In re J.R.
In re J
In re J.R.
Filed 9/19/12 In re J.R. CA2/6
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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opinion has not been certified for publication or ordered published for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.
IN THE COURT OF
APPEAL OF THE STATE OF CALIFORNIA
In re J.R., JR. II, a Person Coming Under the Juvenile
2d Juv. No. B239055
VENTURA COUNTY HUMAN SERVICES AGENCY,
J.R., Jr. (father)
appeals the juvenile court's order terminating parental rights and selecting
adoption as the permanent plan for his minor child J.R., Jr. II (J.R.) (Welf.
& Inst. Code, § 366.26 et seq.). Father contends that Ventura County Human Services Agency
(HSA) failed to comply with the notice provisions of the Indian Child Welfare
Act (ICWA) (25 U.S.C. § 1901 et seq.).
FACTS AND PROCEDURAL HISTORY
Because the facts
resulting in J.R.'s dependency are not relevant to the issues on appeal, we
need not discuss them in detail. Father
and J.R.'s mother, L.R., both have a history of drug abuse and mental illness. When J.R. was born in August 2011, mother
tested positive for methamphetamine. On August 15, 2011, HSA filed a section
300 petition alleging failure to protect.
The petition also alleged that mother's parental rights had been
terminated as to J.R.'s older half-sibling due to mother's drug abuse.
Prior to the detention hearing, an HSA social worker
asked mother and father whether they had any Indian ancestry. Father stated that his family has Apache
heritage and were "trying to get" a "BIA [Bureau of Indian
Affairs] number." Mother stated
that her family is of Cherokee descent.
M.M., the minor's maternal great aunt, attended the detention hearing
but did not provide any additional information at that time regarding the
family's possible Indian ancestry. At
the hearing, mother and father each completed form ICWA-020 (Parental
Notification of Indian Status). Father
indicated that he may have Apache ancestry, while mother identified her
possible Cherokee heritage. After
reviewing the forms the court stated that "[HSA] will need to investigate
On September 26, 2011, HSA mailed form ICWA-030
(Notice of Child Custody Proceeding For Indian Child) to the Apache and
Cherokee tribes. The notices were
defective in several respects. The father's
place of birth was not included, and HSA merely provided the names of the
maternal grandmother and maternal great-grandmother. In the space provided for the paternal
grandmother, HSA gave the name and referred to an unknown address in Klamath
Falls, Oregon, and a birth
place of Superior, Arizona. The notice also erroneously identifies the
minor's maternal great-grandfather as a maternal great-grandmother. In the spaces provided for the minor's other
relatives, the notice simply states "No Indian Ancestry Known or
Reported." No other information
regarding the minor's relatives was provided.
The notice also gave an incorrect date for the jurisdiction and
disposition hearing and was mailed only three days prior to the hearing, which
rendered the notice untimely. (25 U.S.C.
§ 1912(a); In re Antoinette S. (2002)
104 Cal.App.4th 1401, 1408.)
HSA filed the notice
along with the return receipts from the tribes and the BIA. As of the hearing date on December 5, 2011, the BIA and all but
two of the noticed tribes had sent responses indicating that the minor was
neither a member nor eligible for membership.
The other two tribes had not responded.
The court found that the notices were sufficient and that the ICWA did
After parental rights
were terminated and father filed his opening brief, HSA asked the court to
reappoint counsel and hold further proceedings to determine whether the ICWA
applied. The court granted the request. HSA subsequently re-interviewed father and
members of father's and mother's families regarding their possible Indian
heritage. Attempts to locate mother were
unsuccessful. HSA was also unable to
locate the paternal grandmother or a paternal cousin who purportedly lived in
Klamath Falls, Oregon. Each of the
individuals interviewed conveyed any information they had regarding the minor's
possible Indian ancestry, and that information was included in a revised
ICWA-030 that was sent to the tribes on April 20, 2012. K.R., a paternal relative who had already
been interviewed, subsequently indicated that the revised notice had mistakenly
identified the name of the paternal great-great-grandmother. HSA thereafter sent a second revised notice
to the tribes. The revised notice
includes additional information such as father's place of birth; mother and
father's former address; the name of the maternal grandfather; the paternal
grandfather's name, address, date and place of birth, and claimed tribal
affiliation; and the names, dates of birth, and claimed tribal affiliations of
the paternal great-grandmother, paternal great-grandfather, and paternal
HSA thereafter filed the
receipts indicating that the revised notices had been received by the BIA and
all the federally recognized Cherokee and Apache tribes. As of the hearing on May 21, 2012, only the
BIA and three of the noticed tribes had sent responses indicating that the
minor was neither a member nor eligible for membership. At a continued hearing on June 28, 2012, all
but three of the tribes had responded indicating that the minor was not a
member or eligible for membership. The
court found that ICWA notice had been properly given, but continued the matter
to give the three remaining tribes additional time to respond. At the continued hearing on July 9, 2012, HSA
submitted the response of one of the remaining tribes indicating that the minor
was not a member or eligible for membership.
