Opinion
E046512
1-29-2009
In re A.V., a Person Coming Under the Juvenile Court Law. SAN BERNARDINO COUNTY DEPARTMENT OF CHILDRENS SERVICES, Plaintiff and Respondent, v. T.G. et al., Defendants and Appellants.
Diana W. Prince, under appointment by the Court of Appeal, for Defendant and Appellant T.G. Nicole Williams, under appointment by the Court of Appeal, for Defendant and Appellant T.V. Ruth E. Stringer, County Counsel, and Jeffrey L. Bryson, Deputy County Counsel, for Plaintiff and Respondent. Brent Riggs, under appointment by the Court of Appeal, for Minor.
Not to be Published in Official Reports
T.V. (the father) and T.G. (the mother) appeal from an order terminating their parental rights to their daughter, A.V. Their sole appellate contention is that the notices that were sent to Indian tribes were not in compliance with the Indian Child Welfare Act (ICWA) (25 U.S.C. § 1901 et seq.) and related federal and state law. We will hold that the trial court could properly find that there had been at least substantial compliance with all ICWA-related requirements. Accordingly, we will affirm.
I
FACTUAL AND PROCEDURAL BACKGROUND
In June 2007, when A.V. was about seven months old, sheriffs deputies searched the house where the mother was staying. They found "a small amount of methamphetamine" and a glass methamphetamine pipe. The mother admitted recently using methamphetamine. While the officers were there, about 20 people came to the house; several admitted that they were there to buy methamphetamine. According to the mother, the person dealing the drugs was one "Huero."
The mother was arrested and charged with possession of methamphetamine and child abuse. Ultimately, she pleaded guilty to child abuse. (Pen. Code, § 273a, subd. (a).) An investigation revealed that her parental rights to four older children had been terminated, and she had voluntarily relinquished custody of two additional children.
At the time, the father was incarcerated; he had been arrested three months earlier and charged with, among other things, possession of a controlled substance for sale.
As a result, A.V. was detained, and the Department of Childrens Service (the Department) filed a dependency petition concerning her. She was placed in foster care.
In August 2007, at the jurisdictional hearing, the juvenile court found that it had jurisdiction based on failure to protect (Welf. & Inst. Code, § 300, subd. (b)), failure to support (solely with respect to the father) (id., subd. (g)) and abuse of a sibling (solely with respect to the mother) (id., subd. (j)).
The Department asserts that, when A.V. was born, she had drugs in her system. While there are some statements to this effect in the reports, the social worker testified on the stand that she did not. The Departments counsel disclaimed any reliance on this fact as a basis for jurisdiction below, stating, "We are not alleging that the child was born positive."
In September 2007, at the dispositional hearing, the juvenile court formally removed A.V. from the parents custody. It ordered reunification services for the father, but it denied them for the mother.
In March 2008, at the six-month review hearing, the juvenile court terminated reunification services and set a hearing pursuant to Welfare and Institutions Code section 366.26 (section 366.26).
In April 2008, A.V. was placed with a new foster family that was interested in adopting her.
In August 2008, at the section 366.26 hearing, the juvenile court terminated parental rights.
II
FACTS RELEVANT TO THE ICWA ISSUES
At the detention hearing, the mother stated that she had Sioux and Chippewa ancestry, "through my father. Its through the North Dakota tribal Indian reservation." She was also a registered member of the Turtle Mountain Tribe of North Dakota, a Chippewa tribe, through her mother. Her mother was living; her father was deceased. The mothers counsel added that the mother had a "BIA card."
The father stated that he believed he had Indian ancestry through his mother, but he did not know what tribe. He gave his mothers name as either "Mary Barrahas Zavala" or "Mary Zavala Barrahas." He gave her birthday, but he did not know the year. Both his mother and father were deceased.
This is the spelling that the court reporter used; the father was not asked to spell the name on the record.
About a week later, the social worker interviewed the mother, the father, and the maternal grandmother. The mother confirmed that she was a member of the Sioux and Chippewa tribes and specifically that she had Turtle Mountain ancestry. She said that she was a "`card carrying tribal member of Chippewa and Sioux but that she has lost her card." The maternal grandmother confirmed that the mother was a member of the Sioux, Chippewa, and Turtle Mountain Tribes.
