Opinion
NOT TO BE PUBLISHED
Humboldt County Super. Ct. No. JV050220
Haerle, Acting P.J.
I. INTRODUCTION
Mother, Crystal K., appeals from an order terminating her parental rights pursuant to Welfare and Institutions Code section 366.26. Her sole argument on appeal is that the order should be reversed and the matter remanded for compliance with the Indian Child Welfare Act (25 U.S.C. §§ 1901, et seq.) (the ICWA) because the Humboldt County Department of Health and Human Services (the Department) failed to give proper notice under the ICWA. We conclude that any errors in notice were harmless and, accordingly, affirm the order.
II. FACTUAL AND PROCEDURAL BACKGROUND
Because the facts that brought Mother to the attention of the Department and ultimately led to the termination of her parental rights as to two year old Roger S. are largely irrelevant to the procedural issue in this case, we provide only a brief outline.
Roger came to the Department’s attention when he was two days old. His parents had no place to stay and appeared unable to care for him properly. In September 2005, Roger was detained. The dependency petition filed by the Department indicated that Roger might be of Indian ancestry and a member of, or eligible for membership in, a federally-recognized tribe.
At the November 2005 jurisdictional hearing, William S. (Father) was identified as Roger’s presumed father. Father identified five possible tribal affiliations: Osage, Cherokee, Chippewa, Hoopa and Karuk.
At the dispositional hearing on December 28, 2005, the court ordered Roger to remain in out of home placement. The parents were to be provided with reunification services and supervised visits.
The Department provided Mother and Father with reunification services and, in an April 2006 six-month review report, noted that Mother had begun to visit Roger, and was “semi-regular” in her efforts to do so. Her interactions with Roger went well and she was “very attentive.” Mother did not stay in touch with the social worker, but she had begun a substance abuse program, although her participation was inconsistent. With regard to Mother’s responsibility to establish a home, she did not do so until the report was filed, at which time she and father (who had been incarcerated for much of the reunification period) moved into a motel room.
The Department recommended that reunification services be terminated.
The Department attached to its April 2006 six-month review report copies of receipts of mailings to various tribal entities and the responses it had received from some of the tribes. The Department also filed an addendum to its report attaching additional receipts of mailing.
At the July 13, 2006, six- month review hearing, the court terminated reunification services and set the matter for a section 366.26 hearing. The court found that compliance with the ICWA was “ongoing.” Shortly after the court issued its order, the Department filed a motion to remand the case in order to ensure compliance with the ICWA. The motion was unopposed and we granted it, conditionally reversing the order, and remanding the matter to the juvenile court with directions to ensure compliance with the ICWA. We ordered that the dispositional orders be reinstated if the court determined, after proper notice, that Roger was not an Indian child.
On October 10, 2006, after requesting and receiving information regarding the Department’s efforts to comply with the ICWA, the court found that notice had been given as required and that Roger was not an Indian child coming within the ICWA. Father was present at this hearing and represented by counsel. Mother was not present but was represented by counsel.
At this hearing, Father’s counsel stated that, “”There are numerous responses from many, many tribes. I think every tribe that was identified, including most recently the Karuk Tribe . . . has since responded. And . . . all of them indicate that their records and their determination is that Roger S. is not an Indian child within the meaning of the Act as to their tribe; is not a tribal member or eligible for membership. Submit it, your honor.” Mother’s counsel stated only, “I will submit on the ICWA issues.”
The court found notice had been given and reinstated the dispositional orders.
In a permanency planning report, the Department noted that Roger, who was then 18 months old, had resided in his current placement for most of his life. His prospective adoptive parents were committed to providing him with excellent care. Mother and Father were not attending visits regularly, and still did not have a stable home. Roger was found to be a likely candidate for adoption by his foster parents. At a permanency planning hearing held on May 29, 2007, the court adopted the Department’s recommendations, held the ICWA did not apply, and terminated parental rights.
Mother filed a notice of appeal from this order on July 24, 2007.
III. DISCUSSION
A. Waiver
Mother contends that the order terminating her parental rights should be reversed because the Department did not comply with the ICWA. The Department disagrees and, moreover, argues that Mother has waived this issue because she did not appeal from the court’s October 10, 2006, order holding that the Department had complied with the ICWA.
With regard to this preliminary issue, we conclude that, even if Mother did waive this issue by her failure to appeal from the October 10, 2006 order, we must still reach the merits, because Mother argues that counsel was ineffective for failing to challenge the court’s October 10, 2006 order.
