Opinion
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Los Angeles County No. CK62142, Jacqueline Lewis, Juvenile Court Referee.
Niccol Kording, under appointment by the Court of Appeal, for Defendant and Appellant.
Raymond G. Fortner, Jr., County Counsel, James M. Owens, Assistant County Counsel, and Jacklyn K. Louie, Senior Deputy County Counsel, for Plaintiff and Respondent.
WOODS, J.
J.C. (Mother) appeals from the juvenile dependency court’s order terminating her parental rights to her son J.G. On appeal, Mother contends the court erred in reinstating the order terminating her parental rights because the Department of Children and Family Services (DCFS) failed to provide adequate notice as required by the Indian Child Welfare Act (ICWA) (25 U.S.C. § 1901 et seq.). As we shall explain, the notice to the Indian tribes complied with the minimum notice requirements under federal law, but was legally inadequate under the heightened notice standards under state law. Nevertheless, Mother has failed to demonstrate the error under state law resulted in prejudice. Accordingly, we affirm.
FACTUAL AND PROCEDURAL BACKGROUND
The facts and proceedings described in sections 1-3 of the Factual and Procedural Background are described in prior opinions in this matter: In re Jose G. (B191196) filed December 6, 2006; and (B198350) filed February 20, 2008.
1. Background of the dependency proceeding
The minor became a dependent of the juvenile court in 2006 when he was an infant after allegations of severe physical abuse under Welfare and Institutions Code section 300 were sustained against his parents. The court denied reunification services to the parents concluding that services were not in the best interest of the child, “who was so severely battered in his short life.” The court proceeded to set the matter for a selection and implementation hearing.
All statutory references are to the Welfare and Institutions Code unless otherwise indicated.
Mother filed a petition for a writ of mandate seeking relief from the juvenile court’s order setting the section 366.26 hearing. In her petition she argued there was not sufficient evidence to support the court’s jurisdictional finding J.G. suffered severe physical abuse inflicted either by a parent; (2) even if the jurisdictional finding was properly made, the court should have ordered reunification services; and (3) the court abused its discretion in failing to order an assessment of J.G.’s maternal grandmother for placement. In December 2006, this court denied the petition, concluding substantial evidence supported the juvenile court’s jurisdictional finding of severe physical abuse and that reunification services were properly denied to Mother. This court also concluded that we lacked jurisdiction to consider Mother’s claim the juvenile court abused its discretion in failing to order an investigation of the maternal grandmother for placement of the minor with her.
2. Initial ICWA Inquiry, Investigation and Notice
At the detention hearing, Mother stated that she was uncertain whether she had American Indian heritage. The maternal grandmother stated that the family had Cherokee Indian heritage and was registered, but she did not have the registration card. The court ordered the DCFS to conduct an investigation and the relatives were given the Judicial Council Form JV-135 (“JV-135”) to complete. The court ordered the DCFS to send a notice to the Bureau of Indian Affairs (BIA) and Cherokee Nation.
The father indicated that he did not have American Indian heritage.
In a subsequent ICWA report for the February 21, 2006 hearing, the DCFS indicated that it had sent notices to the Cherokee Nation, the Eastern Band of Cherokee, the United Keetoowah Band of Cherokee, the BIA and the Secretary of the Interior. The report also indicated that the maternal grandmother had indicated that the great-grandmother “Rosela May F.R.” born in May 1950 was a Cherokee and that the great-grandmother had married a J.C. who was “Jubueno Mission Indian.” The report also indicated that the social worker was unable to locate the Jubueno Mission tribe on the Federal Register or the Department of Interior website.
At the February 21, 2006 hearing, the court noted that the notices sent to the tribes, BIA and Interior for that hearing did not include relevant identifying information for the relatives including birthdates. The court ordered the DCFS to re-notice with complete information and to continue its efforts to contact the great-grandmother. In March 2006, the United Keetoowah Band of Cherokee Indians stated that based on the information provided there was no evidence that the minor was a member of the tribe.
