In re T.F.

Filed 12/30/08 In re T.F. CA3

NOT TO BE PUBLISHED

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

THIRD APPELLATE DISTRICT

(Sacramento)

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T.M. (appellant), the mother of T.F. and Th.F. (the minors), appeals from orders of the juvenile court terminating her parental rights. She contends that notice of the proceedings was not provided in accordance with the Indian Child Welfare Act (ICWA). We shall affirm the judgment.

PROCEDURAL AND FACTUAL BACKGROUND

In December 2005, the Department of Health and Human Services (DHHS) filed a Welfare and Institutions Codesection 300 petition, and the twin minors were detained. (Further section references are to the Welfare and Institutions Code unless otherwise specified.) Among other things, the petition alleged appellant and the minors father had failed or refused to provide adequate medical and dental care for their five children. Only the minors are the subjects of this appeal.

Because appellant said she had Cherokee ancestry, DHHS sent notices of the proceedings to three Cherokee tribes and the Bureau of Indian Affairs (BIA) on December 19, 2005. Notices to the tribes were sent to Chief, United Keetoowah Band of Cherokee Indians, P.O. Box 370, Park Hill, OK 74451; Principle [sic] Chief, Cherokee Nation of OK, P.O. Box 948, Tahlequah, OK 74465; and Family Support Services Eastern Band of Cherokee Indians, P.O. Box 507, Cherokee, NC 28719.

DHHS received return receipt cards from the three tribes and the BIA. The receipt from the United Keetoowah Band of Cherokee Indians was dated January 3, 2006, and signed by FH. The receipt from the Cherokee Nation of Oklahoma was dated December 27, 2005, and signed by Don Guy. The receipt from the Eastern Band of Cherokee Indians was dated December 28, 2005, and signed by J. Estes.

The United Keetoowah Band of Cherokee Indians in Oklahoma sent a letter to DHHS on January 5, 2006, on tribe letterhead and signed by Noelle Williams, indicating the minors were not eligible for enrollment in the tribe. The Cherokee Nation sent a letter to DHHS on January 31, 2006, on tribe letterhead and signed by Rosie Thomas, stating the minors could not be traced in tribal records. The Eastern Band of Cherokee Indians wrote to DHHS on January 11, 2006, on tribe letterhead and signed by Barbara Jones, Director of Family Support Services for the Cherokee Center for Family Services, stating the minors were not registered or eligible to be registered as members of the tribe.

On January 25, 2006, the juvenile court found that appellant and the minors father had failed or refused to provide adequate medical and dental care for the children. The court declared the minors to be dependents of the court and returned them to parental custody.

The minors were again placed in protective custody by DHHS on October 10, 2006, after the children were found dirty, unclothed and without food in their dirty home. The eldest child was not registered for school, the parents were not participating in the services ordered by the court, and the father had repeatedly tested positive for marijuana.

A supplemental petition ( 387), filed on October 12, 2006, alleged appellant had failed to comply with her case plan and the fathers whereabouts were unknown from August 2006 to October 2006. The children were detained and removed from the home.

On November 8, 2006, the juvenile court sustained allegations in the supplemental petition, ordered reunification services, and set the matter for a permanency hearing. ( 366.21, subd. (e).)

Appellant and the minors father were present at the hearing, and the juvenile court reviewed with them the ICWA notices and forms. Because the tribes were given notice of the proceedings and responded that the minors were ineligible for enrollment, the court found they were not Indian children within the meaning of ICWA.

Over the next six months, the minors father did not visit the children or participate in other services, and appellant, who was homeless, attended only a few visits with the minors. Services for father were terminated. Appellants services were continued for another six months, but she continued to have difficulty complying with her reunification plan. She remained homeless, struggled with personal stability, missed counseling appointments, and failed to complete parenting classes.

On October 24, 2007, the juvenile court terminated appellants reunification services, and the matter was set for a section 366.26 hearing.

Between October 24, 2007, and February 20, 2008, appellant did not visit the minors. Their foster parent, with whom they had been placed for over a year, had a positive bond with the minors and was committed to adopting them. She was very open to continuing the minors relationship with their older siblings, including overnight weekend visits, phone contacts and exchanges of letters and pictures.

On April 2, 2008, the juvenile court found the minors were adoptable; thus, the court terminated parental rights and selected adoption as the permanent plan. Despite being given notice of the hearing, appellant did not attend.

DISCUSSION

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.) Notice of the pending proceeding and the right to intervene must be sent to the tribe, or the Bureau of Indian Affairs if the tribal affiliation is not known. (25 U.S.C.  1912; 224.2, subd. (a).) Once notice is provided, it must be sent for each subsequent hearing until it is determined that ICWA does not apply. ( 224.2, subd. (b); In re Marinna J. (2001) 90 Cal.App.4th 731, 736.)

Appellant contends that ICWA notice was not served on her as required by ICWA and by state law implementing ICWA.

The claim of error is forfeited because, as we will explain, appellant was represented by counsel, attended hearings, and did not raise the objection in the juvenile court. (See In re S.B. (2004) 32 Cal.4th 1287, 1293 [reviewing court ordinarily will not consider a challenge to a ruling if an objection could have been but was not made in the trial court. [Citation.] The purpose of this rule is to encourage parties to bring errors to the attention of the trial court, so that they may be corrected. [Citation.] [] Dependency matters are not exempt from this rule. [Citations.]].)

