Opinion
NOT TO BE PUBLISHED
Santa Cruz County Super. Ct. No. DP001636
Premo, J.
Jacob O., Sr., appeals from jurisdictional and dispositional orders made regarding his children Jacob O., Jr. (born 1996), J.O. (born 1997), Rachel O. (born 2001), Diana O. (born 2003), and Miriam O. (born 2004). Appellant contends that (1) the notice given pursuant to the Indian Child Welfare Act (ICWA) (25 U.S.C. § 1901 et seq.) was deficient, and (2) the juvenile court failed to make an express finding that the ICWA did not apply. We affirm the orders.
legal background
As has now been reiterated in numerous published decisions of the appellate courts, including this court’s opinion In re Samuel P. (2002) 99 Cal.App.4th 1259, proper and effective ICWA notice is critically important in dependency cases. Social service agencies and courts are responsible for ensuring that the law is rigorously followed. (Id. at p. 1264.)
“Under the ICWA, where a state court ‘knows or has reason to know’ that an Indian child is involved, statutorily prescribed notice must be given to any tribe with which the child has, or is eligible to have, an affiliation.” (In re Samuel P., supra, 99 Cal.App.4th at p. 1264.) Because the determination of a child’s Indian status is a matter for the tribe, “the juvenile court needs only a suggestion of Indian ancestry to trigger the notice requirement. [Citations.] Both the court and the county welfare department have an affirmative duty to inquire whether a dependent child is or may be an Indian child.” (In re Nikki R. (2003) 106 Cal.App.4th 844, 848.)
It is now widely accepted that in order “[t]o satisfy the notice provisions of the [ICWA] and to provide a proper record for the juvenile court and appellate courts, [the social services agency] should follow a two-step procedure. First, it should identify any possible tribal affiliations and send proper notice to those entities, return receipt requested. [Citation.] Second, [the social services agency] should provide to the juvenile court a copy of the notice sent and the return receipt, as well as any correspondence received from the Indian entity relevant to the minor’s status. If the identity or location of the tribe cannot be determined, the same procedure should be used with respect to the notice to BIA.” (In re Marinna J. (2001) 90 Cal.App.4th 731, 739-740, fn. 4; see also In re Karla C. (2003) 113 Cal.App.4th 166, 175-176, 178.)
The notice required by the ICWA must contain enough information to provide meaningful notice. (In re Karla C., supra, 113 Cal.App.4th at p. 175.) The federal regulations require the ICWA notice to include, if known, “(1) the name, birthplace, and birth date of the Indian child; (2) the name of the tribe in which the Indian child is enrolled or may be eligible for enrollment; (3) names and addresses of the child’s parents, grandparents, great-grandparents and other identifying information; and (4) a copy of the dependency petition.” California courts enforce these requirements. (Ibid.) In most cases failure to provide proper notice is prejudicial error. (See In re Samuel P., supra, 99 Cal.App.4th at p. 1267.) That is because it is impossible to determine whether or not there is a tribe with an interest in the proceedings unless there has been a finding that adequate notice was given. That determination is crucial because notice is necessary to permit the tribe to exercise its rights under the statutory scheme and it is only the tribe that can make a conclusive determination of whether the child is or is not an Indian child. (Cal. Rules of Court, rule 5.664(g)(1).) “Specifically, the tribe has the right to obtain jurisdiction over the proceedings by transfer to the tribal court or may intervene in the state court proceedings. Without notice, these important rights granted by [the ICWA] would become meaningless.” (In re Kahlen W. (1991) 233 Cal.App.3d 1414, 1421.) But not every faulty notice is prejudicial. (In re Junious M. (1983) 144 Cal.App.3d 786, 794, fn. 8.)
In response to the notice requirements, the California Department of Social Services and the Health and Human Services Agency have generated the notice forms used by the social worker here: JV-135, entitled “Notice of Involuntary Child Custody Proceedings for an Indian Child.”
