Opinion
A131867
10-17-2011
In re Z.T., a Person Coming Under the Juvenile Court Law. SONOMA COUNTY HUMAN SERVICES DEPARTMENT, Plaintiff and Respondent, v. MATTHEW R., Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Sonoma County Super. Ct. No. 3431-DEP)
In this juvenile dependency case, the minor's father (Father), who claims no Indian heritage, appeals from the juvenile court's disposition order on the sole ground that respondent Sonoma County Human Services Department (the Department) failed to give proper notice of the dependency proceeding under the Indian Child Welfare Act of 1978 (25 U.S.C. § 1901 et seq.) (ICWA), based on the Indian heritage information provided by the minor's mother (Mother). We affirm.
FACTS AND PROCEDURAL BACKGROUND
The minor involved in this case (Minor) was born in the fall of 2010. Before Minor was born, Mother's five older children (Minor's siblings) were all removed from the custody of Mother and Father (collectively Parents) by the Department due to Parents' history of substance abuse and domestic violence, and Father's use of inappropriate physical discipline. Due to this history, the Department detained Minor at the hospital within a few days after he was born. Because of Parents' history of abuse of Minor's siblings, and their failure to reunify with their other children, reunification services as to Minor were not provided to either parent.
Because the only issue raised on this appeal is whether proper notice was given under ICWA, our recitation of the facts touches only briefly on the other aspects of the facts and procedural history of the case.
In the hearings in the dependency court, Father admitted to using medical marijuana legally on an occasional basis for back pain, but denied having any substance abuse problem.
This court affirmed the termination of Mother's and Father's parental rights as to four of Minor's siblings in an unpublished opinion (In re I.R. (Dec. 16, 2010) A127295), of which we take judicial notice. (Evid. Code, § 452, subd. (d); Cal. Rules of Court, rule 8.1115(b)(1); see Fink v. Shemtov (2010) 180 Cal.App.4th 1160, 1171.) The remaining child was placed in a permanent guardianship, which Mother did not appeal. (See In re I.R., supra, A127295 [nonpub. opn.].)
The initial papers filed by the Department indicated inquiry had been made, and that Minor had no known Indian ancestry, noting that the court had previously found, as to Minor's siblings, that ICWA did not apply. At the initial detention hearing, however, Mother told the court that she and her children received services from "Indian Health" and that she had an enrollment number, and the dependency court therefore found that ICWA might apply.
Mother identified her tribal affiliation as Matole and Cherokee, though she did not know which Cherokee tribe. She explained that the Matole tribe was from the Eureka area, and was called "something like Bear something." The Department's counsel stated that the information they had obtained was that the Matole tribe was not federally recognized, and had been absorbed into another tribe that was also not federally recognized. Counsel also indicated that Mother had never provided the Department with documentation of her enrollment number.
During the dependency proceedings for Minor's siblings, according to a report dated April 2, 2008, which was also made part of the record in the present case, Mother told the Department that her Indian heritage was through her own mother (Grandmother). Grandmother told the Department that her mother had been an enrolled member of the Matole tribe, but the Department could not locate any federally recognized Matole tribe in California. Grandmother identified the tribe in which she was enrolled as the "Bear River Rohnerville" (apparently meaning the Bear River Band of Rohnerville Rancheria (Bear River)). The enrollment office for Bear River was not able to locate any enrollment records for Grandmother or Grandmother's mother. Some Matole tribe members were absorbed into Wiyot tribes, but none of the Wiyot-affiliated tribes contacted by the Department, including Bear River, had any record of Grandmother or her mother. The Bear River enrollment office told the Department that tribe had not absorbed any Matole tribe members.
On September 17, 2010, Mother filed a form for parental notification of Indian status stating that "I may have Indian ancestry"; listing the tribe names as "Cherroke [sic]" and Matole; and stating that she was "waiting on paperwork." At a hearing on September 20, 2010, Mother said she had given the Department information about her Indian heritage, and was "waiting for some other paperwork from the tribe." The Department indicated that its inquiries in regard to the older children had resulted in a finding that ICWA did not apply, but that this had not been established in Minor's case. In light of this evidence, the dependency court found that ICWA "may" apply, and directed the Department to make a determination on that question.
