In re James D.
Filed 8/27/12 In re James D. CA1/4
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opinion has not been certified for publication or ordered published for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.
IN
THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST
APPELLATE DISTRICT
DIVISION
FOUR
In re JAMES
D. et al., Persons Coming Under the Juvenile Court Law.
SOLANO
COUNTY DEPARTMENT OF HEALTH AND SOCIAL SERVICES,
Plaintiff and Respondent,
v.
MARY F.,
Defendant and Appellant.
A133545
(Solano
County
Super. Ct.
Nos. J40976, J40977)
Mary
F., the mother of William D. and James D., appeals from dispositional findings
and orders, challenging only compliance issues under the federal Indian Child
Welfare Act (ICWA). She seeks
conditional reversal of the disposition
orders and striking of the “ICWA inapplicability†finding because of the
following alleged compliance errors: (1)
defective notice; (2) unauthorized finding that ICWA was inapplicable; and (3)
error in proceeding with disposition hearing.
We affirm.
FACTUAL BACKGROUND
On
July 30, 2012, this court
denied Mary F.’s petition for writ review of a juvenile court order terminating
reunification services and setting a
permanent plan selection and implementation hearing pursuant to Welfare and
Institutions Code
title="">[1] section 366.26. (Mary
F. v. Superior Court (July 30,
2012, A135556) [nonpub. opn.].)
The Mary F. opinion sets forth
the following pertinent facts: “On September 19, 2011, the juvenile
court sustained a juvenile dependency petition as amended as to William D.
(born Sept. 2008) and James D. (born July 2010). The court found true allegations under
section 300, subdivisions (b) (failure to protect) and (j) (abuse of sibling). Specifically, the court found that the
alleged father, Joseph D., and petitioner were arrested for child endangerment
after leaving the minors at a church nursery and disappearing for two hours,
and were unable to provide ongoing care and supervision due to the subsequent
incarceration. At that time James D. had
an infected bug bite and rash on his leg that required immediate
hospitalization, and the parents knew or reasonably should have known that his
condition required medical attention and that delay in seeking it placed him at
a substantial risk of physical harm.
This state of affairs placed both minors
at a substantial risk of serious physical harm.â€
Meanwhile,
respondent Solano
County Department of Health and Social Services (Department) began taking
action to comply with the ICWA. The
maternal grandmother had told the social worker that there was Native American
ancestry on Mary F.’s father’s side of the family. Mary F. reported that her paternal
grandfather, George F., was Cherokee and filed a parental notification of
Indian status stating that he was born on a reservation in North
Carolina. On August 8, 2011, the Department filed a
notice of child custody proceeding for Indian child and mailed it to the Bureau
of Indian Affairs (BIA) and three federally recognized Cherokee tribes. The form reported that Mary F. claimed that
her grandfather, George F., was Cherokee.
At
the contested jurisdiction hearing,
counsel for the Department noted that no responses had been received from the
tribes. The court recognized that the
“ICWA still may apply and we’re within the 60-day notice period.†In the findings and order after the jurisdiction
hearing, the court indicated that notice had been properly provided under the
ICWA.
The
disposition report recommended reunification services for Mary F. with
discretion to the Department to return the minors to her under a family
maintenance plan. As to Joseph D., no services were recommended unless he was
determined to be a presumed father. The
report also proposed that the court make a finding that the ICWA did not apply. The reporting social worker noted that the
Department had received notices from the Eastern Band of Cherokee Indians, the
United Keetoowah Band of Cherokee Indians and the Cherokee Nation, stating that
the minors were not eligible for membership.
Both
parents submitted on the report and recommendations of the Department. Joseph D. noticed his appeal on October 25, 2011; Mary F. on October 27, 2011.
Return
receipts and response to the August 2011 ICWA notices were subsequently filed
with the juvenile court.
name="_ftnref2" title="">[2] Thereafter the Department faxed corrected
notices to each tribe in April and May 2012 that included the maternal great
grandfather’s birthplace, and filed the notice and responses. All Cherokee tribes affirmed their
determination that neither minor was an Indian child under the ICWA. On June
26, 2012, the juvenile court conducted an ICWA compliance hearing,
reviewed the submitted document and concluded that the ICWA did not apply.
