Opinion
F075594
11-13-2017
In re C.F., a Person Coming Under the Juvenile Court Law. TULARE COUNTY HEALTH AND HUMAN SERVICES AGENCY, Plaintiff and Respondent, v. MICHELLE F., Defendant and Appellant.
Michelle L. Jarvis, under appointment by the Court of Appeal, for Defendant and Appellant. Deanne H. Peterson, County Counsel, John A. Rozum and Jason Chu, Deputy County Counsel, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. JJV066623B)
OPINION
THE COURT APPEAL from orders of the Superior Court of Tulare County. Juliet L. Boccone, Judge. Michelle L. Jarvis, under appointment by the Court of Appeal, for Defendant and Appellant. Deanne H. Peterson, County Counsel, John A. Rozum and Jason Chu, Deputy County Counsel, for Plaintiff and Respondent.
Before Franson, Acting P.J., Peña, J. and Smith, J.
-ooOoo-
Michelle F. (mother) appeals from the Welfare and Institutions Code section 366.26 orders, issued on March 13, 2017, terminating her parental rights to her child C.F., now age nine. On appeal, mother contends only that the notice requirement of the Indian Child Welfare Act (ICWA) (25 U.S.C. § 1901 et seq.) was insufficient. We affirm.
All further statutory references are to the Welfare and Institutions Code unless otherwise stated.
C.F.'s father is P.X., who is not a party to this appeal. Mother also has three other children by different fathers: Destiny E., age 13; Brooke F., age 7, and Noah J., age 3, who were named in the petition underlying this appeal, but were each placed with their respective fathers and are a not a subject of this appeal.
PROCEDURAL AND FACTUAL HISTORY
Because mother only contests the issue of ICWA notice, we give an abbreviated summary of the facts and procedures of the dependency proceedings in the juvenile court.
Earlier Dependency Action
In December 2012, C.F. and his siblings Destiny and Brooke were detained and placed with a maternal aunt and uncle when it was found mother's substance abuse and mental illness rendered her unable to provide care for her children. During this first dependency action, mother stated she "may" have Cherokee or Choctaw ancestry, citing her grandmother Virginia F. and grandfather Calvin F. Mother did not know if either was registered with either tribe, but both were deceased. Mother also stated Jennifer W., relationship unspecified, and her sister Danielle B. were registered. The juvenile court ordered mother to supply the social worker with all family information regarding Indian ancestry. The detention report identified Jennifer W. as "maternal aunt", who confirmed on December 6, 2012, that the maternal family had Cherokee or Choctaw ancestry, but she was unable to provide enrollment numbers or verification. Mother and Destiny's father filled out the ICWA-020 forms indicating the children may be a member of or eligible for membership in a federally recognized tribe, but did not designate a tribe or tribes.
The ICWA-030 form prepared and served on the three federally recognized Cherokee Tribes and the three federally recognized Choctaw Tribes listed mother's parent's names, without further information; her maternal grandmother's name, Donna C., without further information; and her maternal grandfather's name, Calvin F., and that he was born in Arkansas in 1926. Four of the tribes sent letters indicating the minors were not eligible for ICWA as to their tribes.
In June of 2013, the juvenile court ordered the minors returned to mother's custody under family maintenance services, and jurisdiction terminated in December of 2013. Current Dependency Action
In July 2016, mother was arrested after committing a hit-and-run while under the influence and for driving with a suspended driver's license. C.F. and Brooke were in the car with mother at the time and were released to maternal aunt and her husband, Amber and Gabriel G., at mother's request. Mother's other children, Destiny and Noah, were living with their respective fathers at the time.
A section 300 petition filed by the Tulare County Health and Human Services Agency (agency) alleged the minors were at risk of harm due to mother's mental health issues, substance abuse issues, and current incarceration. An ICWA-020 form signed by mother July 15, 2016, states she had no Indian ancestry "as far as I know."
The detention report indicated the juvenile court had previously found in an earlier dependency proceeding that ICWA did not apply, including as to the minor C.F. At the detention hearing, when asked about her Indian ancestry, mother replied, "I do, but we don't have it. I don't have a card." "My mom and my dad. Everybody does, yes." When asked by the juvenile court if "they already looked into it and confirmed your children are not children covered under the [ICWA]," mother replied, "[t]he last time, yes."
Deputy county counsel then asked mother to name "a tribe," to which mother replied, "Choctaw," out of Oklahoma. County counsel stated that, given this was Noah's first time before the juvenile court, the agency was required to give notice. The juvenile court stated "They will check into it, even though it probably will be futile." The juvenile court then found there was insufficient reason to believe "at this time" that Destiny, C.F., Brooke or Noah are or may be covered under the ICWA, but that the agency would look into it, as to Noah, to confirm.
All four children were then detained from mother; C.F. and Brooke were detained from their respective fathers; Destiny and Noah remained in the custody of their respective fathers.
