Opinion
E073258
05-18-2020
In re U.G. et. al., Persons Coming Under the Juvenile Court Law. RIVERSIDE COUNTY DEPARTMENT OF PUBLIC SOCIAL SERVICES, Plaintiff and Respondent, v. D.G. et al., Defendants and Appellants.
Shobita Misra, under appointment by the Court of Appeal, for Defendant and Appellant D.G. Jesse McGowan, under appointment by the Court of Appeal for Defendant and Appellant L.H. Gregory P. Priamos, County Counsel, James E. Brown, Anna M. Marchand and Prabhath D. Shettigar, Deputy County Counsels, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super.Ct.No. RIJ115840) OPINION APPEAL from the Superior Court of Riverside County. Cheryl C. Murphy, Judge. Affirmed. Shobita Misra, under appointment by the Court of Appeal, for Defendant and Appellant D.G. Jesse McGowan, under appointment by the Court of Appeal for Defendant and Appellant L.H. Gregory P. Priamos, County Counsel, James E. Brown, Anna M. Marchand and Prabhath D. Shettigar, Deputy County Counsels, for Plaintiff and Respondent.
L.H. (Mother) and D.G. (Father) appeal from (1) the juvenile court's order denying their petitions under Welfare and Institutions Code section 388, and (2) the court's order terminating parental rights to their sons, U.G. and N.H. Mother argues that the court abused its discretion by denying her request to restart reunification services, and she also charges the court with errors under the Indian Child Welfare Act (ICWA) (25 U.S.C. § 1901 et seq.). Father argues that his trial counsel rendered ineffective assistance by failing to request return of the children in the section 388 petition. He also challenges the order terminating reunification services and setting a selection and implementation hearing (the setting order), arguing that his counsel rendered ineffective assistance by failing to seek writ review of the setting order. Both parents join each other's arguments on appeal.
Further undesignated statutory references are to the Welfare and Institutions Code.
Father has forfeited his challenges to the setting order, and the parents' remaining claims lack merit. We therefore affirm the orders denying the parents' petitions and terminating parental rights.
BACKGROUND
I. Dependency History and Detention
Mother had a dependency case in 2008 involving another child, M.H., who was one year old at the time. (M.H. is the half-brother of U.G. and N.H. and is not a subject of this appeal.) The investigation in the 2008 case revealed that M.H. had suffered serious physical abuse—a second degree burn on his thigh and bruising on his buttocks. The court took jurisdiction over M.H. and adjudged him a dependent. Mother completed reunification services and then family maintenance services, and the court terminated jurisdiction.
The present case began in February 2017, when Riverside County Department of Public Social Services (DPSS) received a referral alleging physical abuse of 10-year-old M.H., who had a bruised eye. At the time, U.G. was three years old, and N.H. was nearly two years old. Mother said that she tried to hit M.H. on the buttocks, but he deflected her with his arm, and she accidentally hit him in the eye with her ring. M.H. reported that his stepfather—that is, Father—punched him in the eye. Mother and Father were arrested for child endangerment.
M.H. reported that, in the past, both parents had disciplined him by hitting his buttocks and arms with a belt. Mother had also hit him with a hanger and left a mark on his arm, and in another instance, she hit him all over with an open hand and closed fist. Father punched M.H. in the stomach when Mother was at work. Father also punched U.G. in the stomach, and he hit U.G. on the buttocks with a wooden spoon so hard that the spoon broke. U.G. had a bruise for over a month. M.H. witnessed a fight between the parents in which Father "slammed" on the sofa and broke the sofa leg.
U.G. told the social worker that Father hit M.H. in the eye and "daddy said boom boom boom." U.G. demonstrated by pretending to hit himself in the eye and then in the stomach three times. U.G. also reported that Father broke the door, and Mother kicked him out, but Father returned.
