Filed 1/25/18 In re J.M. CA6
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SIXTH APPELLATE DISTRICT


In re J.M. et al., Persons Coming Under the Juvenile Court Law. H044084
(Santa Clara County
Super. Ct. Nos. JD023462,
JD023463)

SANTA CLARA COUNTY DEPARTMENT OF FAMILY &
CHILDREN’S SERVICES,

Plaintiff and Respondent,

v.

J.M.,

Defendant and Appellant.


Appellant J.M., the father of Ju. M. and Ja. M., appeals from an order following a six-month review hearing. He contends that the juvenile court erred when it found that the Santa Clara County Department of Family and Children’s Services (Department) had complied with the notice provisions of the Indian Child Welfare Act of 1978 (ICWA) (25 U.S.C. § 1901 et seq.). The order is affirmed.


I. Procedural and Factual Background
In September 2015, the Department filed petitions alleging that three-year-old Ju. M. and two-year-old Ja. M. came within the provisions of Welfare and Institutions Code section 300, subdivisions (b) [failure to protect] and (c) [serious emotional damage]. The petitions alleged: both parents had untreated substance abuse problems; appellant had untreated mental health issues; both parents had a history of criminal activity; and appellant perpetrated domestic violence against the mother.
The initial hearing report, which was filed on September 21, 2015, recommended that the children be detained. The mother indicated that she had Indian heritage, but she did not know in which tribe her family was enrolled. The paternal grandmother indicated that she had no Indian heritage and she had no information about the paternal grandfather.
The report included information about the parents. The mother had been using drugs off and on since she was 15 years old, but she denied that she had a drug problem. She claimed that she used drugs because appellant used drugs. She also acknowledged domestic violence between appellant and her. Appellant had seizures after he was hit on the head during a prison riot. Appellant indicated that he had already been referred to an outpatient drug program.
At the initial hearing on September 21, 2015, both parents submitted Judicial Council forms ICWA-020. Appellant’s form indicated that he had no Indian ancestry as far as he knew. The mother’s form stated that she might have Indian ancestry, that is, “Apache through Maternal Grandmother (could be registered) Rita Lun[a].” The juvenile court ordered that the children be detained and that notice pursuant to the ICWA be provided. It also found appellant was the presumed father of both children and ordered supervised visitation for both parents.
Four days later, the juvenile court issued a temporary restraining order against appellant. The mother had alleged that appellant was frequently verbally abusive in front of the children and had threatened to kill her and abscond with the children.
The jurisdiction/deposition report submitted for the hearing on October 13, 2015, recommended that the petitions be sustained and that family reunification services be provided to both parents.
The social worker summarized efforts to obtain information about the children’s Indian heritage. On September 30, 2015, the social worker spoke with the mother. The mother stated that she did not have any identifying information about her maternal side of the family except for the name of the maternal great-grandmother, Rita Luna. She stated that she would ask her aunt for further information. On October 2, 2015, the social worker texted the mother and asked for the family’s information. The mother responded, “All I found out was my mom’s grandfather’s name was Lazaro Luna.” The social worker responded, “No birthdays or even approximate dates of birth?” The mother did not respond. In preparing the ICWA notices, the social worker included information from the family’s prior CPS records.
The report stated that on October 7, 2015, the Department had sent notice to eight Apache tribes: Apache Tribe of Oklahoma; Fort Sill Apache Tribe of Oklahoma; Jicarilla Apache Nation; Mescalero Apache Tribe; San Carlos Apache Tribe; White Mountain Apache Tribe; Tonto Apache Tribe; and Yavapai-Apache Tribe. The notices stated that the jurisdiction/disposition hearing would be held on October 13, 2015, and included the names of the maternal grandparents and the maternal great-grandmother. The notice listed the maternal great-grandmother’s name, Rita Luna, her date of birth, and place of birth. No address was provided for the maternal grandmother, Maria Rita Ortiz.
The report summarized the parents’ extensive child welfare history and lengthy criminal history. The mother had three older children with two other men and she did not have custody of these children. Appellant had three older children with two other women and he did not have custody of these children. The report also discussed both parents’ drug use, domestic violence, and neglect of the children as well as appellant’s untreated mental health issues. The children had been placed with a maternal cousin.
On October 15, 2015, the Department again sent the ICWA notices to the same eight Apache tribes and informed them that the jurisdiction/disposition hearing would be held on November 16, 2015, and included the relatives’ information that had been previously provided.
In response to the ICWA notices, letters were received from the following entities: Mescalero Apache Tribe; United States Department of the Interior; Tonto Apache Tribe; and San Carlos Apache Tribe. These letters indicated that the children were neither registered nor eligible for enrollment in the tribe. Signed certified mail receipts were received from the following tribes: San Carlos Apache Tribe, Apache Tribe of Oklahoma; Jicarilla Apache Nation; White Mountain Apache Tribe; Yavapai-Apache Nation; Fort Sill Apache Tribe of Oklahoma; Tonto Apache Tribe of Arizona; and Mescalero Apache Tribe.
In the second, third, and fourth addendum reports, the social worker stated that the parents had made no progress in addressing the issues that had brought them to the attention of the Department. The children were thriving in the care of the maternal cousin.
Following a contested jurisdiction/disposition hearing on January 8, 2016, the juvenile court sustained the petition and ordered that reunification services be provided for both parents. The juvenile court also found that notice under the ICWA was proper.
An interim review report, which was dated February 17, 2016, included a letter from the Yavapai-Apache Nation stating that the children were not enrolled in the tribe and were ineligible for enrollment. The social worker stated that the mother continued to experience difficulty with sobriety. Appellant had made some progress on his case plan. However, the parents had recently been involved in an incident in which appellant brandished a gun at a man who was providing a ride for the mother. The mother did not contact the police and appellant denied that the incident occurred.
At the interim review hearing on February 24, 2016, the juvenile court found that the ICWA did not apply.
The six-month review report, which was dated June 2, 2016, recommended that reunification services continue for both parents. The social worker stated that the mother had not made much progress on her case plan. She also stated that appellant was “attempting to complete his case plan, but [was] unsuccessful at changing his behavior.”
An addendum report, which was dated July 20, 2016, recommended that family reunification services continue for both parents. The report stated that appellant continued to have difficulty managing his anger during supervised visits with the children. Appellant also arrived at these visits while under the influence of methamphetamine.
On September 1, 2016, the six-month review hearing was held. The juvenile court continued reunification services for both parents.
Appellant filed a timely notice of appeal.


