Opinion
NOT TO BE PUBLISHED
Appellant, mother of L., challenges the order of the juvenile court denying her Welfare and Institutions Code section 388 petition for modification. She contends that the Santa Cruz County No. DP001698 Human Services Agency (Agency) and the juvenile court failed to comply with the notice requirements of the Indian Child Welfare Act (ICWA). We affirm.
All statutory references are to the Welfare and Institutions Code unless otherwise indicated.
ELIA, J.
Background
In April 2007, the Agency filed a section 300 petition on behalf of then six-year-old L. The petition stated that L.'s father, Mr. P. had full custody of L. but that he had been "arrested for Domestic Battery and jailed." The petition alleged that L. was at risk due to her exposure to physical and verbal domestic violence as well as Ms. B.'s use of drugs and mental health issues. At the detention hearing in May 2007, the juvenile court found, based on Ms. B.'s representation that she "has Indian heritage" that the "ICWA may apply and ask[ed] the maternal grandmother to meet with the social worker to form a family tree so that the tribes may be properly noticed."
These charges were later dismissed.
The jurisdictional/dispositional report dated May 31, 2007, stated that L. was residing with her maternal great-aunt and uncle. The report recommended that she remain there while appellant and Mr. P. received family reunification services. Attached to the report were copies of orders from family court showing that Mr. P. had had sole legal and physical custody of L. since December 2005. As for the ICWA, the report stated that the social worker "has requested the needed information several times from the maternal grandmother. [The maternal grandmother] said she is still attempting to gather the information. Ms. B. did state that the family has Navajo ancestry from Shiprock, New Mexico and Apache." At the jurisdictional/dispositional hearing held in July 2007, the parties submitted the matter and the court adopted the recommendations in the report. Ms. B. and Mr. P. were ordered to participate in services and allowed supervised visitation with L. Beginning in early October 2007, L. was placed on an "extended visit" with Mr. P. In November 2007, the Agency filed a section 388 petition for modification requesting that L. be placed with Mr. P. with family maintenance services. Because Ms. B. was "not in agreement" with this proposed change, she requested a settlement conference which the court set for January 2008.
Before submission, the petition was amended to delete the allegations concerning Ms. B.'s substance abuse.
Ms. B. provided the Agency with "extensive family history information" about her Native American ancestry. In December 2007, the Agency sent form JV-135, Notice of Involuntary Child Custody Proceedings for an Indian Child, with the date of the settlement conference, to the Bureau of Indian Affairs (BIA), Ms. B., Mr. P., and 11 tribes, the Colorado River Tribal Council, the Navajo Nation, the Ramah Navajo Chapter, the Apache Tribe of Oklahoma, the Fort Sill Apache Tribe of Oklahoma, the Jicarilla Apache Nation, the Mescalero Apache Tribe, the San Carlos Tribal Council, the Tonto Apache Tribal Council, the White Mountain Apache Tribal Council, and the Yavapai-Apache Community Council. The notices included the names of L.'s parents, maternal grandmother, maternal grandfather, paternal grandmother, paternal grandfather, maternal great-grandmother, maternal great-great grandmother, maternal great-great-grandfather, two maternal great-great-great-grandmothers, two maternal great-great-great-grandfathers, three maternal great-great-great-great grandmothers, and three maternal great-great-great-great grandfathers. The dates or years of birth were included for 15 of these relatives, and many included the place of birth. The notices did not include information about Mr. P.'s relatives. The notices did not include the dates and places of birth of the maternal grandparents.
In January 2008, at the settlement conference on the Agency's petition for modification, the parties submitted the matter on the Agency's recommendations and the juvenile court ordered family maintenance services for Mr. P. with visitation for Ms. B. The Agency attached to the report letters received from the Yavapai/Apache Nation and the Tonto Apache Tribe indicating that L. was not eligible for enrollment. In February 2008, the juvenile court terminated reunification services for Ms. B.
In May 2008, Ms. B. filed a section 388 petition for modification. She asked that her visitation be changed so that she could have L. for unsupervised overnight visits on alternate weekends and for one month in the summer. She also asked to be permitted to care for L. when Mr. P. was at work or away on business.
In June 2008, the Agency filed a report recommending that L. remain with Mr. P. and that he receive another six months of family maintenance services. Attached to the report was a letter from the BIA stating that because the tribes had been noticed it was not taking any action. Also attached were letters from the San Carlos Apache Tribe, the Jicarilla Apache Nation, the Mescalero Apache Tribe, the White Mountain Apache Tribe, the Navajo Nation, the Colorado River Indian Tribes, and the Fort Sill Apache Tribe of Oklahoma, all stating that L. was not eligible for tribal membership.
On June 24, 2008, the juvenile court continued L. as a dependent of the court under a plan of family maintenance with Mr. P. The court found, "Ten tribes, previously found to have been properly noticed, have responded that the minor is not a member and is not eligible for membership. The court finds that the minor is not an Indian child and that ICWA does not apply to this matter. The remaining tribes have not responded, more than 60 days have passed since the tribes were properly noticed, and no definitive response to the notice has been received. Pursuant to CRC 5.664 (f)(6), the Court finds that the child is not [an] Indian child and that ICWA does not apply to this matter. [¶] Mother is directed to provide the department with any additional information she has regarding her Indian heritage, the Court will further address the applicability of the Act at a later date if necessary."
