Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
Contra Costa County Super. Ct. No. J05-01863
SIMONS, Acting P.J.
R.P. (mother) appeals a judgment terminating her parental rights to A.P. (the minor). Mother contends the Contra Costa County Bureau of Children and Family Services (Bureau) failed to comply with the notice requirements of the Indian Child Welfare Act of 1978 (ICWA) (25 U.S.C. § 1901 et seq.). We affirm.
BACKGROUND
The minor was born in March 2004. In October 2005, a petition was filed alleging that the minor was within the jurisdiction of the juvenile court under section 300, subdivision (b) of the Welfare and Institutions Code. The petition alleged that mother, with whom the minor resided, had a “substance abuse problem that impairs her ability to parent the child, she has admitted to methamphetamine use a month ago, and a week and a half ago.” The juvenile court found jurisdiction in November 2005.
All undesignated section references are to the Welfare and Institutions Code.
In April 2007, mother’s reunification services were terminated and services were ordered for the minor’s father, D.P. (father). In January 2008, the juvenile court terminated reunification services for father and set a section 366.26 permanency planning hearing.
On March 7, 2008, the juvenile court found that the Bureau had conducted an adequate inquiry to satisfy the ICWA and that the minor was not an Indian child within the scope of the ICWA. In June 2008, the court terminated the parental rights of mother and father.
DISCUSSION
Mother contends termination of parental rights violated the ICWA because the Bureau failed to provide proper notice to the relevant tribes. In particular, she relies on a letter dated February 7, 2008, written by the minor’s paternal grandmother, which mother argues demonstrates that the Bureau failed to uncover all relevant information about the minor’s Indian ancestry.
“The ICWA provides that ‘where the court knows or has reason to know that an Indian child is involved, the party seeking the foster care placement of, or termination of parental rights to, an Indian child shall notify the parent or Indian custodian and the Indian child’s tribe, by registered mail with return receipt requested, of the pending proceedings and of their right of intervention.’ (25 U.S.C. § 1912(a).) If the tribe is unknown, the notice must be given to the Bureau of Indian Affairs as the agent for the Secretary of the Interior. (Ibid.; 25 C.F.R. § 23.11 (2003); [citation].)” (In re Daniel M. (2003) 110 Cal.App.4th 703, 707; see also §§ 224.2, 224.3.)
“Notice is a key component of the congressional goal to protect and preserve Indian tribes and Indian families.” (In re Kahlen W. (1991) 233 Cal.App.3d 1414, 1421.) Section 224.2, subd. (a)(5), specifies that the notice must include, among other things, if known: (1) the name, birthplace, and birth date of the Indian child; (2) the name of the tribe in which the Indian child is a member or may be eligible for membership; (3) names and addresses of the child’s parents, grandparents, great-grandparents and other identifying information; (4) a copy of the dependency petition; (5) a copy of the child’s birth certificate; (6) contact information for the court and the parties; and (6) a statement of the right of the tribe to intervene in the proceedings. All tribes of which the child may be a member or eligible for membership must be provided notice. (§ 224.2, subd. (a)(3); In re Louis S. (2004) 117 Cal.App.4th 622, 632-633.)
In this case, mother contends the Bureau failed to make an adequate inquiry into the possible Indian ancestry on the minor’s paternal side. In October 2005, the minor’s paternal grandmother, Patricia, told the Bureau that she did not have any Indian ancestry; and, in October 2007, a form was filed with the court in which father claimed to have no Indian ancestry. However, in a July 31, 2007 letter addressed to the court, Patricia asserted that she was “in a small part, of American Indian extraction.” In a February 7, 2008 letter addressed to the court, Patricia detailed her suspicions about her Indian ancestry. She stated that her own grandmother, Dora H.D. (the minor’s great-great grandmother), “was probably born in Kansas or Oklahoma sometime between 1880 and 1890.” Two of Patricia’s uncles told Patricia’s mother that Dora was of 50 percent Indian ancestry. Patricia also stated that her mother once was told by a dentist that he thought she was part Indian because of her teeth. Patricia speculated that her mother had a condition called “Sinodonty,” which Patricia asserted is prevalent among Native Americans. Patricia speculated that Dora might have been of Lakota (also known as Dakota) ancestry because Dora had to care for her siblings at the age of nine or 10, and Patricia once read this was also a common practice among the Lakota Indians. Finally, Patricia wrote that she found on the internet a “Dora H[.]” listed as a possible Cheyenne tribe member, although “[t]he source was considered dubious.”