The father stated that he believed that he had Indian ancestry through his mother, "Mary Barajas," and his maternal grandmother, "Julia Barajas." He added that he "believes he may have Navajo or Apache or Cherokee [ancestry]." He said "his relatives are all deceased and [he] could not give birth dates of any of his relatives."
This is the spelling that the social worker used in his report.
According to the social worker, "[t]he interviews were difficult and the information vague as the family members could not remember or report exact names, birth dates or complete tribal affiliation (which branch of Sioux)." He stated that he had prepared an ICWA notice "with what information he could glean and gather from the family."
For example, the father evidently did not know how old he was; his birth year is listed in the notice as being either 1951 or 1955.
The notice gave the mothers birthplace as "California." It gave both grandfathers names and both grandmothers maiden names. It listed the paternal grandmother as "Mary Savala Barajas," also known as "Mary Barajas Savala." It listed all grandparents birthdates and birthplaces as unknown. It listed the paternal great-grandmother as "Julia Barajas"; it listed all other great-grandparents as unknown. The notice stated, "[The social worker] spoke with Mother and Maternal Grandparents [sic ] who had no further information."
As noted earlier, the maternal grandfather was actually deceased.
In July 2007, the Department sent the ICWA notice to some 30 tribes, including the Turtle Mountain Band of Chippewa and various Sioux, Navajo, Apache, and Cherokee tribes, as well as to the Bureau of Indian Affairs (BIA). The notices were addressed to each tribe by name, rather than to the tribal chairperson or agent for service of process. All of the tribes that responded stated that A.V. was not a member or eligible to be a member.
In September 2007, at the dispositional hearing, the juvenile court found that notice under ICWA had been given and that ICWA did not apply to A.V.
Because the parents "continue[d] to state that they are Indian," the social worker investigated further. The mother reiterated that she was a member of the Turtle Mountain Tribe. She added that "her father was Sioux but in a Canadian tribe." The father stated that he had Indian ancestry "under his relative names of Mary Savala and Barajas."
At this point, the father filled out a form JV-130 stating that he might have Indian ancestry, but "[a]t this time [I] cant say what trib[e] [I] belong to."
The Department did not send any further notices.
At the six-month review hearing, the juvenile court found once again that "there has been compliance with the ICWA notice requirements and that the Indian Child Welfare Act does not apply in this case."
III
DISCUSSION
A. General Legal Principles.
"When 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 childs tribe notice of the pending proceedings and its right to intervene. [Citations.]" (In re Shane G. (2008) 166 Cal.App.4th 1532, 1538.) Notice must also be given to the BIA. (25 C.F.R. § 23.11(a); Welf. & Inst. Code, § 224.2, subd. (a)(4).)
"[Welfare and Institutions Code s]ection 224.2, subdivision (a)(3) . . . requires that notice `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 childs tribe . . . . . . . [T]he language of subdivision (a)(3) must be construed as requiring notice to all federally recognized tribes within the general umbrella identified by the childs parents or relatives . . ., even if the familys precise tribal affiliation, if any, has not been determined." (In re Alice M. (2008) 161 Cal.App.4th 1189, 1202.) "Notice to the tribe shall be to the tribal chairperson, unless the tribe has designated another agent for service." (Welf. & Inst. Code, § 224.2, subd. (a)(2).)
The notice must "includ[e] all names of the childs biological parents, grandparents, and great-grandparents, . . . including maiden, married and former names or aliases, as well as their current and former addresses, birthdates, places of birth and death, tribal enrollment numbers, and any other identifying information, if known. [Citations.]" (In re Cheyanne F. (2008) 164 Cal.App.4th 571, 575, fn. 3 [Fourth Dist., Div. Two].) "The purpose of the ICWA notice provisions is to enable the tribe or the BIA to investigate and determine whether the child is in fact an Indian child. [Citation.] Notice given under ICWA must therefore contain enough information to permit the tribe to conduct a meaningful review of its records to determine the childs eligibility for membership. [Citations.]" (Id. at p. 576.)
