Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of San Bernardino County, No. J217285, A. Rex Victor, Judge.
Robert McLaughlin, under appointment by the Court of Appeal, for Defendant and Appellant.
Ruth E. Stringer, County Counsel, and Sandra D. Baxter, Deputy County Counsel, for Plaintiff and Respondent.
Brent Riggs, under appointment by the Court of Appeal, for Minor.
OPINION
RAMIREZ P.J.
Defendant and appellant D.F. (father) is the father of A.F. (child), a dependent child. Father asks this Court to reverse the juvenile court’s order terminating his parental rights to the child based on faulty inquiry under the Indian Child Welfare Act (ICWA). Specifically, because no JV-130 form signed by father is on file with the juvenile court, father argues that the juvenile court committed reversible error per tie when it found that the Department of Children’s Services (DCS) had complied with the requirements of ICWA. As discussed below, we conclude that DCS substantially complied with Iowa's inquiry requirements and, in any case, father has not carried his burden to establish actual prejudice even had DCS not substantially complied.
Summary of Facts and Procedure
Detention and Initial ICWA Inquiry
In September 2007, the then-one-year-old child was detained when another infant (infant) living in father’s home was found to have healed rib and arm fractures, bruised and bleeding lungs, a lacerated spleen, and other injuries. Father and the infant’s mother were arrested and incarcerated because of the infant’s unexplained injuries.
The infant’s mother is not the child’s mother.
The detention hearing for the child was held on September 27, 2007. Father was present in custody. The following exchange took place between the juvenile court, father, the paternal grandmother and county counsel regarding father’s Native American heritage:
It is not clear from the reporter’s transcript at what point the person answering the court’s questions is father, and when it is the paternal grandmother.
“THE COURT: Do you have American Indian Ancestry?
“A: Not proven.
“THE COURT: Okay. Who is maternal grandmother--, paternal, thank you. Is father
“A: She’s Cherokee, not enough to matter.
“THE COURT: It might matter to Indian tribes, that is the significant thing. And how does he trace his American Indian ancestry?
“A: It’s through my grandmother’s father.
“THE COURT: And your grandmother’s father’s name is
“A: Samuel Robert Butler, 3-20-81.
“THE COURT: Birth Date, March 20, 1881. And, anything you want further, [County Counsel]?
“[County Counsel]: Is that the only -- what tribe are you claiming?
“A: Cherokee.”
At the end of the hearing, the juvenile court ordered the child detained.
Jurisdiction/Disposition Hearing and Notice to Tribes
In the report filed October 16, 2007 for the jurisdiction and disposition hearing, the social worker noted that ICWA may apply.
On October 26, 2007, a JV-130 form, “Parental Notification of Indian Status” completed and signed by the child’s mother (mother) was filed with the juvenile court. Mother indicated that she “may have Indian ancestry” but did not provide the name of any tribes. A JV-130 form signed by father was not located in the record.
Mother is not a party to this appeal and is referred to only when necessary.
At the per-trial conference held on October 26, 2007, county counsel noted that “[ICWA] notice has not been completed yet. And [father] claims Indian heritage. So, we are gonna ask, if we can keep the current date of November 13th to get that ICWA notice done.” The juvenile court agreed to continue the matter to November 15th to allow DPSS to perfect the ICWA notice.
On November 13, 2007, DPSS filed a “Notice of Involuntary Child Custody Proceedings for an Indian Child” and proof of service that notice was sent to the Cherokee Nation in Harlequin, Oklahoma; the United Freetown Bank of Cherokee; the Choctaw Nation of Oklahoma; the Eastern Band of Cherokee Indians; the Mississippi Band of Choctaw Indians; the Jena Band – Choctaw, and the Bureau of Indian Affairs (BIA).
At the jurisdiction and disposition hearing held on November 15, 2007, father waived his rights to contest jurisdiction and to receive reunification services. At the end of the hearing, the juvenile court took jurisdiction over the child, found that the child “may come under the provisions of the Indian Child Welfare Act” and found that DPSS had satisfied the ICWA notice requirements but that no confirmation of tribal membership had been received. The child was placed in foster care and reunification services ordered for mother. The six-month review hearing was set for May 15, 2009.
