Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
Alameda County Super. Ct. No. OJ07007002
SIMONS, J.
D.H. (Father) appeals from an order of the juvenile court terminating his parental rights to his daughter, X.H. (Minor), in a proceeding subject to the Indian Child Welfare Act of 1978 (ICWA). (25 U.S.C. § 1901 et seq.) Father contends the judgment must be reversed because the juvenile court based its decision on the testimony of individuals who were not “qualified expert witnesses” as that term is defined in Welfare and Institutions Code section 224.6, subdivision (a) (hereafter section 224.6(a)). Although it is undisputed that the juvenile court failed to comply with section 224.6(a), we conclude Father can show no prejudice resulting from the violation, and therefore hold the error was harmless. Accordingly, we will affirm the judgment.
All undesignated section references are to the Welfare and Institutions Code.
FACTUAL AND PROCEDURAL BACKGROUND
Minor was taken into protective custody on May 17, 2007, after Oakland police forcibly entered the parents’ home pursuant to a search warrant when the parents refused access to Minor. Four days later, the Alameda County Social Services Agency (the Agency) filed a section 300 petition on behalf of Minor. The petition’s allegations concerned both parents. With respect to Father, the petition alleged that he was arrested for child endangerment, resisting arrest, and violation of probation. It also alleged that Father had been arrested for child endangerment of Minor’s sibling.
On the day the petition was filed, a notice of involuntary child custody proceedings for an Indian child was sent to the Bureau of Indian Affairs and to three Indian tribes. The notice indicated that Father had Indian heritage with the Osage Nation. The Osage later responded that Minor had been found to be eligible for membership in the tribe through her father, but noted paternity must be established for Minor to be eligible. The juvenile court signed a parentage finding and judgment on June 7, 2007, which declared Father the legal and presumed parent of Minor. The Osage Nation subsequently confirmed Minor is an Indian child through her father. As a consequence, the juvenile court eventually determined the ICWA applied to this case.
The Agency argues on appeal the ICWA does not apply to this case because Father has failed to show Minor is an “Indian child” as defined in the ICWA, because there is no evidence Minor “is the biological child of a member of an Indian tribe.” (See 25 U.S.C. § 1903(4); § 224.1, subd. (a).) The Agency’s contention is based on its view that the Osage Nation erred in determining Minor was eligible for membership in the tribe. We will not address the Agency’s argument, because California law provides that the Osage Nation’s “determination . . . that [Minor] is . . .eligible for membership in that tribe . . . shall be conclusive.” (§ 224.3, subd. (e)(1); accord, Guidelines for State Courts; Indian Child Custody Proceedings, 44 Fed. Reg. 67584, 67586, B.1. (b)(i), Determination That Child Is an Indian (Nov. 26, 1979) (Guidelines).)
The juvenile court ordered Minor detained on May 22, 2007. On June 6, Minor was placed in the home of her maternal great-aunt, who indicated she was willing to adopt Minor.
At the initial jurisdiction/disposition hearing on August 8, 2007, Father claimed to be unable to speak, but his counsel could present no medical testimony he was unable to do so. Father was in fact able to speak, but he objected to taking the stand and refused to testify. The juvenile court later appointed a guardian ad litem for Father and found him incompetent. It admitted the Agency’s jurisdiction and disposition reports into evidence, took judicial notice of documents from the case file in a dependency proceeding involving Minor’s sibling, and continued the jurisdiction/disposition hearing to October 29.
In that case, Father refused to establish paternity to Minor’s sibling and his parental rights to her were later terminated.
At the continued hearing, the Agency attempted to call Father as a witness. Father objected to testifying on the grounds of self-incrimination, and the juvenile court “pass[ed]” on Father’s testimony and directed the Agency to proceed with other witnesses. The court then heard testimony from an employee of the Agency—an emergency response worker (ERW) who participated in the initial removal of Minor from her parents’ home. At the conclusion of the proceedings, the juvenile court continued the matter for further hearing on November 30, 2007. On November 30, the court received further testimony from the ERW and then heard argument from counsel. The juvenile court sustained the allegations of the petition and found there was clear and convincing evidence the risk of serious harm from the parents necessitated the removal of Minor from parental custody. The court terminated reunification services to the parents because their parental rights to Minor’s sibling had been terminated and they had not made reasonable efforts to treat the problems that led to the prior removal. (See § 361.5, subd. (b)(11).) Finally, the juvenile court set the matter for a section 366.26 selection and implementation hearing.