In March 2006, the DCFS reported that it had contacted the maternal great-great-grandmother, identified as “Lupe G.R.”, who indicated that the minor could be of Cherokee Yaqui Indian heritage; “Lupe G.R.” stated that J.C. was from the Yaqui tribe in San Juan Capistrano. She also provided DCFS with the location and date of his birth. The DCFS sent new notices to the Yaqui and Cherokee tribes. The notices, however, failed to disclose the “Yaqui” tribe connection and listed “Rosela May F.R.” as the name of the great-great-grandmother. The notices did not include “Lupe G.R.’s” name. At the March 13, 2006 hearing, the court found the notices to be incomplete and ordered the DCFS to re-notice the tribes.
As of May 2006, the notices had yet to be completed and the court ordered the DCFS to conduct a full investigation, obtain more information from the great-grandmother and re-notice the tribes. The great-grandmother stated that the family was affiliated with the Yaqui tribe from San Juan Capistrano and the Cherokee Tribe from Shanendoa, Iowa.
The DCFS sent new notices in early June 2006 that identified Lupe R. as the great-great-grandmother, but did not contain her date of birth. The notice indicated that Lupe R. was a Cherokee. On June 27, 2006, the court indicated that notices had been sent and that the United Keetoowah Band of Cherokee Indians stated that based on the information provided there was no evidence that the child was a member of the tribe.
At the September 2006 hearing, the court noted that it had not yet made ICWA findings because it was still waiting for responses from several tribes. The court ordered the DCFS to conduct a review of the file and to submit relevant documents.
At the November 1, 2006 hearing, the court indicated that it had been over 60 days since the notices had been received by the tribes and given the lack of response, the court concluded that J.G. did not fall under ICWA.
At the section 366.26 hearing scheduled for February 20, 2007, the maternal great-grandmother appeared and informed the court that the maternal great-grandfather’s information had been overlooked. She further stated an aunt who had passed away several months before, had all of the relevant documents, which were tied up in probate. She stated she was going to locate “certain numbers” and had planned to go to the BIA office in Los Angeles; she claimed that not all of the information had been provided. She identified a “Jovita C.” as a relative registered at the San Juan Capistrano Mission in 1924. The court ordered the DCFS to interview the maternal great-grandmother.
When interviewed, the great-grandmother stated that she would provide the tribal enrollment numbers, but according to the social worker the great-grandmother did not provide any other new information. Nonetheless, the new JV-135 form had the “Roll of 1924” checked off and identified the name of “Marcelina M.” as a relative.
In a report for the April 12, 2007 hearing, the social worker noted that the maternal grandmother had provided new information on March 29, 2007, which concerned relatives (maternal great-grandmother’s great uncle and other uncles) that the worker believed were not blood-related to the minor.
On March 30, 2007, new notices (for the April 12, 2007 hearing) were sent to the Cherokee and Yaqui tribes, the BIA and the Secretary of the Interior. The notices now checked-off boxes indicating relatives who: (1) attended Indian School; (2) received medical treatment at Indian health clinics or U.S. Public Health Service hospitals; (3) lived on federal trust land, a reservation or rancheria or an allotment; and (4) “Roll of 1924.” The notices also listed the names or relatives Marcelina M., Martin M., and John R. The notices indicated that these relatives lived on reservations in Oklahoma and were registered. Return receipts for the notices were submitted to the court, but none had been signed.
At the conclusion of the April 12, 2007 section 366.26 hearing, the court stated its belief that J.C. and the maternal great-grandmother had been using the Indian heritage issue to delay and impede the proceedings. The court refused to hear from the maternal great-grandmother any further on the issues, and found that proper notice had been provided and return receipts and letters had been received indicating J.G. did not have Indian heritage.
Thereafter the court found by clear and convincing evidence that J.G. was adoptable and terminated parental rights. Mother appealed.
1. Prior Appeal
In the prior appeal (B198350) Mother asserted that the juvenile court erred in finding the minor was adoptable given his condition and the absence of a suitable prospective adoptive family. She also argued the DCFS had failed to demonstrate compliance with the ICWA. This court affirmed the lower court’s finding the minor was adoptable based on his age, physical condition, emotional state and the fact that a prospective adoptive parent expressed an interest in adopting him.
