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In re D.F.

California Court of Appeals, Third District, Sacramento
Apr 29, 2009
No. C058782 (Cal. Ct. App. Apr. 29, 2009)

Opinion


In re D.F. et al., Persons Coming Under the Juvenile Court Law. SACRAMENTO COUNTY DEPARTMENT OF HEALTH AND HUMAN SERVICES, Plaintiff and Respondent, v. Derrick F. et al., Defendants and Appellants. C058782 California Court of Appeal, Third District, Sacramento April 29, 2009

NOT TO BE PUBLISHED

Super. Ct. Nos. JD224188, JD225708

RAYE, Acting P.J.

Appellants Derrick F. (father) and Shelly H. (mother) appeal from the juvenile court’s orders terminating their parental rights. (Welf. & Inst. Code, §§ 366.26, 395.) Appellants claim that inquiry and notice under the Indian Child Welfare Act (ICWA, 25 U.S.C. § 1901 et seq.) were insufficient. Concluding any error was harmless, we shall affirm.

All further statutory references are to the Welfare and Institutions Code unless otherwise indicated.

FACTUAL AND PROCEDURAL BACKGROUND

As the facts underlying dependency jurisdiction are not relevant to the issues raised by appellants, we do not recount them in detail.

In March 2007 dependency petitions were filed by respondent Sacramento County Department of Health and Human Services (Department) concerning two-year-old D.F. and six-week-old M.F. based on the discovery of physical injuries to their half-siblings.

These half-siblings are not subjects of this appeal.

During a prior dependency proceeding concerning D.F., mother reported she might be a member of or eligible for membership in the Oneida Tribe, and the juvenile court ordered the Department to provide notice to that tribe. In the prior proceeding, mother submitted an Indian ancestry questionnaire, in which she filled out a family chart with the names of her parents and grandparents, all but one of whom she listed as “[e]nrolled.” These relatives included the minors’ maternal grandmother, whose name mother provided as “[S.H.].” Mother also provided an enrollment number and telephone number for “[S.W.],” whom she listed under a space for “family members who would have further family and tribal information.” The Department sent ICWA notice to the Oneida Tribe of Wisconsin (Oneida Tribe) and the Bureau of Indian Affairs containing all the information provided on the questionnaire completed by mother. The Oneida Tribe responded that, based on the information provided, they were unable to verify D.F.’s enrollment or eligibility for enrollment in the tribe.

In the current proceedings, the juvenile court again ordered notice to the Oneida Tribe, and ICWA notice was sent containing the same information that had been included in the last notice sent in the previous dependency proceeding. After mother reviewed the ICWA notice at the court’s request, a letter was sent to the Oneida Tribe providing the correct spelling of M.F.’s first name. The Oneida Tribe responded that the minors were not enrolled or eligible for enrollment.

Following a contested jurisdictional hearing, the juvenile court sustained the allegations in the petitions. At a subsequent hearing, the court denied appellants reunification services and set the matters for a hearing pursuant to section 366.26 to select and implement a permanent plan for the minors.

At a hearing prior to the section 366.26 hearing, a discussion ensued regarding mother’s Indian heritage, and mother informed the juvenile court that her “social worker of ICWA” told her that “they were going to help [her] do more research... about the children....” The court instructed mother to inform her attorney and the social worker if she received any new information. The court also asked mother to review the ICWA notice again, and mother noted that the maternal grandmother’s name was “[S.W.]” and that the last name noted for her on the notice was her maiden name. In addition, mother’s attorney disclosed that mother was enrolled in the Oneida Tribe but did not have her enrollment card with her. The court set the matter for an ICWA compliance hearing.

At the subsequent compliance hearing, mother maintained she had e-mailed her enrollment number to one of the attorneys but did not have the information with her. She informed the juvenile court that the Oneida Tribe had not responded to her attempts to contact them. The court again asked mother to review the ICWA notice form, and mother verified its accuracy. Noting “we have done all we can as to noticing in this case” and that mother had been given nine months to provide an enrollment number so that an updated notice could be provided to the tribe, the court concluded the minors were not Indian children. The court noted that if mother came forward with further information such as her enrollment number, it might again be necessary to notice the tribe.

