Opinion
NOT TO BE PUBLISHED
Alameda County Super. Ct. Nos. HJ08011291, HJ08011292.
Sepulveda, J.
The juvenile court terminated the parental rights of appellants Debbie G. (mother) and G.B. (father) as to their two-year-old twin sons. They argue on appeal that the orders should be reversed because the juvenile court did not comply with the Indian Child Welfare Act of 1979 (25 U.S.C.A. § 1901 et seq.) (ICWA). We disagree and affirm.
I.
Factual and Procedural Background
Because the sole issue in this appeal is ICWA compliance, the factual and procedural background is abbreviated.
On November 3, 2008, juvenile dependency petitions were filed pursuant to Welfare and Institutions Code section 300, subdivisions (b) (failure to protect) and (j) (abuse of sibling), alleging that mother had a drug abuse problem and other issues that interfered with her ability to care for her then seven-month-old twin boys. The juvenile court found true various allegations under section 300, subdivision (b), after mother and father (the presumed father of the minors) submitted to the allegations at a jurisdictional hearing. The minors were thereafter adjudged dependent children and placed outside the home, and the juvenile court ordered reunification services for both parents.
All statutory references are to the Welfare and Institutions Code unless otherwise specified.
The petitions were filed in San Francisco County. The cases were shortly thereafter transferred to Alameda County, then transferred back to San Francisco after the juvenile court concluded that the matter had been transferred prematurely, then transferred back to Alameda County after the juvenile court in San Francisco adjudged the minors dependent children.
On November 5, 2008, father filed with the juvenile court a parental notification of Indian status form (ICWA-020). A box is checked next to the statement, “I have no Indian ancestry as far as I know, ” and father signed the form. An order filed in the juvenile court on November 6 states that the court found that ICWA did not apply to this action, a finding apparently based on father’s form.
In a report dated February 9, 2009, respondent Alameda County Social Services Agency (the Agency) reported that ICWA may apply, because mother had told the social worker that “she may be of Indian de[s]cent, but she does not know the tribal affiliation.” Mother stated that she planned to contact relatives in Arizona to obtain information about her ancestry. (The record does not reveal any additional information provided by mother.) As for father, he told the social worker that the paternal grandmother “may be affiliated with the Yika Tribe in Texas.”
Also on February 9, father filed another parental notification of Indian status form. This time, father checked a box indicating that he “may have Indian ancestry” from the “Sioux” tribe. Apparently no immediate action was taken regarding the possible tribal affiliation, as subsequent reports filed over the following year (all prepared by the same Agency social worker) stated that ICWA did not apply.
The minors were continued as dependent children following hearings on May 21, July 30, October 15, November 3, and December 3, 2009, and on January 5, 2010. Following a contested 12-month review hearing, the juvenile court on January 25, 2010, terminated reunification services for both parents, referred the matter to mediation, and also scheduled a selection and implementation hearing pursuant to section 366.26 (.26 hearing). The minors were residing with a paternal aunt, who planned to adopt the twins.
On May 12, 2010, the Agency filed with the juvenile court a “366.26 WIC Report, ” which was prepared by a different social worker from the one who had prepared several previous reports. The worker reported that the Agency planned to request a continuance of the.26 hearing so that it could provide notice of the proceedings pursuant to ICWA. The social worker wrote that both parents had reported possible connections to Indian tribes in February 2009, but the worker could find no evidence that any notices had been sent or that the juvenile court had made any ICWA finding after the parents provided information.
County counsel formally requested a continuance of the.26 hearing on May 24, 2010, so that the Agency could comply with ICWA, and the court granted the request.
Before sending ICWA notice, the social worker researched tribal lists but found no “Yika” tribe, which was previously identified by father as a tribe with which he was possibly affiliated. The worker contacted father’s sister (the minors’ caregiver), who provided additional family information and stated that the relevant tribe might be Sioux.
The Agency provided several tribes with information about the parents and their possible tribal affiliation, as well as the minors’ birth certificates. The Agency filed with the juvenile court evidence of notice to those tribes, as well as any responses received, as set forth below.
