In re J.L.
Filed 7/3/12 In re J.L. CA1/5
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been
certified for publication or ordered published for purposes of rule 8.1115
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION FIVE
In re J.L. et al., Persons
Coming Under
the Juvenile Court
Law.
SOLANO
HUMAN SERVICES
DEPARTMENT,
(
Plaintiff and Respondent, Super.
Ct.
J34366,
J40819, J40820)
v.
T.W.,
Defendant and Appellant.
______________________________________/
Appellant T.W. appeals from
dispositions entered after the juvenile
court declared her children J.L., P.B., and S.B. to be dependent children
within the meaning of Welfare and Institutions Code section 300.
reversed because child welfare officials did not comply correctly with the
requirements of the Indian Child Welfare
Act (ICWA). We conclude the
officials in question did not commit any prejudicial errors and will affirm.
I. FACTUAL AND PROCEDURAL BACKGROUND
We need not provide a detailed
statements of facts given the nature of the issues that have been raised. In essence the record indicates appellant has
a long history of referrals to child welfare officials. In September 2003, a doctor reported that
appellant’s six-month-old daughter H.G. sustained a suspicious
he hit the baby by accident during a domestic dispute with appellant. Three months later, H.G. suffered a second
likely nonaccidental head injury. Based
on these incidents, a petition was filed alleging H.G. and her brother J.L.
were dependent children within the meaning of section 300. The children were detained but later returned
to appellant’s custody. The petition was
dismissed in February 2004.
In the years that followed,
appellant came to the attention of child welfare officials several additional
times based on allegations of neglect due to drug abuse. Then in May 2009, officials again were
notified when appellant tested positive for methamphetamine during the birth of
her sixth child N.W.
Two years later, a considerably more
serious event occurred. On April 25,
2011, appellant’s two-month-old son M.M. was found dead in the family
home. Appellant and her partner A.B.
were caring for the child at the time and subsequent testing determined M.M.
had been dead a long time before anyone called the police.
Based on this incident a petition
was filed alleging appellant’s then eleven-year-old son J.L., four-year-old
daughter P.B., and two-year-old daughter S.B. were dependent children within
the meaning of section 300. In April
2011, the court removed all three children from appellant’s custody.
The report prepared prior to the
faced many challenges. Appellant had a
long criminal history that included charges for drug possession and theft. She also admitted to an eight-year history of
heavy methamphetamine use. In addition,
appellant had been the victim of repeated domestic violence. Indeed, M.M.’s father was then in prison for
stabbing her while she was pregnant with the child.
Based on these and other facts, the
court found J.L., P.B., and S.B. to be dependent children within the meaning of
section 300. At disposition, the court
ruled P.B. and S.B. should remain out of appellant’s care and ordered that
appellant receive reunification services.
Appellant waived reunification
services as to J.L. so her grandmother, Lucille W., who had been caring for
J.L. for many years, could be named his legal guardian. Subsequently, the court did, in fact, appoint
Lucille W. as J.L.’s legal guardian.
II.
DISCUSSION
A.
ICWA Background
Appellant contends child welfare
officials did not comply correctly with the requirements of ICWA. To put these arguments in context further
background is necessary.
The report prepared prior to the
jurisdictional hearing discussed whether ICWA applied. Appellant signed a form that indicated she
had some Indian ancestry, and a social worker interviewed the children’s
grandmother Linda W. who said her grandmother Lorraine G. lived on a
reservation in Mississippi. Linda W. did
not remember the name of the tribe. The
social worker also reviewed prior dependency records for H.G. and J.L. and
noted the Solano
County Health and Human Services Department (Department) had made an
inquiry to the Cherokee tribes in 2004.
The Cherokee Nation and the Cherokee Center for Family Services both
responded and said no record was found as to Cherokee ancestry for H.G. or J.L.
In June 2011, the social worker sent
a form approved by the Judicial Council entitled, “Notice of Child Custody
Proceeding For Indian Child†to the Bureau of Indian Affairs (BIA), and the
Cherokee, Choctaw, Quapaw, Chickasaw, and Tunica-Biloxi tribes.
At the jurisdictional hearing, the
court found that the Department had made active inquiries to obtain information
regarding the children’s Indian ancestry and that proper notice had been
provided under ICWA.
Prior to the dispositional hearing,
the Department sent another notice of child custody proceeding for indian child
to the BIA and to representatives of the Cherokee Nation, Choctaw Nation of
Oklahoma, Chickasaw Nation, Eastern Band of Cherokee Indians, Jena Band
Choctaw, Mississippi Band of Choctaw Indians, Tunica-Biloxi Indian Tribe of
Louisiana, Mississippi Band of Choctaw Indians, Quapaw Tribal Business
Committee, and United Keetoowah Band of Cherokee.
At the dispositional hearing, the
court again found the Department had complied with ICWA and that it had made
active inquiries to determine the children’s Indian ancestry.
Appellant now challenges the
Department’s efforts on two broad grounds.
We will address them separately.
B.
