Opinion
E069720
08-08-2018
In re E.W., a Person Coming Under the Juvenile Court Law. RIVERSIDE COUNTY DEPARTMENT OF PUBLIC SOCIAL SERVICES, Plaintiff and Respondent, v. E.W., Defendant and Appellant.
Marissa Coffey, under appointment by the Court of Appeal, for Defendant and Appellant. Gregory P. Priamos, County Counsel, and James E. Brown, Guy B. Pittman and Julie Koons Jarvi, Deputy County Counsel, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. RIJ1401163) OPINION APPEAL from the Superior Court of Riverside County. Matthew C. Perantoni, Judge. Affirmed. Marissa Coffey, under appointment by the Court of Appeal, for Defendant and Appellant. Gregory P. Priamos, County Counsel, and James E. Brown, Guy B. Pittman and Julie Koons Jarvi, Deputy County Counsel, for Plaintiff and Respondent.
I. INTRODUCTION
Defendant and appellant E.W. (father) appeals from the juvenile court's order terminating his parental rights to his son, E.W. (child). On appeal, father argues that the case should be conditionally remanded for compliance with the notice requirements of the Indian Child Welfare Act of 1978 (25 U.S.C. § 1901 et seq.) (ICWA). We disagree and therefore affirm the judgment.
II. FACTUAL AND PROCEDURAL BACKGROUND
A. General Background.
In January 2015, the juvenile court declared the child (born 2010) to be a dependent, sustaining the first amended dependency petition filed by plaintiff and respondent Riverside County Department of Public Social Services (DPSS) against father and the child's mother. Father was denied reunification services pursuant to Welfare and Institutions Code section 361.5, subdivision (b)(16). Mother was granted reunification services, but failed to reunify with the child; on August 24, 2015, her services were terminated.
The child's mother is not a party to the present appeal.
Further undesignated statutory references are to the Welfare and Institutions Code. --------
B. ICWA-Related Background.
During detention proceedings on November 4, 2014, both father and mother indicated that they may have Native American ancestry. Father signed a "Parental Notification of Indian Status" form, on which he stated that he had Cherokee ancestry on his father's side. He included two names, identifying them as "PGGM" and "PGGF." A "Parental Notification of Indian Status" form was also filled out on behalf of mother, identifying a maternal great-grandmother as "Cherokee." Mother's form was not signed by mother, but rather by her attorney; mother was not in court on the day it was submitted, and the signature appears to be the attorney's initials, not mother's. The juvenile court found that ICWA may apply and ordered DPSS to send the required notices.
On November 14, 2014, DPSS mailed ICWA notices to the parents and to the three federally recognized Cherokee tribes. These notices identify a paternal grandfather, maternal great-grandmother, and paternal great-grandmother of the child by name.
The Cherokee Nation responded to the notices with a November 19, 2014, letter requesting additional information. Specifically, the letter requested the middle name and complete date of birth of the paternal grandfather, who had been identified in the notices sent by DPSS only by first and last name, with an indication that no information was available about his date of birth.
In a jurisdiction/disposition report filed on December 31, 2014, DPSS stated that it had "not received responses" to the ICWA notices it had sent. The report further indicated that when mother was interviewed on December 30, 2014, she denied any Native American ancestry.
The juvenile court's minutes for a January 6, 2015, hearing indicates that "[p]aternal grandparents" were present, and its minutes of a January 21, 2015, hearing indicate that the "paternal grandfather" was present. At the January 21, 2015, hearing, the juvenile court found that "ICWA may apply," and found that the required notice had been given.
On April 6, 2015, DPSS filed ICWA noticing documentation with the juvenile court. The documentation included three response letters from the United Keetoowah Band of Cherokee Indians in Oklahoma, dated January 13, 2015, December 11, 2014, and November 17, 2014, and one response letter from the Eastern Band of Cherokee Indians, dated December 30, 2014, stating that they would not intervene in the case. A letter from the Cherokee Nation, dated January 21, 2015, indicated that it was closing the inquiry because the information it had received "was not complete and it was impossible to validate or invalidate Cherokee heritage without more information." The Cherokee Nation's letter further noted that it had mailed a request for additional information more than 60 days earlier, and had not received a response.
In a status review report filed on July 8, 2015, DPSS recommended that the juvenile court find that ICWA does not apply. Another letter from the Eastern Band of Cherokee Indians, dated February 6, 2015, stating that it would not intervene in the case, is included as an attachment to the report. The juvenile court's minutes indicate, however, that during the subsequent status review hearing on July 21, 2015, counsel for DPSS requested a continuance to allow for "proper ICWA notice."
