Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
Superior Court County of Santa No. J1175297, Barbara Arthur A. Garcia, Judge.
Aida Aslanian, under appointment by the Court of Appeal, for Appellant.
Stephen Shane Stark, County Counsel, County of Santa Barbara nd Toni Lorien, Deputy, for Respondent.
YEGAN, J.
Michelle D. (mother) appeals from a juvenile court order terminating her parental rights to Justus D. (minor). (Welf. & Inst. Code, § 366.26.) She contends that the order must be reversed because the juvenile court and the Santa Barbara County Child Welfare Services (CWS) failed to comply with the inquiry and notice requirements of the Indian Child Welfare Act (ICWA, 25 U.S.C. § 1901 et seq.). We affirm.
All statutory references are to the Welfare and Institutions Code.
Factual and Procedural Background
On August 28, 2006, CWS filed a dependency petition alleging that minor, then two months old, came within the jurisdiction of the juvenile court pursuant to section 300, subdivisions (b) (failure to protect), and (g) (no provision for support).
Mother and minor's father completed Form JV-130 (Parental Notification of Indian Status). Mother indicated that she may be a member of, or eligible for membership in, the Santa Ynez Band of Chumash Mission Indians (hereafter the Chumash Tribe). Father stated that, so far as he knew, he had no Indian ancestry.
Mother used only the word "Chumash." Pursuant to Evidence Code sections 459 and 452, subdivisions (c) and (h), we take judicial notice that "[t]he Santa Ynez Band of Chumash [Mission] Indians is the only federally-recognized Chumash tribe in the nation." (Official website of Santa Ynez Band of Chumash Indians, http://www.santaynezchumash.org/reservation.html.) See also notice from Bureau of Indian Affairs, published in 72 Fed.Reg. 13648, 13650 (March 22, 2007), designating the "Santa Ynez Band of Chumash Mission Indians of the Santa Ynez Reservation, California" as a federally recognized Indian tribal entity. The ICWA requires notice only to federally recognized Indian tribes. (In re A.C. (2007) 155 Cal.App.4th 282, 287.)
On October 20, 2006, CWS mailed to the Chumash tribe Form JV-135 (Notice of Involuntary Child Custody Proceedings for an Indian Child). The form included mother's name, former addresses, date of birth, tribe, and band. It mistakenly listed mother as both the mother and the maternal grandmother. It contained no further information concerning minor's Indian ancestry.
On October 30, 2006, the Chumash tribe responded by letter to Form JV-135. The letter was signed by Vincent Armenta as "Tribal Chairman" and Chairman of the "Enrollment Committee." Armenta stated, "[Minor] is not an enrolled member of the Santa Ynez Band of Chumash Indians, and according to our records, is not eligible for enrollment."
At the jurisdictional hearing, the juvenile court declared minor a dependent child within the meaning of section 300. It subsequently set the matter for a hearing pursuant to section 366.26 to select and implement a permanent plan for minor. On May 17, 2007, the juvenile court terminated the parental rights of both parents.
After the termination of parental rights, ICWA proceedings occurred in the juvenile court. We granted a motion by CWS to augment the record to include documents relating to these proceedings. Among the documents are the following:
(1) A Status Review Report dated October 4, 2007. The report states that, on July 18, 2007, a social worker spoke to minor's maternal grandmother, D.D, concerning minor's Indian ancestry. D.D. "named the Santa Ynez band of the Chumash and stated that the heritage was on her husband, [P.D.'s] side of the family and came from [P.D.'s] mother," C.D. ( Id ., at p. 2.) On September 25, 2007, the social worker telephoned P.D. to "obtain more detailed information." She left a message, but he never returned her call.
(2) First revised Form JV-135 mailed by CWS on July 18, 2007, to both the Chumash Tribe and the Bureau of Indian Affairs (BIA). The form includes the following: (1) the name, date of birth, current and former addresses, tribe, and band of mother; (2) the name, date of birth, current address, tribe, and band of minor's maternal grandfather, P.D; the name, place of birth, tribe, and band of minor's maternal great-grandmother, C.D.
