Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
APPEAL from the Superior Court of San Bernardino County. Ct. No. J205451. Kyle S. Brodie, Judge. Affirmed.
Sharon S. Rollo, under appointment by the Court of Appeal, for Defendant and Appellant.
Ruth E. Stringer, County Counsel, and Kristina M. Robb, Deputy County Counsel, for Respondent.
Janette Freeman Cochran, under appointment by the Court of Appeal, for Minor.
OPINION
RAMIREZ, P. J.
J. D. (mother) appeals from the termination of her parental rights under Welfare and Institutions Code section 366.26 as to her child T. D. (the child), who was born in 2005. Mother claims the order terminating her parental rights must be reversed and the matter remanded because notice was defective under the Indian Child Welfare Act (25 U.S.C. § 1901 et seq.) (ICWA). As a result of defective notice mother contends the dependency court’s order was erroneous and is voidable.
All further statutory references are to the Welfare and Institutions Code unless otherwise indicated.
FACTUAL AND PROCEDURAL BACKGROUND
The original dependency petition was filed by San Bernardino County Department of Children’s Services (DCS) on December 16, 2005, alleging the child came within section 300, subdivisions (b) and (g). The petition alleged the child was born under the influence of cocaine and was suffering withdrawal due to mother’s substance abuse during pregnancy. The petition also alleged mother had no means of support and the whereabouts of the father, T. S., was unknown. A detention report dated December 19, 2005, stated that mother and the child both tested positive for cocaine at the time of the child’s birth. When interviewed, mother admitted she received no prenatal care and had smoked cocaine daily during her pregnancy. She also said the child’s father had been incarcerated in Las Vegas, Nevada, since June 2005.
The child’s appellate counsel filed a letter brief seeking to affirm the order terminating parental rights based on a review of the record and updated information of the child.
At a detention hearing on December 19, 2005, the court ordered the child removed from the mother and placed in suitable foster care under the supervision of DCS. On December 22, 2005, mother signed a form stating she had no Indian ancestry. From that point forward and at all relevant times during the dependency proceedings, the social worker regularly reported the child was doing well under the care of foster parents. The social worker also indicated the child’s foster parents had expressed an interest in adopting her.
In an amended petition filed January 6, 2006, DCS claimed father, the “alleged father,” was incarcerated, had a substance abuse problem, and led a criminal lifestyle that included trafficking in controlled substances, exploitation, and violence. On February 8, 2006, the court declared father the “presumed father” of the child, removed the child from the custody of the parents, declared the child a dependent of the court, approved a case plan for mother, and ordered services for both parents.
On September 18, 2006, the court terminated services for both parents and set a section 366.26 hearing for January 16, 2007, to make a permanent plan for the child. Father then filed a petition for extraordinary writ claiming he was not provided reasonable services. We agreed with father and granted the writ petition. (Terrance S. v. Superior Court (Dec. 15, 2006, E041386) [nonpub. opn.].)
Mother was present in custody for the hearing on January 16, 2007. It was reported father had been released from custody and was residing out of state, and arrangements had been made so he could travel to California and begin regular visitation with the child. Mother was paroled on March 21, 2007.
On May 7, 2007, DCS reported that father completed only two visits with the child and had not been seen by his parole officer or relatives in over two months. A warrant had been issued for his arrest, and he was facing at least three years in prison if located. DCS also reported contacting the paternal grandmother, who indicated she had adopted three of father’s children, and a fourth child had been adopted by a maternal grandmother. In addition, DCS was aware father had another one-year-old child whose mother had used cocaine and marijuana during pregnancy, and there was an ongoing DCS case for this child as well. DCS recommended termination of parental rights. However, services were continued for father at that time. On September 26, 2007, the court terminated services to father for failure to participate and make substantive progress.
On November 2, 2007, father was present in court for the first time at a notice review hearing, and was personally advised of the section 366.26 hearing scheduled for January 24, 2008. Father signed and filed a parental notification of Indian status form stating he may be a member of a Navajo tribe. On November 9, 2007, DCS filed a notice of involuntary child custody proceedings for an Indian child stating the child could be eligible for membership in a Cherokee or Navajo tribe. The notice stated father’s maternal grandfather has Cherokee ancestry and father’s paternal grandmother has Navajo ancestry.
On January 24, 2008, mother appeared at the section 366.26 hearing but father did not. A continuance was granted at the request of DCS because of inadequate notice to father under ICWA. Mother signed and filed a parental notification of Indian status form stating she had no Indian ancestry. On February 26, 2008, the court granted de facto parent status to the child’s foster parents.
On April 7, 2008, DCS filed a second notice of child custody proceeding for Indian child stating the child could be eligible for membership in a Cherokee, Navajo, or Creek tribe. The notice included information about father’s relatives. DCS also filed a declaration of due diligence stating letters were received from four tribes indicating the child was not enrolled and the tribe would not intervene. However, the declaration did state one tribe, the Cherokee Nation of Oklahoma, requested additional information. On April 9, 2008, mother appeared at a pretrial conference and was seeking visitation with the child, which DCS opposed.
On April 23, 2008, a second declaration of due diligence reported letters were received from two more tribes stating the child was not enrolled or eligible for enrollment, and the tribe would not intervene. On June 2, 2008, a third declaration of due diligence was filed stating that nine out of the 10 tribes notified had responded and indicated the child was not enrolled or eligible for membership. Although the declarations states that one tribe, the Cherokee Nation of Oklahoma, requested more information, it also states, “No additional info[rmation] available.” The declaration also represents there was no response after 65 days from the Bureau of Indian Affairs (BIA). At that time, DCS requested a finding by the court that notice was conducted as required by ICWA, and ICWA did not apply.