This notwithstanding, a review of the record indicated that notice under ICWA was legally inadequate. Specifically, we found “it is clear that the ICWA notices were not timely served prior to the April 12, 2007 hearing and that the record did not contain the proof of the service. On this basis alone the court’s order terminating parental rights cannot stand. The record is less clear as to whether the notices themselves were defective because they omitted relevant information about the great-grandmother’s alias, the identities of other relatives and/or relevant tribes. Nonetheless, because this matter must be remanded to ensure proper ICWA compliance, the DCFS should re-interview the maternal great grandmother to ascertain whether the DCFS has all of the relevant and accurate information purportedly omitted from prior notices (i.e., the great-grandmother’s alias, the identities of other relatives and/or relevant tribes) and to determine whether the maternal great grandmother has any additional information concerning Indian heritage. The DCFS should thereafter prepare new ICWA notices.”
This court reversed the order terminating parental rights and remanded to the juvenile court with directions to order DCFS to take additional actions to investigate potential Indian heritage and to comply with the notice provisions of ICWA. We further ordered that “[i]f, after proper notice, a tribe claims a child is an Indian child, and seeks to intervene in the juvenile court proceedings, the juvenile court is directed to vacate its prior orders and conduct all proceedings in accordance with ICWA, section 360.6 and rule 5.664 of the California Rules of Court. On the other hand, if no tribe claims the children are Indian or seeks to intervene, the order terminating parental rights is to be reinstated.”
2. Proceedings in the Dependency Court on Remand
In May 2008, the juvenile dependency court reinstated parental rights, appointed the parents counsel and ordered the DCFS to conduct a full investigation to determine whether the minor had American Indian heritage and thereafter to send proper ICWA notices.
According to the reports prepared for a July 2008 follow-up hearing on the ICWA issue, an interview with the maternal grandmother M.C, revealed that she may be a member of the Diegueno and Volgan Tribe. Mother also disclosed that the minor had great-grandparents (on the maternal side) buried on Indian lands. The status review report further disclosed that the social worker sent ICWA notices to the two different reservations where the great-grandparents were buried, the BIA, Indian Custodians and Secretary of the Interior. The report further revealed that the social worker spoke “with a representative at the BIA in Sacramento and she reported that the Indian Tribe, Volgan is not a federally recognized tribe but Diegueno is and that they have many different bands. However, since the family has members buried at two different reservations, both reservations were noticed, as required.”
The notices were sent specifically to the Diegueno Mission San Fernando, the Diegueno San Gabriel Mission, and their respective Indian Custodians.
At a hearing on July 17, 2008, the court reviewed the notices. The court confirmed with counsel that Mother had reviewed the notices and they did not contain any errors or omissions of information; that the information on the notices about family members was accurate and that Mother had no additional information to add to the notices. The court also confirmed with Mother that she was no longer claiming Cherokee heritage or Pasquajaki heritage—that she was only claiming Indian heritage through the Volgan and Diegueno tribes. Mother told the court that the information that she had before about the other tribes was invalid.
The court then indicated that the Volgan Tribe was not federally recognized and that the record did not contain the return receipts from the two Diegueno tribes that had been served. The court continued the matter for receipt of notices from those tribes.
In a September 2008 supplemental report, the DCFS indicated that it had received a letter, dated July 11, 2008 from the BIA in Riverside stating “[t]he ICWA is not applicable because the identified tribe is not a federally recognized tribe.” The report also indicates that the social worker spoke with the Monsignor at the San Fernando Mission, who indicated that he does not respond to ICWA notices. The court continued the matter for the DCFS to re-send the notices or to submit the return receipt from the Mission San Fernando.
The letter from the BIA does not identify the tribe to which the statement is intended to refer; however, the notice to the BIA listed both the “Diegueno” and “Volgan” Tribes. The DCFS interpreted the letter to refer to both tribes, when it reported to the DCFS in a September 24, 2008 report that “[t]hey [the BIA] report that neither tribe is a federally recognized tribe.”
