Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
Contra Costa County Super. Ct. No. J05-1511.
SIMONS, J.
Tyrone T. (Father) appeals the termination of his parental rights over his son, Tyler T., born in March 2005. (Welf. & Inst. Code, § 366.26.) He contends the Contra Costa County Children and Family Services Bureau (Bureau) failed to give him proper notice under the Indian Child Welfare Act (ICWA). (25 U.S.C. 1901 et seq.; former Cal. Rules of Court, rule 1439.) He argues the matter is subject to a limited reversal and remand for compliance with the ICWA notice requirements. We reject the contentions and affirm.
All undesignated section references are to the Welfare and Institutions Code.
All further rule references are to the California Rules of Court.
BACKGROUND
Tyler was detained on August 22, 2005. On August 24, the Bureau filed a section 300 petition alleging that Father and Mother (collectively, Parents) were unable to adequately care for and provide housing for the medically fragile Tyler due to their substance abuse issues and mental illness. On August 31, the Bureau filed JV-130 “Parental Notification of Indian Status (Juvenile Court)” forms executed by Parents alleging Tyler may be a member of or be eligible for membership in the Cherokee tribe.
Mother’s parental rights were also terminated. She is not a party to this appeal.
In October 2005, the Bureau sent JV-135 notices regarding Tyler’s possible Indian ancestry to the Bureau of Indian Affairs (BIA), the Cherokee Nation, the United Keetoowah Band of Cherokee Indians and the Eastern Band of Cherokee Indians. Submitted with the JV-135 notice form were Tyler’s birth certificate, the August 2005 detention order, the minute order from the September 2005 jurisdiction hearing and the notice of tribal intervention. The Cherokee Nation and the Eastern Band of Cherokee Indians informed the Bureau that Tyler would not be considered an Indian child as to those tribes under the ICWA. On November 9, the Bureau sent Parents the materials sent to the BIA and three tribes and requested any additional information regarding Tyler’s possible Indian heritage. On November 16, 2005, Father was elevated to “presumed father” status and the court sustained the allegations of the section 300 petition.
At the December 21, 2005 disposition hearing, Bureau social worker Lisa Livingston testified that after sending the October JV-135 notices and attached documents to the various tribes and BIA, she discovered the JV-135 notices had not been sent to Parents. Livingston said that on November 19, she sent the JV-135 notices to Parents, including the petition, minute order and birth certificate, but received both original mailings back. At the December 21 hearing, Parents were given an opportunity to review the JV-135 notices, after which their counsel said Parents had nothing to add to the information in the JV-135 notice. Livingston also stated that she had received responses from the BIA, each of the three Cherokee tribes, the Cherokee Center for Family Services, and the Cherokee Nation stating that Tyler was not covered by the ICWA. The court found that Parents had received the requisite notice and that Tyler was not an Indian child under the ICWA. The court ordered Tyler’s out-of-home placement, a reunification plan and visitation.
In its April 19, 2006 status review report, the Bureau stated that the ICWA does not apply. The Bureau recommended an additional 12 months of reunification services for Parents and that Tyler remain in out-of-home placement. At the conclusion of the June 14 review hearing the court adopted the Bureau’s recommendations.
The Bureau’s November 8, 2006 status review report recommended terminating reunification services to Parents and setting a permanency planning hearing pursuant to section 366.26 (hereafter .26 hearing.) The report again stated that the ICWA does not apply. At the November 8 hearing, Parents agreed to submit on the Bureau’s recommendation to set a .26 hearing. The .26 hearing was set for March 1, 2007. Neither parent filed a writ petition pursuant to rule 8.452.
The Bureau’s March 1, 2007 .26 hearing report recommended termination of Parents’ parental rights and adoption as Tyler’s permanent plan. It again stated that the ICWA does not apply and referenced the court’s December 21, 2005 finding that proper ICWA notice had been sent and Tyler was not an ICWA child. Neither Parent appeared at the .26 hearing. Father’s counsel argued that parental termination was premature and instead, advocated that the prospective adoptive mother have more overnight visits and attend some of Tyler’s medical appointments. The court followed the Bureau’s recommendation and terminated Parents’ parental rights.