Father was previously arrested in Michigan for domestic violence against Mother. Father had hit her in the face and "busted" her lip. He completed the conditions of his probation, including anger management and counseling. According to maternal aunt, Mother moved to California to distance herself from the abusive relationship with Father. But days after arriving in California, Mother paid for Father to fly here. Mother told the social worker that her relatives had coerced M.H. into falsely accusing Father of child abuse because the relatives disapproved of the parents' relationship. The maternal relatives reported that, when they were temporarily caring for the children after the parents' recent arrest, Mother came to their home and brandished a knife at them.
M.H. told the social worker that Father drank two large bottles of beer daily. Father smelled overwhelmingly of alcohol when he appeared for his interview with the social worker. He said that he was drinking with a friend the night before and had no time to change clothes or shower. He explained that he rarely drank but had done so the night before because of stress. He smoked marijuana away from the family home.
Two days after Father's interview, the social worker went to the home to remove the children, and Father became argumentative and aggressive. He called the social worker a "'[b]itch' and a 'fuckin liar'" in front of the children, and he used more profanity and punched the floor while readying the children to leave.
DPSS filed an amended petition alleging that Father had inflicted nonaccidental harm on M.H. and had abused controlled substances or alcohol while caring for the children; that Mother exhibited violent and erratic behavior; and that both parents had used inappropriate physical discipline on the children and had engaged in domestic violence.
In late February 2017, the court detained the children from the parents. It ordered twice weekly supervised visits.
II. Jurisdiction and Disposition
In March 2017, DPSS placed the children with maternal aunt in Moreno Valley, California. Maternal aunt expressed concern about Mother's mental health and said that the family had a history of mental health issues. She also said that the parents had engaged in domestic violence and were abusing drugs.
In preparation for the jurisdiction and disposition hearing, M.H. told the social worker that Father had hit him numerous times in the past and had caused bruises. According to M.H., both parents used marijuana, and they left M.H. to care for his brothers while they went to their friend's home. He had also seen a "crack pipe" at his home and had heard the parents talk about drugs. He had seen Father intoxicated several times, and in one of those instances, Father kicked his brother's door.
DPSS filed a second amended petition, which deleted the allegation that Mother exhibited violent and erratic behavior and made other insubstantial changes.
At the jurisdiction and disposition hearing in May 2017, the court found the allegations of the second amended petition to be true. It took jurisdiction over U.G. and N.H. under section 300, subdivisions (b) (failure to protect) and (j) (abuse of sibling). It also adjudged the children dependents of the court, removed them from the parents' custody, and ordered reunification services for both parents. The prior visitation order remained in effect.
Mother's responsibilities under the case plan included counseling and parenting education, and her service objectives included participation in a domestic violence program. Father's responsibilities under the case plan included counseling, parenting education, substance abuse testing, and an assessment for substance abuse treatment.
III. Six-Month Review Period
The parents moved to Stockton, California in May 2017 and to Michigan in September 2017. The children remained placed with maternal aunt.
Mother and Father requested a referral under the Interstate Compact on the Placement of Children (ICPC) (Fam. Code, § 7900 et seq.). They wanted an evaluation of their Michigan home and the home of paternal aunt, who also lived in Michigan.
The parents visited the children twice weekly until the parents moved to Stockton. They had one in-person visit in June 2017 while the parents were in town for hearings on their criminal cases. In October 2017, the parents had a 20-minute video visit with the children. DPSS did not liberalize the parents' visits "due to the parents residing out of state and needing ICPC approval from the [c]ourt and the state of Michigan."
According to the six-month review report, both parents successfully completed a parenting education course in June 2017. Mother attempted to get counseling in Stockton by contacting the county access center. The Stockton center declined to treat her because Mother did not suffer from a mental illness. Father tried to be assessed for substance abuse treatment in Stockton, but the provider wanted to admit him to an inpatient program without an assessment. Once the parents moved to Michigan, the social worker set up an assessment for them with a county mental health center and contacted a number of other potential providers. The Michigan mental health center informed the parents that they did not "need" counseling. DPSS was unable to secure a testing facility in either Stockton or Michigan for Father.