By the time of a further jurisdictional hearing on October 12, 2010, Mother had provided additional information to the Department regarding her Indian heritage. This information included documentation (a judgment roll letter) that Mother said she had given to her attorney during the dependency proceedings regarding Minor's siblings, but the Department said it had never received. In addition, the Department reported that it had consulted with an ICWA expert, and had determined that ICWA notice should be sent to the Bureau of Indian Affairs (BIA). As the Department's counsel explained at the hearing, Mother had not provided them with the name of her specific tribe, and the history of the Matole Indians in the area was complicated. The Department indicated that it had requested permission from Mother to check with Sonoma County Indian Health Services about the basis for her eligibility for their services, but Mother had denied permission because she did not want the Department to have access to her medical records.
On October 19, 2010, the Department mailed a notice of child custody proceeding for Indian child (the ICWA Notice) by certified mail to various parties, listing Mother as a member of the Wiyot tribe and Grandmother as "[p]ossibly Matole which was absorbed into the Wiyot [t]ribes." Information regarding Mother's maternal ancestors was provided on the ICWA Notice. Father's name was listed as well, but—as pointed out in Father's opening brief on appeal—the birth date listed for Father may have been incorrect.
In the copy of this notice in our record, unfortunately, the list of addressees of the notice is partially obscured by certified mail receipts. However, the record does reflect, elsewhere, that the Department received certified mail receipts from the BIA offices in both Sacramento, California and Washington, D.C.; the Blue Lake Rancheria; and the Wiyot Tribe in Loleta, California.
Responses to the ICWA Notice were received from the BIA, the Cher-Ae Heights Indian Community of the Trinidad Rancheria (Cher-Ae), the Blue Lake Rancheria Tribe (Blue Lake), and Bear River. The BIA's response indicated that the notice had been received, but did not make any determination as to Minor's status as an Indian child, and did not request further information. The Cher-Ae, Blue Lake, and Bear River each stated, in effect, that according to their records, Minor was not a member or eligible for membership.
On November 16, 2010, the dependency court entered an order bypassing reunification and setting a hearing under Welfare and Institutions Code section 366.26 (.26 hearing). Father and Mother each filed writ petitions, which this court denied on the merits in an unpublished opinion. (M.R. v. Superior Court (Feb. 16, 2011) A130531.) No ICWA issues were raised in the writ petitions. (Ibid.)
By the time of the .26 hearing on March 30, 2011, Father was in custody and facing a lengthy prison term, and Minor had been placed with potential adoptive parents in Idaho who were relatives of Mother's. In its report for the .26 hearing, the Department requested that the court find ICWA inapplicable, based on the negative responses received from Blue Lake, Cher-Ae, and Bear River.
At the .26 hearing, the Department's counsel noted that she had submitted amended proposed findings in order to include a finding that ICWA was inapplicable. Neither Mother nor Father objected. On March 30, 2011, the dependency court signed the amended findings as submitted, including the finding that ICWA does not apply, and entered an order terminating Parents' parental rights and confirming adoption as Minor's permanent plan. Father timely filed a notice of appeal.
DISCUSSION
The issues Father raises on appeal are that: (1) no notice under ICWA was ever sent to any Cherokee tribe, even though Mother indicated that her Indian ancestry was partially Cherokee, and (2) Father's birth date was not correctly listed on the ICWA notices that the Department did send out.
A. Lack of Notice to Cherokee
ICWA notice is required in a dependency case when the social services agency "knows or has reason to know that an Indian child is involved." (Welf. & Inst. Code, § 224.2, subd. (a); see also In re Damian C. (2009) 178 Cal.App.4th 192, 196; (Cal. Rules of Court, rule 5.480 et seq.) Under ICWA, an Indian child is any unmarried person under the age of 18 who is either (1) a member of a federally recognized Indian entity (such as a tribe or band), or (2) the biological child of a member of a federally recognized Indian entity, and eligible for membership in such an entity. (In re Shane G. (2008) 166 Cal.App.4th 1532, 1538; In re B.R. (2009) 176 Cal.App.4th 773, 781.)
