Opinion
NOT TO BE PUBLISHED
Santa Clara County Super.Ct. No. JD18956
Duffy, J.
F. H., a prison inmate serving a 12-year sentence, is the father of N. H., a one-year-old girl whose mother gave birth to her in May 2008, while serving a term in the Santa Clara County jail. He appeals from the juvenile court’s disposition order removing N. H. from his custody and placing her with her mother’s cousin. He claims that the juvenile court and the Santa Clara County Department of Family and Children’s Services (Department) failed to ensure that proper notice was given under the Indian Child Welfare Act (ICWA) to implicated tribes. He also claims that the Department failed to comply with statutorily required procedures before recommending the placement and that the juvenile court abused its discretion in making it.
FACTS AND PROCEDURAL BACKGROUND
On May 14, 2008, social workers from the Department filed a Welfare and Institutions Code section 300 petition alleging, as relevant here, that N. H. was a child described by section 300, subdivision (b) (failure to protect). The petition identified F. H. as N. H.’s father and alleged that he, like the mother, was confined in jail in Santa Clara County. The petition alleged that both parents had a history of substance abuse and long criminal records, the mother had failed to reunify with six other children who had been the subject of child welfare proceedings, the mother had had her parental rights ended with regard to five of the six other children, the mother was in jail and the father had recently been arrested, and there was no known caretaker available to care for N. H. The mother had stated that N. H. may have Cherokee or Blackfeet native American ancestry.
All further statutory references are to the Welfare and Institutions Code unless otherwise indicated.
The Department later provided information showing that the mother had an extensive criminal record and the father’s was long too.
Other allegations, a factual allegation that both parents were incarcerated and a legal allegation that no provision for support existed (§ 300, subd. (g)), were crossed out by hand from the petitions. The father may have been in jail at the time of the juvenile dependency petition, but at the jurisdiction hearing on September 18, 2008, the juvenile court amended the petition to delete allegations that the father was presently incarcerated. On September 19, 2008, however, the father was sentenced to state prison for 12 years.
The social worker reported that the mother had told her that her aunt Inez B. was willing to care for her child.
At the detention hearing on May 15, 2008, the juvenile court ordered paternity testing. The father claimed actual or possible Choctaw Indian ancestry. A jurisdiction/disposition hearing was set on June 10, 2008. N. H. was placed in an emergency foster home pending the June 10 hearing.
The Department notified various Indian tribes, the Bureau of Indian Affairs (BIA), and the Department of the Interior that N. H. could have Blackfeet, Cherokee, or Choctaw ancestry. The notice provided, among other things, the name and date of birth of N. H., the names, addresses, possible tribal affiliations, and dates of birth of both of her parents, and the names, possible tribal affiliations, and available addresses for each grandparent of N. H. The notice also contained the place (at least at the state level) and date of birth of each parent and grandparent except for F. W. B., N. H.’s maternal grandfather, who was deceased; in his case, his date of birth was unknown. The notice also contained the names of and information about some great-grandparents, including specific tribal affiliations where known.
On May 19, 2008, a social worker interviewed the father. At that time, he told her that he had two sisters, Valerie H., a Florida resident, and Carla H.-F., a Hayward resident. He also gave her the names of his four adult children, all California residents.
On May 30, 2008, the Department filed a Notice of Child Custody Proceeding for Indian Child. It stated that notice had been mailed to the BIA, the Department of the Interior in Washington, D.C., three Cherokee tribes, three Choctaw tribes, and the Blackfeet tribe.
As part of its jurisdiction/disposition report of June 10, 2008, the Department provided to the juvenile court certified-mail receipts from six of the seven tribes to which it had sent inquiries, the Sacramento Area Director of the BIA, and the Secretary of the Interior. It also provided responses from the BIA and one tribe. The Choctaw Nation of Oklahoma reported that it had been unable to establish Indian heritage based on the information provided, but asked that “if any additional information becomes available which might help in establishing Indian heritage, please forward it to us so that a further determination can be made.”