Appellant indicated she had Cherokee heritage on December 9, 2005. On October 13, 2006, she and her counsel were present at the hearing when the court found there was no evidence that the minors were Indian children within the meaning of ICWA. No objection was made to this finding, or to any lack of ICWA notice to appellant. She and her counsel were again present at the hearing approximately three weeks later when the court reviewed the JV 135 with the parents. The JV 135 is a form entitled Notice of Involuntary Child Custody Proceedings for an Indian Child on which the required information about Indian heritage is provided to prospective tribes. The court found the pertinent tribes had received notice of the proceedings and had responded that the minors were not eligible for membership in the tribes. Again, there was no objection to the notices, or the lack of notice provided to the parents.

Because appellant participated in the proceedings and was present at the hearings when ICWA was discussed, and because the error claimed on appeal could have been brought to the attention of the juvenile court and corrected there, we conclude that appellant forfeited the claim of error raised on appeal by failing to raise it in the juvenile court. (In re L.B. (2003) 110 Cal.App.4th 1420, 1426.)

In any event, appellant participated in the proceedings, obviating the need to remand based on any claimed deficiency in the notice she was provided. (In re Jeffrey A. (2002) 103 Cal.App.4th 1103, 1109.)

Appellant also contends the [n]otices were not addressed to tribal agents authorized for service of ICWA notice, and notice to one address was sent to the wrong address and city.

A tribe entitled to notice under ICWA may designate an agent for service of notice other than the tribal chairman, and the current names and addresses of designated agents for service of notice are contained in the Federal Register. (Nicole K. v. Superior Court (2007) 146 Cal.App.4th 779, 783 (hereafter Nicole K.).)

Deficiencies in ICWA notice can be harmless error. (In re Antoinette S. (2002) 104 Cal.App.4th 1401, 1410-1411.) Errors in ICWA notice are harmless when the tribe or tribes have actual notice of the dependency proceedings and either intervene or expressly indicate no interest in intervening. (Nicole K., supra, 146 Cal.App.4th at pp. 783-784; In re Kahlen W.(1991) 233 Cal.App.3d 1414, 1424.)

When ICWA notice was sent in this case, the address and agent for service on the United Keetoowah Band of Cherokee Indians was listed in the Federal Register as the United Keetoowah Band of Cherokee Indians, Dallas Proctor, Chief, P.O. Box 746, Tahlequah, OK 74465. (71 Fed.Reg. 13527 (Mar. 21, 2005).) However, the notice was sent to Chief, United Keetoowah Band of Cherokee Indians, P.O. Box 370, Park Hill, OK 74451.^[1] The return receipt was signed by FH. Appellant claims this address error puts her case squarely within the holding of Nicole K. It does not. Here, unlike in Nicole K., the tribe received actual notice of the proceedings. It not only sent in a return receipt, it mailed a letter to DHHS indicating the tribe had searched its records and found the minors were not eligible for enrollment. Thus, it declined to intervene in the case. The letter was signed by Noelle Williams of the Office of Indian Child Welfare and written on tribal letterhead. There was no reversible error. (Nicole K., supra, 146 Cal.App.4th at pp. 783-784; In re Kahlen W., supra, 233 Cal.App.3d at p. 1424.)

The Federal Register listed the address and agent for service for the Cherokee Nation as Cherokee Nation of Oklahoma, Chadwick Smith, Principal Chief, P.O. Box 948, Tahlequah, OK 74465. (71 Fed.Reg. 13526 (Mar. 21, 2005).) But the notice was addressed to Principle [sic] Chief, Cherokee Nation of OK, P.O. Box 948, Tahlequah, OK 74465. The return receipt was signed by Don Guy. Appellant argues this was deficient because it was not sent to Chadwick Smith. Her complaint elevates form over substance. The notice was sent to the Principle [sic] Chief. The only complained deficiency was leaving off the name of the Principal Chief. The tribes Indian Child Welfare program responded on tribal letterhead, saying that tribal records had been examined, the minors were not members, and thus the tribe would not intervene. There was no reversible error. (Nicole K., supra, 146 Cal.App.4th at pp. 783-784; In re Kahlen W., supra, 233 Cal.App.3d at p. 1424.)

The Federal Register listed the address and agent for service on the Eastern Band of Cherokee Indians as Eastern Band of Cherokee Indians, Barbara Jones, Director Family Support Services, 15 Emma Taylor Road, P.O. Box 507, Cherokee, North Carolina 28719 (71 Fed.Reg. 13527 (Mar. 21, 2005).) However, the notice was sent to Family Support Services Eastern Band of Cherokee Indians, P.O. Box 507, Cherokee, NC 28719. The return receipt was signed by J. Estes. Appellant contends this notice was deficient, because it was not addressed to Barbara Jones, Director Family Support Services and was not addressed to Emma Taylor Road. The claim of error fails because the tribe actually received the notice. It responded on January 11, 2006, stating it had reviewed its registry, the minors were not registered or eligible to register as members and, thus, the tribe would not intervene. Again, there was no reversible error. (Nicole K., supra, 146 Cal.App.4th at pp. 783-784; In re Kahlen W., supra,233 Cal.App.3d at p. 1424.)

DISPOSITION

The judgment is affirmed.

SCOTLAND , P. J.

We concur:

HULL , J.

BUTZ , J.

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^[1] On December 5, 2005, just two weeks before ICWA notices were sent, DHHS received a letter from the United Keetoowah Band of Cherokee Indians in Oklahoma, signed by Sonya Cochran, Director of Indian Child Welfare for the tribe, stating the address for the tribes Indian Child Welfare Department was United Keetoowah Band, Indian Child Welfare, P.O. Box 370, Park Hill, OK 74451. That is the address to which the ICWA notice was sent to.