The Agency filed a section 366.26 report on April 9, 2008. The report was prepared by a child welfare worker (CWW) and child welfare supervisor employed by the Agency. It recommended adoption as the permanent plan and assessed Minor as adoptable. The proposed adoptive parent identified in the report is Minor’s great-aunt and current caregiver.
The contested selection and implementation hearing was held on April 16, 2008. At the hearing, counsel for the Agency and Minor submitted on the report. Father’s counsel stated he had no evidence to submit. The juvenile court adopted the Agency’s recommendations and found the ICWA applied to the case. In its oral ruling, the juvenile court stated: “There is evidence beyond a reasonable doubt that continued custody by the parents or previous Indian custodians is likely to result in serious physical or emotional damage to the child. This is supported by the testimony of the qualified expert.” It further ruled “[p]lacement will be with the extended family member.” The court then terminated Father’s parental rights.
After the juvenile court delivered its oral ruling, Father’s guardian ad litem commented that she had “absolutely no memory of any qualified expert witness testifying beyond a reasonable doubt.” In response, counsel for the Agency stated, “The expert witness’s testimony is the [CWW] as contained in the report.”
Father’s guardian ad litem filed a timely notice of appeal on June 13, 2008.
DISCUSSION
Father contends the order terminating his parental rights must be reversed because the juvenile court’s determination that continued custody was likely to result in serious harm to Minor was not supported by the testimony of a “qualified expert witness” within the meaning of section 224.6(a). The Agency agrees with Father that the juvenile court failed to comply with this statutory provision. Nevertheless, it contends this violation of the statute does not require reversal because the error was harmless. For the reasons that follow, we agree with the Agency.
In his opening brief, Father also contended that placement of Minor with her great-aunt contravened the ICWA’s statutory preference for placement with a member of the Indian child’s “extended family.” (See 25 U.S.C. §§ 1915(a), (b)(i).) Father argued that a great-aunt is not an “extended family member” as defined by the statute. (See 25 U.S.C. § 1903(2).) In his reply brief, Father has conceded this issue and agrees with the Agency that because Osage law defines a great-aunt as an “extended family member,” placement with Minor’s great-aunt comports with the ICWA. (See 25 U.S.C. § 1903(2) [“ ‘extended family member’ shall be as defined by the law or custom of the Indian child’s tribe”].) Therefore, we need not address this point.
I. The Statutory Scheme
The ICWA provides that in custody proceedings involving Indian children, “[n]o termination of parental rights may be ordered . . . in the absence of a determination, supported by evidence beyond a reasonable doubt, including testimony of qualified expert witnesses, that the continued custody of the child by the parent or Indian custodian is likely to result in serious emotional or physical damage to the child.” (25 U.S.C. § 1912(f), italics added.) In 2006, the Legislature enacted Senate Bill No. 678 (2005-2006 Reg. Sess.), which added section 224.6 to the Welfare and Institutions Code. (See Stats. 2006, ch. 838, § 35.) Section 224.6 pertains to the qualifications and characteristics of expert witnesses in Indian child custody proceedings. As is clear from the text of section 224.6(a) (see fn. 1, ante), a number of different professionals or tribal officials may serve as expert witnesses in Indian child custody proceedings, but only if “the individual is not an employee of the person or agency recommending foster care placement or termination of parental rights.” Where, as in this case, the Agency has recommended termination of parental rights, this provision plainly prohibits employees of the Agency from testifying as qualified expert witnesses.
Although the federal statute uses the plural (“qualified expert witnesses”), the interpretive guidelines adopted by the Secretary of the Interior state that this requirement may be satisfied by the “testimony of one or more qualified expert witnesses.” (Guidelines, 44 Fed. Reg. at p. 67592, D.3(b), Standards of Evidence, italics added.) At least one California court has deferred to the Secretary’s interpretation of the ICWA and held the statute does not require the testimony of more than one qualified expert witness. (In re Brandon T. (2008) 164 Cal.App.4th 1400, 1411-1412.)