The Assiniboine/Sioux-Fort Peck Reservation in Montana received notice as to both minors’ cases; it received notice of one minor’s case on June 18, 2010, and it is unclear when notice was received of the other minor’s case. The tribe sent a form to the Agency indicating that both minors were ineligible for enrollment in the tribe.
Because the Agency apparently sent separate notices to the various tribes regarding each minor, some of the tribes received notices on different days.
The Cheyenne River Sioux Tribe in South Dakota received notice of the proceedings in June 2010. The tribe wrote to the Agency stating that the minors were ineligible for enrollment in the tribe.
The stamp date on the return receipt filed in one minor’s case appears to read June 16, but the handwritten notation on the receipt filed in the other minor’s case states that notice was received on June 21.
The Lower Brule Sioux Tribal Council in South Dakota received notice on June 18 and 24, 2010. A representative wrote to the Agency stating that the tribe had searched its records regarding the minors but found “no evidence of enrollment eligibility.”
The Lower Sioux Indian Community of Minnesota received notice on June 18, 2010. A representative wrote to the Agency stating that the minors and their parents were ineligible for enrollment in the tribe, and that the tribe therefore would have no jurisdiction in the proceedings.
The Prairie Island Indian Community in Minnesota received notice on June 18, 2010. A representative wrote letters to the Agency stating that the minors were not enrolled or eligible for enrollment.
The Spirit Lake Tribe in North Dakota received notice on June 21, 2010. A representative wrote a letter to the Agency stating that the minors were not eligible for enrollment with the tribe.
The Yankton Sioux Tribe in South Dakota received notice on June 21, 2010. The tribe wrote stating that one of the minors was not eligible for enrollment in the tribe and that the tribe therefore could not intervene in the proceeding; apparently no response was received specifically addressing the other twin.
The Agency provided notice to five other Sioux tribes and received responses indicating that the minors were not members of the tribes and were not eligible for enrollment in the tribes. The Agency also provided notice to the United States Secretary of the Interior and the Sacramento office of the Bureau of Indian Affairs (BIA). No claim of error is raised as to the notices to these entities or the responses received.
The Shakopee Mdewakanton Sioux Community in Minnesota and the Sisseton-Wahpeton Oyate of the Lake Traverse Reservation in South Dakota received notice on June 18, 2010. The Standing Rock Sioux Tribe in North Dakota and the Oglala Sioux Tribe in South Dakota received notice on June 21, 2010. The Agency apparently received no response from these four tribes before the.26 hearing.
At the beginning of the.26 hearing on August 16, 2010, the juvenile court stated, “We are here on a two-six hearing that was continued from May 24th to complete [ICWA] notices. I see 90 pages of documentation as to those notices. I’m assuming that we are ready to proceed.” County counsel confirmed that he was ready to proceed, and neither mother’s counsel nor father’s counsel objected.
The social worker, mother, and father testified regarding the relationships between the minors and their parents, as well as the proposed permanent plan for the minors. At the conclusion of the hearing, the juvenile court found that the minors were likely to be adopted, and terminated the parental rights of both mother and father as to both minors. The court also found that ICWA did not apply, again without any comment from the parents’ attorneys.
On August 23, 2010, the Agency filed with the juvenile court (1) a response from the Sisseton-Wahpeton Oyate of the Lake Traverse Reservation in South Dakota indicating that the minors were not enrolled in the tribe or eligible for enrollment, and (2) letters from the Standing Rock Sioux Tribe in North Dakota indicating that the minors were not eligible for membership in the tribe. On April 12, 2011, the Agency filed in this court a request that we take judicial notice of a filing in the juvenile court showing that the Shakopee Mdewakanton Sioux Community responded to the Agency’s notice and stated that the minors were not eligible for membership in the tribe, and that the tribe therefore declined to take any action in the proceedings. We hereby grant the Agency’s unopposed request for judicial notice as to this record of the juvenile court. (Evid. Code, §§ 452, subd. (d), 459, subd. (a); Alicia B. v. Superior Court (2004) 116 Cal.App.4th 856, 866-867 [appellate court may augment record with evidence of party’s compliance with ICWA]; In re Antoinette S. (2002) 104 Cal.App.4th 1401, 1412 [“ ‘just and final resolution’ ” for minor compels court to accept new evidence].) This means that the record on appeal now includes responses from all but one noticed tribe (the Oglala Sioux Tribe in South Dakota).
