Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
APPEAL from the Superior Court of San Bernardino County Super. Ct. Nos. J212259 & J212260 A. Rex Victor, Judge. (Retired judge of the San Bernardino Super. Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.)
Linda Rehm, under appointment by the Court of Appeal, for Defendant and Appellant.
Ruth E. Stringer, County Counsel, and Jeffrey L. Bryson, Deputy County Counsel, for Plaintiff and Respondent.
Karen J. Dodd, under appointment by the Court of Appeal, for Minors.
OPINION
RAMIREZ, P. J.
Mother appeals from the termination of her parental rights under Welfare and Institutions Code section 366.26 as to her son F. H. III (child), who was born in 2007. Mother claims the order terminating her parental rights must be reversed and the matter remanded because notice was defective under the Indian Child Welfare Act (25 U.S.C. § 1901 et seq.) (ICWA). As a result of defective notice, mother contends she is entitled to a new section 366.26 hearing.
All further statutory references are to the Welfare and Institutions Code unless otherwise indicated.
FACTUAL AND PROCEDURAL BACKGROUND
The original dependency petition was filed by the San Bernardino Department of Children’s Services (DCS) on January 9, 2007, alleging the child came within section 300, subdivision (b), for failure to protect. The detention report alleged mother suffered from substance abuse and mother and child tested positive for amphetamines at the time of child’s birth. Mother stated she was married to R. Z. when child was conceived but was cohabiting with child’s alleged father, F. H., Jr. Mother told the social worker she did not know the whereabouts of R. Z. Child was removed, along with an older child, S. Z., who was born in 2005.
Dependency proceedings as to S. Z. were filed separately under case No. J-212260, but both cases progressed together on the same track. Although mother’s appeal references case No. J-212260, mother does not present any arguments challenging notice under ICWA as to S. Z. and does not specifically challenge the validity of the juvenile court’s termination order as to S. Z.
At the detention hearing on January 10, 2007, both mother and F. H., Jr., were present and the court ordered both children removed and temporarily placed with a maternal aunt. At that time, both mother and F. H., Jr., denied any Native American Indian heritage, both in open court and on Judicial Council Forms, form JV-130, Parental Notification of Indian Status.
On March 16, 2007, the court declared both children to be dependents of the court pursuant to section 300 and found R. Z. to be the alleged father of S. Z., but determined he could not be located despite due diligence and was not entitled to reunification services. The social worker reported mother and F. H., Jr., had separated and F. H., Jr., was questioning whether he was child’s biological father. The court found F. H., Jr., to be the alleged father of child, but ordered paternity testing. In addition, the court approved a reunification plan as to mother and F. H., Jr., and ordered them to participate.
On September 19, 2007, DCS filed supplemental dependency petitions as to both children claiming the whereabouts of mother and F. H., Jr., were unknown since February 2007; neither parent had any contact with the children since that time. R. Z., alleged father of S. Z., also could not be located. The supplemental petition further alleged the maternal aunt was not cooperating with the service plan and had compromised the care and protection of the children. The court agreed with the recommendation of DCS for removal and placement of the children in more restrictive foster care. When the children could not be located, a warrant was issued and police were sent to intervene. The children were located and removed from an uncle’s home.
On October 17, 2007, DCS filed a first amended supplemental dependency petition pursuant to section 387, seeking a more restrictive placement for the children. Both mother and F. H., Jr., appeared in court for the detention and status review hearing on October 17, 2007. Mother and F. H., Jr., both told the court they had no American Indian ancestry. The court continued detention and approved placement of the children in confidential foster care.
At the next hearing on November 9, 2007, none of the parents were present. Reunification services were terminated by the court as to mother and F. H., Jr., for failure to participate, and the court set a section 366.26 hearing to consider termination of parental rights. Based on a declaration of due diligence filed by DCS, the court also found reasonably diligent efforts were made to locate R. Z., alleged father of S. Z., but concluded these efforts had been unsuccessful. The court found ICWA did not apply.
On March 11, 2008, mother appeared for the section 366.26 hearing and produced an Indian child identification card showing S. Z. was an enrolled member in the Choctaw Nation of Oklahoma. Mother also reported the children had Apache heritage through the maternal grandmother. At this hearing, F. H., Jr., was eliminated as child’s biological father. When asked about child’s father, mother stated it could either be S. Z.’s father, R. Z., or another man identified as R. T. The hearing was therefore continued to commence notification to the identified Indian tribes and to conduct an absent parent search for R. T.