This prohibition is not found in either the ICWA itself or the Guidelines. But the ICWA permits states to impose higher standards for the handling of cases involving Indian children (see 25 U.S.C. § 1921), and this is an instance in which California has done so. As the Legislature recognized before adopting Senate Bill No. 678, this provision “goes beyond the [G]uidelines by prohibiting employees of the person or agency recommending termination of parental rights from acting as the qualified expert.” (Assem. Com. on Judiciary, Analysis of Sen. Bill No. 678 (2005-2006 Reg. Sess.) June 20, 2006, p. 11.) We take care to note this fact to avoid the confusion that has occasionally resulted when courts “have lumped all the requirements under the blanket term of ‘ICWA.’ ” (Seiser & Kumli, California Juvenile Courts Practice and Procedure (2008-A ed.) § 2.32A[1], p. 2-65.) In addition, as we shall explain, the fact that this state law prohibition goes above and beyond the requirements of the ICWA is relevant to our standard of review.
II. Standard of Review
Article VI, section 13 of the California Constitution prohibits us from setting aside a judgment unless “the error complained of has resulted in a miscarriage of justice.” The California Supreme Court has applied this standard in dependency cases and held a reviewing court should set aside a judgment due to error “only if it finds a reasonable probability the outcome would have been different but for the error.” (In re Celine R. (2003) 31 Cal.4th 45, 60.) In other words, before we may reverse the judgment in a juvenile dependency proceeding, we must determine whether the asserted error was harmless. (See ibid.)
The harmless error standard also applies in juvenile dependency cases involving the ICWA. For example, we recently applied this standard in a case involving a claimed violation of a parent’s right to counsel under the ICWA. (In re David H. (2008) 165 Cal.App.4th 1626, 1634-1635 & fn. 9 [error in failing to provide counsel to parent as required by 25 U.S.C. § 1912(b) held harmless beyond a reasonable doubt].) Other Courts of Appeal have reviewed various alleged errors in Indian child custody proceedings under this same standard. (See, e.g., In re A.B. (2008) 164 Cal.App.4th 832, 843 [the respondent conceded juvenile court breached duty under § 224.3 to inquire into the mother’s Indian ancestry, but appellate court held error harmless]; In re Cheyanne F. (2008) 164 Cal.App.4th 571, 576-579 [notice to Indian tribe admittedly failed to conform to requirements of § 224.2, subd. (a), but court found error harmless]; In re H.B. (2008) 161 Cal.App.4th 115, 121-122 [failure to comply with former Cal. Rules of Court, rule 1439(d)(2) and inquire into the parent’s Indian ancestry held harmless].) Indeed, our colleagues in the Third District have held the harmless error standard applies to claimed errors under section 224.6, the very section at issue here. (In re Brandon T., supra, 164 Cal.App.4th at p. 1414.)
Former rule 1439 of the California Rules of Court was adopted effective January 1, 1995, renumbered as rule 5.664 effective January 1, 2007, and repealed effective January 1, 2008.
Moreover, “any failure to comply with a higher state standard, above and beyond what the ICWA itself requires, must be held harmless unless the appellant can show a reasonable probability that he or she would have enjoyed a more favorable result in the absence of the error. [Citations.]” (In re S.B. (2005) 130 Cal.App.4th 1148, 1162, italics added; accord, In re H.B., supra, 161 Cal.App.4th at p. 122.) It is therefore up to appellant to demonstrate that the error of which he complains prejudiced him. (See In re A.B., supra, 164 Cal.App.4th at p. 843 [rejecting the father’s claim he need not show prejudice from alleged ICWA error]; In re H.B., at p. 122 [failure to inquire into Indian ancestry harmless where the mother made no affirmative representation in juvenile court or on appeal that child had Indian ancestry]; In re Miracle M. (2008) 160 Cal.App.4th 834, 847 [ICWA notice error held harmless because the “[m]other has not demonstrated how giving the parents further notice would generate additional information”].) As one court has observed, this is a “fundamental requisite before an appellate court will reverse a trial court’s judgment.” (In re Rebecca R. (2006) 143 Cal.App.4th 1426; see id. at pp. 1430-1431 [holding harmless failure to inquire about father’s possible Indian ancestry where father made no offer of proof or representation that he had Indian ancestry].)