Whether the Department Conducted its Investigation with Due Diligence
The record in this case shows
Department officials investigated the children’s Indian heritage by speaking
with appellant and her mother and reviewing the prior dependency file. Based on the information obtained, the
Department notified the BIA and several tribes about the dependency
proceedings.
Appellant now contends the
Department failed to use due diligence when conducting its investigation. She bases her argument on section 224.3,
subdivision (c)
title="">[2]
and California Rules of Court
name="_ftnref3" title="">[3]
rule 5.481(a)(4).
title="">[4] Both state that a social worker is required
to make “further inquiry†to establish a child’s possible Indian heritage. Appellant notes that documents in the dependency
files show the children had several relatives including appellant’s sister,
Linda W., a great-grandmother Lucille W., and a maternal great-aunt and
great-uncle, Betty and Nathaniel C., but the record does not state whether
Department officials asked those individuals about the children’s Indian
heritage. Appellant argues this lack of
evidence demonstrates Department officials failed to conduct an adequate
inquiry as is required by section 224.3, subdivision (c) and rule 5.481(a)(4).)
The court in In re Gerardo A. (2004) 119 Cal.App.4th 988 faced this same
argument. Evidence in the record there
showed the Department had spoken to the children’s mother and maternal aunt
about their possible Indian heritage. On
appeal, the appellant argued Department officials erred because they did not
speak with additional relatives such as the children’s maternal grandmother or
older maternal relatives. The
because it was “based on speculation.†(
record is silent regarding whether the department spoke with anyone other than
the children’s mother and maternal aunt does not necessarily mean the
department failed to make an adequate inquiry for Indian heritage information. Similarly, appellant assumes without any
basis in the record that the maternal grandmother or other older maternal
relatives were available to be interviewed in 2001 . . . . Under these circumstances, we need not
address appellant’s underlying contention that it is the Department’s duty
under ICWA to interview family elders.â€
(Ibid.)
We reach the same conclusion
here. The fact that the record does not
expressly state Department officials asked the relatives appellant has
identified about the children’s Indian heritage does not prove that officials
failed to make those inquiries. We
reject appellant’s argument because it is based on speculation.
In a related argument, appellant
argues Department officials violated rule 5.637
because they failed to use “due diligence†in trying to locate and notify the
children’s adult relatives after they were removed from her home. We find no place in the record where
appellant raised this argument in the court below. It is forfeited for purposes of appeal. (In re
S.B. (2004) 32 Cal.4th 1287, 1293.)
The argument is also based on speculation. The fact that the record does not expressly
describe the efforts the Department made to contact the children’s relatives
after they were removed from appellant’s custody does not mean the Department failed to use due diligence when
making those inquiries. (
at p. 995.) We find no error on this
ground.
C.
Whether the Department Notified the Tribes Correctly
As we have stated, the Department
notified the BIA and several Indian tribes that
children were ongoing using forms that were approved by the Judicial
Council. Among other things the forms
explained that appellant and Linda W. (who was appellant’s mother and the
children’s grandmother) both reported the children might have some Indian
ancestry.
Appellant now contends the
Department erred because the forms it sent to the tribes did not include the
names of her sister, Wanda M., and the children’s great-grandmother, Lucille
W., both known to the Department.
Appellant is correct in part. Section 224.2 subdivision (a)(5)(C) states
that a notice sent to an Indian tribe concerning a dependency matter should
include “All names known of the Indian child’s biological parents,
grandparents, and great-grandparents . . . .†and the notices the Department
provided did not include the name of
Lucille.W. who was the children’s great-grandmother. This was error. But this type of error is not always
prejudicial (In re I.W. (2009) 180
Cal.App.4th 1517, 1531), and the error here was harmless. While the Department failed to provide the
name of Lucille W., it did provide the names of appellant, her mother Linda W.,
and the children’s great, great-grandmother Lorraine G. and there is no
indication that the Department received a response from any of the tribes. On this record, we conclude the Department’s
failure to provide the name of the children’s great-grandmother was harmless.
Our conclusion on this point is
fully supported by case law. In
571, the mother Patricia argued the Department erred because it did not include
the names of her parents and grandparents in the notice that was sent to the
Indian tribe with which the dependent child was possibly affiliated. The Cheyanne
F. court agreed the Department erred but concluded the error was harmless
because “in the absence of any indication that information concerning Patricia’s
family was relevant to the tribe’s inquiry, there is no basis upon which to
conclude that the outcome would have been different if [the Department] had
provided . . . the information concerning her parents and grandparents.†(Id. at
p. 577.)
We reach the same conclusion
here. The Department did not supply the
name of Linda W. who was the children’s great-grandmother. However, there is no indication in the record
that that information was relevant or probative in the tribes’ inquiry. As in Cheyanne
F. we conclude there is “no basis upon which to conclude that the outcome
would have been different†(In re
Cheyanne F., supra, 164
Cal.App.4th at p. 577) if the Department had provided the information
concerning the great-grandmother.