At the six-month review hearing in November 2017, DPSS indicated that the Michigan providers contacted thus far would not provide counseling without a diagnosis of a mental health issue. Several of the providers also required a referral from the local child welfare agency. The court continued the review hearing and ordered the ICPC referral requested by the parents.
In preparation for the continued hearing, DPSS reported that it was still unable to secure service providers, even after it explained that Riverside County would pay for the services. DPSS would seek Michigan's assistance "regarding future visitation and appropriate services for the parents . . . upon the conclusion of the ICPC process."
In late November 2017, Mother informed the social worker that she was pregnant and unable to travel due to health concerns. The parents had a telephone visit with the children in December 2017.
The continued review hearing occurred in January 2018. The court continued reunification services for another six months. It ordered Father to submit to random substance abuse testing and ordered "proper services to [Father] and [Mother], who reside in the state of Michigan."
IV. Twelve-Month Review Period
The parents' daughter was born in March 2018. Because of a medical condition, Mother was still unable to travel. The parents were visiting the children on a monthly basis by either telephone or video. The children were extremely excited and talkative during the visits. The parents had also started therapy with a provider in Michigan, and DPSS had submitted a referral for Father's random substance abuse testing in Michigan. The social worker was required to resubmit the referral twice, and as of late March 2018, the county vendor was searching for a local testing site for Father.
DPSS received notice in March 2018 that the ICPC referral for the parents was "going to be denied" by Michigan. But Michigan had provisionally approved paternal aunt for placement. Paternal aunt needed to take certain classes for final approval.
In April 2018, Mother pleaded guilty to misdemeanor child endangerment of M.H., and Father pleaded guilty to felony child endangerment of M.H. The criminal court placed both parents on four years' probation and required them to complete a 52-week child abuse treatment program.
At the 12-month review hearing in May 2018, the court continued the matter. The court ordered DPSS to report on the services that the parents had completed and the ICPC evaluation. There had also been a recent allegation of domestic violence between the parents in Michigan, and the court wanted more information on that. The parents were planning to be in California soon, and the court ordered them to take a hair follicle drug test and test for alcohol while they were visiting.
Michigan completed its ICPC evaluation and concluded that it could not approve placement with the parents because they did not have "an adequate source of income" and could not meet the financial needs of the children. The new allegations of domestic violence between the parents were found to be untrue.
The parents had a two-hour visit with the children in May 2018 while they were in California. The children were extremely excited to see their parents and infant sister, and the visit went well. The parents had to return to Michigan shortly after the visit. They attempted to complete hair follicle testing in California, but the provider could not perform the test because of the parents' braided hair style. Their urinalysis drug test was negative for substances.
At the continued review hearing in late May 2018, the court ordered another ICPC referral and continued the matter again.
By July 2018, the parents had completed 15 counseling sessions and had secured jobs. DPSS set up a hair follicle test for the parents in Michigan. They were unable to test, however, because of a mix-up with the testing kit. The Riverside County probation department transferred responsibility for the parents' supervision to a parole agent in Michigan. Because Michigan did not offer something equivalent to the 52-week child abuse treatment, the parents were no longer required to complete it. Instead, they had to complete a six-week parenting education program.
The result of the second ICPC evaluation was the same—Michigan would not approve placement with the parents. The parents were living in paternal great grandmother's home. The ICPC evaluator noted that the parents did not have a lease, and paternal great grandmother could "ask them to leave at any time." The living areas of the home met the "minimum level of cleanliness," but the basement did not. The basement had recently flooded and was full of trash and water. The evaluator also concluded that the parents did not have a stable source of income, as Father had been working for a temporary agency for only two weeks, and Mother had not yet started her job. The parents also had past due bills. Michigan rescinded paternal aunt's provisional ICPC approval for failure to complete the required classes.
