In re Ju. R.
Filed 9/4/12 In re Ju. R. CA2/6
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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opinion has not been certified for publication or ordered published for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.
IN THE COURT OF
APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE
DISTRICT
DIVISION SIX
In re JU.R., et al., Persons Coming Under the Juvenile
Court Law.
2d Juv. No. B239790
(Super. Ct.
Nos. J1286193,
J1286194, J1286195)
(Santa
Barbara County)
SANTA BARBARA COUNTY
CHILD PROTECTIVE SERVICES,
Plaintiff and
Respondent,
v.
J.R.,
Defendant and
Appellant.
J.R. (mother) appeals
the juvenile court's order terminating parental rights and selecting adoption
as the permanent plan for her minor children M.R. and Je.R., and placing her
child Ju.R. into long-term foster care
seq.) Mother contends that respondent
Barbara County Child Welfare Services (CWS) failed to comply with the
notification requirements of the Indian
Child Welfare Act (ICWA) (25 U.S.C. § 1901 et seq.). We affirm.
FACTS AND PROCEDURAL HISTORY
On July 29, 2009, 10-year-old Ju.R. and 4-year-old
twins M.R. and Je.R. were taken into custody after Je.R. reported that she had
been sexually abused by her 11-year-old brother N.R.
hearing held on August 3, 2009,
mother stated that she did not have any Indian heritage. The maternal grandmother, who was also present
at the hearing, told the court there was Cherokee heritage "on [her]
mother's side of the family" and added, "when I inquired with [
mother said that by the time it got to me it is, like, very small." When mother subsequently completed form
ICWA-20 (parental notification of Indian status), she checked the box
indicating that she may have Indian ancestry and wrote "Cherokee -
Oklahoma/Texas."
name="_ftnref3" title="">[3] CWS subsequently spoke with the maternal
grandmother, who provided further information regarding the children's possible
Indian heritage.
On August 7, 2009, CWS mailed notice of the
behalf of all three children to the Bureau of Indian Affairs (BIA) and the
three federally recognized Cherokee Indian tribes (the Cherokee Nation, the
United Keetowah Band of Cherokee Indians, and the Eastern Band of Cherokee
Indians). The notices provided, inter
alia, the names of the maternal grandmother and maternal great-grandmother
along with their dates and places of birth.
In the section provided for other relative information, CWS included the
names of the children's maternal great-great-grandmother and great-great-grandfather. The notices further indicated that no further
information was available regarding these relatives.
Return receipts signed
by the tribes were filed on December
14, 2009. The BIA responded
that no further action was required and that appropriate notice had been
provided to the tribes. All three
Cherokee tribes responded that Ju.R., M.R., and Je.R were not Indian children
and that the tribes did not intend to intervene in the proceedings. The court subsequently found that the ICWA
did not apply with regard to any of the children.
Appellant was granted 18
months of family reunification services while the children were placed in
foster care. At the 18-month review
hearing, CWS recommended that services be terminated on the ground that mother
had not made substantial progress with her case plan and had not consistently
demonstrated her acceptance of Je.R.'s claims of sexual abuse. Services were terminated on April 5, 2011,
and the matter was set for a permanency planning hearing. At the conclusion of that hearing, the court
terminated mother's parental rights as to Je.R. and M.R. and placed Ju.R. in
long-term foster care with a goal of legal guardianship. This appeal followed.
DISCUSSION
Mother contends the
order terminating her parental rights as to Je.R. and M.R. and placing Ju.R. in
long-term foster care must be reversed because the juvenile court erred in
determining the ICWA did not apply. We
disagree.
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
dependency petition.
[Citation.]" (
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
214, 224–225.)
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. (
Cal.App.4th 533, 566.)
Mother asserts that the
notices sent to the Cherokee tribes were incomplete because they did not include
any information regarding the maternal grandfather. She further complains that "[a]lthough
at least [the] maternal grandfather was also available to interview, it appears
from the record that no ICWA inquiry was made of him." We conclude that any error in this regard was
harmless because mother claimed Indian heritage through her mother, not her
father. (See In re Cheyanne F. (2008) 164 Cal.App.4th 571, 575–578 [absence of
information regarding parent who does not claim Indian heritage is subject to harmless
error analysis].) Mother fails to
explain how information regarding the maternal grandfather's heritage might
have assisted the noticed tribes in determining whether the children were
eligible for membership. (
Mother also argues that
the notices were defective to the extent they did not include her place of
birth. Although this information was
readily available and should have been included, the notices did include the
names and dates and places of birth of the maternal grandmother and maternal
great-grandmother, the ancestors through whom the
children's
Indian heritage was claimed.
Accordingly, the failure to include the mother's place of birth was
harmless. (In re D.W. (2011) 193 Cal.App.4th 413, 418 [any error in
incorrectly spelling the first name of parental grandmother who claimed Indian
heritage deemed harmless where ICWA notice contained the correct names, birth
dates, and birth places of her mother and father].)
Mother's reliance on
is unavailing. The ICWA notices in that
case merely included the mother's name and birth date, the father's name,
former address and birth date, and the paternal grandmother's name and address. (Id. at
p. 1397.) The record was also devoid of
any evidence that the social services agency had followed up on the father's
representation that he was gathering additional information regarding his
claimed tribal affiliation. Moreover,
the agency conceded that the ICWA notices were insufficient. (Ibid.) No similar circumstances are present
here.
Mother's citation to
Cal.App.4th 695, is similarly misplaced.
The father in that case claimed possible Cherokee heritage, and the
paternal grandmother made herself available to the social services agency. The agency conceded that the ICWA notices it
sent were insufficient, due at least in part to the fact that no inquiry had
been made of the paternal grandmother. (
because it was clear that the paternal grandmother may have been able to
provide information to support her son's claim of Indian heritage. As we have already explained, in this case
there has been no showing that information regarding the maternal grandfather's
heritage might have assisted the noticed tribes in
>
determining
whether the children were eligible for membership.
The judgment is
affirmed.
NOT TO BE PUBLISHED.
PERREN,
J.
We concur:
GILBERT, P.J.
YEGAN, J.
Arthur
A. Garcia, Judge
Superior
Court County of Santa Barbara
______________________________
Linda Rehm, under
appointment by the Court of Appeal, for Defendant and Appellant.
Dennis A. Marshall,
County Counsel, Toni Lorien, Deputy County Counsel, for Plaintiff and
Respondent.
their anonymity, the two children with the same initials are referred to by the
first two letters of their first name along with the initial of their last
name. (Cal. Rules of Court, rule
8.401(a)(2).)
these proceedings.
