Opinion
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of San Diego County, No. J517053B Yvonne E. Campos, Judge.
McINTYRE, J.
P.A. and Sierra A., parents of dependent minor Nevaeh A., appeal following a special hearing at which the juvenile court established the fact of Nevaeh's birth. The parents contend their due process rights were violated when they did not receive notice of the special hearing, resulting in structural error that requires automatic reversal. The parents further contend the court erred by not complying with the notice requirements of the Indian Child Welfare Act (ICWA) (25 U.S.C. § 1901 et seq.) because there was reason to believe Nevaeh was an Indian child within the meaning of ICWA. We affirm the order establishing the fact of Nevaeh's birth, but remand the case for the limited purpose of ensuring compliance with ICWA inquiry and notice requirements.
FACTUAL AND PROCEDURAL BACKGROUND
In September 2008, the San Diego County Health and Human Services Agency (Agency) filed a petition in the juvenile court under Welfare and Institutions Code section 300, subdivision (j) alleging Nevaeh was at substantial risk of harm because P.A. had physically and sexually abused two other minors in the home. (Statutory references are to the Welfare and Institutions Code unless otherwise specified.) The social workers had never seen Nevaeh and were unable to verify her birth date or her whereabouts.
The parents had four open dependency cases involving seven children. The social worker reported that based on information contained in the siblings' cases, ICWA did not apply. The court granted Agency's request for a pick up and detain order for Nevaeh.
At a detention hearing, the court issued a new pick up and detain order after the parents told the social worker that Nevaeh was with a paternal relative in Virginia. The court heard the parents' testimonies regarding possible Indian heritage. Sierra testified she had Cherokee heritage on the paternal side of her family, which she learned about after claiming no Indian ancestry in Nevaeh's siblings' cases. P.A. testified his grandmother recently told him his paternal great-grandparents were Sioux. The court ordered the parents to complete the long ICWA form and to submit it to the court and counsel, and the court would "look at that again." Sierra submitted the completed ICWA forms, indicating she has Cherokee heritage through her grandfather.
Nevaeh was not in Virginia as indicated by the parents. Her whereabouts remained unknown until a family friend brought her to Agency's office in February 2009. Nevaeh was placed in a foster home with her sibling.
In March 2009, Agency filed an amended petition on behalf of Nevaeh. A contested jurisdiction and disposition hearing began on May 1, and for reasons not clear from the record, the hearing was continued several times over the course of many months. On October 6, the court declared a mistrial due to the passage of too much time, and began the jurisdiction and disposition hearing anew. The court sustained the allegations of the amended petition, declared Nevaeh a dependent and removed her from parental custody. The court denied reunification services for the parents and set a section 366.26 hearing to select and implement a permanent plan for Nevaeh. The court found reasonable inquiry had been made to determine whether Nevaeh was an Indian child, and because the court had reason to know she was not an Indian child, notice under ICWA was not required.
On January 11, 2010, Agency filed a petition to establish the fact of Nevaeh's birth, alleging her birth was not registered because she was born at home. The juvenile court sought and obtained permission from the probate court to hear the matter, and set a hearing for February 10, 2010. Agency was ordered to provide notice of the hearing by first class mail to all parties. However, no such notice appears in the record.
Neither parent was present at the hearing on February 10. P.A.'s trial counsel appeared on behalf of both parents and unsuccessfully requested a continuance to secure P.A.'s presence. The court issued an order establishing the fact of Nevaeh's birth (Aug. 15, 2008) and an order for delayed registration of birth. The court confirmed the dates set for a contested selection and implementation hearing.
DISCUSSION
I
The parents contend Agency's failure to provide them with notice of the special hearing at which the court established the fact of Nevaeh's birth violated their constitutional due process rights and requires automatic reversal. Agency concedes the error, but argues the lack of notice is subject to harmless error analysis, and the parents cannot show they were prejudiced.
A
Until parental rights are terminated, both parents are entitled to notice and an opportunity to be heard at every stage of the proceedings in order to protect their fundamental interests in the companionship, care, custody and management of their children. (In re B.G. (1974) 11 Cal.3d 679, 688-689; In re DeJohn B. (2000) 84 Cal.App.4th 100, 106.) "In juvenile dependency proceedings, due process requires parents be given notice that is reasonably calculated to advise them an action is pending and afford them an opportunity to defend." (In re Jasmine G. (2005) 127 Cal.App.4th 1109, 1114 (Jasmine G.).)
Here, a special hearing was set to allow the juvenile court to establish the fact of Nevaeh's birth, and the court ordered Agency to provide the parents with notice of the hearing by first class mail. Agency acknowledges, and we agree, the parents did not receive the notice to which they were entitled, resulting in a due process violation. However, the question remains whether the lack of notice under these circumstances is structural error, as characterized by the parents, or subject to harmless error analysis, as urged by Agency.