The report prepared in anticipation of jurisdiction/disposition stated the social worker spoke to mother on August 17, 2016. At that time, mother stated her family may be Cherokee or Choctaw. While mother was not registered, she believed her maternal aunt, the minors' maternal great-aunt, Debbie D. (full name provided) "is registered in Hanford." Mother provided a telephone number for Debbie D. Mother also said her sister, Jennifer W., who lived in Ohio, may have information, but mother had no contact information for her. The social worker attempted to call Debbie D. at the given telephone number, but there was no answer and no answering machine. The social worker then utilized the genealogical information from the ICWA-030 prepared in 2013 to prepare a new ICWA-030.
In the earlier 2012 dependency proceeding, mother had stated in court that Jennifer W. and Danielle B. were both registered. At that time, mother identified Danielle as her sister, but her relationship to Jennifer was unspecified.
At jurisdiction and disposition August 22, 2016, the juvenile court dismissed the allegation that mother was incarcerated and found the remainder of the petition true. Mother and C.F.'s father were denied reunification services and a section 366.26 hearing set with an anticipated plan of guardianship for C.F., who was in the home of a non-relative extended family member. Destiny was released to her father's custody and dependency jurisdiction terminated as to her. Brooke and Noah commenced family maintenance with their respective fathers.
On October 20, 2016, the agency sent the ICWA-030 for C.F. to the three federally recognized Cherokee Tribes and the three federally recognized Choctaw Tribes. The ICWA-030 contained the same information it had in the earlier ICWA-030 sent in 2013.
On November 21, 2016, the agency filed a report with ICWA responses, indicating letters had been received from the Mississippi Band of Choctaw Indians, the Choctaw Nation of Oklahoma, the Eastern Band of Cherokee Indians, and the United Keetoowah Band of Cherokee Indians indicating C.F. was not eligible for tribal membership. As the agency had not yet received a response from the Cherokee Nation or the Jena Band of Choctaw, the juvenile court found ICWA remained pending.
Prior to the scheduled December 12, 2016, section 366.26 hearing, the agency filed an additional report indicating it had received a letter from the Cherokee Nation of Oklahoma indicating C.F. was not an Indian child in relation to the Cherokee Nation. The Jena Band of Choctaw Indians had still not replied. The hearing was continued to February 27, 2017, to allow notice to the Jena Band of Choctaw Indians be perfected by the lapse of 60 days.
A new ICWA-030 for C.F., containing the same information, was mailed by certified mail to the Jena Band of Choctaw Indians on December 15, 2016.
The agency filed an addendum report that indicated that, while they still had not received a response from the Jena Band of Choctaw Indians, the US Postal Service tracking system indicated the ICWA-030 had been delivered on December 22, 2016.
The February 27, 2017, section 366.26 hearing was trailed to March 13, 2017, at which time the ICWA was found not to apply and the juvenile court terminated mother's parental rights to C.F.
DISCUSSION
Mother's only argument on appeal is that the ICWA notice was incomplete because the ICWA-030 did not list the name of her maternal aunt, C.F.'s great-aunt, Debbie D., who mother said was "registered." In her reply brief, mother also contends the notice should have included the names of Danielle B. and Jennifer W., who appear to be mother's sisters and who were "registered." We find any error was harmless. Applicable Law
The ICWA protects the interests of Indian children and promotes the stability and security of Indian tribes by establishing minimum standards for, and permitting tribal participation in, dependency actions. (25 U.S.C. §§ 1901, 1902, 1903(1), 1911(c), 1912.) The juvenile court and the agency have an affirmative duty to inquire at the outset of the proceedings whether a child who is subject to the proceedings is, or may be, an Indian child. (Cal. Rules of Court, rule 5.481(a).) If, after the petition is filed, the court "knows or has reason to know that an Indian child is involved," notice of the pending proceeding and the right to intervene must be sent to the tribe. (25 U.S.C. § 1912(a); rule 5.481.)
All further references to the rules are to the California Rules of Court.
"This court has characterized notice as a 'key component of the congressional goal to protect and preserve Indian tribes and Indian families.' [Citation.] We also have observed: 'the statute and all cases applying the Act unequivocally require actual notice to the tribe [or Secretary of the Interior]' of both the proceedings and of the right to intervene. [Citation.] The requisite notice to the tribe serves a twofold purpose: (1) it enables the tribe to investigate and determine whether the minor is an Indian child; and (2) it advises the tribe of the pending proceedings and its right to intervene or assume tribal jurisdiction. [Citation.]" (In re Desiree F. (2000) 83 Cal.App.4th 460, 469-470.)
Under the then-implementing federal regulations, ICWA notices, when required, had to include "[a]ll names, known, and current and former addresses of the Indian child's biological mother, biological father, maternal and paternal grandparents and great grandparents or Indian custodians, including maiden, married and former names or aliases; birthdates; places of birth and death; tribal enrollment numbers, and/or identifying information." (25 C.F.R. former § 23.11(a), (d)(3) (2014).) Section 224.2, "largely tracks the ICWA," (Tina L. v. Superior Court (2008) 163 Cal.App.4th 262, 266) and provides that notice shall include "[a]ll names known of the Indian child's biological parents, grandparents, and great-grandparents ...." (§ 224.2, subd. (a)(5)(C).)
