Opinion
NOT TO BE PUBLISHED
Santa Cruz County, Super. Ct. No. DP001693
McAdams, J.
In this appeal, the mother of a dependent child challenges the juvenile court’s dispositional order, which removed the child from her custody. In addition, the mother asserts a violation of the Indian Child Welfare Act. As explained below, we reject both of the mother’s challenges. We therefore affirm the order.
FACTS AND PROCEDURAL HISTORY
The child whose interests are at issue here is Natalie C., who was born in March 1994. Natalie’s mother is appellant Susan S. (the mother); her father is Jeffrey W., Sr. (the father). The mother and father are divorced. They have another child together, Natalie’s older brother Jeffrey Scott W. (“Scottie”), who was born in 1990.
These dependency proceedings were instituted by the Santa Cruz County Human Resources Agency (the Agency), pursuant to provisions of the Welfare and Institutions Code.
Further unspecified statutory references are to the Welfare and Institutions Code.
Background
The event that precipitated this dependency took place on April 11, 2007. The incident involved Natalie, her mother, and her brother Scottie. According to the sustained allegations of the amended dependency petition, the mother “threw salt from a large container at Natalie’s head and face. Natalie had red, irritated eyes and she appeared to be in pain.” As described in a later report by the child welfare agency, Natalie’s brother Scottie was holding her from behind at the time of the incident.
Prior to the salt-throwing incident, there had been a number of child welfare referrals, with the earliest dating back to 2001, though none were substantiated. There was evidence that Natalie suffered from emotional and/or mental problems.
Dependency Petition; Detention
On April 13, 2007, the Agency filed a petition on Natalie’s behalf, asserting two separate statutory grounds for dependency jurisdiction under section 300.
The petition first alleged physical abuse by the mother. (§ 300, subd. (a).) As to that ground, some of the factual allegations centered on the April 11th salt-throwing incident. The petition also described a history of “ongoing verbal and physical conflict between mother and daughter” as well as ongoing “physical abuse of Natalie by her mother” that “places Natalie at increased risk of suffering serious physical harm.” As stated in the petition, at the time of the salt-throwing incident, the Agency was investigating a report that the mother had recently “kicked Natalie, pulled Natalie’s hair and hit Natalie in the eye.” More generally, the petition asserted: “The mother uses an open hand to slap Natalie in the face, arms and back. The mother frequently kicks Natalie on the shins and elsewhere on Natalie’s body. The mother routinely pulls Natalie’s hair.”
As a second statutory ground for dependency jurisdiction, the petition asserted both parents’ failure to protect Natalie. (§ 300, subd. (b).) As against the mother, the petition asserted her failure to protect Natalie from her brother. In the words of the petition: “The mother failed to protect Natalie from physical abuse by Natalie’s brother Scottie (16). Scottie hits Natalie and punches her in the stomach. The mother knew or reasonably should have known about the sibling abuse and failed to intercede to protect Natalie.” As against the father, the petition alleged his failure to protect Natalie from her mother.
On April 16, 2007, the juvenile court conducted a detention hearing. At the conclusion of the hearing, the court detained Natalie. Natalie was placed first in a group home and later in a licensed foster home. As for the Indian Child Welfare Act, the minute order from the detention hearing states: “Based on mother’s indication that she has Indian heritage, the Court finds that ICWA may apply.”
Jurisdiction and Disposition
A combined jurisdiction and disposition hearing was held over two court days in June 2007. The father did not attend the hearing, either in person or by counsel. The mother was present with counsel, and she contested the allegations.
The Agency had previously filed a jurisdiction/disposition report with the court. The mother objected to portions of the report on hearsay grounds, but her objections were overruled. At the hearing, the Agency filed a document entitled “ICWA Attachment to Social Worker’s Report.” The mother submitted one exhibit, a letter from Natalie’s former psychotherapist. Testimonial evidence was given by the social worker and by the mother.