Mother's current address was mistakenly placed on page 3 of Form JV-135 under a section that was supposed to apply to minor's grandparents.
(3) Letter from Vincent Armenta, dated August 1, 2007, responding to the first revised Form JV-135. Armenta repeated what he had said in the earlier letter written in response to the original Form JV-135: "[Minor] is not an enrolled member of the Santa Ynez Band of Chumash Indians, and according to our records, is not eligible for enrollment."
(4) Letter from the BIA, dated August 10, 2007, responding to the first revised Form JV-135. The BIA declared that it had not identified minor or mother "as being enrolled members of the Santa Ynez Band." The BIA recommended that CWS contact Vincent Armenta, and it gave his mailing address. The BIA referred to Armenta as "Chairman" of the "Santa Ynez Band of Mission Indians."
(5) Second revised Form JV-135 mailed by CWS on September 26, 2007, to both the Chumash Tribe and the BIA. The second revised form contains the same information as the first revised form concerning minor's Indian ancestry.
(6) Return receipt for second revised Form JV-135. The receipt shows that the form was mailed to Vincent Armenta at the address provided by the BIA. On October 1, 2007, the receipt was signed by George Armenta, a member of the Enrollment Committee of the tribe.
(7) Letter from Vincent Armenta, dated October 8, 2007, responding to the second revised Form JV-135. Armenta again stated that minor "is not an enrolled member of the Santa Ynez Band of Chumash Indians, and according to our records, is not eligible for enrollment."
(8) Letter from the BIA, dated October 18, 2007, responding to the second revised Form JV-135. The BIA stated that the information in that form "is virtually the same as was previously submitted and did not change our original response." The BIA again recommended that CWS contact Vincent Armenta.
(9) Juvenile court minutes showing that, on November 1, 2007, the court found that the "ICWA does not apply to father or mother."
Discussion
"Congress enacted the ICWA in 1978 to 'protect the best interests of Indian children and to promote the stability and security of Indian tribes and families.' (25 U.S.C. § 1902.) It allows a tribe to intervene in state court dependency proceedings (25 U.S.C. § 1911(c)), because the '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.' [Citation.]" (In re Louis S. (2004) 117 Cal.App.4th 622, 628.) Both the juvenile court and "the county welfare department . . . have an affirmative and continuing duty to inquire whether a child for whom a petition under section 300 . . . is to be, or has been, filed is or may be an Indian child." (Cal. Rules of Court, rule 5.664(d).)
All rule references are to the California Rules of Court. The rule numbers used are those effective January 1, 2007. Rule 5.664 was formerly rule 1439.
"The notice requirements of the ICWA are intended to ensure the tribe will have the opportunity to assert its rights to intervene in juvenile dependency proceedings irrespective of the position of the parents or state agency. [Citation.] The ICWA provides that when the court knows or has reason to know an Indian child is involved, the agency must notify the child's tribe, or if the tribe is unknown, the BIA, as agent for the Secretary of the Interior. (25 U.S.C. § 1912(a) . . . .) The notice must include all known names of the child's biological parents, maternal and paternal grandparents and great-grandparents. [Citation.]" (In re X.V. (2005) 132 Cal.App.4th 794, 802.)
For purposes of the ICWA, " 'Indian child' means an unmarried person under the age of 18 who: [¶] (A) Is a member of an Indian tribe; or [¶] (B) Is eligible for membership in an Indian Tribe and is the biological child of a member of an Indian tribe." (Rule 5.664(a)(1).) "The Indian tribe determines whether the child is an Indian child. [Citation.] 'A tribe's determination that the child is or is not a member of or eligible for membership in the tribe is conclusive.' [Citation.]" (Alicia B. v. Superior Court (2004)116 Cal.App.4th 856, 865; see also rule 5.664(e)(3)(A).)
The record on appeal, as augmented, shows that CWS and the juvenile court fulfilled their duty of inquiry as to minor's Indian heritage. The court assured that both parents completed Form JV-130. CWS inquired of the maternal grandmother, D.D., concerning minor's Indian ancestry. CWS made a good faith, but unsuccessful, attempt to contact the maternal grandfather, P.D.