On June 2, 2008, mother was present for the section 366.26 hearing but father was not. Mother presented no affirmative evidence but objected and asked the court not to terminate her rights. Through counsel, she requested “a lesser plan like guardianship.” She also advised the court she was taking classes and wanted to be able to participate in the child’s life in the future. Based on the declarations filed by DCS, the court found ICWA did not apply. Over mother’s objection, the court terminated parental rights and ordered adoption as the child’s permanent plan.
DISCUSSION
Mother claims notice under ICWA was defective because (1) DCS failed to inquire and to provide additional information requested by the Cherokee Nation of Oklahoma about father’s relatives; and (2) DCS failed to provide accurate information in the ICWA notices. Mother argues the alleged errors were not harmless, because the trial court did not make a proper determination under ICWA and, as a result, she did not receive the benefit of the substantive provisions of ICWA during the proceeding.
In general, ICWA applies to any state court proceeding involving the foster care or adoptive placement of, or the termination of parental rights to, an Indian child. (25 U.S.C. §§ 1903(1), 1911(a)-(c), 1912-1921.) “ ‘Indian child’ ” is defined as a child who is either (1) “a member of an Indian tribe,” or (2) “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).) “Indian tribe” is defined so as to include only federally recognized Indian tribes. (25 U.S.C. § 1903(8).)
When a 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 BIA of the pending proceedings and the right to intervene. (In re Marinna J. (2001) 90 Cal.App.4th 731, 739-740, fn. 4.) “Notice under the ICWA must, of course, contain enough information to constitute meaningful notice.” (In re Karla C. (2003) 113 Cal.App.4th 166, 175.) “[B]y federal regulation an ICWA notice must include, if known, (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) names and addresses of the child’s parents, grandparents, great-grandparents and other identifying information; and (4) a copy of the dependency petition. (25 C.F.R. § 23.11(d)(3) (2003); 59 Fed.Reg. 2248 (eff. Feb. 14, 1994).)” (Ibid.)
Strict compliance with ICWA notice requirements is important, because “noncompliance can invalidate the actions of the juvenile court, including placement orders. (25 U.S.C. § 1914)” (In re I.G. (2005) 133 Cal.App.4th 1246, 1254.) On the other hand, “[s]ubstantial compliance with the notice requirements of ICWA may be sufficient under certain circumstances.” (Id. at p. 1252.) In addition, where notice has been sent to the tribe or the BIA, errors or omissions in the notice are reviewed under the harmless error standard. (In re Nicole K. (2007) 146 Cal.App.4th 779, 784.) For example, the notice sent in Nicole K. included an incorrect birth date for the child’s mother, but the error was harmless because the mother claimed no direct connection to any tribe, so there was no reason to believe the correct birth date would have resulted in a different outcome on the child’s Indian heritage. (Ibid.) In addition, “[a]n ICWA notice violation may be held harmless when the child’s tribe has actually participated in the proceedings [citation] or 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. (2005) 130 Cal.App.4th 1148, 1162, fn. omitted.)
Here, the record does show some errors or omissions in the ICWA notices. As mother contends, the first notice filed November 9, 2007, includes father’s first, middle, and last names and designates him as a “Sr.”; the second notice, filed April 7, 2008, only shows father’s first and last names. Father’s birthplace was included in the notice filed November 9, 2007, but was omitted from the notice filed April 7, 2008. Mother’s information was omitted from the November 9, 2007, notice. The notice filed November 9, 2007, lists father’s grandparents but does not indicate whether they are maternal or paternal. Neither notice includes the names of the child’s paternal grandparents (i.e., father’s parents). The names of father’s parents were omitted even though the social worker had been in contact with father’s mother. The notice filed April 7, 2008, also incorrectly lists father as the child’s paternal grandfather when the correct name for the paternal grandfather was available to the social worker. Mother also complains that the notices only show the child’s first and last name and do not show her middle name even though her middle name is in the court’s record.
In our view, these errors or omissions are harmless. The record shows father was claiming Cherokee heritage through his maternal grandfather and Navajo heritage through his paternal grandmother. To the extent available, the names and identifying information for these individuals was included in both notices. This was enough information to permit the tribes to complete a meaningful search of their records to determine whether father, his maternal grandfather, or paternal grandmother were members of the tribes. Although as mother contends the record shows two response letters from the Cherokee Nation requesting more complete information for the child’s paternal great-grandfather, there is nothing to indicate any further information was available to DCS. Father was only present for a single hearing on November 2, 2007, prior to the dates the notices were mailed, and did not continue visitation with the child. 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. (2000) 78 Cal.App.4th 191, 199.)
Because DCS had already had contact with the paternal grandmother (i.e., father’s mother), mother suggests DCS had a duty to contact her once again when it received the requests for information from the Cherokee Nation in order to obtain more complete information about father’s relatives. However, the record shows this was not necessary under the circumstances and would not have resulted in a different outcome on the child’s Indian heritage. In a report dated May 7, 2007, the social worker reported contacting the paternal grandmother, who indicated she had adopted father’s three oldest children. The paternal grandmother sent the social worker information and numerous documents about the family, the other children, and the adoptions. These documents included an adoption decree filed in the Family Division of the Nevada District Court on July 7, 2004, which represents: “That the children sought to be adopted are not Indian Children as defined by the Indian Child Welfare Act and that the Division of Child and Family Services have met all ICWA requirements for these children.” As a result, DCS would have had no reason to expect father’s mother to provide additional information about father’s relatives which would have validated or substantiated father’s claim of Indian heritage. Nor has mother explained how additional inquiries by DCS about father’s relatives would have established some Indian connection sufficient to invoke the substantive provisions of ICWA.
DISPOSITION
Based on the foregoing, the order terminating parental rights is affirmed.
We concur: RICHLI, J., MILLER, J.