Meanwhile, for health reasons the Department would not recommend placing N. H. with Inez B. On June 9, 2008, the Department filed a request to approve placement in the out-of-county home of William B. and Janis B., who lived in the San Joaquin Valley. William B. is N. H.’s second cousin. He had three misdemeanor convictions but was employed as a case manager for the Child Abuse Prevention Council in Stockton and was a stable parent to four children. The social worker described this as a concurrent home, i.e., these relatives were willing to adopt N. H. Both parents approved of the placement, and the juvenile court granted the request. The Department recommended that the juvenile court order reunification services for the mother.
On July 1, 2008, the Department prepared an addendum to its jurisdiction/disposition report. Paternity test results established that F. H. is N. H.’s biological father. Initially the Department had difficulty locating the father. He missed a court hearing because his car ran out of gasoline. In a telephone call, he did not inquire about N. H.’s well-being. His telephone service was disconnected thereafter. He had no known address. Later the Department was able to contact him, however, and he asked for reunification services. The Department recommended services for both parents.
The Department attached four new tribal responses to its addendum report. No tribe had claimed N. H. as an Indian child, but one—the Cherokee Nation in Tahlequah, Oklahoma—cautioned: “This determination is based on the above listed information exactly as provided by you. Any incorrect or omitted family documentation could invalidate this determination.”
The hearing was continued to August 21, 2008. The Department prepared a second addendum report recommending reunification services for both parents. The mother was taking advantage of services provided to her in jail, asserted that she was benefitting from the Regimented Correctional Program, a type of in-custody boot camp, and had been accepted by the House of Grace residential drug treatment program, which would allow her to live with N. H. following her release. She described herself as “very ashamed” of her life.
Another tribal response, this one from the Eastern Band of Cherokee Indians, was attached to the addendum report. The tribe reported that, based on the information provided, N. H. is not an Indian child.
The hearing was continued to September 18, 2008, after the district attorney’s office, counsel for N. H., sought to have the juvenile court bypass reunification services for both parents. The Department prepared a new addendum report. At this point the Department recommended that reunification services be given to the mother but not to the father, because he was expected to be sent to prison for a long time. The mother had been released from jail on August 28 and was attempting to enter the House of Grace program, but when program staff discovered she had bipolar disorder (a condition of which the Department was unaware), she would not be allowed to enter the program until she had qualified to be free of the need for bipolar medication for 30 days.
The father was present at a juvenile court hearing on September 30, 2008. His attorney informed the court that William and Janis B., N. H.’s current caretakers, did not qualify for preferential placement consideration under section 361.3. The father testified that he would like N. H. placed with one of two of his sisters.
On October 9, 2008, the Department prepared another addendum report. The caseworker had met with the father on October 3, 2008. He told her in an angry manner that the Department was biased against him and his family that and William B. would not let N. H. associate with his relatives, and stormed out of the room.
Janis B. had told the caseworker that she had been judicially removed from her mother’s custody as a child and raised by relatives, and she would not want N. H to undergo traumas similar to those she had endured as a result, which included seeing her biological mother for the first time “ ‘only when she was in a casket.’ ”
The caseworker had contacted two of the father’s sisters. Valerie H. lived in Florida with her boyfriend, who did not know about the issues revolving around N. H. and yet who paid all of the household bills, including the rent. She could not afford to relocate to California, but thought that with God’s help she could pay rent in Florida and otherwise support N. H. if necessary. Carla H.-F., a married woman with a son, had been living in an apartment in Hayward for about seven months. She had an outstanding arrest warrant on a charge of driving on a suspended license. Like Valerie H., Carla H.-F. would try to care for N. H. Both sisters were willing to adopt N. H. On the other hand, Carla H.-F. initially had said she should not be the first choice for placement “because she is a career woman who has just been laid off and she wants to return to work soon.” Moreover, she might have to move before long.
Meanwhile, N. H.’s mother had fallen back into old bad habits. She was abusing alcohol and methamphetamine and was turning away her caseworker because she was ashamed of herself.
The Department filed a seventh addendum report for a disposition hearing that took place, after many delays, on November 20, 2008. It continued to recommend reunification services for the mother, though not the father. It had been difficult to contact Carla H.-F., and she still had not dealt with the arrest warrant. The social worker told her that she had to do so to be considered for placement involving N. H. and that she should call her when she had taken care of the matter. Carla H.-F. had not called at the time of the written addendum report. She also had failed to go to a planned dinner at Janis and William B.’s house so she could see N. H.’s living situation. She told the social worker that her family had been sick and that she had lost the telephone number of Janis and William B. The social worker understood, however, that Janis B. had called Carla H.-F. twice and left her telephone number.
