Opinion
NOT TO BE PUBLISHED
Super. Ct. Nos. JD224602, JD224603, JD224604, JD224605, JD224606, JD224607, JD224608, JD224609
BUTZ, J.
Louise M. (appellant), the mother of eight minors, appeals from six-month review hearing orders of the juvenile court continuing the minors in their out-of-home placement and continuing reunification services for appellant. (Welf. & Inst. Code, §§ 366.21, subd. (e), 395.) Appellant makes several contentions of alleged prejudicial error, including a claim that the juvenile court and the Sacramento County Department of Health and Human Services (DHHS) violated the notice requirements of the Indian Child Welfare Act of 1978 (ICWA). (25 U.S.C. § 1901 et seq.) Finding no prejudicial error, we shall affirm.
Undesignated statutory references are to the Welfare and Institutions Code.
FACTUAL AND PROCEDURAL BACKGROUND
Some of the material in this section and in parts I and III of the Discussion derives from our opinion in a previous appeal filed by appellant and Bruce M., the father of the minors, of which we take judicial notice. (In re J.M. et al. (Dec. 31, 2007, C054508) [nonpub. opn.].)
On October 6, 2006, DHHS filed amended juvenile dependency petitions pursuant to section 300 on behalf of each of the eight minors, then ranging in age from 1 to 13 years old. Those petitions alleged the minors had suffered, or there was a substantial risk they would suffer, serious physical harm, due to the failure of appellant to supervise the minors and to provide the minors with adequate food, clothing, shelter, or medical treatment. Each petition averred in part that appellant had failed to provide adequate care, support, and supervision for the minors, in that on or about July 17, 2006, the minors were found by law enforcement to be living in a substandard motor home in a business parking lot.
Appellant reported there was Blackfeet and Cherokee Indian heritage in the parents’ families. In response, the juvenile court ordered DHHS to send both the Blackfeet and Cherokee Indian tribes notices of the dependency proceedings. Thereafter, DHHS sent notices of the proceedings to the Blackfeet Tribe of Montana and to the Eastern Band of Cherokee Indians, Cherokee Nation of Oklahoma, United Keetoowah Band of Cherokee Indians, and to the Bureau of Indian Affairs (BIA). DHHS received replies or return receipt cards from each of those entities. At the November 1, 2006 jurisdictional hearing, after reviewing the documents in the record pertaining to the matter, the juvenile court found the tribes received proper notice under the ICWA and concluded the minors were not Indian children within the meaning of the ICWA.
The juvenile court sustained amended petitions in part and adjudged the minors dependent children, ordering them removed from parental custody. As to visitation, the juvenile court granted appellant “regular visitation with the children, as frequent as is consistent with the well[-]being of the children. DHHS shall determine the time, place and manner of visitation, including the frequency of visits, length of visits, whether the visits are supervised and by whom they are supervised.”
At the January 31, 2007 six-month review hearing, the juvenile court again granted appellant “regular visitation” with the minors, “consistent with [their] well-being.” Counsel for appellant objected to the social worker’s report, noting the report was not provided to appellant in a timely manner and contained some erroneous information. At the conclusion of the review hearing, the juvenile court ordered the minors continued in their out-of-home placement, services continued for appellant, and DHHS to file an updated case plan by February 7, 2007.
DISCUSSION
I
Appellant contends the juvenile court’s January 31, 2007 visitation order must be reversed because it constitutes an improper delegation to DHHS to determine whether any visitation between appellant and the minors will occur and violates her due process rights.
For purposes of deciding the issue, we presume, as appellant argues, the claim has not been forfeited by appellant’s failure to tender it in the juvenile court. (Cf. In re S.B. (2004) 32 Cal.4th 1287, 1293, fn. 2.)