Structural error, requiring reversal of a juvenile court order without regard to prejudice, is error that affects the framework within which the trial proceeds so as to defy analysis by harmless error standards. (In re James F. (2008) 42 Cal.4th 901, 914.) Structural error applies only in a very limited class of cases, such as the total deprivation of the right to counsel. (Ibid., citing Arizona v. Fulminante (1991) 499 U.S. 279, 310.) In contrast, errors susceptible to harmless error analysis commonly involve "trial error"-an error in the trial process itself-where the court may quantitatively assess the error
"in the context of other evidence presented in order to determine whether the error was harmless beyond a reasonable doubt." (In re Angela C. (2002) 99 Cal.App.4th 389, 394 (Angela C.).)
Errors in notice, although implicating constitutional rights, do not automatically require reversal. "In determining the effect of 'most constitutional errors, ' appellate courts can properly apply" a harmless error analysis under Chapman v. California (1967) 386 U.S. 18. (Angela C., supra, 99 Cal.App.4th at p. 394; In re Mark A. (2007) 156 Cal.App.4th 1124, 1146 [weight of authority in California applies Chapman harmless error standard in juvenile dependency proceedings where error is of constitutional dimension].)
B
Here, the court's error in the process used to establish the fact of Nevaeh's birth is a form of trial error that is amenable to harmless error analysis. (Angela C., supra, 99 Cal.App.4th at p. 395; In re J.H. (2007) 158 Cal.App.4th 174, 183.) The hearing at issue involved a petition to establish the fact of, and the time and place of, Nevaeh's birth (Health & Saf. Code, § 103450) because Nevaeh was born at home and her birth had not been registered as required by law. This particular hearing did not affect the framework of the dependency proceedings, require the parents to prepare their cases, refute any allegations, or defend against the loss of parental rights. (Cf. Jasmine G, supra, 127 Cal.App.4th at p. 1116 [loss of parental rights is fundamentally unfair when there has been no attempt to give parents notice of selection and implementation hearing].) The parents, who were represented by counsel at that hearing, were not precluded from presenting evidence, calling or examining witnesses, or presenting any argument on their own behalf with respect to their right to the care and custody of Nevaeh. (Cf. Judith P. v. Superior Court (2002) 102 Cal.App.4th 535, 556.) Nothing was decided adversely to the parents, and the lack of notice did not make it easier for the ultimate loss of the constitutional right to parent at a later proceeding. (Ibid.) In the parents' absence, the hearing did not become "an unsound structure which can never support a fair process." (Jasmine G., supra, at p. 1118.) Thus, we review the parents' claim to determine whether the error was harmless beyond a reasonable doubt.
C
In assessing prejudice, we reiterate that the sole purpose of the special hearing was to judicially establish the fact, time and place of Nevaeh's birth, which had not previously been registered. (See Health & Saf. Code, § 103450.) Based on the declaration of the social worker, the court issued what was essentially a birth certificate establishing Nevaeh was born in San Diego County on a certain date to Sierra and P.A. The parents do not challenge the accuracy of that information, and there is no reason to believe they would have done so had they received notice and appeared at the hearing.
The parents assert they were denied the opportunity to be heard on the propriety and necessity of incorporating the dependency petition and detention report in the public record of Nevaeh's newly recorded birth because those documents contained allegations and information unfavorable to them. However, the parents do not point to any evidence in the record or cite any authority to support their claim that the supporting documents were made part of the public record.
Further, the court's order identifies P.A. as Nevaeh's father, indicating he lived with Sierra and was present at Nevaeh's birth. Thus, rather than prejudicing P.A., the result of the hearing may have inured to his benefit by elevating his status from an alleged father to Nevaeh's presumed father.
Proceeding with this hearing in the absence of parents who did not receive notice, but who were represented by counsel, did not necessarily render the hearing unfair in any fundamental sense. Where, as here, the outcome of a proceeding has not been affected, denial of the right to notice may be deemed harmless and reversal is not required. (In re James F., supra, 42 Cal.4th at p. 918.) We are convinced, beyond a reasonable doubt, that the lack of notice was harmless, and thus, reversal of the court's order establishing the fact of Nevaeh's birth is not warranted. (See In re J.H., supra, 158 Cal.App.4th at pp. 183-185.)
II
The parents contend the court erred by not complying with the inquiry and notice provisions of ICWA. They assert the court had reason to believe Nevaeh was an Indian child based on statements from both parents about their Indian ancestry. Thus, they argue, the matter must be remanded for the limited purpose of ensuring compliance with ICWA inquiry and notice requirements.
A
Preliminarily, Agency claims the hearing on the order establishing the fact of Nevaeh's birth was an ancillary proceeding, ordinarily heard in the probate department of the superior court, from which the ICWA inquiry and notice issues cannot be raised. We disagree.