After the presentation of evidence and argument, the court amended the petition to conform to proof. It then sustained jurisdiction over Natalie. The court determined that it was necessary to remove Natalie from the mother’s home in order to protect her. The court also found that proper notice had been given under the Indian Child Welfare Act (ICWA).
The petition was amended to reflect that the mother had thrown salt from a large container at Natalie, not a large container of salt.
Shortly thereafter, the juvenile court entered its formal jurisdiction order. On the same date, it entered a separate written dispositional order. The court’s dispositional order includes these findings: “By clear and convincing evidence, the welfare of the child requires that her physical custody be taken from her mother” given the existence of a “substantial danger to the physical health, safety, protection, or physical or emotional well-being of the minor” and the lack of “reasonable means by which the minor’s physical health can be protected without removing the minor from [the mother’s] physical custody.”
Appeal
The mother promptly filed a notice of appeal. As noted above, she raises two issues here. First, she attacks the juvenile court’s dispositional order, asserting the lack of sufficient evidence that reasonable services were provided to prevent Natalie’s removal. In addition, the mother claims that the ICWA notices were prejudicially defective.
The Agency filed a responsive brief, opposing both of the mother’s arguments. Natalie has not appeared on appeal.
DISCUSSION
We address the mother’s claims in turn. As to each, we begin with a brief overview of the legal principles that inform our analysis.
I. Disposition Order
A. Legal Principles: Overview of Dependency Law
The Legislature has provided for juvenile court jurisdiction over dependent children. (§§ 300 et seq.) The primary goal of the dependency statutes is “to ensure the safety, protection, and well-being of children who are at risk of abuse, neglect, or exploitation, while preserving the family whenever possible.” (In re David M. (2005) 134 Cal.App.4th 822, 824.)
In dependency proceedings involving the removal of children from their parents, there are generally four phases: jurisdiction, disposition, reunification (unless bypassed), and the selection and implementation of a permanent plan. (In re Matthew C. (1993) 6 Cal.4th 386, 391.) To justify the assumption of dependency jurisdiction, the juvenile court must find by a preponderance of the evidence that the affected child falls within one or more of the statutory descriptions listed in section 300. (§ 355; In re David M., supra, 134 Cal.App.4th at p. 829.)
Concerning disposition, the juvenile court “has broad discretion to determine what would best serve and protect the child’s interest and to fashion a dispositional order” accordingly. (In re Christopher H. (1996) 50 Cal.App.4th 1001, 1006.) Among the permissible dispositional choices is removing the child from the parent’s physical custody. (§ 361.) To justify removal, the juvenile court must have clear and convincing evidence: (1) that there is a substantial danger to the child’s physical well-being; and (2) that there is no reasonable way to protect the child in the parent’s home. (Id., subd. (c)(1); see, e.g., In re Isayah C. (2004) 118 Cal.App.4th 684, 695; In re Jasmine G. (2000) 82 Cal.App.4th 282,288; In re Diamond H. (2000) 82 Cal.App.4th 1127, 1136, disapproved on another ground in Renee J. v. Superior Court (2001) 26 Cal.4th 735, 748, fn. 6.) “California law requires that there be no lesser alternative before a child may be removed from the home of his or her parent.” (In re Jasmine G., at p. 284, fn. omitted.) As its language suggests, “the bias of the controlling statute is on family preservation, not removal.” (Id. at p. 290.) In fact, “there is a statutory presumption the child will be returned to parental custody.” (In re Michael D. (1996) 51 Cal.App.4th 1074, 1086.) Removal “is a last resort, to be considered only when the child would be in danger if allowed to reside with the parent.” (In re Henry V. (2004) 119 Cal.App.4th 522, 525.)