In the present case, as appellant concedes, the Department "did a commendable job in notifying the Matole tribe" under ICWA, and also sent an ICWA notice to the BIA. These notices did not result in any indication that Minor is, or is eligible to become, an enrolled member of any federally recognized Indian tribe or other entity. Appellant argues, nonetheless, that the ICWA notice given in this case was insufficient to support the dependency court's finding that ICWA did not apply, because no notice was sent to any Cherokee tribe.
With respect to Minor's siblings, this court found that ICWA notice was not even required, because the Department conducted an adequate inquiry into Mother's and Grandmother's Indian heritage, and determined that no federally recognized Indian tribe or entity to which Grandmother might belong had any records indicating Grandmother was a member. (In re I.R., supra, A127295 [nonpub. opn.].)
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The only mention in the record of Mother's potential Cherokee (as opposed to Matole) heritage was made by Mother. Mother also said, however, that her Indian heritage came through Grandmother. Grandmother, in turn, told the Department that her mother (Great-grandmother) was affiliated with the Matole Tribe, and specifically mentioned the Bear River Rohnerville Rancheria. There is no indication anywhere in the record that Grandmother claimed any Cherokee heritage.
In our view, the Department more than fulfilled its responsibilities under ICWA by conducting a thorough inquiry into whether Minor might be eligible to become an enrolled member of any federally recognized Indian tribe or entity open to persons with Matole heritage. Mother's passing reference to potential Cherokee heritage was not verified by the only family member through whom Mother claimed Indian ancestry. Accordingly, the Department did not know or have reason to know that Minor was or might be a Cherokee Indian child within the meaning of ICWA, that is, a child who either was a Cherokee tribe member or was the biological child of a Cherokee tribe member and eligible to enroll in a Cherokee tribe. Under these circumstances, ICWA notice to the Cherokee tribes was not required. (See In re J.D. (2010) 189 Cal.App.4th 118, 124-125.)
B. Incorrect Birthdate for Father
Father contends, without citing any evidence or authority, that the incorrect birthdate listed for him on the ICWA notices "ma[de] it impossible for tribes or BIA to determine . . . [M]inor's right to membership" in an Indian tribe. Father cites nothing in the record, and we have found nothing, indicating that Father made any effort to correct this error during the proceedings in the dependency court. Moreover, Father does not dispute that Minor's Indian ancestry, if any, derived exclusively from Mother.
ICWA inquiry and notice issues are not exempt from the doctrine of harmless error. (In re A.B. (2008) 164 Cal.App.4th 832, 842; In re Cheyanne F. (2008) 164 Cal.App.4th 571, 577.) In the present case, there is evidence in the record that in attempting to determine whether Minor was an Indian child, the tribes contacted by the Department searched their records for entries relating to Mother and Grandmother. None of the tribes' responses to the Department's ICWA notice indicated that their records searches had depended in any way on Father's name, much less his birthdate. This makes sense, as there is no reason for the records of an Indian tribe to contain information about a person who claims no Indian heritage, merely because that person is married to someone who, though claiming affiliation with the tribe, is not listed as a member. Father argues in his reply brief that there is no evidence that the error did not affect the tribes' record searches. As the appellant, however, it is Father's burden to show that any asserted error in the trial court proceedings affected their outcome.
In short, any error in recording Father's birthdate on the ICWA notices sent by the Department was harmless. (See In re Cheyanne F., supra, 164 Cal.App.4th at pp. 576-577 [omission from ICWA notice of information regarding non-Indian ancestors of dependent child was harmless error].) It therefore is not a basis for reversing the dependency court's finding that ICWA does not apply to Minor.
DISPOSITION
The order appealed from is affirmed.
RUVOLO, P. J.
We concur:
REARDON, J.
SEPULVEDA, J.