The court continued the 12-month review hearing several more times. The review hearing finally occurred in December 2018, nearly 22 months after the children's detention and removal. Mother's counsel requested an additional two months of services, arguing: "On her behalf, even though we have ICPC denials, it's always problematic between states, I explained that to Mother. If she was in California, she would be in a different situation right now." Father's counsel requested that the court return the children to the parents or, in the alternative, order two additional months of services. Counsel argued: "ICPC isn't an enough reason to deny services. If the parents have shown that they have made progress and it shows that they have the ability to have the children placed in their care, which I believe they do, [c]ourt can close the case as of today and have the children placed with them."
The court terminated the parents' reunification services and set the matter for a selection and implementation hearing under section 366.26. After making its findings and orders, the court noted: "The ICPC for the state of Michigan for the mother and father was denied. So the [c]ourt is unable to order placement and services with those parents." The court advised the parents, who appeared telephonically, of their right to seek writ review of the setting order. V. Section 388 Petitions and Section 366 .26 Hearing
The children were thriving in maternal aunt's home and were closely bonded to her. Maternal aunt loved them and wanted to adopt them. After the court terminated reunification services, the social worker was unable to reach the parents for a three-month period from January to March 2019, so there were no telephonic or video visits during that period.
In July 2019, the parents filed section 388 petitions requesting six more months of reunification services and an expedited ICPC referral. As far as changed circumstances, the parents argued that they had found a suitable residence, had maintained stable jobs, had engaged in parenting education and counseling, and were attending support groups through their church.
The court heard the section 388 petitions and held the section 366.26 hearing on the same date in July 2019. The social worker testified that he supervised the monthly video visits between the parents and the children. The video visits did not occur during the first three months of the year because the worker did not have a current phone number for Mother, but the visits resumed after that. The children were ecstatic to see the parents, and the parents acted appropriately during the visits. The social worker believed that the children loved the parents. When the parents relocated to Michigan, they asked whether the children could visit them there. As to why that never occurred, the social worker explained: "Based on Michigan, we had no ICPC in place, so we could not violate their ICPC compact by doing that."
The court denied the parents' section 388 petitions. The court found no change in circumstances and explained: "I see perhaps just parenting may have been completed. Very importantly, I do not see the counseling that has been completed. Anger management, domestic violence, those are real concerns to the [c]ourt to know that if the children were to be placed back with the parents, they would be safe in their home, and that's the issues that brought the parents to the [c]ourt . . . . [¶] . . . I see the only change that has occurred is that the parents do now have housing, and I don't believe that is sufficiently the case to find that they have been—there are change of circumstances." The court further found that six more months of reunification services would not serve the children's best interests. The court noted that, while the children knew their parents and were excited to talk to them, they had only monthly video visits, and "there was a period of almost four months from December through March where there was no contact between the parents and the children."
After denying the petitions, the court found that the children were likely to be adopted and that no exceptions to adoption applied, and the court accordingly terminated parental rights.
DISCUSSION
I. Setting Order
Father argues that his trial counsel rendered ineffective assistance by failing to seek writ review of the setting order. He asserts that counsel's failure was prejudicial because Father would have prevailed in a writ proceeding. This is so, he argues, because (1) DPSS did not offer or provide reasonable services, (2) the court erred by relying on the ICPC evaluation to deny return of the children to the parents, and (3) there was insufficient evidence that return of the children would create a substantial risk of detriment to them. Father also argues that counsel was ineffective because counsel did not challenge DPSS's failure to liberalize visits. He asserts that the remedy for all of those errors is not only reversal of the order terminating parental rights but also reversal of the setting order. We conclude that Father has forfeited those arguments.