The juvenile court must determine whether proper notice was given under the ICWA and whether the ICWA applies to the proceedings. (In re Asia L. (2003) 107 Cal.App.4th 498, 506.) We review the trial court’s findings for substantial evidence. (See In re Karla C., supra, 113 Cal.App.4th at pp. 178-179.)
FACTUAL BACKGROUND
Respondent Santa Cruz County Department of Social Services detained the children and filed the dependency petitions on the grounds of failure to protect (Welf. & Inst. Code, § 300, subd. (b)) and serious emotional damage (id., subd. (c)). The juvenile court ordered out of home placement, and the children were placed in foster care. On January 26, 2007, notice of a jurisdictional hearing set for February 23 was served on the children’s mother and appellant. On February 23, the juvenile court continued the hearing until March 1. On March 1, it continued the matter until March 8.
The social worker’s report for the jurisdictional hearing recounts episodes of domestic violence between the children’s mother and appellant as well as the mother’s arrest for one such incident and appellant’s inability to care for the children because of substance abuse. As to the ICWA, it states: “The Indian Child Welfare Act may apply. [Appellant] was asked if they had Indian Heritage, and he stated that the children’s paternal grandmother might have Cherokee Heritage. To clarify . . . ICWA status, the Senior Social Worker . . . Notified the Bureau of Indian Affairs and the Cherokee Tribes.” The ICWA attachment to the report details: “[Appellant] indicated that he may have Cherokee ancestry. The Agency contacted the paternal grandmother, Phyllis [H], to obtain additional family history information. Ms. [H] spoke with her mother, the paternal great grandmother, to obtain information. Ms. [H] states that they do not know which tribe the family may be affiliated with. She also stated that any affiliation they have is very small. Ms. [H] does not know why the father indicated that they may have Cherokee ancestry. [¶] The Agency provided notice to the BIA, two parents, and three Cherokee tribes. (see attached) Please note that the hearing date provided in the notice was 02/22/2007. The Jurisdiction hearing was then continued to 03/08/2007. No tribal representatives made appearances on the 2/22/2007 date. The tribes and the BIA all received timely notice. (see attached) The parents[’] mail receipts were not returned. [¶] In addition, the Agency received responses from the BIA, the United Keetowah Band of Cherokee Indians and the Cherokee Nation, indicating that the minors are not members and are not eligible for membership in their tribe. (see attached) [¶] Therefore, the Agency respectfully requests that the Court find that: [¶] 1. ICWA notice has been given in a timely manner as required by [California Rules of Court, rule] 5.664(h).” The attached JV-135 form identified the children and their birthdates, gave a February 22 date for a jurisdictional hearing, identified the mother and appellant with dates of birth, identified the paternal grandmother as “Phyliss [H],” named the paternal great grandmother with a date of birth, and named the paternal great great-grandmother and paternal great great-grandfather. Attached letters from the BIA advised that tribes should be noticed. An attached letter from the Keetoowah Band of Cherokee Indians in Oklahoma stated that “There is no evidence that the above referenced child(ren) is/are descendants from anyone on the Keetoowah Roll.” An attached letter from the Cherokee Nation stated that “the above named child/children cannot be traced in our tribal records through the child/children and the adult relative(s) listed above. . . . [¶] . . . This determination is based on the above listed information exactly as provided by you. Any incorrect or omitted family documentation could invalidate this determination.” One of the adult relatives listed was the paternal grandmother who was named as, “Phyliss [H.].”
At the hearing on March 8, 2007, the juvenile court found that proper ICWA notice had been given. It then set a contested hearing for April 3. The hearing occurred on April 5 but was reset to May 17. After the hearing, the juvenile court found the allegations of the petition to be true and placed the children with their mother.
discussion
Appellant essentially contends that the juvenile court’s finding that proper ICWA notice was given is not supported by substantial evidence because the ICWA notices were deficient. He claims that the notices (1) gave an erroneous date for the jurisdictional hearing (February 22 instead of February 23), (2) misspelled the paternal grandmother’s name (“Phyliss” instead of “Phyllis”), and (3) lack details about the grandparents.
