Opinion
NOT TO BE PUBLISHED
Super. Ct. Nos. JD223385 & JD223386
BLEASE, Acting P. J.
Appellant, Crystal W., the mother of minors C.M. and Alexus M., appeals from orders of the juvenile court terminating her parental rights and selecting a permanent plan of adoption for the minors. (Welf. & Inst. Code, §§ 366.26, 395; further undesignated statutory references are to the Welfare and Institutions Code.) On appeal, appellant contends there was a failure to comply with the notice provisions of the Indian Child Welfare Act (25 U.S.C. § 1901 et seq. (ICWA)). We shall reject the contention and affirm.
BACKGROUND
On October 20, 2005, Children’s Protective Services received a referral that appellant had neither electricity, food, nor heat in her home. A strong odor emanated from the home and appellant locked the minors, Alexus, age four, and one-year-old C., in their rooms all day. On November 23, 2005, a social worker visited the home and determined the family was being evicted. The minors were placed in emergency protective custody on November 26, 2005.
The Sacramento County Department of Health and Human Services (DHHS) filed a dependency petition on November 29, 2005, alleging the minors came within the jurisdiction of the juvenile court under section 300, subdivisions (b) and (j), based on the parents’ history of domestic violence, appellant’s substance abuse and anger management problems, and her physical abuse of the minors. The juvenile court ordered the minors detained on December 2, 2005, and continued the matter for a combined jurisdiction/disposition hearing.
According to the jurisdiction/disposition report, appellant admitted to using Ecstasy, methamphetamine, and marijuana, but denied being addicted to the drugs. She expressed a desire for anger management counseling, admitting she has “a big mouth” and occasionally gets angry. Appellant tested positive for amphetamine and methamphetamine after the minors were detained. The father told the social worker appellant has an anger management problem, often assaulted him, abused Alexus, and uses Ecstasy and methamphetamine.
On January 26, 2006, the juvenile court sustained an amended petition, which alleged appellant’s drug abuse and the parents’ history of domestic violence. At the March 9, 2006, disposition hearing, the court committed the minors to the custody of DHHS, adopted the case plan, and ordered reunification services for the parents.
Appellant was discharged from her substance abuse program on May 23, 2006, re-enrolled, but tested positive for methamphetamine five days later on May 28, 2006. According to the social worker, appellant was participating in parental education and visiting her children, but had not started the domestic violence group. At the six-month review hearing (§ 366.21, subd. (e)), the juvenile court ordered further reunification services for appellant, terminated services for the father, and continued the matter for a 12-month review hearing (§ 366.21, subd. (f)).
The permanency review report recommended terminating services for appellant. Appellant did not cooperate in keeping appointments or informing the social worker about her progress. On December 10, 2006, appellant gave birth to a baby girl, M.G., who was taken into protective custody after testing positive for methamphetamine. She had not attended her domestic violence group, and had attended only one of her counseling sessions. She was again discharged from drug treatment a second time and could not complete her parent education program because of poor attendance.
On May 10, 2007, the juvenile court ordered DHHS to inquire into the possible Indian ancestry of the parents. Appellant thought she might have some Indian ancestry and the father indicated Cherokee heritage. On June 21, 2007, DHHS mailed notice of the proceedings by certified mail to the Bureau of Indian Affairs (BIA), the Cherokee Nation, Oklahoma; the Eastern Band of Cherokee Indians of North Carolina; and the United Keetoowah Band of Cherokee Indians in Oklahoma. DHHS received new information about the father’s potential Indian heritage and prepared a new notice on June 25, 2007, sending it by certified mail to the BIA and the three Cherokee tribes.
The return receipts for the original notices were signed on June 25, 2007. The return receipts for the second notices were signed on June 28, 2007, except the receipt for the mailing to the Eastern Band of Cherokee Indians of North Carolina, which was signed on June 29, 2007.
On June 26, 2007, the Cherokee Nation, Oklahoma, sent a letter expressing its determination the minors were not Indian children. The Eastern Band of Cherokee Indians of North Carolina stated the minors were not members and were not eligible to register as members of the tribe in a letter dated July 5, 2007.
On July 19, 2007, the court held the section 366.26 hearing. The parties submitted on the reports and the court terminated parental rights for both parents. The juvenile court also set an ICWA compliance hearing for September 6, 2007.
DISCUSSION
I
Appellant asserts the DHHS did not comply with the notice requirements of the ICWA because the signature on the return receipt for mailings to the United Keetoowah Band was not that of the person designated in the Federal Register to be notified on behalf of the tribe. She is mistaken.