Section 361, subdivision (c), provides in pertinent part as follows: “A dependent child may not be taken from the physical custody of his or her parents or guardian or guardians with whom the child resides at the time the petition was initiated, unless the juvenile court finds clear and convincing evidence of any of the following…: [¶] (1) There is or would be a substantial danger to the physical health, safety, protection, or physical or emotional well-being of the minor if the minor were returned home, and there are no reasonable means by which the minor’s physical health can be protected without removing the minor from the minor’s parents’ or guardians’ physical custody. … The court shall consider, as a reasonable means to protect the minor, the option of removing an offending parent or guardian from the home. The court shall also consider, as a reasonable means to protect the minor, allowing a nonoffending parent or guardian to retain physical custody as long as that parent or guardian presents a plan acceptable to the court demonstrating that he or she will be able to protect the child from future harm.”
B. Analysis: Challenged Dispositional Order
The mother challenges the dispositional order removing Natalie from her custody, arguing that it was not supported by clear and convincing evidence. More specifically, the mother contends, the juvenile court applied the wrong standard, the Agency failed to provide reasonable services to prevent removal, and neither the Agency nor the court considered less restrictive alternatives. We begin our analysis of these contentions by setting forth the standard that governs our review.
1. Standard of Review
Generally speaking, the juvenile court’s dispositional order is reviewed for an abuse of discretion. (In re Christopher H., supra, 50 Cal.App.4th at p. 1006; In re Javier G. (2006) 137 Cal.App.4th 453, 462.) Where removal from parental custody is at issue, however, the appellate review standard is somewhat less deferential. That is because the juvenile court’s findings in support of removal require clear and convincing evidence. (§ 361, subd. (c); see, In re Henry V., supra, 119 Cal.App.4th at p. 530; In re Kristin H. (1996) 46 Cal.App.4th 1635, 1654.) “This heightened burden of proof is appropriate in light of the constitutionally protected rights of parents to the care, custody and management of [their] children.” (In re Henry V., at p. 529.) “Due process requires the findings underlying the initial removal order to be based on clear and convincing evidence.” (Id. at p. 530.) “On review, we employ the substantial evidence test, however bearing in mind the heightened burden of proof.” (In re Kristin H., at p. 1654.)
Mindful of the higher proof standard below, we nevertheless view the record in the light most favorable to the challenged order, drawing all reasonable inferences in support. (In re Javier G., supra, 137 Cal.App.4th at p. 463.) The appellant has the burden of demonstrating error. (In re Diamond H., supra, 82 Cal.App.4th at p. 1135.)
2. The Mother’s Procedural Claims
The mother first attacks the disposition order on procedural grounds. She argues that the juvenile court improperly shifted the burden of proof to her, and she also suggests that the court employed a lower standard of proof than required. We reject those claims.
a. Burden of Proof
To support her assertion that the court improperly shifted the burden of proof to her, the mother points out that the court prefaced the announcement of its dispositional choice with several remarks, apparently directed to both Natalie and her mother, including these: “I think it’s time for both of you to start looking at … issues that need to be dealt with if you want to work at living together as a family. Until these are addressed I’m not saying that Natalie is in the right, but she is at risk and so because of that I will order removal at this time….” The mother argues that by ordering removal until the family’s issues were addressed, “the court shifted the burden to provide reasonable services to prevent removal from the Agency to appellant.”
We disagree. As the Agency correctly observes, the court’s written findings belie this contention. With respect to the court’s oral comments, they may be reasonably understood as simply encouraging Natalie and her mother to begin working on the issues that brought them into the dependency system. Indulging that inference to support the order, we reject the mother’s argument that the juvenile court improperly shifted the burden to her.