A setting order is reviewable on appeal under limited circumstances: The appellant must seek writ review in a timely manner, substantively addressing specific challenged issues and supporting those challenges with an adequate record. (§ 366.26, subd. (l)(1).) And the appellate court must summarily deny the writ petition or otherwise decline to decide it on the merits. (Ibid.) Failure to comply with the writ requirement precludes us from reviewing the order on appeal. (§ 366.26, subd. (l)(2).) Thus, failure to seek writ review of the claimed errors in the setting order forfeits the arguments on appeal.
This is the case even where the appellant claims the forfeiture is the result of ineffective assistance of counsel. In re Meranda P. (1997) 56 Cal.App.4th 1143 (Meranda P.) is instructive. The parent in Meranda P. appealed from the order terminating parental rights but raised untimely challenges to orders predating the section 366.26 hearing, including the setting order. (Id. at pp. 1150-1151.) Like Father, the Meranda P. parent had not sought writ review of the order. (Id. at p. 1151.) And the parent also argued that her failure to challenge the prior orders by timely appeal or writ petition was the result of ineffective assistance of counsel. (Ibid.) The Meranda P. court rejected her argument and concluded: "[I]f a parent, for whatever reason, has failed to timely and appropriately raise a claim about the existence or quality of counsel received at a proceeding antedating the [section 366.26] hearing, we will apply the waiver rule to foreclose the parent from raising such an objection on appeal from the termination order." (Id. at p. 1160.) The court thus declined to examine the merits of orders that had become final (id. at pp. 1151, 1159-1160), observing that to do so "would sabotage the apparent legislative intention to expedite dependency cases and subordinate, to the extent consistent with fundamental fairness, the parent's right of appeal to the interests of the child and the state." (Id. at p. 1156.) "The Legislature ha[d] made known its desire not to allow the child's future to be held hostage to a postponed appeal." (Ibid.)
Like the Meranda P. court, we reject Father's belated attempt to challenge the setting order through an ineffective assistance of counsel claim. He has forfeited any challenges to the order and the findings underlying it.
Father acknowledges the forfeiture rule but relies primarily on one case that found an exception to the rule, In re S.D. (2002) 99 Cal.App.4th 1068. In that case, the court declined to apply the forfeiture rule because the ineffective representation was the failure to recognize that the juvenile court lacked jurisdiction. (Id. at pp. 1070-1071.) The parents in In re S.D. had recently been incarcerated for credit card fraud. (Ibid.) The juvenile court took jurisdiction under section 300, subdivision (g), solely on the basis that the parents were incarcerated and could not arrange care for their child. (In re S.D., supra, at pp. 1074-1075.) But there was no evidence to support that finding, and in fact, the record strongly suggested that the parents had several options for childcare during their incarceration. (Id. at p. 1071.) The court characterized the matter as the "unusual dependency case" that "never should have been one." (Id. at p. 1070.) In those circumstances, the court permitted the parent to raise a belated challenge to jurisdiction in an appeal from the order terminating parental rights. (Id. at pp. 1071, 1079-1082.)
The In re S.D. exception is not applicable here because the juvenile court did not fundamentally lack jurisdiction. Father did not timely challenge the jurisdictional findings on appeal from the disposition, nor does he argue now that the court lacked jurisdiction. This is not one of those unusual dependency cases that never should have been one.
Father nevertheless argues that the court committed an "entirely legal, and quite fundamental," error akin to lacking jurisdiction—it relied on the ICPC evaluation. (In re S.D., supra, 99 Cal.App.4th at p. 1080.) The court's reliance on the ICPC evaluation does not justify disregarding the forfeiture rule. It is true, as Father points out, that compliance with the ICPC is not required for an out-of-state placement with parents. (Cal. Rules of Court, rule 5.616(g); In re C.B. (2010) 188 Cal.App.4th 1024, 1033.) But "'nothing in the ICPC prevents the use of an ICPC evaluation as a means of gathering information before placing a child with such a parent.'" (In re Suhey G. (2013) 221 Cal.App.4th 732, 743.) That is presumably why the parents repeatedly requested ICPC evaluations of their various homes in Michigan.