The ICWA protects the interests of Indian children and promotes the stability and security of Indian tribes by establishing minimum standards for, and permitting tribal participation in, dependency actions. (25 U.S.C. §§ 1901, 1902, 1903(1), 1911(c), 1912.) If, after the petition is filed, the court “knows or has reason to know that an Indian child is involved,” notice of the pending proceeding and the right to intervene must be sent to the tribe or to the BIA if the tribal affiliation is not known. (25 U.S.C. § 1912(a); Cal. Rules of Court, rule 5.481(b).) Failure to comply with the notice requirements of the ICWA is not subject to forfeiture. (In re Marinna J. (2001) 90 Cal.App.4th 731, 739 (Marinna J.).)
Appellant does not claim notice was not sent to the tribe or there was some technical defect in the notice that was sent. In essence, she claims there is insufficient evidence to support the juvenile court’s finding that the tribe was notified because she claims the signature on the return receipt was not that of the tribal chairman.
Appellant’s authority for her novel contention is readily distinguished. The name of the person who signs the receipt is relevant when the notice was sent to an address other than that designated for the tribe in the Federal Register (Nicole K. v. Superior Court (2007) 146 Cal.App.4th 779, 783-784 (Nicole K.)) or sent to the right address but not sent to any specific addressee. (In re J.T. (2007) 154 Cal.App.4th 986, 994 (J.T.).) These authorities do not establish a failure to comply with the notice provision when the signature on the return receipt does not match the designated agent for services. Rather, once error is already established by failing to send the notice to the right person or correct address then the identity of the person signing the receipt is relevant to determine whether the error is harmless. (Nicole K., supra, 146 Cal.App.4th at p. 784; J.T., supra, 154 Cal.App.4th at p. 994.)
DHHS sent both the notices to the United Keetowah Band of Cherokee Indians, Chief George Wickliffe, at P.O. Box 746, Tahlequah, Oklahoma, 74465. As appellant admits, this is the name and address of the person designated for notification in the Federal Register. (71 Fed.Reg. 43788, 43797 (Aug. 2, 2006).) As the DHHS committed no error when it sent the notice, the identity of the person signing the return receipt is not relevant to the notice’s adequacy.
Nothing more is needed to establish proper notice. People routinely sign certified mail receipts intended for others. There is nothing in the record to indicate the notice was not sent to its intended recipient. The court’s finding that the tribe was properly notified is supported by substantial evidence.
Accordingly, we deny DHHS’s request for judicial notice of the juvenile court’s order of September 6, 2007, as unnecessary to the determination of this appeal.
II
Defendant also asserts it was error to hold the section 366.26 hearing before waiting at least 10 days after the tribe was notified or 60 days after receiving no response. Neither point is well taken.
ICWA provides that “[n]o foster care placement or termination of parental rights proceeding shall be held until
at least ten days after receipt of notice by . . . the
tribe . . . .” (25 U.S.C. § 1912(a).) The second notice was received by the United Keetoowah Band on June 28, 2007, more than 10 days before the section 366.26 hearing was held on July 19, 2007.
There is no requirement under the ICWA for the court to wait 60 days from notice to hold a section 366.26 hearing, but there are good reasons to do so. A court may determine a minor is not an Indian child if the tribe does not reply within 60 days of being notified. (Cal. Rules of Court, rule 5.482(d)(1).) Since the United Keetowah Band never responded, the court could not rule the ICWA did not apply to the minors at the section 366.26 hearing, which was held less than 60 days after the tribe was notified.
Under the ICWA, when the court has reason to believe the minor is an Indian child, in addition to notifying the relevant tribes within 10 days of any hearing, termination of parental rights is not allowed “in the absence of a determination, supported by evidence beyond a reasonable doubt, including testimony of qualified expert witnesses, that the continued custody of the child by the parent or Indian custodian is likely to result in serious emotional or physical damage to the child.” (25 U.S.C. § 1912(f).) Until the juvenile court could determine the ICWA did not apply to the minors, these provisions applied to the termination proceedings.
However, unlike notice, the expert testimony and proof beyond a reasonable doubt requirements of the ICWA are subject to forfeiture so long as the tribes have been properly notified. (Marinna J., supra, 90 Cal.App.4th at p. 739, fn. 3.) The relevant tribes were properly notified, so any claim the court erred by failing to employ the reasonable doubt and expert witness provisions of the ICWA is forfeited.
DISPOSITION
The judgment is affirmed.
We concur: NICHOLSON, J., HULL, J.