The proceeding from which the parents appeal was a "special hearing" to address an ancillary issue-establishing the fact of Nevaeh's birth-in the context of a dependency case. Even though the Petition to Establish Fact of Birth was filed under Health and Safety Code section 103450 et seq., the hearing involved a minor who was a dependent of the juvenile court, and one who potentially had Indian heritage. Issues regarding ICWA inquiry and notice may be raised in any appeal in a dependency case, even when the ICWA finding is long since final. (Dwayne P. v. Superior Court (2002) 103 Cal.App.4th 247, 251; In re Samuel P. (2002) 99 Cal.App.4th 1259, 1267-1268.) The parents' challenge regarding ICWA inquiry and notice is cognizable on appeal from the special hearing. To hold otherwise would simply delay review of this issue from a later hearing. (Dwayne P. v. Superior Court, supra, at pp. 253, 258 [juvenile court must comply with ICWA's notice provisions before it can terminate parental rights].)
B
The juvenile court and Agency have an affirmative and continuing duty, in all dependency proceedings, to inquire whether a child for whom a dependency petition is filed may be an Indian child. (§ 224.3, subd. (a); Cal. Rules of Court, rule 5.481(a)(1).) If a court "knows or has reason to know that an Indian child is involved" in a juvenile dependency proceeding, a duty arises under ICWA to give the Indian child's tribe notice of the pending proceedings and its right to intervene or obtain jurisdiction over the proceedings by transfer to the tribal court. (25 U.S.C. § 1912(a); §§ 224.2, subd. (a), 224.3, subd. (d); In re Skyler H. (2010) 186 Cal.App.4th 1411, 1422.) Among the circumstances giving the court "reason to know" a minor is an Indian child is that "[a] person having an interest in the child, including... a member of the child's extended family[, ] 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." (§ 224.3, subd. (b)(1).) If the court or social worker knows or has reason to know an Indian child is involved, the social worker is required to make further inquiry regarding the possible Indian status of the child by interviewing the parents and extended family members to gather the required information so that proper notice can be sent to the tribe or tribes. (§§ 224.2, subd. (a), 224.3, subds. (a), (c), (d); In re Robert A. (2007) 147 Cal.App.4th 982, 989.)
"The Indian status of the child does not have to be certain to invoke the notice requirement." (In re Skyler H., supra, 186 Cal.App.4th at p. 1427.) Where there is a "low but reasonable probability the child is an Indian child, " the court is deemed to know an Indian child is involved, and notice to the tribe or tribes is required. (Ibid.) Once proper notice is given, the tribe determines whether a child is an Indian child, and its determination is conclusive. (In re Robert A., supra, 147 Cal.App.4th at p. 988.)
C
Here, the parents provided information suggesting that one or more of Nevaeh's relatives had Indian heritage. Specifically, Sierra testified Nevaeh's maternal great-grandfather, William L., and Nevaeh's maternal great-great-grandmother, Queen L., were Cherokee. P.A. testified Nevaeh's paternal great-great-grandparents were Sioux. Although Agency argues the parents' testimony in this regard was not credible, the juvenile court found the information the parents provided was sufficiently reliable to warrant a further "look" after they completed and submitted ICWA forms. However, nothing in the record shows Agency made further inquiry about Nevaeh's Indian heritage. Instead, the social workers reported reasonable inquiry had been made, there was no reason to know Nevaeh was an Indian child and therefore ICWA did not apply, even though no notices had ever been sent to any Cherokee or Sioux tribe.
The family's circumstances indicated there was a "low but reasonable probability" Nevaeh was an Indian child within the meaning of ICWA. (Cf. In re Skyler H., supra, 186 Cal.App.4th at pp. 1427-1428.) At a minimum, the social worker was required to investigate and obtain all information about Nevaeh's family history as it pertained to possible Indian heritage (§ 224.3, subd. (c); Cal. Rules of Court, rule 5.481(a)(4)(A)), and was required to provide notice to the federally recognized Cherokee and Sioux tribes. (In re Damian C. (2009) 178 Cal.App.4th 192, 199 [information that minor's great-grandfather may have had Indian heritage triggered the requirement to make further inquiry].) Additionally, the juvenile court had an affirmative duty to ensure Agency complied with its duty of inquiry and notice. (Ibid.; In re Desiree F. (2000) 83 Cal.App.4th 460, 469; In re Robert A., supra, 147 Cal.App.4th at pp. 985, 990 [ICWA notice should have been sent when minor's father told social services agency his grandfather was full-blooded Cherokee].) Because the court and Agency had reason to know Nevaeh may be an Indian child, the matter must be remanded to the juvenile court with directions to ensure ICWA compliance.
DISPOSITION
The order establishing the fact of Nevaeh's birth is affirmed. The matter is remanded to the juvenile court with directions to vacate its finding that reasonable inquiry was made and notice under ICWA was not required and to instruct Agency to complete ICWA inquiry and notice. The court shall advise the parents that if Nevaeh is
determined to be an Indian child within the meaning of ICWA, they have the right to petition the court to invalidate any action in violation of 25 United States Code sections 1911, 1912 and 1913. (25 U.S.C. § 1914.)
WE CONCUR: NARES, Acting P. J.HALLER, J.