, 2010; (2) the notices failed to contain the correct name of the child's paternal grandfather; (3) the February 19 notice did not contain father's current address; (4) notice to the Pascua Yaqui Tribe was inadequate because the notice sent to the tribe is not contained in the record and the notice sent to the tribe on February 3 did not contain additional information provided by father about his Indian ancestry; and (5) father did not receive notice or have a meaningful opportunity to participate in the new March 4, 2010, ICWA hearing.
Mother makes the same arguments as father and the additional argument that CWS did not comply with ICWA because it did not investigate mother's claim that her grandmother was "a member of an unspecified federally recognized tribe."
Admittedly, the initial notices sent to the tribes did not contain all the information required. We do not condone the practice of giving ICWA notices with the required information at the conclusion, rather than the beginning, of child dependency proceedings. Nonetheless, the augmented record shows that CWS ultimately gave the required notices and the evidence supports the finding that the child is not an Indian child.
Amended notices were sent on February 3, 2010, and again on February 19, 2010, to the BIA, Cherokee Nation, United Keetoowah Band, Navajo Colorado River Tribal Council, Eastern Band of Cherokee Indians, the Navajo Nation, and the Pascua Yaqui Tribal Council. The February 19 notices contained the names and addresses and birthdates of the parents, the names and addresses of the child's maternal grandparents, the names and addresses of the child's paternal grandparents, and the names of mother's maternal great-grandparents. The information in the amended notices was provided by the parents' relatives after numerous telephone contacts by CWS.
CWS made several telephone calls to each of the tribes in an attempt to receive timely responses. At the March 4 hearing, all tribes had responded in the negative, except the Navajo tribes. However, the information these tribes provided-that the child would need to be at least one-fourth Navajo to be eligible for enrollment-conclusively demonstrated that the child was not eligible for membership as father provided no information that his parents or grandparents had the requisite degree of Indian heritage to qualify the child for membership. Therefore, any error of timing in making the ICWA determination was harmless error. (See, e.g., In re E.W., supra, 170 Cal.App.4th at pp. 402-403 ["where notice has been received by the tribe... errors or omissions in the notice are reviewed under the harmless-error standard"].)
The record belies father's assertion that the notices did not contain the correct name of the child's grandfather. The notices state, consistent with the information provided by father, that grandfather's name was Milton Carreon. The amended notices did not contain father's current address. As his current address was Wasco State Prison, such information was not necessary to a determination of Indian heritage and the omission was harmless. Notice was sent to the Pascua Yaqui Tribe as demonstrated by the response letter in the record from the tribe stating that the child was not a member or eligible for membership in the tribe. If the notice failed to contain information as to the child's paternal grandfather, the error was harmless as mother, not father, claimed Pascua Yaqui heritage. (Alicia B. v. Superior Court (2004) 116 Cal.App.4th 856, 867.) Father's presence at the March 4 hearing was not required because, as father acknowledges, his attorney was present. Moreover, as father had previously given CWS all the information in his possession as to his Indian heritage, his absence from the hearing was not prejudicial.
Mother's argument that CWS did not conduct an adequate investigation of her possible Indian heritage also is belied by the record. The record indicates that CWS spoke with the child's maternal grandmother who indicated Pascua Yaqui heritage. As noted above, notice was sent to the tribe and it responded that the child was not a member or eligible for membership in the tribe. CWS was not required to further investigate a claim that mother may have had Indian heritage through some other unknown tribe. (See, e.g., In re Levi U. (2000) 78 Cal.App.4th 191, 199 [the agency is not required to conduct an independent investigation or to "cast about, attempting to learn the names of possible tribal units to which to send notices"].)
Neither father nor mother has shown how sending another notice to these tribes would have changed the result. We are satisfied that the notice given to the tribes was adequate and that the record supports the finding that the child is not an Indian child. (See In re Christopher I., supra, 106 Cal.App.4th at pp. 566-567 [augmented record demonstrated that ICWA notice was given and that evidence supported finding that ICWA did not apply].) Parents unable to reunify with their children have already caused the children serious harm; the rules do not permit them to cause additional unwarranted delay and hardship, without any showing whatsoever that the interests protected by the ICWA are implicated in any way.
The order of the juvenile court is affirmed.
We concur: GILBERT, P.J., COFFEE, J.