Having set forth the principles governing the scope of our review, we now examine the record to determine whether Father has shown that the lack of a qualified expert witness has prejudiced his case.
We deny the Agency’s request for judicial notice, filed October 3, 2008. (Evid. Code, §§ 452(d), 459(a).)
III. The Error Was Harmless
The Agency concedes that in ordering termination of parental rights, the juvenile court failed to comply with section 224.6(a) because the testimony and reports on which the court based its decision came from social workers employed by the Agency itself. The Agency nevertheless urges us to find the error harmless.
First, we note Father has not responded to the Agency’s harmless error argument. In his reply brief, he claims only that remand is required because “[i]t is not possible to state on this record what the required information would have been from a proper ICWA expert witness who had no presumptive bias by virtue of employment in the agency[] recommend[ing] . . . termination.” Thus, Father “does not tell us how reversing the court’s orders as to [Minor] would produce any additional information” or lead to a more favorable result. (In re Miracle M., supra, 160 Cal.App.4th at p. 847.) But there can be no prejudice to Father unless he can at least represent to us how the testimony of a qualified expert witness would make it reasonably probable that the juvenile court would have come to a different conclusion respecting termination of his parental rights. (See In re Rebecca R., supra, 143 Cal.App.4th at p. 1431 [“[i]n the absence of such a representation, the matter amounts to nothing more than trifling with the courts”].) Having failed to do so, Father has not met his burden of demonstrating prejudicial error resulting in a miscarriage of justice. (See id. at p. 1430.)
Second, our review of the evidence before the juvenile court convinces us that Father would not be able to demonstrate prejudicial error on this record in any event. The juvenile court’s decision is amply supported by the evidence regarding both Father’s actions and Minor’s health and need for special care.
Minor was born at home, where Father delivered her. She had her first medical evaluation at three months of age after the Agency’s intervention. Her mother received no prenatal care, and her parents sought no postbirth medical care for the child. The Agency’s report states that Minor has had repeated illnesses “caused by severe asthma, as well as RSV, Bronchitis and pneumonia.” In addition, she has allergies that are exacerbated by eczema. The Agency’s section 366.26 report noted that Minor may be considered a medically fragile child because of her frequent physical illnesses.
Despite Minor’s need for medical care, Father has opposed the use of needles in Minor’s medical treatment and is also opposed to Minor receiving vaccinations.
In addition to her physical problems, Minor is developmentally delayed. She has oral motor problems and receives speech therapy. She has very weak extremities and does not walk or crawl. Minor was assessed with an underlying sensory processing disorder and receives therapy for that condition. She has difficulty registering sensory input, is easily overwhelmed, and is not able to calm herself when upset. If she is not removed from an upsetting environment, she will escalate and become increasingly upset and difficult to soothe. Such episodes make it difficult for her to attach and bond with adults. A special therapy has been prescribed to Minor’s caretaker “in order to get [Minor’s] sensory system to ‘recalibrate.’ ” This therapy involves deep pressure massage and ideally should be performed several times a day.
The record also demonstrates conclusively that Father’s behavior has endangered the Minor’s wellbeing. An ERW initially went to the parents’ home to conduct a health and welfare check on Minor in response to a call from a hotline. The ERW was accompanied by Oakland police officers who were there to serve a search warrant because the Agency had been unable to locate Minor or perform an investigation. The parents refused to allow entry to their apartment, and the police were forced to break down the door. Father then closed himself, the mother, and Minor in a bedroom and refused entry to the police. Father was yelling and ranting during the altercation, and the police had to use a taser to subdue him. Father was arrested during the encounter for child endangerment, resisting arrest, and violation of probation. He was erratic and paranoid and yelling in the street after he was detained. Father’s behavior was such that the ERW was unable to interview him because she did not feel safe enough to approach him.
During visitation with Minor, Father has refused to speak to Agency staff and instead communicates only in writing or through sounds and body language. He has actively attempted to prevent the CWW from supervising visitation by blocking her entry into the room. On one occasion, he pulled Minor’s clothing down from the waist and took flash photographs of her skin. This was upsetting to Minor, but Father refused to stop when asked by the CWW, and he continued to take pictures. The CWW then called a sheriff’s deputy who escorted Father out of the visit.