The Department’s failure to provide
the name of Wanda M. is even less supportive of appellant’s challenge to the
Department’s due diligence. Wanda M. is
appellant’s sister and a maternal aunt is simply not one of the persons whose name
must be provided. (See § 224.2 subdivision
(a)(5)(C).) Appellant seems to contend
the Department was required to include Wanda M.’s name in the ICWA notices
because the Judicial Council form includes a section where information about
“[o]ther relative[s] (e.g., aunts, uncles, siblings, . . .†can be
provided. While that is true, appellant
fails to acknowledge that the “[o]ther relative information†portion of the
form is described as one of the “optional questions [that] may be helpful in
tracing the ancestry of the child . . . .â€
Appellant has not cited and we are not aware of any authority that holds
the Department can be said to have erred simply because it failed to provide
information that is optional.
Next, appellant argues the
Department erred because the information it provided on the ICWA forms was
inconsistent in two respects. First,
appellant notes that at one point the forms described Lorraine G. as the
mother’s grandmother while at another point she was described as the
grandmother of the children’s grandmother.
Appellant contends the tribes would have no way of knowing which of
these descriptions was correct. While
the forms do describe Lorraine G.’s status inconsistently we fail to see how
this resulted in any prejudice. The
critical fact was that Lorraine G. had information about the children’s
possible Indian ancestry. That
information was relayed to the tribes.
Whether Lorraine was the children’s great-grandmother or great,
great-grandmother was not relevant.
There is no basis on which to conclude the result would have been
different if Lorraine G.’s status had been described correctly. (In re
Cheyanne F., supra, 164 Cal.App.4th at p. 577.)
Appellant also argues the
information the Department provided on the ICWA forms was inconsistent because
at one point Department officials checked a box that stated it was “unknownâ€
whether any relative had lived on an Indian reservation, while at another point
Department officials acknowledged that the children’s grandmother Linda W. said
her grandmother Lorraine G. “resided on a reservation in Mississippi.†It is not at all clear that these two
statements are inconsistent. While the
children’s grandmother reported that her grandmother lived on a reservation,
there is nothing in the record that indicates that report was confirmed. Thus, it may be correct for the Department to
state it did not “know†if any member of the children’s family had lived on a
reservation. In any event, as another
court explained when rejecting a nearly identical argument, “[n]o one reading
the form would be misled into believing†that it was unknown whether any member
of the child’s family had ever lived on a reservation when another portion of
the form indicated a relative may in fact have lived on a reservation. (In re
I.W., supra, 180 Cal.App.4th at p. 1531.)
Any possible error was harmless.
Next, appellant argues the notices
the Department sent to the various Indian tribes were inadequate because they
were addressed to the “ICWA representative†of each tribe rather than to the
specific individual listed as the contact person for ICWA purposes in the
Federal Register. Appellant also
complains that one of the notices was sent to an address that is different from
that listed in the Federal Register.
While appellant is correct, this was not error. As another court stated, “Requiring literal
compliance solely by reference to the names and addresses listed in the last
published Federal Register would exalt form over substance. The Department should not be hamstrung by
limitation to only the names and addresses provided for the tribes in the
Federal Register if a more current or accurate listing is available and is
reasonably calculated to provide prompt and actual notice to the tribes. In such circumstances, it is for the juvenile
court to determine as a matter of fact from all the circumstances whether
appropriate notice has been given.†(
268.) Here, it was entirely reasonable
for the Department to address its notices to the “ICWA†representative of the
various tribes rather than to the specific person identified in the Federal
Register. Doing so would allow the
notices to be processed correctly in those instances where the specific person
identified in the Federal Register had been replaced or was being assisted by
some other person. As for the address
that was different from that listed in the Federal Register, we note that
address is contained on a list that is maintained by the California Department
of Social Services for service of ICWA documents.
did conclude that the notice given was adequate.
Appellant also contends the
Department erred because it did not submit to the court prior to the
jurisdictional or dispositional hearings signed returned mailing receipts or
responsive letters from any of the tribes who had been notified. But section 224.2, subdivision (c) states
that “all return receipts and responses received,
shall be filed with the court in advance of the hearing . . . †(italics
added), and here there is no evidence that the Department received any return
receipts or responses. The Department
did not err when it failed to submit documents it did not receive.
Finally, we acknowledge that the
ICWA notices that were provided in this case were not perfect but perfection is
not required. (In re I.W., supra, 180 Cal.App.4th at p. 1531.) In our view, the Department’s ability to
ameliorate the substantial harm appellant had done to her children should not
be diminished by what we view as technical, nonprejudicial notice errors.
III.
DISPOSITION
The dispositional orders are
affirmed.
_________________________
Jones,
P.J.
We concur:
_________________________
Simons, J.
_________________________
Needham, J.
name="_ftn1" title="">[1] Unless otherwise indicated,
all further statutory references are to the Welfare and Institutions Code.
name="_ftn2" title="">[2] As is relevant here,
section 224.3, subdivision (c) states, “If the . . . social worker . . . knows
or has reason to know that an Indian child is involved, the social worker . . .
is required to make further inquiry regarding the possible Indian status of the
child, and to do so as soon as practicable, by interviewing the parents, Indian
custodian, and extended family members to gather the information . . . .â€