In a subsequent DCFS report of September 25, 2008, the social worker indicated that because no return receipt was received from either tribe, the social worker personally delivered a copy of the ICWA notices to a person at the mission who signed the return receipt and represented that she would give the notices to the person at the mission who handles all ICWA notices. The social worker also spoke with an individual at the San Gabriel Mission who stated that the Mission does not make eligibility determinations; the report also references a return receipt from the San Gabriel Mission attached to a prior court report.
At the hearing on September 25, 2008, the court found: “We have received a letter from the United States Department of the Interior indicating that both possible tribes are not federally recognized; therefore the child does not fall under ICWA. [¶] And the other tribes that were noticed, the San Gabriel Mission, indicates that the reason why we never got a letter is because their tribe doesn’t determine eligibility, and the Mission states, quote, ‘I don’t participate in such a waste of funds and bureaucracy.” But neither Tribe is federally recognized, therefore the child does not fall under the Indian Child Welfare Act and the order in regards to the termination of parental rights stands.”
Mother’s counsel then objected “for the record.” The court responded: “Any of you want to put a legal objection on the record; like you don’t think that the orders I’ve made are correct?” Mother’s counsel responded, “No. I’m simply objecting.”
On January 23, 2009, Mother filed a Request for Judicial Notice in this Court, asking that we take judicial notice of certain pages of the April 4, 2008 Federal Register, a September 2008 California Department of Social Services ICWA contact list, and a BIA ICWA Service Contact List for Tribes. These documents show that in 2008, there were 12-13 federally recognized bands of Diegueno Indians in California. On February 10, 2009, this Court granted the request.
DISCUSSION
On appeal, Mother argues that on remand, the juvenile dependency court erred in finding that ICWA did not apply. Specifically she asserts that the DCFS did not send notice of the proceedings to any of the federally registered Diegueno tribes and only sent it to two tribes that were not federally registered, and on that basis the court erred in reinstating the termination of parental rights. Preliminarily, before we reach the merits of her contentions we first address whether Mother has preserved her complaint for appeal.
1. Forfeiture of Complaints Concerning ICWA Notices
Before this court, the DCFS contends that Mother cannot assert her challenges to the juvenile court’s ICWA determination because she failed to assert the errors below. The DCFS points out that the social worker’s July 2008 report made clear that the DCFS had noticed only two of the Diegueno tribes and that there were other bands of Diegueno that existed, but that no notice had been provided to the other tribes. The DCFS argues that below Mother did not object to the failure to notice all of the tribes, and that her failure to do so precludes her from complaining on appeal. We do not agree.
In general the forfeiture doctrine does not bar complaints on appeal concerning the application of ICWA. (In re Alice M. (2008) 161 Cal.App.4th 1189, 1195 (Alice M.).) “As this court has held, ‘[t]he notice requirements serve the interests of the Indian tribes “irrespective of the positions of the parents” and cannot be waived by the parent.’ [Citation.] A parent in a dependency proceeding is permitted to raise ICWA issues not only in the juvenile court, but also on appeal even where, as here, no mention was made of the issue in the juvenile court.” (In re Justin S. (2007) 150 Cal.App.4th 1426, 1435.)
This notwithstanding, some courts have applied forfeiture principles when a complaint concerning the application of ICWA was raised in a prior appeal, and the parent subsequently fails to object in the lower court at the hearing on remand. The appellate court’s decision on whether to apply the forfeiture doctrine turns on the nature of the objections made in connection with the first appeal and those asserted on appeal after remand.
In In re Amber F. (2007) 150 Cal.App.4th 1152, 1155-1156, In re X.V. (2005) 132 Cal.App.4th 794, 803-805, and In re M.N. (2008) 161 Cal.App.4th 253, 265-270, the courts of appeal applied the forfeiture doctrine where in the first appeal the appellate courts had reversed and remanded based on insufficient or defective ICWA notices (i.e., notices containing inaccurate or incomplete information), and the parents had failed to state objections to the new ICWA notices in the lower court, only later to claim on appeal that the ICWA notices were still deficient. In all three of these cases the defects in the ICWA notices centered on information that was obvious or within the knowledge of the parents at the time the new notices were prepared. Consequently, the appellate courts in these cases concluded that the parents forfeited any additional complaint concerning the ICWA notices, concluding that the parents were involved in gamesmanship or an effort to delay the proceedings.