As relevant, the court’s findings include these: “3. Reasonable efforts have been made to prevent or eliminate the need for the removal of the minor from the home of the child’s parent or guardian. [¶] 4. The Human Resources Agency has complied with the case plan by making reasonable efforts to make it possible for the child safely to return home….”
b. Standard of Proof
Nor are we persuaded that the juvenile court used wrong standard of proof. Again, the written disposition order demonstrates that the court was aware of the requisite standard of proof by clear and convincing evidence. (§ 361, subd. (c).) That fact distinguishes this case from In re Henry V., on which the mother relies. (In re Henry V., supra, 119 Cal.App.4th at p. 530 [noting the “absence of any indication on the record that either the court or the Agency understood the necessity of making the dispositional findings on clear and convincing evidence”].) In this case, “a reading of the entire record convinces us the court was well aware of its responsibilities at the dispositional phase and the findings and conclusions made discharged those responsibilities.” (In re Stephen W. (1990) 221 Cal.App.3d 629, 645.)
The disposition order thus includes this finding: “7. By clear and convincing evidence, the welfare of the child requires that her physical custody by taken from her mother….”
3. The Necessity for Removal Here
In assessing the mother’s other claims, we next examine the evidence presented below to see whether it reveals both the existence of substantial danger to Natalie and the absence of less drastic alternatives for protecting her.
a. Substantial Risk of Harm
As interpreted in the relevant case law, the statute requires “a threat to physical safety, not merely emotional well-being, in order to justify removal.” (In re Isayah C., supra, 118 Cal.App.4th at p. 698, and cases cited therein.) “The parent need not be dangerous and the minor need not have been actually harmed before removal is appropriate.” (In re Diamond H., supra, 82 Cal.App.4th at p. 1136.) “There must be at least some threat of actual physical harm, however, not simply a threat to a child’s emotional well-being, in order to justify removal … under … § 361(c)(1).” (Abbott, et al., Cal. Juvenile Dependency Practice (Cont.Ed.Bar 2007) Disposition, § 5.23, p. 285.)
Assessing the record under this standard, with due regard for the heightened standard of proof, we find sufficient evidence to support the juvenile court’s determination that there was a risk of substantial harm. The evidence in this case clearly reveals the presence of physical danger to Natalie, a conclusion that the mother does not seriously dispute. The allegations in the sustained petition were supported in the Agency’s jurisdiction/disposition report. According to that evidence, not only did the mother throw salt in Natalie’s face on April 11th, but the day or so before, she had kicked the girl, pulled her hair and hit her in the eye. Moreover, there was evidence that the mother had sometimes subjected Natalie to similar abuse in the past, slapping her, kicking her, and pulling her hair. Additionally, there was evidence that Natalie’s brother Scottie physically abused her, without intervention by the mother. Some of the foregoing evidence was disputed; for example, the mother “denied kicking or pulling Natalie’s hair.” The mother also said that she had “never seen Scottie” hit or punch Natalie. But the juvenile court resolved those factual disputes against the mother when it sustained the petition as amended. And as reported in the Agency’s jurisdiction/disposition report, Natalie told the social worker: “I feel like I would be at risk of physical abuse from my mom, if I went home. And my brother too.” The court agreed, making a specific oral finding at the hearing that Natalie was “at risk” of harm in the home. (Cf. In re Jasmine G., supra, 82 Cal.App.4th at p. 288 [record clearly showed that “it was safe to return” the child, at least to her father].)
The evidence thus satisfies the first prong of the statute, which requires clear and convincing proof of “a substantial danger to the physical health, safety, protection, or physical or emotional well-being of the minor” in the event of a return home. (§ 361, subd. (c)(1).)
b. Availability of Less Drastic Measures
The second prong of the statute calls for the consideration of alternatives. “Section 361 requires that there be ‘no reasonable means’ of preventing removal.” (In re Jasmine G., supra, 82 Cal.App.4th at p. 293.) Contrary to the mother’s assertions on appeal, that requirement is met here.
As reflected in the statute and in the relevant case law, a range of less drastic alternatives may be available in a given case. One example is a return to parental custody “under stringent conditions of supervision by the welfare department….” (In re Jeannette S. (1979) 94 Cal.App.3d 52, 60.) In such cases, “unannounced visits and public health nursing services [are] potential methods of supervising an in-home placement.” (In re Henry V., supra, 119 Cal.App.4th at p. 529.) Where only one parent is the offender, separation may be a less drastic alternative to removal. (§ 361, subd. (c); see generally, Abbott, et al., Cal. Juvenile Dependency Practice, supra, Disposition, § 5.24, p. 286.)