The court's reliance on the ICPC evaluation was not a fundamental error for another reason—there was ample evidence aside from the evaluation that return of the children would create a substantial risk of detriment. (§ 366.21, subd. (f).) Specifically, for the vast majority of the 22 months from removal to the 12-month review hearing, the parents had only monthly video visits. Visitation is always a critical component of the case plan (In re T.G. (2010) 188 Cal.App.4th 687, 696), but this is especially so when jurisdiction is based on physical abuse and inappropriate physical discipline. The parents must show that they can safely interact with their children. The monthly video visits were not sufficient to show that. And the parents moved to Stockton and Michigan of their own accord. Despite Father's insistence to the contrary, DPSS was not obligated to pay interstate travel expenses for in-person visitation. (See Los Angeles County Dept. of Children ETC. Services v. Superior Court (1997) 60 Cal.App.4th 1088, 1093 [finding "no authority" for the juvenile court to order the county to pay the father's airfare for visitation in Georgia].)
In sum, Father forfeited his challenges to the setting order, as well as the related ineffective assistance of counsel claims.
Mother filed a petition for writ of habeas corpus raising similar challenges to the setting order and underlying findings through an ineffective assistance of counsel claim. (In re L.H. on Habeas Corpus (case No. E074414).) In a separate order, we deny that petition.
II. Section 388 Petitions
Father contends that his trial counsel also rendered ineffective assistance in connection with his section 388 petition. He argues that counsel should have requested immediate return of the children, rather than an expedited ICPC referral and six more months of reunification services. Mother argues that the court abused its discretion by denying her petition because the court improperly considered the conclusions of the ICPC evaluation and the parents' lack of financial resources. She further argues that the court made two factual findings not supported by substantial evidence—that the parents' new housing was the only change in circumstances, and that the parents had no contact with the children for almost four months. Both parents' challenges lack merit.
Section 388 permits a parent of a dependent child to petition for a hearing to change, modify, or set aside any previous court order. (§ 388, subd. (a)(1).) The parent bears the burden of showing that circumstances have changed and that the proposed modification would be in the best interests of the child. (In re Stephanie M. (1994) 7 Cal.4th 295, 317.) "Whether the juvenile court should modify a previously made order rests within its discretion, and its determination may not be disturbed unless there has been a clear abuse of discretion." (In re J.C. (2014) 226 Cal.App.4th 503, 525.)
The change in circumstances supporting a section 388 petition "must be substantial." (In re Ernesto R. (2014) 230 Cal.App.4th 219, 223.) Moreover, after reunification efforts have terminated and the court has set the matter for a section 366.26 hearing, the focus of the case has shifted from the parents' interest in the care, custody, and companionship of the child to the needs of the child for permanency and stability. (In re Stephanie M., supra, 7 Cal.4th at p. 317; In re J.C., supra, 226 Cal.App.4th at p. 527.) At this point, the child's "best interests are not to further delay permanency and stability in favor of rewarding" the parent for his or her "hard work and efforts to reunify." (In re J.C., at p. 527.)
In this case, the court did not abuse its discretion by denying Mother's petition. Regardless of whether Mother had shown changed circumstances, or whether the parents had lost touch with the children for three months as opposed to four months, the court reasonably concluded that granting Mother additional reunification services would not promote the children's best interests. At the time of the section 388 hearing, the children had been living with maternal aunt for approximately two years and four months, and they were six and four years old by that time. They had lived with maternal aunt for a significant portion of their lives, or in N.H.'s case, for the majority of his life. They were closely bonded to maternal aunt, and she loved them and was committed to adopting them. At this stage of the proceedings, the children's need for permanency and stability was paramount, and Mother's evidence failed to establish that the children's "best interests in permanency and stability would be furthered by" derailing their adoption. (In re J.C., supra, 226 Cal.App.4th at p. 526.)