We note that, in two cases, In re Amber F. (2007) 150 Cal.App.4th 1152 and In re X.V. (2005) 132 Cal.App.4th 794, our colleagues in the Fourth District have held that when a parent has “ample opportunity to review and correct the many documents involved in the second round of notices [and fails] to object to errors below, she has forfeited her right to do so on appeal.” (In re Amber F., supra, 150 Cal.App.4th at p. 1156.) In neither of these cases, however, did the parent contend that counsel’s failure to raise these issues constituted ineffective assistance of counsel, as Mother does here.
In order to establish that counsel was ineffective, Mother must show that she failed to act in a manner expected of “reasonably competent attorneys acting as diligent advocates,” and that any such failure made a “determinative difference” in the outcome. (In re Dennis H. (2001) 88 Cal.App.4th 94, 98.) Such a difference exists when “it is reasonably probable that but for such failure, a determination more favorable for [the parent’s] interests would have resulted.” (Id. at p. 98, citations omitted.) Therefore, we must consider whether counsel’s failure to object to the alleged deficiencies in notice under the ICWA would have made any difference to the outcome. Most basically, if the court would have rejected the objections Mother now makes to the manner in which the Department gave notice to the tribes, then any failure to raise them would be of no consequence and, therefore, no ineffective assistance of counsel could have occurred. We turn now to Mother’s argument regarding compliance with the ICWA.
B. Background
“In 1978, Congress passed the [ICWA], which is designed to promote the stability and security of Indian tribes and families by establishing minimum standards for removal of Indian children from their families and placement of such children ‘in foster or adoptive homes which will reflect the unique values of Indian culture, and by providing for assistance to Indian tribes in the operation of child and family service programs.’ [Citations.]” (In re Marinna J. (2001) 90 Cal.App.4th 731, 734.) “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.] Congress has concluded the state courts have not protected these interests and drafted a statutory scheme intended to afford needed protection. (25 U.S.C. § 1902.) The courts of this state must yield to governing federal law.” (In re Desiree F. (2000) 83 Cal.App.4th 460, 469.)
When the social services agency has reason to know the proceeding involves an Indian child, the agency must notify the Indian child’s tribe or, if the tribe’s identity cannot be determined, it must notify the Bureau of Indian Affairs of the pending proceedings, and the right to intervene. (In re Marinna J., supra, 90 Cal.App.4th at pp. 739-740, fn. 4; In re Levi U. (2000) 78 Cal.App.4th 191, 196-197.) The agency’s duty is to inquire into the possibility of Indian ancestry and to act upon the information the family provides. The agency is not required to conduct an extensive independent investigation or to “cast about, attempting to learn the names of possible tribal units to which to send notices[.]” (In re Levi U., supra, 78 Cal.App.4th at p. 199.)
Former California Rules of Court, rule 1439 (rule 1439) provided in relevant part that if, at any time after the filing of a section 300 petition, the court has reason to know that a child may be an Indian child under the ICWA, notice of the proceedings is to be given to the relevant Indian tribes of the proceedings and their right to intervene. (Former rule 1439(f).) Among other things, the rule required that notices be sent “to the tribal chairperson unless the tribe has designated another agent for service” (former rule 1439(f)(2)), and “for every hearing thereafter unless and until it is determined that the act does not apply to the case.” (Former rule 1439(f)(5).) The agency providing notice is required to file with the court “a copy of the notice sent and the return receipt, as well as any correspondence received from the Indian entity relevant to the minor’s status.” (In re Marinna J., supra, 90 Cal.App.4th at p. 739, fn. 4; In re Karla C. (2003) 113 Cal.App.4th 166, 175-176 [noting that “[m]ost appellate courts considering the issue have held the ICWA notice, and return receipts and responses of the Bureau or tribe, if any, must be filed with the juvenile court”].)
In 2005 and 2006, when the Department provided the notice discussed herein, former rule 1439 contained the governing rules.
As we observed in In re I.G. (2005) 133 Cal.App.4th 1246, “[n]oncompliance with ICWA has been a continuing problem in juvenile dependency proceedings conducted in this state, and, by not adhering to this legal requirement, we do a disservice to those vulnerable minors whose welfare we are statutorily mandated to protect.” (Id. at p. 1254.) In sum, “we agree with those courts that have emphasized the importance of strict compliance with ICWA notice requirements and, if necessary, have remanded the matter for the juvenile court to ensure that proper notice is given. [Citations.]” (Ibid.)