Although he has been instructed repeatedly that he may not feed anything to the Minor that has not been provided by her caretaker, at one visit Father took Minor’s bottle without permission and added what appeared to be apple juice to it. Minor’s caretaker later called the CWW to ask what the liquid was, because she had not included apple juice in Minor’s diaper bag. On a later visit, the CWW informed both parents that they could not feed Minor anything without permission and could only feed her what Minor’s caretaker had sent in the diaper bag. Father attempted to take the diaper bag from the CWW by force. Later in the visit, Father took a bottle of baby food from his pocket and was feeding it to Minor. He continued to do so even when the CWW ordered him to stop. When the worker put her hand over Minor’s mouth, Father continued to stab at her hand with the spoon in an effort to feed Minor.
At another visit, Minor’s parents brought a “support person” and her child. The person refused to identify herself to the CWW and was informed that she could not participate in the visit, because visitation was only for the parents. The “support person” insisted on speaking with a supervisor, and when the CWW left briefly to find a supervisor, Minor’s mother attacked the “support person,” knocking her down in Minor’s presence. The sheriff was then called.
During the course of the juvenile court proceedings, Father refused to speak in court, although he is capable of speaking. The juvenile court eventually declared Father incompetent. Father also failed to comply with his case plan. Despite a history of mental illness, he did not participate in psychological treatment. In defiance of an order of the juvenile court, Father refused to be evaluated by doctors at Santa Rita Correctional Facility where he was incarcerated. This failure to cooperate with the Agency mirrors Father’s behavior in the sibling case, where his parental rights were likewise terminated.
As a consequence, the Agency’s section 366.26 report concluded that visitation appeared detrimental to Minor. Visits with her parents cause the Minor stress, and she shows no eagerness to engage with them. Minor appears to be in distress during most of the time she spends in her parents’ company. The report states that the parents “failure to observe and follow [Minor’s] cues, the rapidity and intensity of the movement in the room, and the overt defiance and resistance to the resources and direction of the [CWW] make visitation a difficult time for [Minor].” In fact, visitation appears to be causing negative responses for the child, and Father’s repeated violations of appropriate conduct have contributed to Minor’s discomfort and may be endangering her health.
In light of this evidence, it is not reasonably probable that Father was prejudiced by the failure to obtain the testimony of a qualified expert witness within the meaning of section 224.6(a). The ICWA requires such expert testimony because “[d]etermining the likelihood of future harm frequently involves predicting future behavior—which is influenced to a large degree by culture. Specific behavior patterns will often need to be placed in the context of the total culture to determine whether they are likely to cause serious emotional harm.” (Guidelines, 44 Fed. Reg. at p. 67593, D.4, Commentary.) This is not a case, however, in which termination of parental rights can be attributed to any cultural bias, that is, “to the decision-maker’s stereotype of what a proper family should be.” (Id. at p. 67593, D.3, Commentary.) Where, as here, a parent’s actions with regard to the child are objectively harmful, there is no need to place such actions “in the context of the total culture,” and no prejudice flows from the fact that the juvenile court based its decision on the testimony and reports of employees of the Agency. (Cf. In re Brandon T., supra, 164 Cal.App.4th at p. 1414; State ex rel. Juv. Dept v. Tucker (1985) 76 Or.App. 673, 683-684 [710 P.2d 793, 799] [where termination was based on the mother’s mental illness, decision “had nothing to do with [the] mother’s fitness to care for the child according to the cultural dictates of her tribe”].)
DISPOSITION
The judgment is affirmed.
We concur. JONES, P.J., NEEDHAM, J.
Section 224.6(a), provides: “When testimony of a ‘qualified expert witness’ is required in an Indian child custody proceeding, a ‘qualified expert witness’ may include, but is not limited to, a social worker, sociologist, physician, psychologist, traditional tribal therapist and healer, tribal spiritual leader, tribal historian, or tribal elder, provided the individual is not an employee of the person or agency recommending foster care placement or termination of parental rights.” (Italics added.)