The mother was back in jail on allegations that she had violated the terms of her probation and for a new offense. She had missed appointments, which constituted probation violations, and was convicted of driving with a suspended license.
Regarding Carla H.-F. and Valerie H., the social worker concluded for the seventh addendum report that “[t]his worker likes the parental [sic: paternal] relatives. The undersigned believes that the paternal aunts live a healthy and safe lifestyle, but there is concern that they really do not want to commit in adopting [N. H.], if the Court deems it to be in the child’s best interest. Although [Carla H.-F.] states that she wants [N. H.] placed into her care, she has not demonstrated this by her lack of continued contact and not following through in what she has promised to do. Although [Valerie H.] in Florida said that she would be willing to have [N. H.] placed into her care, there are uncertainties surrounding this possible placement[] and the child would have extremely little contact with maternal and paternal relatives in [California]. Further, [Valerie H.] is not maintaining contact with the current care providers [sic].
“[William and Janis B.] love [N. H.] very much and they have the ability to give her a very good healthy, loving, well balanced, and stable life. [They] are extremely committed to [N. H.] and in giving opportunity for the paternal family members to have a relationship with her and they want to remain in contact with the father while he is incarcerated. [N. H.] has been with [them] since she was one month old. She is very bonded to [William and Janis B.] and it would be an emotional detriment at this time to remove her from this home and to place her with other relatives. Further, if [N. H.] were to be removed again, this would be a third move for her before the age of one, which is not healthy.”
Despite the parents’ incarceration, both were present for the hearing (to attend it, the father had remained in county jail and not yet gone to state prison), as were Carla H.-F. and Janis and William B.
The father testified that he still wanted N. H. placed with one of his sisters or with one of his adult children. He said that when he agreed to the placement with William and Janis B., it was for a short term and that after the mother was released from jail he expected that N. H. would be reunited with her. He asserted that William B. led a double life as an upstanding citizen and a drug dealer and that he and Janis B. were soliciting money and things for N. H.’s care on the MySpace social networking website. He asserted he had seen the MySpace website just before testifying, but also admitted that he had no computer access while in jail.
A social worker, Dianne Howe, testified that she had discussed placing N. H. with Valerie H. in Florida in October of 2008 but was unable to undertake a home assessment because Valerie H. had refused to provide information about her live-in boyfriend, notably including his criminal record, if any. Valerie H. wanted custody of N. H. in advance of finding her own place to live, and Howe told her “that’s not how the process works.” Valerie H. had expressed doubt that her boyfriend would want to be involved with N. H.; as things stood, he did not even know about her.
Howe had told Carla H.-F. twice that she would have to resolve her outstanding arrest warrant and that if her son, who had an unspecified misdemeanor conviction, continued to live in the home it would require a “director’s exemption.”
Howe testified that, notwithstanding these problems, both Valerie H. and Carla H.-F. are “very good people.”
The juvenile court noted that it had received all of the reports the case had generated and implied that it had considered them and the testimony. It denied placement with Carla H.-F. or Valerie H.
In so doing, the juvenile court stated its reasons at length:
“It does seem that the law requires that I consider father’s sister, primarily because the law states that the following relatives shall be given preferential consideration for placement of the child: an adult who is a grandparent, aunt, uncle, or sibling. We have come to a place here several months into the child’s protective custody, and Ms. [H.-F.] is here today and has offered herself, apparently, in late September, but she is still not available for care. She has an outstanding warrant and she has a son that—an adult son residing with her that may or may not clear a background clearance and director’s exemption.
“So I would find that [section] 361.3 [subdivision (a)(2)] is a consideration, the wishes of the parent. And the mother—the mother’s wishes are that she not be placed with your sister at this time, sir. Also [section 361.3, subdivision (a)(6)], the nature and duration of the relationship, that is certainly a consideration. But she cannot provide a safe and secure and stable environment for the child today because she could be arrested. That’s the bottom line. There is also the issue of [section 361.3, subdivision (a)(7)], again, provide safe, secure and stable environment and exercise proper and effective care and control. If she is arrested the child would go back into the children’s shelter. So for many reasons, the major one being that she is actually not available today, the court is going to then look to where the child is.