Because the two remaining tribes had not responded within 60 days after
receiving the revised notices, the court determined that the ICWA did not
apply. (§ 224.3, subd. (e)(3); Cal.
Rules of Court, rule 5.482(d)(1).)
Father has filed an
opening brief contending that the first notices sent to the BIA and the
federally recognized Cherokee and Apache tribes were insufficient to comply
with the ICWA. Implicitly acknowledging
as much, HSA subsequently sought to remedy the error by conducting a further
investigation of mother and father's claims of possible Indian heritage and
sending revised notices to the potentially affected tribes. HSA moved to augment the record on appeal to
include these proceedings and filed a brief explaining how the revised notices
are sufficient. Father did not oppose
the motion to augment, nor did he file a reply brief challenging HSA's claims
or the sufficiency of the revised notices, which serve to correct the
deficiencies alleged in the opening brief.
Under the circumstances, father has effectively conceded the point. Moreover, the augmented record amply supports
the court's conclusions that the HSA gave sufficient notice and that the ICWA
does not apply.
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 et seq.) "The ICWA
presumes it is in the best interests of the child to retain tribal ties and
cultural heritage and in the interest of the tribe to preserve its future
generations, a most important resource.
[Citation.]" (In re Desiree F. (2000) 83 Cal.App.4th
460, 469.) The juvenile court and social
services agencies have a duty to inquire at the outset of the proceedings
whether a child subject thereto is, or may be, an Indian child. (Id.
at p. 470.)
The duty to provide
notice under the ICWA arises when "the court knows or has reason to know
that an Indian child is involved . . . ."
(25 U.S.C. § 1912(a).) An "Indian
child" is one who is either a "member of an Indian tribe or . . .
eligible for membership in an Indian tribe and is the biological child of a
member of an Indian tribe." (Id. at § 1903(4).) The notices "must contain enough
information to be meaningful.
[Citation.] The notice must
include: if known, (1) the Indian child's name, birthplace, and birth date; (2)
the name of the tribe in which the Indian child is enrolled or may be eligible
for enrollment; (3) names and addresses of the child's parents, grandparents,
great grandparents, and other identifying information; and (4) a copy of the
[Citation.]" (In re Francisco W. (2006) 139
Cal.App.4th 695, 703.) "It is
essential to provide the Indian tribe with all available information about the
child's ancestors, especially the one with the alleged Indian heritage. [Citation.]" (Ibid.;
In re C.D. (2003) 110 Cal.App.4th
We review compliance
with the ICWA under the harmless error standard. (In re
E.W. (2009) 170 Cal.App.4th 396, 402–403.)
Notice is sufficient if there was substantial compliance with the
applicable provisions of the ICWA. (In re Christopher I. (2003) 106
Cal.App.4th 533, 566.)
Father's claim is
premised on the fact that the original notice did not include his place of
birth and only contained scant information regarding the minor's other
relatives. The revised notices, however,
do include father's place of birth and offer much more identifying information
about the minor's ancestors. The
augmented record also reflects that HSA conducted a thorough investigation
regarding the minor's possible Indian heritage and included all available
information relevant to that determination in the revised notices that were
sent to the BIA and the potentially affected tribes. Indeed, father does not argue otherwise. Moreover, the BIA and the tribes either
directly responded that the minor was not a member or eligible for membership,
or did so by operation of law by declining to respond within 60 days of
receiving the revised notices.
the court correctly found that the revised notices were sufficient and that the
ICWA did not apply.
The judgment is
NOT TO BE PUBLISHED.
Gay Conroy, Judge
Court County of Ventura
Lee Gulliver, under
appointment by the Court of Appeal, for Defendant and Appellant.
Leroy Smith, County
Counsel, Oliver G. Hess, Assistant County Counsel, for Plaintiff and
 All further undesignated statutory references
are to the Welfare and Institutions Code.
 L.R. is not a party to this appeal.