At the subsequent section 366.26 hearing, the juvenile court found the minors likely to be adopted and terminated parental rights.

DISCUSSION

Appellants claim ICWA notice was deficient for a variety of reasons. We conclude any error was harmless.

Congress passed the ICWA “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....’” (In re Levi U. (2000) 78 Cal.App.4th 191, 195, quoting 25 U.S.C. § 1902; see Mississippi Choctaw Indian Band v. Holyfield (1989) 490 U.S. 30 [104 L.Ed.2d 29].)

Among the procedural safeguards included in the ICWA is a provision for notice, which states in part: “In any involuntary proceeding in a State court, 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).) The Indian status of a child need not be certain or conclusive to trigger the ICWA’s notice requirements. (In re Desiree F. (2000) 83 Cal.App.4th 460, 471.)

ICWA notice must include “[a]ll 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.” (25 C.F.R. § 23.11; see Welf. & Inst. Code, § 224.2, subd. (a)(5)(C).) Furthermore, if the social worker “has reason to know that an Indian child is involved, the social worker... is required to make further inquiry regarding the possible Indian status of the child, and to do so as soon as practicable, by interviewing the parents, Indian custodian, and extended family members to gather the information” required to be provided in the ICWA notice. (Welf. & Inst. Code, § 224.3, subd. (c).)

Errors relating to ICWA notice are subject to harmless error review. (In re Alexis H. (2005) 132 Cal.App.4th 11, 16; In re H.B. (2008) 161 Cal.App.4th 115, 121 [error in failing to inquire re: Indian heritage].) “An ICWA notice violation may be held harmless... when, even if notice had been given, the child would not have been found to be an Indian child, and hence the substantive provisions of the ICWA would not have applied.” (In re S.B. (2005) 130 Cal.App.4th 1148, 1162.)

Appellants raise numerous complaints about the adequacy of ICWA notice in the present matters: they contend the maternal grandmother’s maiden name and enrollment number were not properly designated on the notice; mother’s middle name was not provided; the Department’s inquiry into the minors’ Indian heritage was inadequate because they did not attempt to obtain further information from the maternal grandmother and they put the burden on mother to gather information without informing her which information was required; and notice of corrected information was sent to the tribe by letter. To the extent any of these complaints constitute error, we conclude they are harmless.

Mother asserted she was an enrolled member of the Oneida Tribe. The ICWA notice that was sent to the tribe included mother’s name, address, date and place of birth, and the fact that she was an enrolled member. It is reasonable to infer that this information was sufficient for the tribe to verify mother’s enrollment and determine whether the minors met the requirements for eligibility. Presumably, at the time of mother’s enrollment in the tribe, her lineage was examined to determine her eligibility. Thus, although the ICWA notice was never corrected to clarify that S.H. was the maternal grandmother’s maiden name, it is reasonable to infer that this information was available in the tribe’s records concerning mother. Under such circumstances, there is no reason to suspect that further inquiry or inclusion on the ICWA notice of any of the allegedly omitted or misidentified information would have led to a different determination by the tribe.

This court denied mother’s request to take additional evidence in the form of a letter from the Oneida Tribe and an enrollment card verifying her enrollment.

DISPOSITION

The juvenile court’s orders are affirmed.

We concur: BUTZ, J., CANTIL-SAKAUYE, J.


Summaries of

In re D.F.

California Court of Appeals, Third District, Sacramento
Apr 29, 2009
No. C058782 (Cal. Ct. App. Apr. 29, 2009)
Case details for

In re D.F.

Case Details

Full title:In re D.F. et al., Persons Coming Under the Juvenile Court Law. SACRAMENTO…

Court:California Court of Appeals, Third District, Sacramento

Date published: Apr 29, 2009

Citations

No. C058782 (Cal. Ct. App. Apr. 29, 2009)