Six-Month Review Hearing and Replies from Tribes
On May 12, 2008, DPSS filed an ICWA due diligence declaration. The declaration and attachments indicated the department had sent notices to the six tribes and the BIA as described above, that it had received letters from four of the tribes indicating the child was not a tribal member, and that no response had been received from the other sources after more than sixty days. On May 30 and June 9, 2008, the juvenile court found that ICWA did not apply and that DPSS had completed its noticing duties.
Father was present in local custody at the six-month hearing held on June 9, 2008. At the conclusion of the hearing, the juvenile court terminated mother’s reunification services and set a Welfare and Institutions Code section 366.26 hearing for October 9, 2008.
All section references are to the Welfare and Institutions Code unless otherwise indicated.
Father was present in local custody at a contested hearing on July 24, 2008. The subject of the hearing was the section 388 petition for modification filed by the paternal grandmother. The court ultimately denied the petition.
Section 366.26 Hearing
Father was present in local custody at the section 366.26 hearing held on October 9, 2008. The juvenile court terminated the parental rights of father and mother and freed the child to be adopted by the prospective adoptive parent, a non-related extended family member, with whom the child had resided since March 2008. This appeal followed.
Discussion
1. Standard of Review
We review the record to determine whether substantial evidence supports the juvenile court's finding that the duty to inquire into father's Native American heritage was satisfied. (In re Rebeka R. (2006) 143 Cal.App.4th 1426, 1430.)
2. Substantial Compliance
ICWA itself does not expressly impose any duty to inquire as to Native American ancestry. Neither do the controlling federal regulations. (See 25 C.F.R. § 23.11(a) (1994).) However, ICWA also provides that states may provide “a higher standard of protection to the rights of the parent... of an Indian child than the rights provided under [ICWA].” (25 U.S.C.A. § 1921.) Consistent with this provision, California law imposes on county welfare departments and the juvenile court “an affirmative and continuing duty to inquire whether a child for whom a petition under Section 300... is to be, or has been, filed is or may be an Indian child in all dependency proceedings... if the child is at risk of entering foster care or is in foster care.” (§ 224.3, subd. (a).) This statute became effective in 2007. Prior to the enactment of this statute, and throughout the tendency of this case, a substantially similar obligation was imposed by rule of court. (See Cal. Rules of Court, rule 5.481(a) [effective Jan. 1, 2008]; id., former rule 5.664(d) [effective Jan. 1, 2007]; id., former rule 1439(d) [in effect in 2006].)
The record reveals that the court and social worker made sincere and thorough efforts to inquire as to the possibility of Native American heritage. As set forth above, the court obtained from father and the paternal grandmother the full name and nineteenth-century birth date of the oldest known Cherokee ancestor through whom the father at that time claimed Native American heritage. As discussed below, we are curious as to what better and more relevant information than this father could and would have provided had he filled out a form J-130 at that time. In any case, this inquiry alone, especially in view of the pertinent information it disclosed, is substantial evidence that the court and DCS substantially complied with the ICWA inquiry requirements.
3. Harmless Error
Even if the juvenile court and the department had “failed in their inquiry responsibilities, we cannot disturb the juvenile court’s order without a showing [that father] was prejudiced by the claimed error.” (In re N.E. (2008) 160 Cal.App.4th 766, 769; see also Rebeka R., supra, 143 Cal.App.4th at pp. 1430-1431.) In this case, as a result of the court’s oral inquiry of father and the paternal grandmother, the court and DCS received enough information to provide complete ICWA notice to six Cherokee and Choctaw tribes, plus the BIA. Nevertheless, father asserts in a footnote to his opening brief that “he and his family have Native American Ancestry aside from the Cherokee and Choctaw Tribes” and that “[h]e intends to subsequently present evidence to this Court, outside of the record on appeal, to bolster his claim.” As of father’s reply brief filed April 3, 2009, no such evidence has been presented. As the appellant, it is father’s burden to establish prejudice from any error resulting from the failure to comply with a higher state standard. (In re S.B. (2005) 130 Cal.App.4th 1148, 1162.) Father has not established prejudice, and so his challenge to the juvenile court’s finding that DCS complied with ICWA fails.
Disposition
The juvenile court’s orders are affirmed.
We concur: McKINSTER J., RICHLI J.