While the juvenile court has the power and responsibility to define visitation between a noncustodial parent and her minor child, the court need not specify all the details of the visitation. (In re Moriah T. (1994) 23 Cal.App.4th 1367, 1373-1374 (Moriah T.).) It may delegate management of the details, such as time, place, and manner. (Id. at p. 1374; In re Chantal S. (1996) 13 Cal.4th 196, 213-214.) “Only when a visitation order delegates . . . the absolute discretion to determine whether any visitation occurs does the order violate the statutory scheme and separation of powers doctrine.” (Moriah T., supra, at p. 1374.)
In this case, the juvenile court granted appellant regular visits with the minors consistent with the latters’ well-being. Appellant argues the current visitation order differs greatly from the previous order because the phrase “as frequent as is consistent” is omitted from the current order, and also asserts the visitation order fails to recite a minimum level of visitation that actually must occur.
We disagree. The opinion relied on in large part by appellant, In re Hunter S. (2006) 142 Cal.App.4th 1497 (AOB 28, 29), is distinguishable from the case here. The visitation order at issue in Hunter S. granted the mother visitation “‘as can be arranged.’” (Id. at pp. 1501, 1505.) Moreover, the minor there was given discretion to veto any visits with his mother, which he did for more than two years. (Ibid.)
By contrast, in this case the juvenile court’s order unambiguously grants appellant visits. Not only does it not permit the minors to control whether visitation occurs, but the order here in explicit terms bars any veto of visits due to a wish by the minors to “refuse[] future visits.”
In sum, we conclude the order granting appellant visitation permits DHHS no discretion as to whether visits shall occur. Instead, the order provides DHHS with the flexibility necessary to adapt visitation to changing circumstances arising during reunification. In doing so, the order affirms the right of appellant to visit the minors. There was no abuse of discretion, denial of due process, or other error. (Moriah T., supra, 23 Cal.App.4th at pp. 1375-1376.)
II
Appellant contends the January 31, 2007 findings and orders must be reversed because DHHS failed to provide appellant in a timely manner with the social worker’s report. In support of her claim, appellant relies primarily on Judith P. v. Superior Court (2002) 102 Cal.App.4th 535 (Judith P.).
On January 30, 2007, DHHS filed a progress report in connection with the January 31, 2007 six-month review hearing. As appellant argues and respondent acknowledges, that report must be filed and a copy provided to parents 10 calendar days prior to the hearing. (§ 366.21, subd. (c).) Accordingly, as the record reflects, DHHS failed to provide appellant with the report in a timely manner.
In Judith P., supra, 102 Cal.App.4th at page 558, the Court of Appeal held that failure to timely provide the report to a parent was reversible error per se absent either a continued hearing or an express waiver.
In this case, appellant did not request a continuance, probably because, as the record suggests, she did not need one. Instead, appellant communicated her concerns about the contents of the progress report to her counsel, and in turn counsel expressed appellant’s concerns to the juvenile court. Appellant’s counsel then submitted the matter, and the court indicated it had considered counsel’s comments. The court later ordered DHHS to file an updated case plan and provide appellant with a copy no later than February 7, 2007.
The parent in Judith P., supra, 102 Cal.App.4th at page 544, requested a contested hearing, which was denied by the juvenile court. Here, as we have seen, rather than seek a continuance, appellant’s counsel discussed the report on its merits and then submitted the matter. In Judith P., the court did not consider the issue of an express waiver. In this case, we conclude the actions of appellant’s counsel were tantamount to an express waiver of appellant’s right to the timely service of the report. Moreover, as the record reflects, appellant had the opportunity to make her concerns known to the court, and she did so. Accordingly, no reversal is required.
III
Appellant again contends DHHS and the juvenile court failed to comply with the notice provisions of the ICWA. She claims the notices sent by DHHS to one of the Cherokee tribes were addressed to the wrong individual, DHHS misspelled the family name as to one of the relatives, and notice of a December 12, 2006 hearing was not provided to the tribes. Accordingly, appellant argues, the court’s finding that DHHS provided proper notice under the ICWA is reversible error.