DPSS service logs later submitted to the juvenile court indicate that on July 24, 2015, the social worker attempted to contact mother by telephone to obtain information for ICWA noticing. She was unsuccessful in reaching mother, who had apparently changed her phone number. The social worker would eventually contact mother at a new phone number on August 17, 2015. Mother was living with her aunt. DPSS had also previously been in contact with a maternal cousin, who was being evaluated as a potential placement for the child. There is no indication in the record, however, that the social worker attempted to obtain information for ICWA noticing from the maternal aunt or maternal cousin.
On July 28 and July 29, 2015, the social worker attempted to contact father by telephone to obtain information for ICWA noticing. When reached, father explained that his father, the child's parental grandfather, was "picky" about giving out his information, and that he (father) did not know the relevant information. Even so, father did provide the social worker with the paternal grandfather's phone number and the social worker was able to contact the paternal grandfather on July 30, 2015. According to the social worker, the paternal grandfather initially "did not want to provide his information for ICWA purpose[s]." After the request for information was explained, however, the paternal grandfather reported that his grandmother, whom he identified by first and last name, was a "full blooded Cherokee," and that she was "born on Cherokee land in Texas." He further reported that she was deceased and that he did not know any other information, but indicated that he would attempt to "get her information online."
In addition to speaking with mother and father, the social worker also contacted the child's caregiver at the time, a paternal aunt. The paternal aunt was able to provide additional information regarding her mother, the child's paternal grandmother.
On July 29, 2015, DPSS sent a second round of ICWA notices, which included some additional information compared to the first round. A third round of ICWA notices was sent on July 30, 2015, which included still more information.
The third, most complete set of ICWA notices identifies the child by name and date of birth, and lists his place of birth as "San Bernardino County, California." It does not specify the hospital where the child was born, which mother had reported as Saint Bernadine's Medical Center. A significant amount of information regarding mother is included, but her birthplace is listed as "Unknown," even though that information had been obtained by DPSS. Father's information includes a "current address" and three former addresses, but does not include father's newest address, which was indicated on a notification of mailing address filed in the juvenile court on July 27, 2015. Both the second and third set of ICWA notices were mailed to father at the address listed as "current" on the ICWA notices, not his newest address.
In the third set of ICWA notices, no information is included about the child's maternal grandparents, and the maternal great-grandmother identified on mother's "Parental Notification of Indian Status" form is identified by first and last name and tribal affiliation only. Substantial information is included about the child's paternal grandparents. The paternal grandmother—incorrectly identified as a great-grandmother on the first round of ICWA notices—is identified by current name and maiden name, and the information provided about her includes current address, birthdate and birthplace. Her Cherokee tribal affiliation is indicated, though tribal membership or enrollment number is unknown. The paternal grandfather is identified by three alternative names. His address is listed as "[u]nknown," but in "Riverside, CA." His day and month of birth is listed, but year and place of birth are described as unknown. His Cherokee tribal affiliation is indicated, but tribal membership or enrollment number is unknown. No information was available for paternal great-grandparents, but information about a paternal great-great-grandmother and a paternal great-great-grandfather is included. The paternal great-great-grandmother is identified by four alternative names, year of birth and place of birth, tribal affiliation, and year and place of death. The paternal great-great-grandfather is identified by three alternative names, place of birth, and tribal affiliation.
Subsequent to the July 2015 ICWA notices, the United Keetoowah Band of Cherokee Indians in Oklahoma and the Eastern Band of Cherokee Indians responded that they would not intervene in the case. The Cherokee Nation sent no response, though the record includes a return receipt card showing that it received the July 30, 2015, notice.
On August 24, 2015, the juvenile court found that ICWA did not apply. On the same date, the juvenile court set a section 366.26 hearing for December 2015. But that date was pushed back for various reasons. In April 2017, the child was placed in the custody of his paternal grandmother. On December 14, 2017, the section 366.26 hearing was held; the juvenile court found the child to be adoptable, determined that no exceptions applied, and terminated parental rights. Father filed a notice of appeal on December 21, 2017.
III. DISCUSSION
Father contends the ICWA notices that DPSS sent were inadequate. DPSS argues that father forfeited his ICWA-related challenges by failing to seek immediate appellate review of the juvenile court's order that ICWA does not apply. In the alternative, DPSS argues that there was substantial compliance with ICWA notice requirements and that any error was harmless. We conclude that father did not forfeit his claims of error, but that he has demonstrated no prejudicial error.