We did not see a reference in the parties’ briefs to the source of the juvenile court’s understanding on this point, nor did we locate the source in reviewing the record. Counsel for the father did not challenge the court’s understanding in the proceedings below, however, and the father does not object to it on appeal.
“Now, the allegation that Mr. [William B.] is a drug dealer is certainly concerning to the court and I take those kinds of allegations very seriously because I ultimately am to blame or have credit for a successful placement of a child and their safety and their well-being. But the court finds the testimony to be a little bit incredible in that you have been incarcerated since September 19th and only today, 60 days later, after apparently you saw [him] and realized that he was... a drug dealer, 60 days later you are now coming forth with this information. And you have been to court and you have seen the social worker and your lawyer or a lawyer from the agency since then. So that is why the court at this time is very concerned about the allegation but also believes that it may not have the kind of relevance to the case at hand that the father is trying to bring forth, because we have just learned of it after him having the information for so long.
“Furthermore, the child is bonded to each member of the [William and Janis B.] family. It would be the third move for this child prior to being age seven months, which is highly detrimental to her and could cause her long term damage. She does have a large extended family and connection to both maternal and paternal side at the [concurrent] home.
“With regard to Valerie [H.], she lives out of state and she does not appear to be fully willing and able to take the child at this time. It does seem that she may be willing in the future but today she is not and today is when I have to make my decision.
“So with regard to the placement of the child I will have—order that she remain with the family that she is with and I am prepared to make further disposition orders.”
As relevant here, the juvenile court placed N. H. with William and Janis B. and ordered the mother to enroll in a substance abuse parenting class. It also stated that if the father timely won an appeal on his criminal case and was released the court would work with him to “facilitate your relationship with your child.” The court’s findings and orders included: “Indian Child Welfare Act.... [¶] Each parent, guardian, or Indian Custodian must complete and give to the Social Worker Form ICWA-020 Parental Notification of Indian Status. (California Rules of Court, rule 5.481(a)(2).)”
On March 18, 2009, the sole remaining implicated Indian tribe—the Blackfeet—issued a negative ICWA response, and on April 9, 2009, the juvenile court ruled that the Department had given proper notice under ICWA and that N. H. is not an Indian child for ICWA purposes.
On June 4, 2009, this court took judicial notice of certified copies of juvenile court minute orders dated April 9, 2009, and April 16, 2009, and accepted as additional evidence a letter from the Blackfeet tribe dated March 18, 2009.
DISCUSSION
I. ICWA Issue
The father contends that the Department’s ICWA-required notice was defective because it did not include more complete information about the family. Notably, he asserts that the Department either knew the following information or could have discovered it with minimal effort, but did not include it in the notices it sent out: the mother’s middle name, her former addresses (and specifically a Sunnyvale address), his former addresses, a copy of N. H.’s birth certificate, and “other relative information” about Inez B., Valerie H., Carla H.-F., and N. H.’s half-siblings, and information discovered during the proceedings that he is N. H.’s biological father (see 25 U.S.C. § 1903(4)). He further contends that the Department failed to notify five of the seven implicated tribes about a pending jurisdictional hearing (see § 224.2, subd. (b)) and failed to notify any tribe of a dispositional hearing that was scheduled to take place about two months after the jurisdictional hearing. He argues that all of these deficiencies demonstrate that the notices were inadequate and that the juvenile court did not have legally sufficient information to undergird its determination that ICWA did not apply to N. H.’s case.
“ICWA confers on tribes the right to intervene at any point in state court dependency proceedings. [Citations.]” (Dwayne P. v. Superior Court (2002) 103 Cal.App.4th 247, 253; accord, In re Karla C. (2003) 113 Cal.App.4th 166, 174; In re Junious M. (1983) 144 Cal.App.3d 786, 790; In re Kahlen W. (1991) 233 Cal.App.3d 1414, 1421.) “Notice is a key component of the congressional goal to protect and preserve Indian tribes and Indian families. Notice ensures the tribe will be afforded the opportunity to assert its rights under [ICWA] irrespective of the position of the parents, Indian custodian or state agencies.” (In re Kahlen W., supra, at p. 1421; accord, In re Alice M. (2008) 161 Cal.App.4th 1189, 1195.) “Notice under the ICWA must, of course, contain enough information to constitute meaningful notice.” (In re Karla C., supra, at p. 175.) When proper notice is not given under ICWA, the juvenile court’s order is voidable. (Dwayne P. v. Superior Court, supra, at p. 260.)