The ICWA protects the interests of Indian children and promotes the stability and security of Indian children and Indian tribes by establishing minimum standards for, and permitting tribal participation in, dependency actions. (25 U.S.C. §§ 1901, 1902, 1903(1), 1911(c), 1912.) The juvenile court and DHHS have an affirmative duty to inquire at the outset of the proceedings whether a child who is subject to the proceedings is, or may be, an Indian child. (Cal. Rules of court, former rule 5.664(d).) If, after the petition is filed, the court “knows or has reason to know that the child is or may be an Indian child,” notice of the pending proceeding and the right to intervene must be sent to the tribe, or to the BIA if the tribal affiliation is not known. (Cal. Rules of Court, former rule 5.664(f); see Welf. & Inst. Code, § 224.2, subds. (a) & (b) [eff. Jan. 1, 2007]; 25 U.S.C. § 1912 (a).)
Failure to comply with the notice provisions and determine whether the ICWA applies is prejudicial error. (In re Desiree F. (2000) 83 Cal.App.4th 460, 472; In re Kahlen W. (1991) 233 Cal.App.3d 1414, 1424.)
“The burden is on [DHHS] to obtain all possible information about the minor’s potential Indian background and provide that information to the relevant tribe or, if the tribe is unknown, to the BIA.” (In re Louis S. (2004) 117 Cal.App.4th 622, 630.) Notice is meaningless if it fails to provide the very information that might assist the tribe and the BIA in making a determination as to a minor’s Indian status. (In re D. T. (2003) 113 Cal.App.4th 1449, 1455.)
Federal regulations and the federal guidelines on Indian child custody proceedings specify the contents of the notice to be sent to the tribe both to inform the tribe of the proceedings and to assist the tribe in determining if the child is a member or eligible for membership. (25 C.F.R. § 23.11(a), (d), (e); 44 Fed.Reg. 67588 (Nov. 26, 1979) B.5, Notice Requirements.) If known, the agency should provide the name of the child, the date and place of birth of the child, and the tribe in which membership is claimed, as well as the names, birthdates, places of birth and death, current addresses, and tribal enrollment numbers of the parents, grandparents, and great-grandparents. This information will assist the tribe in making its determination whether the child is eligible for membership and whether to intervene. (Ibid.; In re D. T., supra, 113 Cal.App.4th at pp. 1454-1455.)
As we did in the previous appeal, we again reject the claims of prejudicial error by appellant. First, after DHHS had sent notices of the dependency proceedings to United Keetoowah Band of Cherokee Indians, which also included the name of a tribal chief, that tribe notified DHHS of a change in its address. As the record shows, that address does not include the name of any individual.
Former rule 5.664(f)(2) of the California Rules of Court required notice to the tribal chairperson or another agent designated for service. However, presumably the tribe can determine its own address. In any event, there is no indication any notices went to the wrong tribe, so reversal on this ground is not warranted. (In re Louis S., supra, 117 Cal.App.4th at p. 633.) Any error was harmless. (People v. Watson (1956) 46 Cal.2d 818, 836.)
It is true that, as we found in the previous appeal, two letters in the family name were transposed on two notices to the tribes. However, at the tops of the very same pages of the identical documents, the name was spelled correctly, and the family name also was spelled properly throughout all of the other notices sent to the tribes. As this minor discrepancy could not have confused the tribes, any error is harmless.
The record refutes appellant’s claim that the tribes were precluded erroneously from participation in the December 12, 2006 hearing. At the November 1, 2006 hearing, the juvenile court had determined the ICWA did not apply to the proceedings. Accordingly, no further notice to the tribes was required. There was no error.
In sum, the juvenile court did not err prejudicially in finding that DHHS had complied with the notice requirements of the ICWA.
DISPOSITION
The orders of the juvenile court are affirmed.
We concur:
NICHOLSON, Acting P.J., ROBIE, J.