Opinion
NOT TO BE PUBLISHED
APPEAL from orders of the juvenile court of the County of Los Angeles No. CK59895, Sherri Elizabeth Kim, Referee. (Pursuant to Cal. Const. art. VI, § 21.)
Sharon S. Rollo, under appointment by the Court of Appeal, for Defendant and Appellant.
Raymond G. Fortner, Jr., County Counsel, James M. Owens, Assistant County Counsel, and Liana Serobian, Deputy County Counsel, for Plaintiff and Respondent.
MOSK, J.
INTRODUCTION
Defendant and appellant, Marcelo L. (father), appeals from the juvenile court’s order terminating his parental rights to D.L. and S.L. (the children). Father contends the juvenile court erroneously ruled that the Indian Child Welfare Act (ICWA) did not apply to this case, and that the order terminating his parental rights must therefore be reversed because it was entered without compliance with the procedural requirements of the ICWA.
25 U.S.C. § 1901, et seq.
We hold that the juvenile court did not err in concluding that the ICWA did not apply because the notices sent to the tribes substantially complied with the ICWA requirements. Therefore, any claimed inaccuracies or omissions in the notices were not prejudicial. Accordingly, we affirm the orders of the juvenile court finding that the ICWA did not apply and terminating father’s parental rights.
FACTUAL AND PROCEDURAL BACKGROUND
At the detention hearing, father appeared and denied that he or anyone in his family had Indian heritage. Mother, Erin G. (mother), did not appear. The juvenile court found father had no Indian heritage, detained the children from mother only, and released the children to father.
Mother appeared at the next scheduled hearing and her attorney informed the juvenile court that mother may have Cherokee Indian heritage: “She feels she may have some Cherokee. There may be, according to her mother. Her mother told her there may be some Cherokee somewhere.” Accordingly, the juvenile court ordered DCFS to “[n]otice Cherokee Tribe on mother’s side.”
DCFS subsequently sent out four sets of notices pursuant to the ICWA for hearings on August 23, September 12, October 11, and November 16, 2005. The first three sets of notices were sent to the Cherokee tribes, the Bureau of Indian Affairs (BIA), and the Secretary of the Interior. The last set was sent only to the BIA and the Secretary of the Interior. With some minor variations, each set of notices contained essentially the same information. After serving the notices, DCFS filed copies of them in the juvenile court, together with the signed return receipts and letters from the Cherokee tribes stating the children were not considered Indian or tribal members.
The information contained in the notices is discussed in detail below.
On January 10, 2006, the juvenile court entered an order finding that “the children are not Indian children as the term is defined by ICWA.” In doing so, the juvenile court expressly ruled that notice to the tribes was proper.
On June 26, 2007, the juvenile court found by clear and convincing evidence that the children were adoptable, and that it would be detrimental to the children to return them to their parents. The juvenile court therefore terminated parental rights and freed the children for adoption. Father appealed from the order terminating his parental rights the same day it was entered.
DISCUSSION
A. Standard of Review
Father’s challenge to the adequacy of the ICWA notices requires us to review the sufficiency of the evidence of compliance with the ICWA notice requirements and determine whether any violations occurred. (See In re Merrick V. (2004) 122 Cal.App.4th 235, 247 [to determine whether notice was adequate, court must review whether sufficient information was supplied by agency]; In re Elizabeth W. (2004) 120 Cal.App.4th 900, 906 [to provide record for appellate court, agency must file with juvenile court notices, return receipts, and any responses from the tribe]; In re Aaliyah G. (2003) 109 Cal.App.4th 939, 941-943 [sufficient evidence in record that proper inquiry was made into whether child was an Indian child]; In re S.B. (2005) 130 Cal.App.4th 1148, 1160-1162 [sufficient evidence that juvenile court and department met their duty of inquiry into whether child was an Indian child].) If our review of the evidence discloses a violation of the ICWA notice requirements, we must then determine whether that violation was prejudicial. (In re Christopher I. (2003) 106 Cal.App.4th 533, 566-567.)
B. ICWA Notices
Father concedes that DCFS sent notices to the Cherokee tribes pursuant to the juvenile court’s order, but contends that the information included in the notices was incomplete and inadequate. In support of his contention, father specifies a number of perceived deficiencies in the notices, including: the children’s middle names and cities of birth were omitted; mother’s city of birth was omitted; father’s last name was incorrect, and his date and city of birth were omitted; the city of birth of the maternal grandmother was omitted; the maternal grandfather’s information was available to DCFS, but omitted; all information about the paternal grandparents was omitted; and the paternal great-grandmother was listed as Hezekiah Joseph J.
The notices indicated that both mother and the maternal grandmother were born in California, without specifying a city.
The maternal great-grandmother, Jackie J., was shown in the notices as having the same last name as Hezekiah Joseph J., which suggests that Hezekiah was the maternal great-grandfather, not the paternal great-grandmother.
To determine the adequacy of the notices, we must consider them in light of the policies and implementing procedures of the ICWA. “In 1978, Congress passed the [ICWA], which is designed 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, and by providing for assistance to Indian tribes in the operation of child and family service programs.’” (In re Marinna J. (2001) 90 Cal.App.4th 731, 734, quoting 25 U.S.C. § 1902.) “[The ICWA] sets forth the manner in which a tribe may obtain jurisdiction over proceedings involving the custody of an Indian child, and the manner in which a tribe may intervene in state court proceedings involving child custody. When the dependency court has reason to believe a child is an Indian child within the meaning of the Act, notice on a prescribed form must be given to the proper tribe or to the Bureau of Indian Affairs [BIA], and the notice must be sent by registered mail, return receipt requested.” (In re Elizabeth W., supra, 120 Cal.App.4th at p. 906, citing In re C.D. (2003) 110 Cal.App.4th 214, 222; In re Asia L. (2003) 107 Cal.App.4th 498, 506; and 25 U.S.C. § 1912(a).)