A. Father Did Not Forfeit His Claims of Error Regarding ICWA Noticing.
First, we briefly address the issue of forfeiture. Father could have, but did not, object to the adequacy of the ICWA notices in the trial court. He also could have sought writ review of the trial court's order finding that ICWA did not apply, as an order made contemporaneously with an order setting a section 366.26 hearing. (§ 366.26, subd. (l); In re Anthony B. (1999) 72 Cal.App.4th 1017, 1021.) He did not do so. Nevertheless, "[g]enerally, the forfeiture doctrine does not bar consideration of ICWA notice issues not raised in the juvenile court." (In re Z.W. (2011) 194 Cal.App.4th 54, 63.) Moreover, "'[a] parent in a dependency proceeding is permitted to raise ICWA notice issues not only in the juvenile court, but also on appeal even where, as here, no mention was made of the issue in the juvenile court.'" (Ibid.) It is therefore appropriate for us to reach the merits of father's claims of error.
DPSS argues that In re Isaiah W. (2016) 1 Cal.5th 1 supports a different conclusion. It does not. In that case, the Supreme Court reversed a Court of Appeal opinion that had held a mother was foreclosed from challenging the juvenile court's ICWA finding, made as part of its dispositional orders, in a later appeal from the trial court's order terminating her parental rights. (In re Isaiah W., supra, at pp. 6, 15.) The Supreme Court emphasized that it agreed "with the majority view among the Courts of Appeal that 'given the court's continuing duty throughout the dependency proceedings to ensure the requisite notice is given [citation], and the protections the ICWA affords Indian children and tribes, the parents' inaction does not constitute a waiver or otherwise preclude appellate review.'" (Id. at p. 13.)
As DPSS points out, the challenge raised in In re Isaiah W. is somewhat different from that in the present case; there, no ICWA notices were sent at all, whereas here the issue is whether the notices made were adequate. (See In re Isaiah W., supra, 1 Cal.5th at p. 5.) This distinction, however, is not one that makes a difference. A juvenile court finding that ICWA does not apply is effective only if "proper notice" has been given. (Id. at p. 15, italics added.) Otherwise, a limited remand for compliance with ICWA is appropriate, regardless of whether ICWA noticing was not done at all, or if it was attempted but was inadequate in some respect. (See, e.g., In re Terrance B. (2006) 144 Cal.App.4th 965, 971-975.) Either circumstance is governed by the same policy considerations approved in In re Isaiah W., namely, that parental inaction should not generally preclude appellate review of ICWA notice issues.
B. Father Has Demonstrated No Prejudicial Error Regarding ICWA Notices.
Father contends that the ICWA notices sent by DPSS were inadequate in several respects, specifically: (1) the parental grandfather's year of birth was not included; (2) the ICWA notices mailed to father in July 2015 were sent to the wrong address; (3) the juvenile court made its finding that ICWA did not apply without waiting 60 days after the final round of ICWA noticing; and (4) the information provided regarding the child's maternal ancestors was insufficient. We are not persuaded.
1. Standard of Review and Applicable Law.
ICWA requires that notice of the dependency proceedings be given to the relevant tribe or tribes whenever "the court knows or has reason to know that an Indian child is involved . . . ." (25 U.S.C. § 1912(a).) The notice must include the names (including maiden, married, and former names), current and former addresses, birth dates, and places of birth and death of the child's parents, grandparents, and great-grandparents, "[i]f known." (25 C.F.R. § 23.111(a), (d) (2018); see also Welf. & Inst. Code, § 224.2, subd. (a)(5).)
We review the juvenile court's findings whether proper notice was given under ICWA and whether ICWA applies to the proceedings for substantial evidence. (In re Christian P. (2012) 208 Cal.App.4th 437, 451.) Error must be affirmatively shown; in the absence of contrary information, we presume that the official duties of DPSS and the social worker were regularly performed. (Evid. Code, § 664; see also In re Rebecca R. (2006) 143 Cal.App.4th 1426, 1430.) Deficiencies in ICWA inquiry and notice may be deemed harmless error when, even if proper notice had been given, the child would not have been found to be an Indian child. (In re E.W. (2009) 170 Cal.App.4th 396, 402.)
2. Paternal Grandfather's Information.
As father notes, "[f]or whatever reason," the second and third set of ICWA notices included a day and month of birth for the paternal grandfather, but did not include the year of his birth. The record does not affirmatively establish why the year of birth was not included. However, father described the parental grandfather as "picky" about giving out his information, a description that was confirmed when the paternal grandfather initially did not want to give the social worker any information for ICWA purposes. Nevertheless, the third ICWA notice, in particular, includes substantial information about the parental grandfather, far more than initially provided by father in the "Parental Notification of Indian Status" forms. It may be inferred that the social worker sought to acquire additional information as required by law and that the notice contains all reasonably available information.