DISCUSSION
A.
Legal Framework
The
ICWA entitles an Indian tribe
name="_ftnref3" title="">[3] to
intervene at any point in a state dependency action if the minor subject to the
proceedings qualifies as an Indian child.
determine tribal membership or eligibility for membership. (§ 224.3, subd. (e)(1).)
A
tribe’s right to intervene requires that it have notice of the
proceedings. Actual notice to the tribe
is required both as to the proceedings and the right to intervene. (In re
Samuel P. (2002) 99 Cal.App.4th 1259, 1265.) Where “the court, a social worker, or
probation officer knows or has reason to know that an Indian child is involved,
any notice sent in an Indian child custody proceeding under this code shall be
sent to . . . the minor’s tribe . . . .â€
(§ 224.2, subd. (a).) Notice
shall be sent by certified or registered mail, return receipt requested. (Id.,
subd. (a)(1).) “Notice to the tribe
shall be [given] to the tribal chairperson, unless the tribe has designated
another agent for service.†(
service are published periodically in the Federal Register. (See 25 C.F.R. § 23.12 (2012).) Notice must be given on the form designated
for that purpose, currently Notice of
Child Custody Proceeding for Indian
Child (form ICWA-030). (Cal. Rules
of Court, rule 5.481(b)(1).)
The
juvenile court may determine that the ICWA is not applicable if (1) proper and
adequate notice has been provided; and (2) neither a tribe nor the BIA has
provided a determinative response within 60 days after receiving notice. (§ 224.3, subd. (e)(3).) Further, no proceeding other than a detention
hearing may be held “until at least 10 days after receipt of notice†by the
tribe or BIA. (§ 224.2, subd. (d).)
B.
Standard of Review
Where
there is an established lack of compliance with ICWA inquiry and notice requirements,
courts may conditionally reverse dependency orders and direct the juvenile
court to exact compliance with these mandates. (In re Hunter W. (2011) 200 Cal.App.4th 1454, 1467;
834, 848; In re Francisco W. (2006)
139 Cal.App.4th 695, 705.) With this
limited reversal approach for defective notice, if no Indian tribe chooses to
intervene, the juvenile court is directed to reinstate the judgment. (In re
Francisco W., supra, 139
Cal.App.4th at p. 705.) Other courts
have affirmed and remanded with orders to comply with the ICWA, and if it is
determined that the act applies, the parents are entitled to petition the
juvenile court to invalidate any orders that violate the ICWA.
(In re Veronica G. (2007) 157
Cal.App.4th 179, 187-188; In re Brooke C.
(2005) 127 Cal.App.4th 377, 386.) In
any event, we review the juvenile court’s ICWA findings for substantial
evidence. (In re Hunter W., supra,
200 Cal.App.4th at p. 1467.)
C.
Analysis
Mary
F. asserts that the ICWA notices the Department sent in August 2011 were
defective. She also asserts violations
of the 60-day rule (§ 224.3, subd. (e)(3)) and the 10-day rule
(§ 224.2, subd. (d)).
Mary
F. first contends the notices failed to include important information about her
grandfather, including his status as Cherokee Indian. The August 2011 notices as well as the
subsequent notices faxed in the spring of 2012 indicated in the “[a]dditional
information†field that Mary F. reported her grandfather was 100 percent
Cherokee. However, the notices also
indicated “[n]o information available†for “[t]ribe or band†on the field for
“Mother’s Biological Grandfather.†Not
all deficiencies in ICWA notices are prejudicial, and technical compliance with
the requirements of the ICWA may not be required where there is substantial
compliance. (In re I.W. (2009) 180 Cal.App.4th 1517, 1531.) Here, the information about George F.’s
Cherokee ancestry was included on the forms; the placement of the information
on the notice was insignificant and the form overall substantially complied on
that point. (See id. at pp. 1531-1532.)