Father's ineffective assistance argument fares no better. Father must show that counsel's representation fell below an objective standard of reasonableness and that counsel's deficient performance resulted in prejudice. (In re Ernesto R., supra, 230 Cal.App.4th at p. 223.) Counsel's performance did not prejudice Father unless it is reasonably probable that the court would have returned the children. (Ibid.) "[T]he decision not to make a meritless request is neither deficient performance nor prejudicial." (People v. Washington (2017) 15 Cal.App.5th 19, 26.) "'[C]ounsel is not required to make futile motions or to indulge in idle acts to appear competent.'" (In re Ernesto R., at p. 225.)
A section 388 petition requesting return of U.G. and N.H. to Father's custody would have been meritless for the reasons already discussed: Such a change would not promote the best interests of the children in permanency and stability. The children had been in a loving and stable placement with maternal aunt for over two years. Returning the children would sever their bond with the person who had become their parental figure, as well as their sibling bond with M.H. (Mother did not seek return of M.H. or additional reunification services with respect to him.) In addition, nothing had changed since the 12-month review hearing with respect to visitation—the parents were still living in Michigan and visiting the children once per month by video. Although the parents had engaged in more counseling and parenting education, there was no in-person visitation to demonstrate that they could safely interact with the children.
In short, the court did not abuse its discretion by denying Mother's section 388 petition, nor did Father's counsel render ineffective assistance by failing to make a meritless request for return of the children.
III. ICWA
Lastly, Mother argues that the court failed to ensure DPSS's compliance with ICWA. We conclude that any ICWA errors were harmless.
A. ICWA-related Background
In February 2017, both parents reported that they had Cherokee ancestry, and at the detention hearing, Father's counsel stated that Father was "a registered Cherokee," as were other paternal relatives. In the March 2017 jurisdiction/disposition report, the social worker stated that Father was "awaiting his registration information."
DPSS sent ICWA notices to the Cherokee tribes in March 2017. The notices included tribal membership numbers and copies of the membership cards for paternal great grandmother, paternal great aunt, and paternal aunt. The Cherokee tribes responded that U.G. and N.H. were not members or eligible for membership. The various tribes' responses were dated March 2017, November 2017, and January 2018.
In October 2017, Mother reported that Father was still "awaiting his registration information." In an April 2018 report, DPSS described the responses from the Cherokee tribes and recommended that the court find ICWA did not apply. In December 2018, at the 12-month review hearing, the court found that ICWA did not apply.
In 2019, the maternal grandmother reported that she had Indian ancestry and identified the Iroquois Seneca Nation as the pertinent tribe. DPSS sent ICWA notices to the Seneca Nation in July 2019. The notices did not include the addresses for the parents, maternal grandmother, and maternal great grandparents. Instead, the notices stated that the addresses were confidential. The tribe responded that the children were not members or eligible for membership. The tribe indicated that only a person whose mother is a member of the Seneca Nation at the time of the person's birth was eligible for membership.
DPSS did not send new notices to the Cherokee tribes in July 2019. The notices sent to the Seneca Nation stated: "The Father previously claimed Cherokee. No new family information to provide. Therefore, the Cherokee tribes are not being re-noticed."
The section 366.26 report described DPSS's recent ICWA notices and the responses from the Seneca Nation, and it recommended that the court find ICWA did not apply. Similarly, at the section 366.26 hearing, DPSS described its recent ICWA efforts and asked the court to find that ICWA did not apply. The court made no express ICWA findings.
B. Harmless ICWA Error
ICWA requires notice to Indian tribes "in any involuntary proceeding in state court to place a child in foster care or to terminate parental rights 'where the court [or social worker] knows or has reason to know that an Indian child is involved.'" (In re Isaiah W. (2016) 1 Cal.5th 1, 8, quoting 25 U.S.C. § 1912(a); accord § 224.3, subd. (a).) An "'Indian child'" is any unmarried person under 18 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); accord § 224.1, subd. (b).) The tribe to which the child belongs, or in which the child may be eligible for membership, must receive "notice of the pending proceedings and its right to intervene." (In re H.B. (2008) 161 Cal.App.4th 115, 120; accord §§ 224.2, subd. (f), 224.3, subd. (a)(3)(A).)