Father points out that "there is no evidence the social worker asked [the paternal grandmother or paternal aunt] if they knew of [paternal grandfather's] year of birth." As he concedes, however, there is evidence that the social worker "spoke with both [the paternal grandmother and paternal aunt] many, many times throughout this case." These conversations included discussions of ICWA matters. Given the present state of the record, lacking any affirmative indication that DPSS and the social worker did not make reasonable efforts to obtain the missing year of birth, we will not presume a lack of diligence. (Evid. Code, § 664; see also In re Rebecca R., supra, 143 Cal.App.4th at p. 1430.)
3. Father's Address.
Father contends that DPSS erred by mailing the July 2015 ICWA notices to him at an address he had updated with a notification of mailing address filed in the juvenile court several days earlier. He argues that he "did not have an opportunity to review the ICWA notices for insufficient or incorrect information." However, father was represented by counsel at the subsequent hearing where the trial court found ICWA did not apply, and his counsel raised no objection regarding notice. Furthermore, father was interviewed by DPSS regarding ICWA matters, and presumably had already conveyed all the information he knew. Nothing in the record suggests that, had father received the July 2015 ICWA notices at his new address, he would have, or even could have, identified or supplemented any incorrect or insufficient information with DPSS. He has not attempted such a showing at any time, either in the juvenile court or on appeal. We conclude that, to the extent father did not waive any objection regarding the issue, and to the extent DPSS erred by sending the notices to an address that was several days out of date, any error was harmless.
4. Timing of Juvenile Court's ICWA Ruling.
The juvenile court's finding that ICWA did not apply to the proceedings was made on August 24, 2015. By that date, two of the three tribes that had received the most recent July 2015 ICWA notices had responded that they would not intervene in the matter. The third tribe and the Bureau of Indian Affairs, however, had sent no determinative response. The juvenile court therefore erred by not waiting until 60 days after the July 2015 ICWA notices had been sent before making a finding that ICWA did not apply. (§ 224.3, subd. (e)(3).)
Nevertheless, section 224.3, subdivision (e)(3), also provides that the juvenile court "shall reverse its determination of the inapplicability of [ICWA] and apply the act prospectively if a tribe or the Bureau of Indian Affairs subsequently confirms that the child is an Indian Child." (§ 224.3, subd. (e)(3).) And if DPSS had received a subsequent response, the social worker was required to file the response with the court. (§ 224.2, subd. (c).) No subsequent responses, however, were filed with the court and DPSS repeatedly affirmed that it had received no new information to suggest that ICWA applied. It was therefore harmless error for the juvenile court to issue a final ruling regarding the applicability of ICWA too soon, in violation of section 224.3, subdivision (e)(3). (See In re Antoinette S. (2002) 104 Cal.App.4th 1401, 1412-1413 [error in proceeding with hearing on termination of parental rights less than 10 days after ICWA notice was mailed, in violation of 25 U.S.C. § 1912(a), was harmless because BIA ultimately found no evidence of Indian heritage].)
5. Information Regarding Maternal Ancestors.
Father contends that the ICWA notices should have included more complete information about the child's maternal ancestors. Mother's place of birth was missing, even though she had reported that information to DPSS. The notices lacked any information about the child's maternal grandparents. The name and tribal affiliation of the maternal great-grandmother initially identified on mother's "Parental Notification of Indian Status" form as an Indian ancestor was included on the notices. But no other information was included. Father argues mother or one of her relatives with whom DPSS had contact could have provided more information.
Both the federal ICWA regulations (25 C.F.R. § 23.111(d)(3)) and Welfare & Institutions Code section 224.2, subdivision (a), require the agency to provide all known information concerning the child's parent, grandparents and great-grandparents without distinguishing between Indian and non-Indian relatives. Nevertheless, it does not follow that the omission of information concerning non-Indian relatives is necessarily prejudicial. Information about non-Indian ancestors is "typically less relevant to the tribe's determination of the child's eligibility for membership than information concerning the child's Indian ancestors." (In re Cheyanne F. (2008) 164 Cal.App.4th 571, 576 [Fourth Dist., Div. Two].)
Here, although a "Parental Notification of Indian Status" form was filled out on mother's behalf, claiming Indian ancestry via a maternal great-grandmother, mother denied any Native American heritage when she was interviewed by DPSS. There is no indication that any of the tribes declined to make an inquiry into the child's eligibility based on the lack of information regarding the child's maternal ancestors. (Cf. In re Cheyanne F., supra, 164 Cal.App.4th at p. 577 [tribe declined to make any inquiry into the child's eligibility until DPSS provided information as to all of the child's parents, grandparents, and great-grandparents].) On these facts, we find no basis upon which to conclude that the outcome would have been different if DPSS had provided mother's place of birth and obtained additional information concerning the child's maternal grandparents and great-grandparents, and any error was harmless.
IV. DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
CODRINGTON
J. We concur: MCKINSTER
Acting P. J. SLOUGH
J.