Mary
F. also complains that the August 2011 notices omit the fact that George F.
lived in New Jersey at some point, but these notices (as well as the subsequent
notices) correctly show that her father, George F.’s son, was born in Trenton,
New Jersey. From this the tribes could
readily infer that George F. lived in New Jersey at some point in his life.
Further,
she points out that the August 2011 notices had no information about George
F.’s birthplace. However, the corrected
notices state that his birthplace was North Carolina. After receiving the corrected notices, the
tribes responded that the children were not Indian, and thus the omission of
George F.’s birthplace on the August 2011 notices was harmless.
Mary
F. also maintains the notices were defective because they were not addressed to
the individual listed as designated agents for service, and one notice was sent
to a different street address than listed in the Federal Register. The list in effect at the time of the August
5, 2011 notice is found in 76 Federal Register 30438-30490 (May 25, 2011).
Notices
should be correctly addressed, she argues, to ensure that the recipient is the
person “trained and authorized†to make decisions with respect to the child’s
membership or eligibility for membership, and also whether the tribe will
participate in the dependency proceeding, citing In re J.T. (2007) 154 Cal.App.4th 986, 993-994.
Here,
it is significant that all tribes responded in the spring of 2012 after having
received the corrected notice. Mary F.
notes that the notice to the Cherokee Nation was addressed to “ICWA
Representative,†not to “Linda Woodward, Director of Children and Family
Services†as set forth in the Federal Register.
The responses from the Cherokee Nation were on letterhead from the
Office of the Chief, submitted by Christapher Ex (first response) and Lisa
Chenoweth (second response), both followed by “Indian Child Welfare
[¶] Cherokee Nation.†It is
apparent that appropriately informed persons from the Office of the Chief
responded and any address error was not prejudicial to the tribes. “Requiring literal compliance solely by
reference to the names and addresses listed in the last published Federal
Register would exalt form over substance.â€
(In re N.M. (2008) 161
Cal.App.4th 253, 268.)
Mary
F. claims a similar problem with the addressee in the notice to the United
Keetoowah Band of Cherokee Indians. Ella
Mae Worley, the tribal treasurer and a member of the tribal council of the
United Keetoowah Band of Cherokee Indians in Oklahoma, responded to both
notices, on letterhead from the tribe’s enrollment office. Again, it is apparent an appropriately
informed person responded.
Finally,
Mary F. denounces the addressee and address for the letter to the Eastern Band
of Cherokee Indians, but obviously the notice found its way to the correct
person because the respondent is the very person she claims should have been
the addressee.
We
conclude that the Department substantially complied with the ICWA notice
requirements, and any defects in the notices were not prejudicial to the
tribes. The juvenile court’s findings on
June 26, 2012, following an ICWA compliance hearing, that the Department made
diligent efforts to comply with the ICWA and the act did not apply to these
proceedings, are supported by substantial evidence.
Regarding
the 60-day wait to determine the ICWA is inapplicable, any error was
harmless. The record shows that the juvenile court found
the ICWA inapplicable at the disposition hearing. The social worker reported that the
Department had received responses from the three recognized Cherokee tribes,
each stating that the children were not eligible for membership, although the return
receipts had not been filed with the court.
In any event, as we stated above, the second finding of nonapplicability
made in June 2012, after corrected notices had been faxed, and after a second
round of responses had been received from the tribes, is backed by substantial
evidence. Likewise, given substantial
compliance with the notice requirements and the legitimate finding of
nonapplicability, any noncompliance with the 10-day rule with respect to
conducting the disposition hearing is
likewise harmless. The 10-day
requirement is not jurisdictional, and thus it is subject to harmless error
analysis. (In re Antoinette S. (2002) 104 Cal.App.4th 1401, 1408-1410.)
DISPOSITION
We
affirm the disposition orders.
Reardon,
J.
We concur:
Ruvolo, P.J.
Rivera, J.
name="_ftn1" title=""> [1]
All further statutory references are to the Welfare and Institutions Code.
name="_ftn2" title=""> [2]
We grant the Department’s request for judicial notice of ICWA compliance
documents and a certified copy of an order demonstrating that the juvenile
court held an ICWA compliance hearing.