On July 16, 2008, the parties appeared for a continued status and section 366.26 hearing. Mother was present in custody. DCS submitted a due diligence report as to child’s alleged father R. T., a report by an ICWA expert, and several ICWA due diligence reports. DCS indicated the Choctaw Nation had responded and agreed with the recommendation for termination of parental rights. Mother objected to termination and requested “a lesser plan.” The court declared F. H., Jr., a nonparty, terminated the parental rights of mother and the remaining alleged fathers, and set a permanent plan review hearing. In addition, the court found that appropriate notice had been given to all identified Indian tribes.
DISCUSSION
Mother challenges the trial court’s finding on July 16, 2008, “that notice has been appropriately given to all identified Indian tribes.” She claims DCS had reason to know child could be eligible for membership in the Choctaw Nation based on the information she provided to the court during the hearing on March 11, 2008, but did not send appropriate notification to the tribe. She therefore argues we should reverse the court’s order terminating her parental rights and remand the case for proper ICWA notice and a new section 366.26 hearing.
In general, ICWA applies to any state court proceeding involving the foster care or adoptive placement of, or the termination of parental rights to, an Indian child. (25 U.S.C. §§ 1903(1), 1911(a)-(c), 1912-1921.) “Indian child” is defined as a child who is either (1) “a member of an Indian tribe” or (2) “eligible for membership in an Indian tribe and is the biological child of a member of an Indian tribe.” (25 U.S.C. § 1903(4).) “Indian tribe” is defined so as to include only federally recognized Indian tribes. (25 U.S.C. § 1903(8).)
When the social services agency has reason to know the proceeding involves an Indian child, the agency must notify the Indian child’s tribe or, if the tribe’s identity cannot be determined, it must notify the Bureau of Indian Affairs of the pending proceedings and the right to intervene. (In re Marinna J. (2001) 90 Cal.App.4th 731, 739-740, fn. 4.) “[T]he juvenile court needs only a suggestion of Indian ancestry to trigger the notice requirement.” (In re Nikki R. (2003) 106 Cal.App.4th 844, 848.) This standard is codified at section 224.3, subdivision (b), which states: “The circumstances that may provide reason to know the child is an Indian child include, but are not limited to, the following: [¶] (1) A person having an interest in the child . . . provides information suggesting the child is a member of a tribe or eligible for membership in a tribe or one or more of the child’s biological parents, grandparents, or great-grandparents are or were a member of a tribe.” (Italics added.) In addition, section 224.2, subdivision (a)(3), states: “Notice shall be sent to all tribes of which the child may be a member or eligible for membership . . . .” (Italics added.) Strict compliance with ICWA notice requirements is important, because “noncompliance can invalidate the actions of the juvenile court, including placement orders. (25 U.S.C. § 1914.)” (In re I.G. (2005) 133 Cal.App.4th 1246, 1254.) On the other hand, “[s]ubstantial compliance with the notice requirements of ICWA may be sufficient under certain circumstances.” (In re I.G., at p. 1252.)
Under the substantive provisions of ICWA, an Indian child’s tribe has “a right to intervene at any point in the proceeding.” (25 U.S.C. § 1911(c).) As a condition of any foster care placement or termination of parental rights, the court must find “that active efforts have been made to provide remedial services and rehabilitative programs designed to prevent the breakup of the Indian family and that these efforts have proved unsuccessful.” (25 U.S.C. § 1912(d).) Based at least in part on the “testimony of qualified expert witnesses,” the court must also find that “the continued custody of the child by the parent . . . is likely to result in serious emotional or physical damage to the child.” (25 U.S.C. § 1912(e), (f).) If a foster care placement is involved, this must be proven “by clear and convincing evidence.” (25 U.S.C. § 1912(e).) Finally, to terminate parental rights, this must be proven “beyond a reasonable doubt.” (25 U.S.C. § 1912(f).)
As mother contends, the record suggests child could have been eligible for membership in the Choctaw Nation. At the eleventh hour, mother did produce an Indian Child Identification Card showing child’s sister, S. Z., was an enrolled member of the Choctaw Nation through her father, R. Z. By this time, F. H., Jr., had been eliminated as child’s biological father, and mother stated it was possible child and S. Z. had the same biological father, R. Z., “because we had just separated.” Mother also stated it was possible a man identified as R. T. was child’s father. Despite mother’s statement indicating R. Z. could be child’s father, DCS concedes and the record confirms no formal notice was provided to the Choctaw Nation on child’s behalf. Rather, the Choctaw Nation was only provided with notice of the proceeding as to S. Z.