Alice M. stands in contrast. In Alice M. on the first appeal the court reversed the order terminating parental rights because the department had failed to adequately inquire about the minor’s Indian ancestry. (In re Alice M., supra, 161 Cal.App.4th at p. 1193.) On remand the department failed to send the notice to all of the tribes that the child “may” have belonged to, and although the parent failed to object in the lower court on that basis, the court of appeal refused to apply forfeiture. The court in Alice M. observed that unlike in Amber F. and X.V., Alice M. did not involve a successive appeal challenging the ICWA notices and the deficiency asserted was not based on the notice’s content (and thus did not relate to information within the parent’s control). (Id. at p. 1197.) Specifically, the court in Alice M. observed that the “alleged notice deficiencies (failure to send to the tribal chairpersons or designated agents and an incorrect address) were solely the result of the Department’s actions and within the Department’s control.” (Ibid.) The Alice M. court concluded: “[i]nvoking the forfeiture doctrine because appellant raised an ICWA inquiry issue in a prior appeal would give the Department a free pass in complying with ICWA based solely on its previous ICWA failure. Such a result is contrary to ICWA’s purpose and to the principle that the interest in proper ICWA notice belongs to the tribes – the same tribes that may have received deficient notice, or no notice at all. We find no statutory support or persuasive policy basis for shifting the burden of ICWA compliance to the child’s parents, even if ICWA was raised in a prior appeal. We regret that ICWA errors often delay the resolution of dependency proceedings, but cannot conclude that the prospect of such a delay excuses non-compliance at the expense of those that ICWA is intended to protect.” (Ibid.)
In our view, this case is more akin to Alice M., than those in which the appellate courts have applied the rule of forfeiture. Here the ICWA errors asserted on the first appeal were that the service of the ICWA notices was untimely, that the information on the notices was inaccurate or incomplete and that the DCFS had failed to conduct an adequate inquiry and investigation of the minor’s Indian heritage. The new complaint on this appeal, deals not with the sufficiency of the investigation, the content of IWCA notices, or the timing of the service. Instead, it concerns DCFS’s failure to send notice to all of the tribes to which the minor may belong. It is the actions of DCFS, not Mother, which led to the errors asserted here. The DCFS had the superior knowledge and access to information concerning the identity of various tribes and bands of Diegueno Indians in California. Thus, we decline to apply the doctrine of forfeiture to these ICWA errors we deem beyond the Mother’s control.
We would reach this conclusion even if we were to input the knowledge gleaned from the July 2008 DCFS report to Mother – that is, knowledge that certain additional Diegueno bands existed but were not served with the ICWA notice. Any objection based on the DCFS’ failure to serve ICWA notice on all of the bands of Diegueno Indians would have been an exercise in futility in this case. Indeed, based on the comments of the court at the September 25, 2008 hearing, we have no doubt the juvenile dependency court would have overruled such an objection based on its erroneous view that the ICWA did not apply because the Diegueno tribes were not federally registered. The DCFS, not Mother, supplied this incorrect information upon which the trial court based its conclusion that the ICWA did not apply.
This information about the lack of federal status of the Diegueno tribes was at odds with information previously provided by the BIA representative in Sacramento to the social worker. Indeed, the DCFS report from July 17, 2008, references an off-hand comment by a BIA representative to the social worker to the effect that some of the Diegueno tribes were registered with the federal government. The juvenile court apparently overlooked this reference (as did the DCFS’ and parents’ counsel present at the September 25, 2008 hearing) when the court twice stated that the Diegueno tribes were not registered with the federal government. Although Mother’s counsel made a general objection to the court’s ICWA finding, in our view counsel should have interposed a specific objection to the court’s conclusion with respect to the federal status of the Diegueno tribes. We can perceive of no reasonable explanation for counsel’s failure to bring the issue to the lower court’s attention. Mother has questioned the competency of her counsel in this regard. Such a specific objection may have obviated this appeal. We are disinclined to apply the doctrine of forfeiture in view of the collective failure of the court and all counsel to recognize that error in the court’s conclusion concerning the federal registration of Diegueno tribes.