In this case, we find no basis for reversing the juvenile court’s determination that “there are no reasonable means by which the minor’s physical health can be protected” short of removal. (§ 361, subd. (c)(1).) For one thing, as explained below, it appears that the mother acquiesced in the removal recommendation, which forfeits the argument. Moreover, on the merits, the record supports the juvenile court’s removal decision.
(i) The mother acquiesced in the removal decision.
According to the investigation narrative, which was prepared on April 12, 2007, (just after Natalie was taken into protective custody), the mother did “not want Natalie returned to her care or back in her home” at that time. The Agency’s later jurisdiction/disposition report includes this statement by the mother, given in an interview on April 30th: “ ‘And they came and took her away and it has been wonderful ever since. I mean really, it has been like Christmas with her gone.’ ”
The jurisdiction/disposition report also recounts Natalie’s expressed wish to stay with her foster mother and to visit with her mother and her brother just once a month. It further recounts the mother’s acquiescence in those wishes. The mother responded to the prospect of concurrent planning by stating “that she wants to do whatever Natalie wants. ‘If Natalie wants to be adopted or stay in foster care, I will sign the papers.’ When asked what she wanted to have happen, [the mother] again stated, ‘I want whatever Natalie wants.’ ” The report thus concludes: “Both [mother and child] seem comfortable with the idea of Natalie remaining in foster care.” Moreover, the mother also “inquired about how to decrease the visits between herself and Natalie.”
Even as late as June 2007, during the combined jurisdiction/disposition hearing, the mother did not argue for Natalie’s immediate return. On direct examination, when asked whether she intended to reunify with Natalie, the mother answered: “I would like to. If she wants to cooperate and get along, that would be wonderful.” In argument, the mother’s counsel summarized her position by saying: “My client wants Natalie to get help. She wants Natalie to see a therapist. She wants Natalie to get evaluated if that’s what’s necessary. And if medication might help her out with a problem, my client is in support of that. [¶] My client wants to reunify with her daughter. She wants to bring her back to the family that has supported her and loved her for all her years.” (Cf. In re Henry V., supra, 119 Cal.App.4th at p. 527 [mother’s attorney “emphasized the availability of in-home services and argued [that the child] should be returned home”].) Neither the mother’s testimony nor her counsel’s argument specifically requested Natalie’s immediate return. By contrast, Natalie’s attorney said this: “As for disposition, I would ask for Natalie to remain out of home for the time being and that visits with her mother and brother be one time per month for one hour supervised.”
Under these circumstances, the record supports an implicit finding that the mother acquiesced both in Natalie’s expressed wishes to remain out of her mother’s home and in the Agency’s recommendation, which was “that the minor remains in out-of-home care, and that the mother be provided with Family Reunification services….” (Cf. In re Richard K. (1994) 25 Cal.App.4th 580,587 [by expressly submitting on the agency’s recommendation, the mother “waived any objection to the juvenile court’s dispositional orders”].) As stated in Richard K.: “He who consents to an act is not wronged by it.” (Id. at p. 590.) There, “the mother was not disputing that the court should adjudge her children dependents, order them removed from her custody and provide a reunification plan.” (Id. at p. 589.) Here, although the mother strenuously objected to jurisdiction, she did not appear to contest the removal recommendation. We thus may consider her arguments against the disposition order forfeited on appeal. In any event, even assuming that the mother’s objection to removal is not forfeited, she has not carried her burden of demonstrating a basis for reversal, as we now explain.
(ii) The record supports the court’s finding.