"To enable the juvenile court to review whether sufficient information was supplied, Agency must file with the court the ICWA notice, return receipts and responses received from the BIA and tribes. [Citation.]" (In re Francisco W. (2006) 139 Cal.App.4th 695, 703.) "Substantial compliance with the notice requirements of ICWA is sufficient. [Citation.]" (In re Christopher I. (2003) 106 Cal.App.4th 533, 566.)
"The trial courts finding that ICWA notice was adequate is reviewed for substantial evidence. [Citations.]" (In re J.T. (2007) 154 Cal.App.4th 986, 991.) "We review factual findings in the light most favorable to the juvenile courts order. [Citation.] Indeed, `[w]e must indulge in all legitimate and reasonable inferences to uphold the [judgment]. If there is substantial evidence supporting the judgment, our duty ends and the judgment must not be disturbed. [Citation.]" (In re H.B. (2008) 161 Cal.App.4th 115, 119-120.)
B. The Contents of the Notices.
The parents contend that the notices failed to contain all of the necessary information about A.V.s ancestors.
First, the father contends that the notices misspelled his mothers name. According to the reporters transcript of the detention hearing, her name was either "Mary Barrahas Zavala" or "Mary Zavala Barrahas." However, the father was not asked to spell it on the record, and he did not. (The court reporter also spelled Sioux as "Souix.") According to a social workers report, the correct spellings were "Savala" and "Barajas." The notices accordingly gave the paternal grandmothers name as "Mary Savala Barajas," also known as "Mary Barajas Savala." (Capitalization omitted.) "Barrahas" is an apparent misspelling of the common Hispanic surname Barajas. Under the applicable substantial evidence standard of review, the juvenile court could reasonably find that the spelling in the notices was correct.
Second, both parents contend that the notices included only the maternal grandmothers maiden name, not her married name. However, the notices did also include the maternal grandfathers full name. His last name would be the maternal grandmothers married name. In any event, as the mother was claiming Indian ancestry through the maternal grandmother, it would appear that the maternal grandmothers maiden name would be sufficient information. The juvenile court could reasonably find that this was at least substantial compliance.
Third, both parents contend that the notices did not include the dates or places of birth of any grandparents, nor did it include any information about any great-grandparents (except for one paternal great-grandmothers name). The notices specifically indicated, however, that this information was unknown. The social worker had reported that the persons he interviewed "could not remember or report exact names [or] birth dates . . . ." He had also specifically reported that the father "could not give birth dates of any of his relatives." Once again, under the applicable substantial evidence standard of review, the juvenile court could reasonably find that the Department had provided all of the relevant information that was known to it.
The mother states: "No birth place or date of birth was provided for the maternal grandfather, although the social worker appears to have had some form of access to the maternal grandfathers service records." (Italics added.)
The italicized statement is not supported by the record. After interviewing the mother, the social worker reported: "Her father denied his Indian membership when he went into the service." This is self-evidently based on the mothers own statements and not on some kind of independent review of the maternal grandfathers service records.
Fourth, the mother contends that the notices did not include her place of birth. Actually, they stated that she was born in "California." They also stated that the mother and maternal grandmother "had no further information." Admittedly, one would expect that the mother would know what city she was born in — or at least, that the maternal grandmother would know this. Nevertheless, there was evidence that they did not know (or at least did not tell the social worker). "We are not entitled to discount evidence `"unless it is physically impossible or inherently improbable and such inherent improbability plainly appears." [Citation.] [Citation.]" (California Sportfishing Protection Alliance v. State Water Resources Control Bd. (2008) 160 Cal.App.4th 1625, 1640.) Thus, the juvenile court could reasonably find that the Department provided all of the information it had on this point.
Fifth and finally, the mother contends that the notices did not include the fact that she and her mother were claiming to be actual members of the Turtle Mountain Tribe and other tribes. There was no requirement that this information be included. The very fact that the notices were sent meant that there had been at least a suggestion that A.V. or her parents might be members of the recipient tribes. This additional information would not have helped the tribes determine whether in fact they were.
We therefore reject the parents contention that the content of the notices was not in substantial compliance with the ICWA and related federal and state law.
C. The Service of the Notices.
The father contends that the notice to the Fort Sill Apache was sent to the wrong address and that two of the notices, to the Oglala Sioux and, again, to the Fort Sill Apache, were not addressed to those tribes respective agents for service of process. The Department responds that notice to Sioux and Apache tribes was not required. We agree.