In sum, because the DCFS’ actions resulted in the inadequate ICWA notice about which Mother now complains and because DCFS and not Mother had access to the information necessary to remedy the situation, we conclude that Mother has not forfeited her complaint about the ICWA notices.
2. Compliance with ICWA Notice Requirements
Before this court, Mother claims the juvenile court erred by finding the ICWA did not apply without properly determining that the appropriate notices were sent to all of the tribes of which the minor may be a member or eligible for membership.
A. Federal and State ICWA Notice Requirements
The purpose of ICWA is to “‘protect the best interests of Indian children and to promote the stability and security of Indian tribes and families.’” (In re Karla C. (2003) 113 Cal.App.4th 166, 173-174, quoting 25 U.S.C. § 1902; see also In re Suzanna L. (2002) 104 Cal.App.4th 223, 229; In re Santos Y. (2001) 92 Cal.App.4th 1274, 1299.) “ICWA presumes it is in the best interests of the child to retain tribal ties and cultural heritage and in the interest of the tribe to preserve its future generations, a most important resource.” (In re Desiree F. (2000) 83 Cal.App.4th 460, 469.) For purposes of ICWA, an “Indian child” is a child who is either a member of an Indian tribe or is 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).)
When a court “knows or has reason to know that an Indian child is involved” in a juvenile dependency proceeding, the court must give the child’s tribe notice of the pending proceedings and its right to intervene. (25 U.S.C. § 1912(a); In re S.B (2005) 130 Cal.App.4th 1148, 1157.) Under the ICWA, an Indian tribe is entitled to intervene in a state court proceeding brought to remove an Indian child from a parental home and place the child in foster care. (25 U.S.C., § 1911(c).) Because the right to intervene is meaningless unless the tribe receives notification, the ICWA specifies notice requirements and those notice requirements are strictly construed. (In reSamuel P. (2002) 99 Cal.App.4th 1259, 1267.)
The requirements of ICWA apply only to federally recognized tribes. (25 U.S.C. § 1903(8)); and the statute does not require notice be sent to a non-recognized tribe. (See In re A.C. (2007) 155 Cal.App.4th 282, 286-287.) Under federal law proper notice to some but not all possible tribes in which a dependent child may be eligible for membership does not violate ICWA if the actual tribe in which the child might be eligible for membership is unknown and notice of the proceedings is also given to the Secretary of the Interior through the BIA. (25 U.S.C. § 1912(a) [“If the identity or location of the parent or Indian custodian and the tribe cannot be determined, such notice shall be given to the Secretary in like manner, who shall have fifteen days after receipt to provide the requisite notice to the parent or Indian custodian and the tribe.”]; In re C.D. (2003) 110 Cal.App.4th 214, 227 [“25 United States Code section 1912(a) specifically authorizes service of notice upon the Secretary of the Interior when the agency cannot determine the identity or location of the tribe”]; In re Edward H. (2002) 100 Cal.App.4th 1, 4 (Edward H.) [same].)
Section 224.2, subdivision (a)(4), provides, “Notice, to the extent required by federal law, shall be sent to the Secretary of the Interior’s designated agent, the Sacramento Area Director, Bureau of Indian Affairs.”