On September 8, 2008, the juvenile court held a six-month status review hearing and a hearing on Ms. B.'s section 388 petition for modification. The Agency had recommended that family maintenance services continue and both Mr. P. and Ms. B. submitted on that issue. The court said, "I do have an ICWA finding that I have to make before we begin. I looked at ICWA along the way. And looking back at a June 24, 2008 memo, we were looking for further responses. Three Navajo tribes and eight Apache tribes, as well as the BIA all have been notified. [¶] We have received responses from all the Navajo tribes. Five of the eight Apache tribes had responded. And 60 days have passed since notification was given to all the tribes. So therefore, the Court is finding that ICWA does not apply in this matter."
The court then held a two-day hearing on appellant's section 388 petition. At the conclusion of the hearing, counsel for Ms. B. argued that the evidence showed that L. enjoyed her visits with Ms. B. and that it would be in the girl's interest to permit more visitation. Counsel for the Agency argued that although Ms. B. was making progress on her case plan, no significant change in circumstances had been shown to warrant a change in the court's orders and highlighted some evidence showing "concerns about judgment and about boundaries between the mother and the daughter." Counsel for L. asked the court to deny the section 388 petition and allow only closely supervised visitation. Counsel for Mr. P. asked the court to deny the petition. The court said that Ms. B. still had "mental health challenges that have not been fully addressed" and that L. was "incredibly . . . fragile and suggestible." The court denied the request for unsupervised visits and for overnight visits. Ms. B. filed a notice of appeal as to the court's denial of her section 388 petition.
Discussion
Appellant contends, "The juvenile court and the Agency failed to comply with the notice requirements of the ICWA." Appellant complains that the court held six hearings, including the dispositional hearing, before sending the ICWA notices. Appellant argues that not all the requisite tribes were notified because, "The Agency correctly identified all of the requisite tribes with the exception of the Fort McDowell Yavapai Tribe." Appellant points out that although many relatives were available to the Agency, "the notice sent out by the Agency either lacked complete familial information or gave information which was incorrect." Appellant argues, "These errors were compounded by the fact that the notices were addressed to the incorrect tribal representative." Furthermore, appellant notes that "the appellate record contains no return receipts either confirming the mailing of the notices or their receipt by the tribes. The Agency did not receive any response from the Apache Nation of Oklahoma and the record contains no verification in the form of either an executed return receipt or a letter that notice actually reached that tribe."
Respondent contends, "The juvenile court properly found that the Indian Child Welfare Act's requirements for notice were met." Respondent also contends, "No prejudice has been shown based upon the alleged noticing errors." Respondent argues, "Appellant has failed to demonstrate that another result would have occurred in the absence of any noticing error, given that the ultimate dispositional order was placement with L.'s father."
We decline to analyze the notice issue in this case because it is clear that regardless of whether or not L. is an Indian child, the outcome of the September 8, 2008, hearing would have been the same. On this record it is apparent that any defect in the notice provided to the BIA and the tribes was harmless. Because the issue is not one of constitutional dimension, the question is whether there is a reasonable probability the outcome would have differed in the absence of the procedural irregularity. (Cal. Const., art. VI, § 13; People v. Watson (1956) 46 Cal.2d 818, 836.)
The purposes of the ICWA are to protect the interests of Indian children and to promote the stability and security of Indian tribes and families. (In re Kahlen W. (1991) 233 Cal.App.3d 1414, 1421.) Welfare and Institutions Code section 224, et seq., charges the juvenile court with carrying out these purposes and complying with the ICWA and provides the framework for implementing the ICWA in California dependency proceedings. To ensure a tribe's right to intervene, the ICWA requires that in any involuntary state court proceeding where "the court knows or has reason to know that an Indian child is involved," the party seeking foster care placement or termination of parental rights for the Indian child shall notify the child's tribe of the pending proceedings and of its right to intervene. (25 U.S.C. § 1912(a).) The notice requirements apply to all hearings under Welfare and Institutions Code section 300 et seq. (§ 224.3.)
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 or the denial of a section 388 petition does not involve foster care or termination of parental rights.
Appellant cites In re Alice M. (2008) 161 Cal.App.4th 1189, as a case in which this court held that a failure to comply with the notice requirements of the ICWA cannot be considered harmless error. Alice M., however, involved notice errors in the context of the termination of parental rights and the selection of adoption as the permanent plan for the minor. With respect to the order from which Ms. B. appeals, even if a tribe had been located and had chosen to intervene, no different result could have flowed from the exercise of that right. Thus, under familiar harmless error principles, the ICWA noticing error would warrant reversal only if it appeared reasonably likely that the juvenile court would have reached a different result had it applied the requirements of the ICWA. We see no basis to conclude that it would have . Appellant has failed to demonstrate that another result would have occurred in the absence of the noticing error given that the dispositional order was placement with L.'s father. The ICWA does not grant 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).) Because it is clear that the outcome of the hearing on Ms. B.'s section 388 petition for modification, as well as any earlier hearings, would have been the same regardless of whether L. is an Indian child, any violation of the ICWA notice requirements was harmless.
Although we urge the agencies involved in dependency proceedings to improve their compliance with the letter and spirit of ICWA, we do not believe that reversal is warranted in this case merely to encourage compliance. Furthermore, our conclusion does not relieve the Agency from adhering to the ICWA requirements in the event L.'s placement with her father should fail. If any further action which might lead to foster care or adoption is contemplated in the future, the Agency must provide notice as required by the ICWA.
Disposition
The order appealed from is affirmed.
WE CONCUR: RUSHING, P. J., PREMO, J.