DCS did provide formal notice on child’s behalf to Apache tribes based on mother’s statement at the hearing on March 11, 2008, that she had Apache heritage through her maternal grandmother. Responses received from these tribes indicate child was not enrolled nor eligible for membership.
DCS contends notice to the Choctaw Nation on child’s behalf was unnecessary because it had already conducted a diligent search for R. Z. As part of its investigation, it had even asked the tribe for information about R. Z.’s relatives but the tribe was unable to provide any information. DCS was unable to locate R. Z. or to substantiate mother’s claim in any way. As a result, DCS really had no way to verify whether R. Z. actually could be child’s biological father, and the Choctaw Nation would have been in the same position. However, this does not eliminate the suggestion that child could be eligible for membership in the Choctaw Nation. Nor does it excuse compliance with the ICWA notice requirements.
In pertinent part, the social worker’s report dated April 16, 2008, states as follows: “On March 17, 2008 undersigned made a telephone contact with Choctaw Nation of Oklahoma, Children and Family Services. The responding social worker, Amanda Robinson, stated that [S. Z.] is a registered Indian Child. . . . [¶] Undersigned asked Ms. Robinson to provide information on the father, who registered the child. This would enable [DCS] to contact the child’s paternal relatives and assess them for possible placement. However, that was the only information received and contact with this father and any of his relatives was not possible since there was no address or names of any relatives.”
Based on the foregoing, we agree with mother that DCS should have provided formal and specific notice to the Choctaw Nation on child’s behalf. However, we disagree with mother’s contention defective notice was a prejudicial error requiring reversal, remand, and/or a new section 366.26 hearing.
We considered analogous circumstances in the case entitled In re S.B. (2005) 130 Cal.App.4th 1148 (S.B.). The social worker in S.B. learned the child had Indian ancestry for the first time at the 12-month review hearing. (Id. at pp. 1154-1155.) Although the social worker provided notice under ICWA, it was defective because the tribe was not provided with information about the dependency proceedings. (S.B., at p. 1155.) However, the tribe responded stating the child was eligible for membership, enclosed an application, and indicated the tribe would not intervene unless the child or eligible parent became members. Thereafter, the mother and the child became members, and the tribe intervened. The tribe agreed with the child’s placement in a family that wanted to adopt her. (Ibid.) The court denied the mother’s motion to invalidate prior orders and terminated the mother’s parental rights. (Id. at p. 1156.)
On appeal, the mother argued the juvenile court should have granted her motion to invalidate previous findings and orders because of violations of ICWA and because the social worker and the court failed to satisfy the duty to inquire about Indian ancestry. (S.B., supra, 130 Cal.App.4th at p. 1156.) We concluded the mother had waived her right to complain about the alleged failure to inquire and defective notice because the tribe intervened and she failed to object until “the section 366.26 hearing loomed.” (S.B., at p. 1159) We also concluded the error was harmless in any event because the child’s tribe actually participated in the proceedings, the court complied with all of the substantive provisions of ICWA once the child was a member of a tribe, and the mother was unable to show a reasonable probability of a more favorable result in the absence of the asserted errors. (S.B., at pp. 1162-1166.)
As we indicated in S.B., a parent cannot waive a tribe’s interest in receiving the required notice under ICWA or the right of a tribe or an Indian child to the benefits of the substantive provisions of ICWA. (S.B., supra, 130 Cal.App.4th at pp. 1159-1160.) However, a parent can forfeit any right he or she might have to invalidate a court’s prior actions because of an ICWA notice issue by failing to object or by failing to promptly advise the court of an irregularity in the proceedings. (S.B., at p. 1159.) This is particularly the case when the tribe actually participated in the proceedings and did not seek to invalidate the court’s prior actions. (Id. at p. 1162.)
Here, mother not only failed to object, she appears to have made false representations to the court. On January 12, 2007, at the time the children were initially detained, she signed a parental notification of Indian status form stating “I have no Indian ancestry as far as I know.” During a hearing on October 17, 2007, she told the court she had no American Indian ancestry. With no explanation, she then represented during the hearing on March 11, 2008, that the children had Apache heritage through the maternal grandmother.