In contrast, California law provides for a heightened notice requirement under ICWA. Effective January 1, 2007, existing federal ICWA notice requirements and additional notice requirements previously enumerated in the California Rules of Court were codified as state law in section 224.2. (Stats. 2006, ch. 838, § 31; see In re Alice M., supra, 161 Cal.App.4th at pp. 1198-1199.) Specifically, section 224.2, subdivision (a)(3), provides, “Notice shall be sent to all tribes of which the child may be a member or eligible for membership until the court makes a determination as to which tribe is the child’s tribe....” Several recent appellate decisions have held under section 224.2, subdivision (a)(3)—that is, as a matter of state law—the Department must send ICWA notice to all federally recognized tribes in which the child may be a member or eligible for membership even though proper notice is provided to the BIA. (In re Alice M., supra, 161 Cal.App.4th at p. 1202 [“the language of subdivision (a)(3) must be construed as requiring notice to all federally recognized tribes within the general umbrella identified by the child’s parents or relatives”]; In re J.T. (2007) 154 Cal.App.4th 986, 994 (J.T.) [same].) The courts in both Alice M. and J.T. concluded that service on the BIA does not serve as a substitute to service on all of the federally recognized Diegueno tribes. (In re Alice M., supra, 161 Cal.App.4th at p. 1202; In re J.T., supra,154 Cal.App.4th at pp. 993-994 [finding that although department properly served the BIA it was still required to serve ICWA notice on all federally recognized tribes identified by the parent]; but see In re Edward H., supra,100 Cal.App.4th at p. 4 [holding that “proper notice to some but not all possible tribes in which a dependent child may be eligible for membership does not violate ICWA provided the agency also gives notice... to the [BIA]”].)
Current rule 5.481(b)(1) of the California Rules of Court requires notice in possible ICWA cases be given as specified in section 224.2.
The courts in J.T. and Alice M. rejected the reasoning in Edward H. based on the observation that Edward H. relied in part on the fact that the requirement of former California Rules of Court, rule 1439, that notice be sent to “all tribes of which the child may be a member or eligible for membership” exceeded the requirements of the ICWA. The implication was that the rule was not binding to the extent it exceeded the requirements of the federal law. The 2006 enactment of section 224.2, however, has incorporated the rule 1439 notice requirements into a statute and expressly provides that heightened state law standards shall prevail over more lenient ICWA requirements. (§§ 224, subd. (d); 224.2, subd. (a)(3).) In light of this superseding legislation, both the appellate courts in Alice M. and J.T. declined to follow the holding of Edward H. (In re J.T., supra, 154 Cal.App.4th at p. 993; In re Alice M., supra, 161 Cal.App.4th at p. 1202.) We agree with these assessments and find that J.T. and Alice M. represent the better approach to the issue of ICWA notice under state law.
In view of these principles, we conclude that the notices sent in this case complied with the minimum requirements of federal law because in addition to the two tribes who were sent notice, the notice of the proceedings was also given to the Secretary of the Interior through the BIA. (25 U.S.C. § 1912(a); In re C.D., supra, 110 Cal.App.4th at p. 227.)
However, this substitute notice on the BIA did not comply with the additional notice requirements now imposed by state law under section 224.2. Based upon information supplied to this court and readily available to the DCFS in 2008, there are approximately 12 bands of Diegueno Indians in California that are federally recognized. The DCFS concedes that it did not serve ICWA notice to any of these bands. Instead it served notice on only the two bands connected to the lands where the child’s great-grandparents were buried apparently believing that if the child had American Indian heritage it was most likely that the minor would be a member of one of those two particular bands. While that might be a plausible assumption, it nonetheless does not satisfy section 224.2, subdivision (a)(3) which states that ICWA notice must be sent to all tribes of which the child may be a member or eligible for membership until the court makes a determination as to which tribe is the child’s tribe. Here the court made no such determination, nor did the parents or relatives provide sufficient information to make any determination as to which exact Diegueno tribe might be the child’s tribe. Consequently, at least under state law, the DCFS was required to serve notice on all of the federally recognized Diegueno tribes. In view of the foregoing, we conclude ICWA notice in this case was not legally adequate; proper ICWA notice was not provided under section 224.2, subdivision (a)(3).