By statute, there must be clear and convincing evidence that “there are no reasonable means by which the minor’s physical health can be protected” short of removal. (§ 361, subd. (c)(1).) Here, the juvenile court’s formal disposition order reflects the requisite determination, explicitly referencing the lack of “reasonable means by which the minor’s physical health can be protected without removing the minor from [the mother’s] physical custody.” And as we explain below, the record in this case provides sufficient evidentiary support for that determination. We thus conclude that the mother failed to carry her “burden of showing there is no evidence of a sufficiently substantial nature to support the finding or order.” (In re Diamond H., supra, 82 Cal.App.4th at p. 1135.)
We acknowledge that “the court did not mention the existence of alternatives to out-of-home placement” in its remarks at the hearing. (In re Henry V., supra, 119 Cal.App.4th at p. 529.) Even so, there is evidence that it considered less drastic measures. At the hearing, the court stated that it had “read and considered the report, juris/dispo report” in addition to the other evidence and argument presented. While the Agency’s report is not a model of clarity or thoroughness on the subject of alternatives to removal, we nevertheless find it adequate to support the court’s finding, which in turn supports its order. (In re Stephen W., supra, 221 Cal.App.3d at p. 645 [findings sufficient to support disposition order].) The report shows that the Agency investigated at least one option to avoid removal from both parents, the possibility of placement with the father.
In any event, failure to articulate alternatives to removal does not require reversal where the error is harmless. “Although the court did not state a factual basis for its removal order, any error is harmless because it is not reasonably probable such findings, if made, would have been in favor of continued parental custody.” (In re Diamond H., supra, 82 Cal.App.4th at p. 1137; see also, e.g., In re Jason L. (1990) 222 Cal.App.3d 1206, 1218, and cases cited therein; cf. In re Basilio T. (1992) 4 Cal.App.4th 155, 171 [“error cannot be deemed harmless because there were less drastic alternatives to removal”].)
Here, any error in failing to explicitly articulate and reject less drastic options is harmless. The juvenile court implicitly determined that the risk of physical harm to Natalie was too great to leave her in her mother’s custody with in-home services, a determination that finds adequate support in this record. Resisting that conclusion, the mother focuses almost exclusively on the mental health issues that led to Natalie’s removal. But those issues represent only one of three categories of problems that required intervention, as identified by the Agency: (1) parenting skills; (2) household relationships; and (3) mental health and coping skills.
To address the first category of problems, which related to her parenting skills, the mother was given a referral for counseling and parenting classes. It is true that such services typically can be accessed without the need for removal. (Cf. In re Henry V., supra, 119 Cal.App.4th at p. 529 [“there was no suggestion” in the record that the recommended bonding study “could not have been performed while [the child] resided in his family home”].) But the same cannot necessarily be said for the other two categories of problems that led to Natalie’s removal.
With respect to the second set of issues identified by the Agency, household relationships, the record shows that Natalie’s brother Scottie remained at home with the mother. As the juvenile court found, Scottie hit and punched Natalie. He was then 16 years old, six feet three inches tall, weighing 160 pounds. Addressing the allegation of sibling abuse, the mother had told the Agency: “I would not have tolerated him punching or hitting her, especially in the face or stomach. I am totally against fighting, except in self-defense. But with Natalie, sometimes it is self-defense.” Considering the substantiated finding of sibling abuse, together with the mother’s denial and justification of Scottie’s behavior, the court could reasonably have harbored doubts about Natalie’s safety in the home, even with Agency supervision. (In re Tracy Z. (1987) 195 Cal.App.3d 107, 114 [considering “the nature of the proven abuse” of the children by “their still unrepentant parents, the court had no alternative but to remove them from the home”]; In re Heather A. (1996) 52 Cal.App.4th 183, 196 [exclusion of father’s domestic partner was not a viable alternative to removal, as it would not have protected the children].) Finally, this is not a case where the physical abuse by the mother was a single, isolated occurrence. (Cf. In re Henry V., supra, 119 Cal.App.4th at p. 529.) Rather, it was both ongoing and apparently escalating. Even after Natalie’s placement in foster care, and with fairly minimal contact (weekly supervised visits), the Agency reported that the mother-daughter “relationship remains volatile.”