At the same time, we recognize that substantial compliance with ICWA notice requirements may be sufficient under certain circumstances. (In re Christopher I. (2003) 106 Cal.App.4th 533, 564-565.) Moreover, “errors in ICWA notice are subject to harmless error review” (Nicole K. v. Superior Court (2007) 146 Cal.App.4th 779, 784), and reversal and remand is not necessarily required if “the tribe has . . . expressly indicated no interest in the proceedings.” (In re Desiree F., supra, 83 Cal.App.4th at p. 472.) However, in such circumstances it must be established that proper notice was given, or at the very least that the person indicating no interest has the authority to do so on the tribe's behalf. (See In re H.A. (2002) 103 Cal.App.4th 1206, 1213-1215; In re Asia L. (2003) 107 Cal.App.4th 498, 509.) In short, “[d]eficient notice under the ICWA is usually prejudicial [citation] but not invariably so.” (In re Antoinette S. (2002) 104 Cal.App.4th 1401, 1411.)
C. Notices Sent to Someone Other than Tribal Chairperson
Mother argues that in some 23 cases the Department failed to properly notify the appropriate Tribe because it sent the notice required under the ICWA to either the Tribe’s “ICWA Advocate,” “ICWA Coordinator,” or “ICWA Representative,” rather than to the tribe’s Tribal Chairperson. We disagree.
The ICWA requires that notice be given to the appropriate Indian tribe in a child custody proceeding when the court knows, or has reason to know, the child is an “Indian child.” (25 U.S.C. § 1912(a); see In re Suzanna L. (2002) 104 Cal.App.4th 223, 231 (Suzanna L.).) An Indian child is a child who is “either (a) 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 . . . .” (25 U.S.C. § 1903(4).)
Notice under ICWA must be sent to the Indian child’s tribe by registered mail with return receipt requested, providing notice of the pending proceedings and of the tribe's right of intervention. (25 U.S.C. § 1912(a); former Cal Rules of Court, rule 5.664(f) now rule 5.481; Welf. & Inst. Code, § 224.2; see In re Kahlen W. (1991) 233 Cal.App.3d 1414, 1421 (Kahlen W.).) By federal regulation, such notice must include, if known, the following information: (1) the name, birthplace, and birth date of the Indian child; (2) the name of the tribe in which the Indian child is enrolled or may be eligible for enrollment; (3) all known names and addresses of the Indian child’s parents, grandparents, and certain other relatives and custodians, as well as their birth dates, places of birth and death, enrollment numbers, “and/or other identifying information”; and (4) a copy of the petition or other document by which the proceeding was initiated. (25 C.F.R. § 23.11(d).)
ICWA’s notice provisions are strictly construed with regard to the form of the notice and the evidence of notice that must be presented to the juvenile court. “ ‘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 [ICWA] irrespective of the position of the parents, Indian custodian or state agencies.’ [Citation.]” (In re Samuel P. (2002) 99 Cal.App.4th 1259, 1265.)
The notice requirement of ICWA is mandatory. (Suzanna L., supra, 104 Cal.App.4th at p. 231; In re Jonathan D. (2001) 92 Cal.App.4th 105, 111.) Noncompliance with the notice requirement may invalidate the actions of the juvenile court, including an order terminating parental rights. (25 U.S.C. § 1914.) But some cases have held that substantial compliance with the ICWA notice provisions is sufficient so long as the tribe has actual notice of the proceedings and of its right to intervene. (See Kahlen W., supra, 233 Cal.App.3d at pp. 1421-1422.)
In 2005 and 2006, when the ICWA notices at issue in this proceeding were sent to the various tribes and when the juvenile court ruled the notice sufficient, rule 1439 governed implementation of ICWA in California juvenile courts. Rule 1439(f)(2) required that “[n]otice to the tribe must be to the tribal chairperson unless the tribe has designated another agent for service.”
Mother argues that service to the various tribes was deficient because the service was not addressed to the tribal chairperson or authorized agent. She is correct.
Nevertheless, this error is harmless. (In re Antoinette S., supra, 104 Cal.App.4th 1401, 1410-1411.) Although “[d]eficient notice under . . . ICWA is usually prejudicial [citation]” it is “not invariably so. [Citation.]” (Id. at p. 1411.) Perfect compliance is not needed; “[s]ubstantial compliance with the notice requirements of ICWA is sufficient.” (In re Christopher I., supra, 106 Cal.App.4th at p. 566.) In particular, notice errors under the ICWA are harmless when the tribe has actual notice of the dependency proceedings and either intervenes or expressly indicates no interest in the proceedings. (In re Desiree F., supra, 83 Cal.App.4th at p. 472; Kahlen W., supra, 233 Cal.App.3d at p. 1424.)