Mother points out that the Bureau’s notice to the Bureau of Indian Affairs (BIA) fails to list any information regarding Dora H.D. The Bureau’s notice does reflect Patricia’s assertion of Indian ancestry. It further states, “On 12/11/2007, paternal grandmother stated to social worker that she had no information regarding her heritage and further stated she based her Indian ancestry solely on her teeth formation. On 1/28/2008, paternal grandmother gave us additional information regarding the paternal side of the family to include names and dates of birth.” In the space provided on the notice form for information regarding the minor’s great-great grandmother, the Bureau wrote, “As of 01/28/2008, paternal grandmother was unable to provide this information.”
The Bureau points out that, although the February 7, 2008 letter appears in the clerk’s transcript on appeal, there is no indication that the letter was filed or that the court or any party saw the letter. Although mother asserts that the letter is properly part of the record, she does not contend that the letter was brought to the attention of the parties or the court. At the March 2008 ICWA compliance hearing, counsel for the Bureau referred to a letter from Patricia submitted to the court in October 2007, and referred to communications with Patricia in December 2007 and January 2008. No party or the court referred to a February 2008 letter. Absent any indication that the Bureau was provided the information in the February 7 letter, we cannot conclude the Bureau failed in providing the information to the BIA or any individual tribes. Moreover, we cannot conclude the Bureau failed to conduct an adequate inquiry, because the record shows the Bureau obtained information from Patricia in December 2007 and January 2008, and there is no indication she told the Bureau that she had more information to provide.
Presumably this is the letter dated July 31, 2007; there is no letter dated October 2007 in the record.
We need not and do not express any opinion as to whether the information in the February 7, 2008 letter, if it had been provided to the Bureau, would have been sufficient to trigger the Bureau’s duty to send notice to the Lakota/Dakota and Cheyenne tribes.
Mother also contends the juvenile court violated section 224.3, subdivision (e)(3), because the court did not wait 60 days after the Bureau sent out the ICWA notice before finding, in March 2008, that the ICWA did not apply. The statute provides, “If proper and adequate notice has been provided pursuant to Section 224.2, and neither a tribe nor the [BIA] has provided a determinative response within 60 days after receiving that notice, the court may determine that the [ICWA] does not apply to the proceedings . . . .” (§ 224.3, subd. (e)(3).) In this case, the ICWA notice was mailed to the BIA on February 7, 2008, and the BIA responded to that notice on February 20, 2008, stating that the family had “provided insufficient information substantiating any federally recognized tribe.” Mother provides no reasoned argument or citation to authority that, where a juvenile court receives a response from the BIA indicating that the BIA will be taking no further action at that time, the court violates section 224.3, subdivision (e)(3) by making its ICWA finding before the end of the 60 days. (See People v. Sierra (1995) 37 Cal.App.4th 1690, 1693, fn. 2 [“ ‘[w]here a point is merely asserted by counsel without any argument of or authority for its proposition, it is deemed to be without foundation and requires no discussion’ ”].) In any event, any error was harmless because the BIA’s response was not contrary to the court’s finding. (See In re N.M. (2008) 161 Cal.App.4th 253, 267 & fn. 8.)
DISPOSITION
The judgment terminating parental rights is affirmed.
We concur. NEEDHAM, J., STEVENS, J.
Retired Associate Justice of the Court of Appeal, First District, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.