Finally, concerning the third category of problems (mental health issues and coping skills), the record demonstrates that the family’s efforts at delivery of mental health services to Natalie while she was living at home had proved unsuccessful. According to the mother’s testimony at the jurisdiction/disposition hearing, Natalie went to one counselor for “about a year, and there was no change in her behavior.” The mother therefore decided to change counselors to “one that would work with both of us as a family instead of just Natalie alone.” Despite that change, the mother testified that Natalie’s behavior became even more frightening. And as indicated in a letter that the mother submitted in evidence at the hearing, the new therapist “questioned whether [the mother] could provide the structure to effectively parent Natalie.”
In light of all of this evidence, the juvenile court did not abuse its discretion in concluding that no alternative short of removal would provide Natalie with adequate protection.
4. Conclusion
To sum up, even assuming that the issue is not forfeited, the mother failed to carry her appellate burden of demonstrating error. (In re Diamond H., supra, 82 Cal.App.4th at p. 1135.) It is true that “the state may disturb an existing parent-child relationship only for strong reasons and subject to careful procedures.” (In re Henry V., supra, 119 Cal.App.4th at pp. 530-531.) But this record provides the necessary evidence of strong reasons and careful procedures.
II. Indian Child Welfare Act
Having rejected the mother’s challenge to the dispositional order for removal, we now turn to her remaining appellate claim, which involves the Indian Child Welfare Act. As before, we begin by briefly summarizing the applicable law.
A. Legal Principles
The Indian Child Welfare Act is a federal law, which is recognized and applied in California.
1. Federal Law
Congress enacted the Indian Child Welfare Act in 1978. (See 25 U.S.C. § 1901 et seq.) “The ICWA establishes minimum federal standards, both procedural and substantive, governing the removal of Indian children from their families.” (In re H.A. (2002) 103 Cal.App.4th 1206, 1210.)
Among the Act’s procedural safeguards are its notice requirements. (25 U.S.C. § 1912; In re Marinna J. (2001) 90 Cal.App.4th 731, 734.) “Notice is a key component of the congressional goal to protect and preserve Indian tribes and Indian families. Notice ensures the tribe will be afforded the opportunity to assert its rights under the Act irrespective of the position of the parents, Indian custodian or state agencies.” (In re Kahlen W. (1991) 233 Cal.App.3d 1414, 1421.) The juvenile court and the agency both have “ ‘an affirmative and continuing duty to inquire’ whether a dependent child is or may be an Indian child.” (In re N.E. (2008) 160 Cal.App.4th 766, 769; § 224.3.) The notice must contain sufficient information to be meaningful. (In re Robert A. (2007) 147 Cal.App.4th 982, 989; In re Karla C. (2003) 113 Cal.App.4th 166, 175.) That includes all relevant information in the agency’s possession. (In re Gerardo A. (2004) 119 Cal.App.4th 988, 995.)
2. California Law
California recognizes the ICWA’s notice requirements, both in statutes and by court rule. (See § 224.2; Cal. Rules of Court, rule 5.481, which replaced former rule 5.664, effective January 1, 2008.)
B. Analysis
1. Background
At the detention hearing held April 16, 2007, the mother informed the court that she had Chickasaw Indian heritage. The minute order from that hearing states: “Based on mother’s indication that she has Indian heritage, the Court finds that ICWA may apply.”
The next day, the Agency sent ICWA notices to the Chickasaw Nation of Oklahoma and to the Bureau of Indian Affairs, with copies to both parents. The mother’s copy was returned to the Agency. The notices included information about the maternal great-grandmother, Viola M.