Without explanation, she also belatedly advised the court when the section 366.26 hearing loomed, that her daughter S. Z. was an enrolled member of the Choctaw Nation and produced S. Z.’s Indian child identification card. She then told the court it was possible child had the same father as S. Z.
In this regard, we stated as follows in S.B.: “While the social worker and the trial court have a duty to inquire into the child’s Indian ancestry, a parent has superior access to this information. Moreover, a parent has a right to counsel, including appointed counsel, if necessary (Welf. & Inst. Code, § 317, subds. (a), (b)), who has not only the ability but also the duty to protect the parent’s rights under the ICWA. As the trial court in [S.B.] observed, if a parent has Indian ancestry, ‘I would think as officers [of] the court, counsel for parents would have [a] similar interest [in] bring[ing] that information forward at the earliest possible time.” (S.B., supra, 130 Cal.App.4th at p. 1160.) Because the record shows mother was aware of child’s potential eligibility for membership in the Choctaw Nation but failed to advise the court until the section 366.26 hearing loomed, and because the Choctaw Nation actually intervened in the related proceeding as to S. Z., we conclude mother forfeited any separate and individual right she may have had to invalidate the court’s actions based on defective notice under ICWA.
“An ICWA notice violation may be held harmless when the child’s tribe has actually participated in the proceedings [citation] or 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.” (S.B., supra, 130 Cal.App.4th at p. 1162.) On the record before us, we further conclude, separately and alternatively, that the claimed error was entirely harmless. Mother has not shown how specific notice to the Choctaw Nation on child’s behalf could have established child was either a member or eligible for membership in the tribe. For the reasons outlined more fully above, the record strongly suggests the Choctaw Nation would have had no basis for concluding child was a member or eligible for membership in the tribe. Although the record shows child’s sister, S. Z., was a registered member of the tribe through her father, there was no way to verify whether S. Z.’s father, R. Z., was also child’s biological father. As a result, there is no reason to conclude the juvenile court would have been required to apply the substantive provisions of ICWA at any point in the proceedings pertaining to child.
Regardless, the record indicates the trial court did apply the substantive provisions of ICWA on July 16, 2008, when it terminated mother’s parental rights, placed the children in foster care, and set a hearing to determine a permanent plan for both children. In the order terminating mother’s rights, the court made the requisite “ICWA findings” that there was proof beyond a reasonable doubt that mother’s continued custody was likely to result in serious emotional and physical damage to the children. The court further found “[a]ctive efforts have been made to provide remedial services and rehabilitative programs designed to prevent the breakup of the Indian family, and these efforts were unsuccessful.” This finding was based, in part, on an expert’s report. Although the report was prepared as to child’s sister, S. Z., the expert acknowledged child’s potential tribal eligibility. The expert’s report and recommendation is based on the substantive provisions of ICWA and is supportive of the termination of mother’s rights, the placement of the children in foster care, and the setting of a hearing to determine a permanent plan. Mother cites nothing to even suggest the expert’s recommendation would have been any different if DCS had provided the Choctaw Nation with specific notice on child’s behalf or even if child’s eligibility status could have been definitively determined in favor of tribal membership.
Finally, the Choctaw Nation did intervene in the related proceedings as to child’s sister, S. Z. The tribe’s representative requested copies of all filings in the case, did not seek to invalidate any prior orders, and stated “we are in agreement with [DCS] in recommending termination of parental rights.” Again, mother cites no basis for concluding the tribe would have made a different recommendation even if it had been provided with specific notice on child’s behalf or even if child’s eligibility status could have been definitively determined in favor of membership in the Choctaw Nation. We therefore conclude mother is not entitled to a reversal of the order terminating her parental rights.
We note for the record that children’s counsel on appeal submitted a letter brief on November 24, 2008, stating in pertinent part as follows: “[A]ppellate counsel joins respondent, relying on the same facts and legal authority, and respectfully requests that this Court affirm the judgment. [¶] The position of minor’s counsel . . . is based on [a] review of the entire record on appeal and the parties’ briefs, communication with and visitation with the [children] in the home of prospective adoptive parents with whom they were placed on February 5, 2008. The information subsequently obtained is consistent with the record on which the juvenile court based its judgment.”
DISPOSITION
The order appealed from is affirmed.
We concur:McKINSTER, J., MILLER, J.