The new ICWA regulations, which went into effect December 12, 2016, require notice include, in addition to information about the child and his or her parents, "[i]f known, the names, birthdates, birthplaces, and Tribal enrollment information of other direct lineal ancestors of the child, such as grandparents." (25 C.F.R. § 23.111(d)(3).) The new regulations apply to "proceedings" initiated after December 12, 2016. "[C]hild custody proceeding" as defined includes four separate phases of a case that may all take place within a single ongoing case: the foster care placement, termination of parental rights, preadoptive placement, and adoptive placement phases of a case are all considered separate "proceedings" for ICWA purposes (See U.S.C. § 1903(1); 25 C.F.R. § 23.143 and former § 23.2 (1996).) Here, the case straddled the December 12, 2016 date. --------
A tribe's "decision that a child is or is not a member, or [is or is not] eligible to be a member, is determinative." (In re Desiree F., supra, 83 Cal.App.4th at p. 470.)
We review for substantial evidence the trial court's findings whether proper notice was given under the ICWA and whether the ICWA applies to the proceedings. (In re Christian P. (2012) 208 Cal.App.4th 437, 451.) Deficiencies in the 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; In re S.B. (2005) 130 Cal.App.4th 1148, 1162.) Analysis
In this case, once the juvenile court became aware of the possibility that any of the minors might be an Indian child in light of mother's assertion that she had Indian ancestry, actions were taken to effect notice pursuant to the provisions of the ICWA.
In August of 2016, the social worker spoke to mother, who again stated her family may be Cherokee or Choctaw. Mother stated she was not registered, but believed her maternal aunt, Debbie D., in Hanford was. Mother at first said she had no contact information for Debbie D. She then gave a telephone number for Debbie D., but the social worker was unable to reach her. Mother also stated her sister, Jennifer W., in Ohio, may have "some information," but mother provided no contact information for her.
The ICWA-030, dated October 20, 2016, was sent to the Secretary of the Interior, the Bureau of Indian Affairs, and the three federally recognized Cherokee Tribes and three federally recognized Choctaw Tribes. On the form, mother's biological mother and father were identified by name; mother's father's tribe was identified as Cherokee and/or Choctaw; address and birth date and place were "unknown." Mother's biological maternal grandmother and grandfather were listed by name, and maternal grandfather's tribe listed as Choctaw and that he was born in Arkansas in 1926, no other information was known.
Mother contends the notice was fatally defective because it did not contain the name of a great aunt or her sisters, whom she thought might be registered with a tribe. The Judicial Council's mandatory form, Notice of Child Custody Proceedings for Indian Child (Indian Child Welfare Act), ICWA-030, adopted effective January 1, 2008 and used by the agency in this case, includes boxes for the required information, including birth date and place, for each parent, each parent's biological mother and father (the child's maternal and paternal grandparents) and each parent's four biological grandparents (the child's maternal and paternal great-grandparents). Much of this information is listed as "unknown," as it was not provided by mother. We do note page 7 of the form includes a section, 7(d), which was left blank. That section asks for the names, relationship, current and former addresses, birth date and place, tribe, band and location of other relatives "e.g,. aunts, uncles, siblings, first and second cousins, stepparents, etc."
We agree with the courts that have emphasized the importance of strict compliance with the ICWA notice requirements. Juvenile courts and agencies that do not comply "face the strong likelihood of reversal on appeal to this court." (In re H.A. (2002) 103 Cal.App.4th 1206, 1214.) But not all deficiencies in notice are prejudicial error. (In re Junious M. (1983) 144 Cal.App.3d 786, 794, fn. 8.) Mother does not suggest how the supposed deficiencies she notes, the names of Debbie D., Jennifer W. and Danielle B., would have made a difference - mother provided no registration numbers, or even any useful contact information for any of these individuals. In any event, there is no requirement under ICWA or California law that information about non-lineal ancestors be provided.
Moreover, as the court observed in the case of In re Jonathan D. (2001) 92 Cal.App.4th 105, 110, "appellate courts in California have recognized that technical compliance with the Act's notice requirements may not be required where there has been substantial compliance." "Parents unable to reunify with their children have already caused the children serious harm; the rules do not permit them to cause additional unwarranted delay and hardship, without any showing whatsoever that the interests protected by the ICWA are implicated in any way." (In re Rebecca R. (2006) 143 Cal.App.4th 1426, 1431.)
Substantial evidence supports that the notices sent by the agency were sufficient. Alternatively, the notices substantially complied with the ICWA so that any deficiencies in the notices were de minimus and not prejudicial.
DISPOSITION
The order is affirmed.