The Agency also has requested that this court take judicial notice of the constitutions of three tribes to which the Agency directed ICWA notice, so that we may determine whether the minors were eligible for membership under the tribes’ governing rules. We decline to take judicial notice of these documents. (In re Jonathan D. (2001) 92 Cal.App.4th 105, 110 [determination of whether minor is Indian child “made exclusively by the tribe”].)
Mother and father timely appealed from the orders terminating parental rights.
Mother’s and father’s appeals were assigned separate case numbers in this court (Nos. A129525, A129661). On October 7, 2010, we ordered that all documents on file in case A129661 be stricken and refiled in this case, and that all further proceedings be conducted in this case. Father joins in mother’s opening and reply briefs. (Cal. Rules of Court, rule 8.200(a)(5); see also In re Jonathon S. (2005) 129 Cal.App.4th 334, 338-339 [both parents have standing to raise ICWA issues, even if one is not Indian].)
II.
Discussion
Mother and father argue that the juvenile court committed reversible error by failing to comply with ICWA. ICWA requires that notice be sent to the parents, Indian custodian, and Indian tribe by registered mail, return receipt requested, of any child custody proceedings and of the rights afforded to each by ICWA. (25 U.S.C.A. § 1912(a).) The statute provides that notice must be provided to a tribe “where the court knows or has reason to know that an Indian child is involved.” (25 U.S.C.A. § 1912(a).) Section 224.2, subdivision (b) likewise requires that notice shall be given “whenever it is known or there is reason to know that an Indian child is involved.” (See also Cal. Rules of Court, rule 5.481(b)(1).)
We stress that neither mother nor father claims that the Agency omitted any relevant information in the notices directed to the various Indian tribes, that the Agency should have provided notice to additional tribes, or that the Agency failed to file sufficient information with the juvenile court to demonstrate its efforts to comply with ICWA. Instead, they raise two issues regarding the procedure used in determining that ICWA did not apply to the proceedings.
The Agency sent notice to the Oglala Sioux Tribe and Shakopee Mdewakanton Sioux Community at the addresses on the list of designated tribal agents for service of notice, published by the BIA. (75 Fed.Reg. 28104, 28115-28116 (May 19, 2010).) Mother states that it is “worthy of note” that the Agency did not include on the notices the names of the ICWA representatives listed in the Federal Register. Because the Agency demonstrated that notices were actually received by both tribes (in the form of signed return receipts from both tribes and a letter from the Shakopee Mdewakanton Sioux Community stating that it declined to intervene in the proceedings), the Agency demonstrated substantial compliance with the notice requirements of ICWA. The omission of the tribal representatives’ names therefore was harmless error. (In re Cheyanne F. (2008) 164 Cal.App.4th 571, 576; In re Kahlen W. (1991) 233 Cal.App.3d 1414, 1422 [ICWA requires actual notice to tribe].)
A. Content of Responses from Tribes.
Mother and father argue that the juvenile court erred in concluding that ICWA did not apply, because responses from several tribes were not “determinative” of the minors’ membership status. Section 224.3, subdivision (e)(1) provides: “A determination by an Indian tribe that a child is or is not a member of or eligible for membership in that tribe, or testimony attesting to that status by a person authorized by the tribe to provide that determination, shall be conclusive. Information that the child is not enrolled or eligible for enrollment in the tribe is not determinative of the child’s membership status unless the tribe also confirms in writing that enrollment is a prerequisite for membership under tribal law or custom.”