Our review of the record indicates that none of the notices were returned as undeliverable and each of the tribes to whom the notices were sent either responded to them or, in those cases where there was no response, signed a receipt for the notice. We will not assume the tribes did not have actual notice of the proceedings simply because the notices were not addressed to the tribe’s chairperson or agent. It strikes us as far more reasonable to conclude that, when none of the notices were returned, and each of them was responded to, either with an express indication that the tribe in question had no interest in the proceedings or with a signed return receipt, the failure to notice the tribe’s chairperson or agent is harmless.
In contrast, those cases in which the courts have refused to find substantial compliance have involved situations where it is quite clear that notice was never received. For example, in one, the record showed that the notice had been misdirected to a tribal health clinic (In re H. A., supra, 103 Cal.App.4th at pp. 1209, 1213.) In another, the record lacked any evidence that notices were sent, served or contained any of the required information. (In re Jennifer A. (2002) 103 Cal.App.4th 692, 702-703, 705.) Here, there is no evidence that any of the notices failed to reach the tribe to which they were directed. We conclude, therefore, that the tribes did receive actual notice, even if the notices were not addressed to the tribal chairperson and any error was harmless.
2. Judicial Council Form JV-135
The JV-135 notices sent by the Department contained Roger’s name and date of birth, his father’s name and address, and the name of Father’s paternal grandfather (Roger’s great-grandfather). Mother argues that the notices were deficient because the Department failed to make reasonable efforts to obtain and provide family information. In particular, Mother argues that Father’s mother had contacted the Department and asked to be considered a “resource” for Roger and had provided the name of a paternal uncle. Mother argues that the Department should have pursued this lead to obtain additional information about Roger’s Indian heritage. Mother also contends that, although the Department provided father with an “ancestry form to complete” it did not follow up to obtain the form back from Father.
We reject Mother’s argument. “The Agency must provide all known information to the tribe, particularly that of the person with the alleged Indian heritage.” (In re Louis S. (2004) 117 Cal.App.4th 622, 631.) Mother contends that Father’s grandmother would have been able to provide fuller information about potential Indian heritage. In making this argument, Mother points to this information in the Department’s December 2005 disposition report: “Roger’s paternal great-grandmother has contacted the Department and would like to be considered a resource to him. This family member lives outside of Humboldt County in Shasta County and provided the name of the paternal uncle that stated to the undersigned social worker that he would like to be considered a resource to Roger as well. The Department will continue to explore these opportunities once contact information is received.”
It is evident from this information that the paternal great-grandmother came forward not to give information regarding Indian heritage, but to potentially serve as a relative placement. There is nothing in the record that indicates paternal great-grandmother provided information about Indian heritage.
What we do know is that the JV-135 notices contained information about Father’s grandfather. His name is provided and his birth date is characterized as “unknown.” There is nothing in the record to indicate that the Department had further information about this relative and, therefore, we conclude that the notice given in the JV-135 form was adequate.
In a similar situation, the court in In re Gerardo A. (2004) 119 Cal.App.4th 988, 994-995, rejected an argument that a department’s social workers failed to inquire “of the children's maternal grandmother or other older maternal relatives for additional family history, such as the birthplaces and/or birthdates for those listed on the request-for-confirmation form whose birthplaces and/or birthdates were noted as ‘unk’ or unknown.” The court called this argument “based on speculation” and noted that “[t]he fact that the record is silent regarding whether the department spoke with anyone other than the children's mother and maternal aunt does not necessarily mean the department failed to make an adequate inquiry for Indian heritage information. Similarly, appellant assumes without any basis in the record that the maternal grandmother or other older maternal relatives were available to be interviewed in 2001 and could have supplied the missing birthplaces and birthdates for the request-for-confirmation form. Under these circumstances, we need not address appellant’s underlying contention that it is the department’s duty under ICWA to interview family elders.” (Ibid.)
We also reject Mother’s argument that the Department should have, but did not, encourage Father to return the ancestry form. The Department provided Father with the ancestry form, interviewed Father about his ancestry and, thus, fulfilled its obligation to investigate the question of Indian heritage.
3. August 2006 Notice Information Regarding Roger’s Status as Presumed Father
Finally, Mother argues that notice was invalid as to five notices mailed in August 2006, because the Department stated it was “unknown” whether the “birth father” had acknowledged paternity or whether paternity had been judicially declared. We conclude that any such error was harmless because elsewhere in the form Father was identified as Roger’s “legal” father.
IV. DISPOSITION
The order appealed from is affirmed.
We concur: Lambden, J., Richman, J.