DISCUSSION
Father contends the ICWA notices sent by the Bureau were incomplete and not in conformance with the ICWA and case law because they did not contain proof that known ancestors were properly identified. He contends that because his parental rights were terminated, the inadequate notice cannot be deemed harmless. He also argues the erroneous notice is not harmless under the standard of either Chapman v. California (1967) 386 U.S. 18 or People v. Watson (1956) 46 Cal.2d 818.
Despite Father’s raising the issue for the first time on appeal, the ICWA notice requirements are mandatory and cannot be waived by the parties. (In re Robert A. (2007) 147 Cal.App.4th 982, 989; In re Jennifer A. (2002) 103 Cal.App.4th 692, 707.)
“In 1978, Congress passed the [ICWA], which is designed to promote the stability and security of Indian tribes and families by establishing minimum standards for removal of Indian children from their families and placement of such children ‘in foster or adoptive homes which will reflect the unique values of Indian culture, and by providing for assistance to Indian tribes in the operation of child and family services programs.’ [Citations].” (In re Marinna J. (2001) 90 Cal.App.4th 731, 734 (Marinna J.).) “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. [Citation.] Congress has concluded the state courts have not protected these interests and drafted a statutory scheme intended to afford needed protection. (25 U.S.C. § 1902.) The courts of this state must yield to governing federal law.” (In re Desiree F. (2000) 83 Cal.App.4th 460, 469 (Desiree F.).)
When the social services department has reason to know the proceeding involves an Indian child, the department must notify the Indian child’s tribe, or the BIA (if the tribe’s identity cannot be determined) of the pending proceedings, and of the right to intervene. (Marinna J., supra, 90 Cal.App.4th at pp. 739-740, fn. 4.) The department’s duty is to inquire into the possibility of the child’s Indian ancestry and to act upon the information the family provides. The agency is not required to conduct an extensive independent investigation or to “cast about, attempting to learn the names of possible tribal units to which to send notices[.]” (In re Levi U. (2000) 78 Cal.App.4th 191, 199.)
Rule 5.664 provides in relevant part, “if there is a reason to know that an Indian child is involved, the social worker . . . must send [notice] to . . . the Indian child’s tribe, in accordance with . . . section 224.2.” (Rule 5.664(f).) Section 224.2 provides that “[n]otice shall be sent to all tribes of which the child may be a member or eligible for membership, until the court makes a determination as to which tribe is the child’s tribe . . . .” (§ 224.2, subd. (a)(3); see In re Louis S. (2004) 117 Cal.App.4th 622, 632-633.) Furthermore, “[n]otice to the tribe shall be to the tribal chairperson, unless the tribe has designated another agent for service,” (§ 224.2, subd. (a)(2)), and must be sent with a copy of the petition by which the proceeding was initiated. (§ 224.2, subd. (a)(5)(D).) “Determination of tribal membership or eligibility for membership is made exclusively by the tribe.” (Rule 5.664(g); see In re Edward H. (2002) 100 Cal.App.4th 1, 4.) “‘Indian tribe’ means any tribe, band, nation, or other organized group or community of Indians eligible for services provided to Indians by the Secretary of the Interior because of their status as Indians . . . .” (Rule 5.664(a)(6).) If the information is insufficient to identify a specific tribe, the notice requirement is satisfied by notice to the BIA. The notice must include the names of the child’s ancestors and other identifying information, if known, and be sent registered or certified mail, return receipt requested. (In re Karla C. (2003) 113 Cal.App.4th 166, 175-176 (Karla C.); see § 224.2, subd. (a)(1), (5).) The agency providing notice is required to file with the court “a copy of the notice sent and the return receipt, as well as any correspondence received from the Indian entity relevant to the minor’s status.” (Marinna J., supra, 90 Cal.App.4th at p. 739, fn. 4; Karla C., supra, at pp. 175-176.)
As to the particular content of the notice, the following is required, “if known”:
“(1) Name of the Indian child, the child’s birthdate and birthplace.