DPSS and the court have an "affirmative and continuing duty to inquire" whether a child in dependency proceedings "is or may be an Indian child." (§ 224.2, subd. (a).) If the court or social worker has "reason to believe that an Indian child is involved," the court or social worker must conduct further inquiry, including by interviewing the parents and extended family members to gather the information required for the ICWA notice. (§§ 224.2, subd. (e)(1), 224.3, subd. (a)(5).) To the extent known, the notices must include the names, birthdates, current and former addresses, and any tribal enrollment information of the parents, grandparents, and great grandparents. (§ 224.3, subd. (a)(5)(C).) "Notice given under ICWA must therefore contain enough information to permit the tribe to conduct a meaningful review of its records to determine the child's eligibility for membership." (In re Cheyanne F. (2008) 164 Cal.App.4th 571, 576.)
In general, the failure to strictly comply with ICWA is considered prejudicial, but where the tribe actually receives notice, errors or omissions in the notice "may be deemed harmless under some circumstances." (In re Cheyanne F., supra, 164 Cal.App.4th at p. 577; In re E.W. (2009) 170 Cal.App.4th 396, 402.)
Mother argues that two prejudicial ICWA errors occurred here. First, she contends that DPSS breached its duty of inquiry by failing to follow up with Father about his Cherokee "registration information." But any such error was harmless on this record. In March 2017, the Cherokee tribes received notice of the proceedings containing Father's name, birthdate, birthplace, and current and former addresses. If Father was a registered Cherokee member—as he claimed through counsel in February 2017—the tribes had more than enough information about him to conduct a meaningful review of their records. There is no reason to believe their responses would have been different if the notices had included a purported membership number or some other unspecified registration information.
Second, Mother contends that DPSS breached its duty to provide notice to the Seneca Nation by failing to include the addresses for the parents, maternal grandmother, and maternal great grandparents. Many of those addresses appeared in the earlier round of ICWA notices and thus were not unknown, so the failure to include them was error. But the error was once again harmless. The notices included other critical identifying information for the parents and maternal relatives—their names, birthdates, birthplaces, and where applicable, the dates and places of their death. The Seneca Nation had enough information to conduct a meaningful search of its records, and there is no reason to believe that its response would have been different if DPSS had included the addresses. Moreover, the Seneca Nation stated that only a person whose mother is a member of the Seneca Nation at the time of the person's birth is eligible for membership. Mother has never claimed that she was a member at the time of her children's birth or that the maternal grandmother was a member at the time of Mother's birth.
Mother's reliance on In re Louis S. (2004) 117 Cal.App.4th 622 is unavailing. In that case, the mother claimed that the maternal great grandmother was Apache. (Id. at p. 627.) The ICWA notices misspelled the mother's and the maternal grandmother's names and omitted the maternal grandmother's birthdate. (Id. at pp. 627, 631.) In addition, maternal great grandmother's information appeared in the wrong part of the form, and the notices did not include her full name or her birthdate. (Id. at p. 631.) Under those circumstances, "the tribe could not conduct a meaningful search to determine [the child's] tribal heritage." (Ibid.) The present case is not analogous. An accurate name and birthdate are far more critical to identifying someone than an address. Mother does not contend that the relatives' names or birthdates were inaccurate here.
For these reasons, we reject Mother's claims of prejudicial ICWA error.
DISPOSITION
The order denying the parents' section 388 petitions and the order terminating parental rights are affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
MENETREZ
J. We concur: McKINSTER
Acting P. J. FIELDS
J.