“This provision restates the commentary in the federal guidelines, which recognizes that ‘[e]nrollment is not always required in order to be a member of a tribe [although it] is the common evidentiary means of establishing Indian status....’ [Citation.] The provision also clarifies the evidentiary requirements for determining whether a minor is an Indian child by specifying that a mere statement of enrollment or eligibility for enrollment is inadequate to demonstrate the minor is an Indian child. However, neither the statute nor the relevant rule of court, may impose any duty upon the social worker to elicit a particular response from a noticed tribe. [Citations.]” (In re William K. (2008) 161 Cal.App.4th 1, 12, italics added.)
Father and mother argue that the responses from five tribes (the Yankton Sioux Tribe, the Prairie Island Indian Community, the Spirit Lake Tribe, the Assiniboine/Sioux-Fort Peck Reservation, and the Lower Brule Sioux Tribe) only state that the minors are not eligible for enrollment in the tribes, but were not determinative of whether ICWA applied. Mother (joined by father) additionally argues that the responses from the Cheyenne River Sioux Tribe, the Lower Sioux Indian Community, the Sisseton-Wahpeton Oyate of the Lake Traverse Reservation, and the Standing Rock Sioux Tribe were not determinative of the minors’ ICWA status. No objection to the evidentiary basis for the court’s ICWA ruling was made below, and any claim of failure to comply with the terms of section 224.3, subdivision (e)(1) therefore has been forfeited. (In re William K., supra, 161 Cal.App.4th at p. 12.) This is especially true in light of the fact that there is no evidence whatsoever that contradicts the juvenile court’s finding that ICWA did not apply in this case, and the parents’ arguments to the contrary are not persuasive. For example, mother acknowledges that the Sisseton-Wahpeton Oyate of the Lake Traverse Reservation wrote to the Agency that the minors were not enrolled or eligible for enrollment in the tribe, and that the tribe therefore declined to intervene. Mother nonetheless argues that the fact the tribe declined to intervene is not determinative of the minors’ status as Indian children, because ICWA “makes clear that, if the children come within ICWA’s definition of an Indian child, then they are entitled to be afforded the Act’s protections whether or not a tribe decides to intervene.”
Neither parent identifies what additional steps the court or the social worker should have (or could have) taken to ascertain that ICWA did not apply here after it directed notice to tribes and received letters from all but one of them indicating that the minors were ineligible for membership. This case is therefore distinguishable from D.B. v. Superior Court (2009) 171 Cal.App.4th 197, upon which father relies. In D.B., the social services agency conceded that the case should be remanded so that it could send out ICWA notices with information that the father provided to the social services agency but which had not been provided to the relevant Indian tribes. (Id. at pp. 207-208.) Here, by contrast, the Agency did provide adequate notice to all tribes with which father possibly could be affiliated. We reject the parents’ arguments that responses from some of the tribes were not “determinative” of the minors’ Indian status.
B. Timing of.26 Hearing.
The parents also argue that the juvenile court was obligated to wait 60 days after ICWA notice was received by the tribes before finding that ICWA did not apply, and that its failure to do so was reversible error. Section 224.3, subdivision (e)(3) provides: “If proper and adequate notice has been provided pursuant to Section 224.2, and neither a tribe nor the Bureau of Indian Affairs has provided a determinative response within 60 days after receiving that notice, the court may determine that the Indian Child Welfare Act (25 U.S.C. Sec. 1901 et seq.) does not apply to the proceedings, provided that the court shall reverse its determination of the inapplicability of the Indian Child Welfare Act and apply the act prospectively if a tribe or the Bureau of Indian Affairs subsequently confirms that the child is an Indian child.” (See also Cal. Rules of Court, rule 5.482(d)(1); In re Justin S. (2007) 150 Cal.App.4th 1426, 1437.) In other words, the juvenile court must wait to make a determination regarding the applicability of ICWA until either (1) a tribe has provided a determinative response, or (2) 60 days have passed from receipt of notice without the social services agency receiving a response, whichever date is later.