Respondent counters by urging that the notices were sufficient or at least in substantial compliance with the notice requirements. Alternatively, it argues that any noticing error was harmless because appellant has failed to demonstrate that another result would have occurred in the absence of the supposed errors given that the dispositional order was placement with the children’s mother.
We agree with respondent’s harmless-error point. Appellant simply cannot demonstrate prejudice resulting from the particular order on appeal. We therefore decline to analyze the notice issue in this case.
The ICWA applies to all dependency proceedings regardless of the placement recommendation because, until the court dismisses the petition, the child could be placed in a temporary foster home. (In re Jennifer A. (2002) 103 Cal.App.4th 692, 699-701.) Thus, even where the child is placed with a natural parent, the social services department is bound to comply with the ICWA notice requirements so long as the juvenile court has retained jurisdiction of the case. But placement with a natural parent after a jurisdictional, dispositional hearing does not involve foster care (or termination of parental rights). Thus, even if a tribe had been located and had chosen to intervene, no different result could have flowed from the exercise of that right. This follows because Welfare and Institutions Code section 361.2, requires the juvenile court to place a child with a previously noncustodial parent who requests custody so long as the placement would not be “detrimental to the safety, protection, or physical or emotional well-being of the child.” (Welf. & Inst. Code, § 361.2, subd. (a).) There is nothing in the ICWA that affects this state law requirement. Therefore, the juvenile court was bound to place the children in this case with their mother unless that placement was shown to be detrimental to the children. It cannot seriously be contended that a tribe could have made a showing of detriment here. Nor could it be argued that the ICWA grants a tribe rights that are superior to those of a child’s biological parent. To the contrary, the ICWA acknowledges that the parents’ interests are paramount. (See 25 U.S.C. § 1911(b).) Under these circumstances nothing would be accomplished by reversal. (Cf. In re Veronica G. (2007) 2007 DJDAR 17442, 17445 [reversal for failure to comply with the ICWA notice requirements is only appropriate where parental rights have been terminated].)
Because it is clear that the outcome of the jurisdictional and dispositional hearing would have been the same regardless of whether the children are Indian children any violation of the ICWA notice requirements was harmless. (Cal. Const., art. VI, § 13.) We express no opinion whether there was proper notice here. But we note that, in the event the children’s placement fails, compliance with the ICWA notice requirements may become an issue that affects subsequent orders.
Appellant also argues that the juvenile court erred because it did not make an express finding that the ICWA did not apply to the case.
Courts have disagreed as to whether a court is required to make an explicit finding as to whether the ICWA applies. In the case of In re Levi U. (2000) 78 Cal.App.4th 191, 199, the court ruled that an explicit finding was not required because it was apparent in that case that the juvenile court had found it inapplicable. In the cases of In re Jennifer A., supra, 103 Cal.App.4th at page 705, and In re Antoinette S. (2002) 104 Cal.App.4th 1401, 1413, the courts suggested that the juvenile court should make an explicit finding but noted that in the case of In re Levi U., supra, the juvenile court had correctly made an implicit finding the ICWA was inapplicable and “[t]he point of the matter is the court must decide, one way or the other, whether the ICWA applies, so it can proceed in compliance therewith when appropriate.” (In re Jennifer A., supra, 103 Cal.App.4th at p. 706, fn. 5; In re Antoinette S., supra, 104 Cal.App.4th at p. 1413.)
Here the social worker’s report specifically discussed the ICWA issue and included documentation of the notices sent and the negative responses received from both the BIA and the tribes. The juvenile court expressly found that the requisite notice had been given. Thus, the record reflects an implicit finding by the juvenile court that the ICWA did not apply.
As to the underlying issue whether the juvenile court’s implicit finding was erroneous because it was based on an erroneous finding that proper notice had been given, the above harmless-error analysis likewise applies. Appellant cannot demonstrate prejudice given that the order appealed from placed the children with their mother.
Disposition
The jurisdictional and dispositional orders are affirmed.
WE CONCUR: Rushing, P.J., Elia, J.