In addition, the augmented record shows that any ICWA notice defect was cured after the termination of parental rights when CWS mailed proper notice on first and second revised forms JV-135 to Vincent Armenta. (See Alicia B. v. Superior Court, supra, 116 Cal.App.4th at pp. 866-867 [augmented record showed proper notice sent to tribes].) Mother has not "shown that any relevant known information was excluded on the [revised] forms or that the notices were defective." (Id., at p. 867.)
Mother argues that notice to Vincent Armenta was inadequate because he was not the designated tribal agent for service of notice. As of August 2, 2006, the designated agent was Shelli Pfiefer, Social Services Program, P.O. Box 539, Santa Ynez, CA 93460. (71 Fed.Reg. 43788, 43803 (Aug. 2, 2006).) But mother recognizes that Armenta was the "Tribal Chairman and Enrollment Chairman." As tribal chairman, Armenta was authorized to receive notice. Section 224.2, subdivision (a)(2), and rule 5.664(f)(2) provide, "Notice to the tribe shall be to the tribal chairperson unless the tribe has designated another agent for service." This provision has been interpreted as authorizing service of notice upon either the tribal chairperson or the tribe's designated agent for service. (See In re J.T. (2007) 154 Cal.App.4th 986, 994 [return receipts inadequate to show proper notice because they did not "demonstrate that the ICWA notice was received by the tribal chairperson or an alternative designated agent for service"]; In re H.A. (2002) 103 Cal.App.4th 1206, 1213 ["even if the Department had completed the appropriate notice form, it should have sent the notice to the tribe's chairperson or its designated agent for service of process"].)
Moreover, the BIA recommended that CWS contact "Vincent Armenta, Chairman" for "determination as to whether [minor] is a tribal member, or is eligible or ineligible for membership." The second revised Form JV-135 was addressed to "Vincent Armenta, Chairman" at the address provided by the BIA.
Even if notice to the Chumash Tribe had been inadequate, the error would have been harmless because the tribe had participated in the matter through its responsive letters, and the tribe had indicated that it had no interest in the proceedings. "Courts have consistently held failure to provide the required notice requires remand unless the tribe has participated in the proceedings or expressly indicated they have no interest in the proceedings. (Under such circumstances the error is often characterized as harmless.)" (In re Kahlen W. (1991) 233 Cal.App.3d 1414, 1424.)
However, mother makes a valid point that the letters from Armenta are not determinative of whether minor qualifies as an Indian child. The letters state that minor is neither an enrolled member of the Chumash Tribe nor eligible for enrollment. Section 224.3, subdivision (e)(1), provides: "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." (See also rule 5.664(g)(2) ["Information that the child is not enrolled in the tribe is not determinative of Indian child status."].)
The record does not contain anything in writing from the Chumash Tribe confirming that enrollment is a prerequisite for membership under tribal law or custom. Thus, Armenta's letters are not determinative of whether minor qualifies as an Indian child.
Section 224.3, subdivision (e)(3), provides that, if proper and adequate notice has been given 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 [ICWA] does not apply to the proceedings . . . ." Here the juvenile court's determination on November 1, 2007, that the ICWA does not apply to minor was made more than 60 days after the tribe and the BIA had received proper and adequate notice on the first revised Form JV-135. Accordingly, the juvenile court properly determined that the ICWA was inapplicable to minor.
Even if were to assume that proper and adequate notice had not been given until the second revised Form JV-135, which was received by Armenta on October 1, 2007, "[t]he juvenile court's finding that the ICWA did not apply [would have been] premature, but it [would] not [have been] prejudicial." (Alicia B. v. Superior Court, supra, 116 Cal.App.4th at p. 867.) It is not reasonably probable that the juvenile court would have made a different determination had it waited the full 60 days after October 1, 2007, as required by section 224.3, subdivision (e)(3). Neither party has indicated that, during this 60-day period, the Chumash Tribe or the BIA confirmed that minor is an Indian child.
Disposition
The judgment (order terminating parental rights) is affirmed.
We concur: GILBERT, P.J., COFFEE, J.