From Casetext: Smarter Legal Research

In re Mercedes

Court of Appeals of California, Fourth Appellate District, Division One.
Nov 19, 2003
D042124 (Cal. Ct. App. Nov. 19, 2003)

Opinion

No. D042124

11-19-2003

In re MERCEDES T., a Person Coming Under the Juvenile Court Law. SAN DIEGO COUNTY HEALTH AND HUMAN SERVICES AGENCY, Plaintiff and Respondent, v. JOHN T., Defendant and Appellant.


THE COURT:

On the courts own motion, it is ordered that the opinion filed herein on October 23, 2003, be modified as follows:

Part I.C. of the Discussion is modified to read:

"C

"John asserts the court erred in finding that proper notice under the ICWA had been given because it did not have written proof that the tribes received proper notice. In In re Marinna J. (2001) 90 Cal.App.4th 731, 739-740, footnote 4, the court stated the social services agency should provide the juvenile court with a copy of the notice sent, the return receipt, and any response by the tribe. Following In re Marinna J., some courts have held the failure to provide the return receipts and notices is reversible error because the courts were unable to evaluate whether the forms were adequate. (In re Asia L. (2003) 107 Cal.App.4th 498, 508, 509; In re H.A. (2002) 103 Cal.App.4th 1206, 1214-1215; In re Jennifer A. (2002) 103 Cal.App.4th 692, 702-703.)

"Two years after the Third District Court of Appeal decided In re Marinna J., supra, 90 Cal.App.4th 731, it held that although providing the return receipts and the notices to the court would be a sound practice and would avoid appellate complaints about notice under the ICWA, neither the ICWA nor the California Rules of Court require the Agency to do so. (In re L. B., supra, 110 Cal.App.4th at p. 1425, fn. 3; In re Levi U. (2000) 78 Cal.App.4th 191, 195, 199.) Instead, the social workers statement that he or she sent the notice, containing all relevant information, is sufficient evidence that notice has been properly given, unless documentary evidence shows to the contrary. (In re L. B., supra, 110 Cal.App.4th at p. 1425; In re Levi U., supra, 78 Cal.App.4th at p. 198.)

"This court recently held in In re Karla C. (Nov. 10, 2003, D042048) ___ Cal.App.4th ___ that it was error not to provide the juvenile court with proof of service of the ICWA notices, copies of the notices and the responses of the tribes to which the notices were sent; it disagreed with the contrary conclusion in In re Levi U., supra, 78 Cal.App.4th 191 and In re L. B., supra, 110 Cal.App.4th 1420. However, Karla C. also stated the error was subject to the harmless error rule, citing In re C. D. (2003) 110 Cal.App.4th 214, 226-227. (In re Karla C., supra, ___ Cal.App.4th ___ [2003 D.A.R. 12234, 12236-12237].) Here, the social worker asserted she had served the BIA and the Seneca Nation in New York in November 2002 and our record shows she served the BIA, the Seneca Nation of Indians in New York, the Tonawenda Band of Senecas in New York, the United Keetoowah Band of Cherokee Indians in Oklahoma, the Seneca-Cayuga Tribe of Oklahoma, and the Cherokee Tribe of Oklahoma in December with notice that Mercedes might be an Indian child. The record sufficiently demonstrates notice was sent to the tribes and the BIA. The contents of the notices is discussed in part D., post. The failure to file the return receipts and notices with the juvenile court, if error, was harmless error in this case."

There is no change in the judgment.


Summaries of

In re Mercedes

Court of Appeals of California, Fourth Appellate District, Division One.
Nov 19, 2003
D042124 (Cal. Ct. App. Nov. 19, 2003)
Case details for

In re Mercedes

Case Details

Full title:In re MERCEDES T., a Person Coming Under the Juvenile Court Law. SAN DIEGO…

Court:Court of Appeals of California, Fourth Appellate District, Division One.

Date published: Nov 19, 2003

Citations

D042124 (Cal. Ct. App. Nov. 19, 2003)