As set forth above, at the time of the.26 hearing, the Agency had received responses from all except four noticed tribes (the Oglala Sioux Tribe, the Shakopee Mdewakanton Sioux Community, the Sisseton-Wahpeton Oyate of the Lake Traverse Reservation, and the Standing Rock Sioux) indicating that the minors were not enrolled and were not eligible for enrollment. All of these four tribes had received notice by June 21, 2010. Under section 224.3, subdivision (e)(3), the earliest the juvenile court should have made a determination regarding the applicability of ICWA was 60 days later, on August 20, 2010 (a Friday). Instead, the court made its determination four days before the expiration of the notice period, on August 16 (a Monday). In other words, although mother and father raised no objection below to the timing of the juvenile court’s finding, they would have this court reverse the juvenile court’s orders and delay permanency for their two young sons because the juvenile court made a finding less than a week before it was permitted to do so.
We emphasize that although the juvenile court’s ruling on the applicability of ICWA may have been premature, the court was authorized to terminate parental rights at the August 16 hearing. Under ICWA, no proceeding to terminate parental rights may be had until at least 10 days after tribes receive notice. (25 U.S.C. § 1912(a); § 224.2, subd. (d); Cal. Rules of Court, rule 5.482(a)(1); In re Francisco W. (2006) 139 Cal.App.4th 695, 703.) There is no dispute here that the juvenile court acted more than 10 days after all tribes had received notice, so there is no question that the court had the authority to terminate parental rights. The only question is whether the court also was authorized to determine at the hearing that ICWA did not apply.
Even where a juvenile court makes an ICWA finding before the expiration of the 60-day notice period set forth section 224.3, subdivision (e)(3), a court will not reverse where upon expiration of the 60-day period (which occurred here before the parents filed their notices of appeal) no tribe has indicated any intention to take an interest in the minors. (In re N.M. (2008) 161 Cal.App.4th 253, 267.) The expiration of the 60-day notice period has long since passed, the record contains evidence that all but one tribe has responded to notice, and the Agency represents that no tribe has taken any action to intervene in the proceedings. The parents do not argue otherwise, or suggest that any tribe has given any indication that the minors are Indian children as defined by ICWA. (In re Suzanna L. (2002) 104 Cal.App.4th 223, 231 [ICWA does not require juvenile court to “continue a case indefinitely while awaiting a response from a tribe”]; Cal. Rules of Court, rule 5.482(d)(3) [court not required to delay proceedings until response to notice is received].) Making an ICWA determination before the expiration of the 60-day notice period therefore was harmless error. (In re Antoinette S., supra, 104 Cal.App.4th at pp. 1411-1413 [harmless error to terminate parental rights before expiration of 10-day notice window of 25 U.S.C.A. § 1912(a); error was not jurisdictional]; see also In re Veronica G. (2007) 157 Cal.App.4th 179, 187 [ICWA notice errors are not “jurisdictional”].)
No purpose would be served in reversing under these circumstances. Although making an ICWA determination before the expiration of the 60-day notice period might “in the abstract” compel a limited reversal of a termination order, there is currently “no indication the [juvenile] court had any basis upon which to find ICWA applies or to conclude that the minors are Indian children.” (In re N.M., supra, 161 Cal.App.4th at p. 267.) “Reversal or remand here would exalt form over substance because it is apparent that [the parents] cannot provide any more information.” (In re Antoinette S., supra, 104 Cal.App.4th at p. 1413.) The timing violation was harmless under the standard of Chapman v. California (1967) 386 U.S. 18 or People v. Watson (1956) 46 Cal.2d 818, and we decline to reverse under these circumstances. (Antoinette S. at p. 1413.) In light of this conclusion, we need not consider the Agency’s alternative arguments that the duty to provide notice under ICWA was not triggered in this case, and that the parents forfeited their objection regarding the notice period by failing to object below.
III.
Disposition
The Agency’s request for judicial notice is granted in part (as to Exhibit A) and denied in part (as to Exhibits B, C, and D). The juvenile court’s orders are affirmed.
We concur: Reardon, Acting P.J., Rivera, J.