The mother later disavowed any Indian heritage. According to the Agency’s jurisdiction/disposition report: “The Indian Child Welfare Act does not apply. The mother was asked on 4/30/07 if she had any Indian Heritage, and she stated she did not. She further stated she did not believe Natalie’s father had any Indian Heritage either. The father … was asked on 5/02/07 if he has any Indian Heritage and he stated that he did not.”
At the conclusion of the jurisdiction/disposition hearing in June 2007, the court made a finding that proper ICWA notices had been given.
2. Contentions
According to the mother, the notices were defective in several respects. Concerning the information about the maternal great-grandmother, the mother asserts, “it is not clear whether her maiden or married name is provided. Additionally, the notice does not contain any information about the maternal grandmother and only the name and birth date of the maternal grandfather.”
In its respondent’s brief on appeal, the Agency maintains that the notices were adequate. In its view, the mother “has not identified known information which should have been included on the Indian Child Welfare Act notice.” In any event, the Agency contends, even assuming error, there is no prejudice.
3. Standard of Review
“We review factual findings in the light most favorable to the trial court’s order.” (In re Rebecca R. (2006) 143 Cal.App.4th 1426, 1430.) The appellant asserting an ICWA notice violation has the burden of proving both error and “a miscarriage of justice, which is the fundamental requisite before an appellate court will reverse a trial court’s judgment. (Cal. Const., art. VI, § 13.)” (Ibid.)
4. Analysis
In this case, the mother has demonstrated neither error nor prejudice.
a. There is no error.
The mother has not carried her burden of showing that the ICWA notices were defective. She does not point to any information known to the Agency but excluded from the notice. The mother nevertheless complains: “Not even a name is provided for appellant’s mother, even though the record indicates that appellant spoke to the social worker regarding her own upbringing with five siblings in Northern California.” Significantly, however, the cited portion of the record makes no mention of appellant’s mother, much less any biographical or contact information for her. And the mother does not contend that she actually provided any information to the social worker about her family that was omitted from the ICWA notices. “While the social worker and the trial court have a duty to inquire into the child’s Indian ancestry, a parent has superior access to this information.” (In re S.B. (2005) 130 Cal.App.4th 1148, 1160; see also In re Gerardo A., supra, 119 Cal.App.4th at p. 995 [finding no “basis in the record that the … maternal relatives … could have supplied the missing birthplaces and birthdates”].)
b. In any event, there is no prejudice.
Given her statement below disavowing Indian ancestry, the mother cannot show that she has been prejudiced by any claimed defect in the ICWA notices. Moreover, she makes no claim of such ancestry in this court. “The knowledge of any Indian connection is a matter wholly within the appealing parent’s knowledge and disclosure is a matter entirely within the parent’s present control.” (In re Rebecca R., supra, 143 Cal.App.4th at p. 1431.) To demonstrate prejudice from an ICWA notice violation, the parent must claim Indian heritage on appeal; failure to do so “amounts to nothing more than trifling with the courts.” (Ibid.; accord, In re N.E., supra,160 Cal.App.4th at p. 770; cf. In re Mary G. (2007) 151 Cal.App.4th 184, 212 [“the parents did disclose Indian ancestry to the Agency”].) Absent “an affirmative representation of Indian heritage” by the parent, “there can be no prejudice and no miscarriage of justice requiring reversal.” (In re Rebecca R., at p. 1431.)
This conclusion in no way undercuts the tribe’s interests. Given the mother’s unrebutted disavowal of any Native American ancestry, it is clear that Natalie is not an Indian child. For that reason, any claimed defect in the notices is harmless as to the tribe as well. “An ICWA notice violation may be held harmless … when, even if notice had been given, the child would not have been found to be an Indian child, and hence the substantive provisions of the ICWA would not have applied [citations].” (In re S.B., supra, 130 Cal.App.4th at p. 1162.)
DISPOSITION
The challenged dispositional order is affirmed.
We Concur: Mihara, Acting P.J., Duffy, J.