This conclusion does not end the inquiry, however. Deficiencies in ICWA notice are generally prejudicial error requiring at least a limited reversal and remand. (See, e.g., In re Marinna J. (2001) 90 Cal.App.4th 731, 739; In re Kahlen W. (1991) 233 Cal.App.3d 1414, 1424.) But because only state law error is involved in this case, the failure to satisfy the more demanding standards of section 224.2 must be held harmless unless Mother can show a reasonable probability she would have obtained a more favorable result in the absence of the error. (Cal. Const., art. VI, § 13; see In re H.B. (2008) 161 Cal.App.4th 115, 121 [violation of ICWA notice requirements may be harmless error, particularly when the violation involves “‘failure to comply with a higher state standard, above and beyond what the ICWA itself requires’”]; In re S.B., supra, 130 Cal.App.4th at p. 1162; In re Cheyanne F. (2008) 164 Cal.App.4th 189, 577; see generally In re Rebecca R. (2006) 143 Cal.App.4th 1426, 1430 [“Parents unable to reunify with their children have already caused the children serious harm; the rules do not permit them to cause additional unwarranted delay and hardship, without any showing whatsoever that the interests protected by the ICWA are implicated in any way.”].) As we shall explain, no such showing was made in this case.
Neither the DCFS nor Mother addressed the application of prejudicial/harmless error standards in their original briefs submitted to this court. After oral argument this court requested, and the parties submitted, additional letter briefs addressing the application of these principles.
B. Harmless Error Analysis
At the detention hearing the maternal grandmother M.C., claimed the family was registered with a Cherokee Indian tribe although she explained she did not have the registration card. For her part, Mother said she was uncertain whether she had American Indian ancestry. Neither Mother nor M.C. mentioned the Diegueno or Volgan tribes. After notices were sent to the Cherokee Nation and several different Cherokee bands, the BIA and the Secretary of the Interior—notices that eventually failed to produce any tribe that claimed J.G. as an Indian child—M.C. amended her prior statement to assert her mother had married a man who was Jubueno Mission Indian. Thereafter, another maternal relative identified the Yakqui tribe in San Juan Capistrano as the basis for the claim of Indian ancestry. Although there were certain defects in the further notices sent to the Cherokee and Yaqui tribes, discussed in our prior opinion reversing the juvenile court’s finding that ICWA did not apply, at that point there was no hint by anyone that the Diegueno or Volgan tribes should receive any notice of these proceedings.
On remand, given an opportunity to complete the needed information to give full and complete notice to the Cherokee and Yaqui tribes, Mother simply abandoned that claim, advising the court with respect to her mother’s statement the family was registered with a Cherokee tribe, “the information I got before was—I guess was not valid” and similarly stating she no longer believed her son had any Yaqui ancestry. Moreover, the court was advised, with Mother present, that she had gone over the final form for the ICWA notices, indicated she had no further information and confirmed the information contained in the notices was accurate.
Viewed against the backdrop of Mother and maternal grandmother’s ever-changing and contradictory accounts of J.G.’s Indian ancestry, Mother’s current objection to the adequacy of the ICWA notice is, at best, disingenuous. As discussed, under federal law the notices sent were adequate. Under state law, given the total absence of any real evidence of tribal membership or eligibility for such membership, further notice is unlikely to do anything more than further delay the permanency that J.G. deserves.
In reaching our conclusion we note that when given another opportunity by this court to address this precise issue, Mother made no effort to demonstrate a reasonable probability that she would have obtained a better result if all 12 tribes had been served. In fact, she argued without support from legal authority, that ICWA notice errors under state law were prejudicial errors per se requiring automatic reversal. Mother argued that because the trial court failed to require the DCFS to serve all 12 tribes with notice there is no way for this court to determine the extent of prejudice or harm. Such an argument falls short of what is required to demonstrate prejudicial error based on the failure to comply with section 224.2.
Accordingly, rather than deal Mother another “‘get out of jail free’ card” (In re Rebecca R., supra, 143 Cal.App.4th at p. 1431), we conclude any error in approving the notice was harmless.
DISPOSITION
The juvenile court’s order terminating parental rights is affirmed.
We concur: PERLUSS, P. J. JACKSON, J.