“(2) Name of Indian tribe(s) in which the child is enrolled or may be eligible for enrollment.
“(3) All names known, and current and former addresses of 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; tribal enrollment numbers, and/or other identifying information.
“(4) A copy of the petition, complaint or other document by which the proceeding was initiated.” (25 C.F.R. § 23.11(d)(3) (2007), italics added; § 224.2, subd. (a)(5).) Substantial compliance with ICWA notice requirements may be sufficient under certain circumstances. (In re Christopher I. (2003) 106 Cal.App.4th 533, 566.) Additionally, “errors in ICWA notice are subject to harmless error review” (Nicole K. v. Superior Court (2007) 146 Cal.App.4th 779, 784), and reversal and remand is not necessarily required if “the tribe has . . . expressly indicated no interest in the proceedings.” (Desiree F., supra, 83 Cal.App.4th at p. 472.) In such circumstances it must be established that proper notice was given, or at the very least that the person indicating no interest had the authority to do so on the tribe’s behalf. (See In re H. A. (2002) 103 Cal.App.4th 1206, 1213-1215; In re Asia L. (2003) 107 Cal.App.4th 498, 509.) In short, “[d]eficient notice under the ICWA is usually prejudicial [citation] but not invariably so.” (In re Antoinette S. (2002) 104 Cal.App.4th 1401, 1411.)
In particular Father argues the JV-135 notices did not contain: (1) the birth date of either parent; (2) the name, current or former address of the maternal grandmother or the tribe of the maternal or paternal grandfather; (3) information regarding the Parents’ great grandparents; (4) information regarding tribal location on the 1906 and 1924 “Final Roll[s].” In addition, Father argues that although the Bureau was aware that its JV-135 notices to Parents were returned unopened, it made no efforts to contact Parents to review the notice to determine if Parents could provide the missing information. He asserts that his perfunctory review of the JV-135 notice at the December 2005 disposition hearing was “too little too late” and did not support the conclusion that sufficient notice was provided to the tribes and the BIA.
We reject Father’s claim of error because the record contains substantial evidence that the Bureau satisfied its duties to provide ancestry information in its JV-135 notices. The Bureau had a duty to provide all “known” information to the tribes. (Karla C., supra, 113 Cal.App.4th at p. 175.) Parents were apparently sent copies of the JV-135 notices but they were returned to the Bureau unopened. At the disposition hearing, Parents were given the opportunity to review the JV-135 notices and said they had no information to add. While Father says this was “too little, too late,” he does not make any assertion as to the additional information he could have provided had he had more time to review the JV-135 notices. As the Bureau notes, Father did not request a continuance at the December 2005 disposition hearing to give him time to provide additional information regarding Tyler’s ancestry and at no time between then and the March 2007 parental termination order did Father come forward with additional information as to Tyler’s ancestry. Father had actual notice that Tyler might be an Indian child and participated in the proceedings. Consequently, there is no need to reverse and remand the matter on the ground that Father did not receive written ICWA notice. (See In re S.B. (2005) 130 Cal.App.4th 1148, 1162.)
No claim was made below that the Bureau erroneously sent the notices to Parents at an improper address.
As to Father’s assertion that neither his nor Mother’s birthdate were included on the JV-135 notice, the assertion lacks merit, since Parents’ birthdates were included on Tyler’s birth certificate, which was attached to the JV-135 notices.
We thus conclude, based on the record before us, that the Bureau provided all of the available information regarding Tyler’s ancestry in its JV-135 notices, and thereby fulfilled its obligations.
DISPOSITION
The order is affirmed.
We concur: JONES, P.J., NEEDHAM, J.
Effective January 1, 2007, former rule 1439 was renumbered rule 5.664. Moreover, effective that date, certain Welfare and Institutions Code sections have become part of the ICWA notice framework, most notably section 224.2, referred to in the revised rule 5.664. The notice requirements referred to herein are essentially the same in substance as those contained in former rule 1439. We thus refer to rule 5.664 as it is presently denominated.