California courts have adopted the federal rules as guidelines for what should be included in proper notice under ICWA. (In re Karla C., supra, 113 Cal.App.4th at p. 175.) “The notice must include the name, birthdate [sic], and birthplace of the Indian child; his or her tribal affiliation; a copy of the dependency petition; the petitioner’s name; a statement of the right of the tribe to intervene in the proceeding; and information about the Indian child’s biological mother, biological father, maternal and paternal grandparents and great-grandparents or Indian custodians, including maiden, married and former names or aliases, birthdates, places of birth and death, current and former addresses, tribal enrollment numbers, and/or other identifying information.” (In re S.M. (2004) 118 Cal.App.4th 1108, 1116; see 5 C.F.R. § 23.11.) “Notice is meaningless if no information or insufficient information is presented to the tribe.” (In re S.M., supra, at p. 1116, fn. omitted.)
Nevertheless, the Department’s duty is only to inquire into the possibility of Indian ancestry based on the reports of a minor’s family and act on any relevant information it receives. (In re Levi U. (2000) 78 Cal.App.4th 191, 198.) The Department is not required to conduct an extensive independent investigation or to “cast about” (id. at p. 199) for further information to give to the tribes or the BIA. (Id. at pp. 198-199.)
Juvenile courts and agencies that do not materially comply with basic ICWA notice rules “face the strong likelihood of reversal on appeal.” (In re H.A. (2002) 103 Cal.App.4th 1206, 1214; see id. at pp. 1214-1215.) Conversely, minor “errors and omissions in an ICWA notice may be deemed harmless under some circumstances.” (In re Cheyanne F. (2008) 164 Cal.App.4th 571, 577-578; see generally id. at pp. 577-579.) The father does not explain how additional details such as his former addresses or data regarding Inez B., Valerie H., Carla H.-F., or N. H.’s half-siblings could have made a difference in determining N. H.’s status as an Indian child. All of the implicated tribes were given notice, and not one of them requested additional information, even if one or more of them stated that it was open to receiving any additional information that the Department might later acquire.
As we described in setting forth the procedural history, the Department here provided a wealth of information to the recipients of its ICWA notice, including comprehensive information about N. H., her parents, her grandparents, and some great-grandparents. Surely the notice “contain[ed] enough information to constitute meaningful notice.” (In re Karla C., supra, 113 Cal.App.4th at p. 175.) Cases relied on by the father and other cases discussing this area of law are distinguishable, both as to the amount of information provided by the parent regarding Indian heritage, and as to the Department’s compliance with notice requirements. In Dwayne P. v. Superior Court, supra, 103 Cal.App.4th 247, both parents stated that they might have Cherokee Indian heritage and the child welfare agency recognized that ICWA could apply, but it sent no notice to the Cherokee tribes or to the BIA. (Id. at p. 257.) On these facts, the appellate court reversed the juvenile court’s order terminating parental rights. (Id. at p. 261.) Similarly, in In re Marinna J. (2001) 90 Cal.App.4th 731, the court reversed juvenile court orders (id. at p. 740) given that the father had informed the social worker that the minor had Cherokee Indian ancestry but no notice had been sent to any Cherokee tribe or to the BIA. (Id. at pp. 736, 738.) In In re Samuel P. (2002) 99 Cal.App.4th 1259, this court found prejudicial error (see id. at p. 1268) when the Department had “solid information regarding direct tribal lineage” (id. at p. 1266), namely “that the children were affiliated with the Chumash Tribe” (ibid.), but sent notice regarding only one of three minors, and the notice it sent regarding that minor was inadequate. (Ibid.) In In re Kahlen W., supra, 233 Cal.App.3d 1414, the court identified notice deficiencies in the form of contacts by telephone rather than registered mail (id. at pp. 1420-1424) and found them prejudicial (id. at p. 1424).