“Because ‘“the tribe has an interest in the child which is distinct from but on a parity with the interest of the parents”’ (Mississippi Choctaw Indian Band v. Holyfield (1989) 490 U.S. 30, 52 [109 S.Ct. 1597, 104 L.Ed.2d 29]), a tribe has the right to intervene in a state court dependency proceeding at any time (25 U.S.C. § 1911(c)). This significant right, however, is meaningless unless the tribe is notified of the proceedings. (Dwayne P. v. Superior Court (2002) 103 Cal.App.4th 247, 253 [126 Cal.Rptr.2d 639].) ‘Notice ensures the tribe will be afforded the opportunity to assert its rights under the [ICWA] irrespective of the position of the parents, Indian custodian or state agencies.’ (In re Kahlen W. (1991) 233 Cal.ApP.3d 1414, 1421 [285 Cal.Rptr. 507].)” (In re Nikki R. (2003) 106 Cal.App.4th 844, 848.)
Father predicates his argument on the assumption that strict compliance with the notice provisions of the ICWA is required in all cases. There are, however, decisions that suggest technical compliance is not required where there has been substantial compliance with the notice requirements of the ICWA. (In re I.G. (2005) 133 Cal.App.4th 1246, 1252 [“Substantial compliance with notice requirements of ICWA may be sufficient under certain circumstances”]; In re Christopher I., supra, 106 Cal.App.4th at p. 566 [“Substantial compliance with the notice requirements of ICWA is sufficient”]; In re Kahlen W. (1991) 233 Cal.App.3d 1414, 1421-1422 [“There are cases applying the [ICWA] which hold technical compliance is not required where there has been substantial compliance with the notice provisions of the [ICWA]”].)
Based on our review of the notices sent to the Cherokee tribes, we conclude that there is sufficient evidence that DCFS substantially complied with its notice obligations under the ICWA. The only suggestion of the children’s Indian heritage was mother’s vague recollection that their maternal grandmother told her that “there may be some Cherokee somewhere.” In response to that information, the juvenile court ordered DCFS to send notices to the tribes listing information on “[m]other’s side” of the family. Based on the limited information provided by mother, and as the juvenile court correctly concluded, the only relevant inquiry would have been about mother’s ancestry. Father expressly disavowed any Indian ancestry, and based on that information the juvenile court did not require notice to the tribes regarding father’s side of the family.
As to mother’s information, DCFS provided: mother’s first and last name, date of birth and state of birth; the maternal grandmother’s first and last name, date of birth and state of birth; the maternal great-grandmother’s first and last name and date of birth. Although the notices did not provide information about the maternal grandfather or great-grandfather, the information provided by mother indicated that her possible Cherokee heritage was through the children’s maternal grandmother, not their maternal grandfather or great-grandfather. Moreover, as noted above, the listing of Hezekiah Joseph J. as the paternal great-grandmother was likely a mistake because the notices listed the same last name for Hezekiah as the maternal great-grandmother, Jackie J. Therefore, Hezekiah Joseph J. was likely the name of the maternal great-grandfather.
See footnote 2 ante.
By providing basic information about mother, the children’s maternal grandmother, and their maternal great-grandmother, DCFS substantially complied with the ICWA notice requirements. That information about mother and her family was substantially complete and should have allowed the tribes to determine whether the children were Indian or tribal members. Although father’s family information contained more serious inaccuracies and omissions, those items were not relevant to the core inquiry—the nature and extent of the maternal grandmother’s Cherokee heritage. Under the circumstances, any errors in the notices were of no significance and therefore harmless. (In re Antoinette S. (2002) 104 Cal.App.4th 1401, 1409-1410.)
Father complains that DCFS did not make adequate inquiry into the children’s Indian heritage, arguing that the maternal great-aunt with whom the children were placed was not questioned about mother’s Indian heritage. But there is nothing in the record to suggest that the great-aunt would have provided any more or specific information concerning the maternal grandmother’s heritage. Father merely concludes that the great-aunt was available to DCFS and might have provided further details, without specifying any factual basis for that speculation. Because the record reflects that the great-aunt was reported to be the maternal grandfather’s sister, information about her parents would have been irrelevant to the maternal grandmother’s Indian heritage. Based on the nature and extent of the information about mother’s family contained in the notices, there is sufficient evidence that DCFS’s inquiry into the children’s Indian heritage was adequate.
Because we have concluded that DCFS substantially complied with the ICWA notice requirements, we affirm the juvenile court’s ruling that the ICWA―including the procedural mandates of the Act, such as the heightened burden of proof―did not apply to the juvenile court proceedings that resulted in the termination of father’s parental rights. Accordingly, we affirm the juvenile court’s orders. There was no prejudicial error in the orders finding that ICWA did not apply and terminating parental rights.
We need not determine whether there was or could be a forfeiture. (Compare In re Pedro N. (1995) 35 Cal.App.4th 183 with In re Marinna J. (2001) 90 Cal.App.4th 731.)
DISPOSITION
The juvenile court’s orders finding that the ICWA did not apply and terminating father’s parental rights are affirmed.
We concur: TURNER, P. J., KRIEGLER, J.