The mother tries to paint with a broader brush. She contends that "[t]he social worker failed to address the notices to the tribal chairperson or registered agent for service of process," citing all of the notices. With respect to tribes that responded, however, the asserted error is harmless. (In re J.T., supra, 154 Cal.App.4th at p. 994.) The mother has made no effort to identify the tribes that did and did not respond. "`The reviewing court is not required to make an independent, unassisted study of the record in search of error or grounds to support the judgment. It is entitled to the assistance of counsel. [Citation.]" (Haley v. Casa Del Rey Homeowners Assn. (2007) 153 Cal.App.4th 863, 871.) Accordingly, we consider this contention forfeited except with respect to the two tribes identified by the father.
Initially, the mother claimed Sioux ancestry. She later clarified, however, "that her father was Sioux but in a Canadian tribe." Neither ICWA nor related federal and state law requires notice to an Indian tribe unless the tribe is federally recognized. (In re A.C. (2007) 155 Cal.App.4th 282, 286-287; see 25 U.S.C. § 1903(8); 25 C.F.R. § 23.2; see also Welf. & Inst. Code, § 224.1, subd. (a).)
The mothers maiden name was French. She had previously told the juvenile court that, in addition to her Indian ancestry, she had French-Canadian ancestry.
Similarly, at one point, the father stated that he "believes he may have Navajo or Apache or Cherokee [ancestry]." Before making this statement, however, he told the trial court that he had no idea what tribe he was affiliated with; he even added, "Id be lying if I said I did." And after making this statement, he filled out a form JV-130, stating, under penalty of perjury, "At this time [I] cant say what trib[e] [I] belong to." In light of the record as a whole, it is apparent that when the father named the Navajo, Apache, and Cherokee tribes, he was giving random, speculative examples. This was not substantial evidence. "[V]ague or ambiguous information" is insufficient to require "any attempt at notice to a specific tribe . . . ." (In re Alice M., supra, 161 Cal.App.4th at p. 1200.)
The father also contends that no notice at all was given to two tribes — the Chippewa-Cree Indians of the Rocky Boys Reservation, Montana, and the Devils Lake Sioux.
The mother specifically stated that she was a member of the Turtle Mountain Band of Chippewa Indians of North Dakota. The father is not arguing that the Department was required to give notice to any and all Chippewa tribes (and thus has forfeited any such argument). Rather, he argues that notice to the Chippewa-Cree Indians was required because that tribe is made up of former members of the Turtle Mountain Band, as well as former members of a Cree tribe or tribes. Nevertheless, the mother not only specified a particular tribe, but claimed to be a "registered," "card carrying" member of that tribe. There was no information before the Department that would trigger a duty to inquire further into the identity of the relevant tribe.
Having held that notice to Sioux tribes was not required, we could reject the contention that no notice was given to the Devils Lake Sioux for that reason alone. However, we also reject it for the separate and independent reason that the Department did give this tribe notice. The tribe has changed its name to the Spirit Lake Sioux Tribe. (<http://www.childsworld.ca.gov/Res/pdf/alphatribe.pdf>, as of Jan. 26, 2009, at p. 48.) It is listed as such in the Federal Register. (Indian Tribal Entities . . . Recognized and Eligible To Receive Services From the United States Bureau of Indian Affairs (73 Fed. Reg. 18553, 18556, Apr. 8, 2008).) The "Devils Lake Sioux" tribe is not listed in the Federal Register. The Department duly sent notice to the tribe under its present name and received a response.
The state Department of Social Services lists the tribal affiliation (e.g., Sioux, Apache, etc.) of federally recognized Indian tribes at www.childsworld.com. Although this list cannot supersede the official list of federally recognized tribes in the Federal Register, the additional information that it contains about them is generally considered reliable. (E.g., In re J.T., supra, 154 Cal.App.4th at p. 994 & fn. 5.)
We therefore conclude that the parents have not shown that notice was not properly served on all of the necessary tribes.
IV
DISPOSITION
The order appealed from is affirmed.
We concur:
HOLLENHORST, Acting P.J.
McKINSTER, J.