The deficiencies in notice alleged by the father here do not amount to reversible violations of ICWA as they did in the cases cited above. Valuable and comprehensive information was sent to relevant tribes and all responded that as far as they could tell N. H. was not a member or eligible to be a member. No tribes asked for further information, even if one or more invited any new information that might arise, and the parents did not provide any more detailed information.
The father argues that the Notice of Custody Proceeding for Indian Child alerted the Choctaw tribes, who he had stated might have an interest in N. H., only that he was a possible father and that once testing established his biological paternity the tribes should have been notified again. In our view, however, any error in this regard was harmless. Reversal is permitted in a juvenile dependency case “only if the reviewing court finds it reasonably probable the result would have been more favorable to the appealing party but for the error.” (In re Celine R. (2003) 31 Cal.4th 45, 60.) The Notice of Custody Proceeding for Indian Child began by stating unequivocally that F. H. is N. H.’s biological father. Some pages later, it qualified that declaration with an annotation that “[p]aternity is pending.” The notice sufficiently alerted each implicated tribe to inquire about F. H. and any relationship he or N. H. might have to the tribe. There is no reasonable probability of a different outcome had the Department later notified the tribes that the father’s paternity later was definitively established. (Cf. In re Samuel P., supra, 99 Cal.App.4th at p. 1266 [“there was... no notice informing the tribe of the dates of any of the hearings”].)
We reach the same conclusion with regard to the father’s assertions that the Department failed to notify the tribes about a dispositional hearing and certain tribes about a jurisdictional hearing. To be sure, section 224.2, subdivision (b), requires that “[n]otice shall be sent whenever it is known or there is reason to know that an Indian child is involved, and for every hearing thereafter....” (Italics added.) We discern no reasonable probability, however, of a different outcome had the Department provided all-encompassing notice of the jurisdiction and dispositional hearings in question.
Considering the notice the Department provided to the implicated tribes and their responses, we fail to see how further juvenile court proceedings could alter the juvenile court’s ruling that N. H. is not an Indian child. The omission of peripheral, even if required, information does not warrant reversal so that new notices with the omitted and correct information can be sent. A remand here would serve no purpose other than to delay N. H.’s need for a stable living situation. Our high court has emphasized “the state’s strong interest in the expeditiousness and finality of juvenile dependency proceedings.” (In re Zeth (2003) 31 Cal.4th 396, 412.) Returning the case now to the juvenile court for further proceedings would constitute an idle exercise and needlessly unsettle matters that have been settled for N. H.’s benefit.
In sum, we find on this record as a whole that the notices the Department sent substantially complied with ICWA, and that any deficiencies in the notices were de minimis and not prejudicial. The juvenile court’s determination that ICWA did not apply is supported by the record and we will sustain it.
II. Placement Issue
The father claims that the juvenile court erred under state law in placing N. H. with William and Janis B. We do not agree.
Section 361.3, subdivision (c)(2), provides that “only the following relatives shall be given preferential consideration for the placement of the child: an adult who is a grandparent, aunt, uncle, or sibling.” Carla H.-F. and Valerie H., of course, are N. H.’s aunts, and William and Janis B. do not fall within the described classes of preferred relatives.
Nevertheless, the statute sets forth a preference, not a command, and the juvenile court must also be guided by a constellation of factors related to the child’s best interest in determining placement. (See generally § 361.3, subd. (a).)
We review a claim of this type for abuse of discretion. (Alicia B. v. Superior Court (2004) 116 Cal.App.4th 856, 863.) The best interest of N. H. controls. (Id. at pp. 862-863 [“The linchpin of a section 361.3 analysis is whether placement with a relative is in the best interests of the minor”].) The juvenile court did not commit an abuse of discretion in declining to follow the statutory preference for placement with either aunt. The court had received considerable information that placing N. H. with either one would be problematic and commented on that information in making its ruling. We need only reiterate in brief what the record shows. Valerie H. lived in a distant state with a boyfriend who did not know about N. H. and might not welcome her in the household; in addition, her financial situation was precarious. Carla H.-F. was disturbingly inattentive to and evasive about complying with her legal and social obligations and the court could reasonably decide that placing N. H. with her would be risky. William and Janis B., by contrast, came across as model caregivers. The court acted within its authority in placing N. H. with William and Janis B.
CONCLUSION
The juvenile court’s order is affirmed.
WE CONCUR: Mihara, Acting P. J., McAdams, J.