II. Discussion
Appellant contends that the ICWA notices sent to the tribes by the Department were inadequate, because they failed to include the address of the maternal grandmother, Maria Rita Ortiz.
The ICWA was enacted “ ‘to protect the best interests of Indian children and to promote the stability and security of Indian tribes and families by the establishment of minimum Federal standards for the removal of Indian children from their families and the placement of such children in foster or adoptive homes which will reflect the unique values of Indian culture . . . .’ (25 U.S.C. § 1902.)” (In re Isaiah W. (2016) 1 Cal.5th 1, 7-8.) Under the ICWA, where a state court “knows or has reason to know” that an Indian child is involved, statutorily prescribed notice must be given to any tribe with which the child has, or is eligible to have, an affiliation. (25 U.S.C. § 1912(a).)
Pursuant to the implementing federal regulation then in effect, the ICWA notices were required to include the following information: “[a]ll names known, and current and former addresses of the Indian child’s biological mother, biological father, maternal and paternal grandparents and great grandparents or Indian custodians, including maiden, married and former names or aliases; birthdates; places of birth and death; tribal enrollment numbers, and/or other identifying information.” (Former 25 C.F.R. § 23.11, subds. (a), (d)(3).) Section 224.2, subdivision (a)(5)(C) requires that the same information be included in the ICWA notices.
Here, the ICWA notices, which were sent on October 7, 2015, did not include the address of the maternal grandmother, Maria Rita Ortiz. However, this information was readily available to the Department. When the Department sought a protective custody warrant for the children in mid-September, it stated that “[t]he maternal grandmother, Maria Ortiz, . . . live[d] at the same residence as the mother and her children . . . .” The section 300 petition and the detention report included the address for this residence. Moreover, a social worker spoke with the maternal grandmother, Maria Rita Ortiz, at the family residence on September 9, 2015. Given that the Department had identifying information regarding the maternal grandmother’s current address which it failed to include in the ICWA notices, the notices were deficient under former 25 C.F.R. § 23.11, subdivisions (a) and (d)(3) as well as under section 224.2, subdivision (a)(5)(C).
“Where there is reason to believe a dependent child may be an Indian child, defective ICWA notice is ‘usually prejudicial’ [citation], resulting in reversal and remand to the juvenile court so proper notice can be given. [Citations.]” (In re Nikki R. (2003) 106 Cal.App.4th 844, 850.) “A deficiency in notice may be harmless when it can be said that, if proper notice had been given, the child would not have been found to be an Indian child and the ICWA would not have applied. [Citations.]” (In re I.W. (2009) 180 Cal.App.4th 1517, 1530.)
In the present case, we find the failure to include Maria Rita Ortiz’s address in the ICWA notices was harmless. Federal regulations, which went into effect on December 12, 2016, no longer require that the ICWA notice include the address of the child’s relatives. The ICWA notice must currently include: “[i]f known, the names, birthdates, birthplaces, and Tribal enrollment information of other direct lineal ancestors of the child, such as grandparents.” (25 C.F.R. §§ 23.11, subd. (a), 23.111, subds. (a), (d)(3).) This change in the law establishes that Indian tribes do not determine membership based on an individual’s address. Thus, here, even if Maria Rita Ortiz’s address had been included in the ICWA notices, the children would not have been found to be Indian children and the ICWA would not have applied.
Appellant next contends that the ICWA notices were inadequate, because there is no indication in the record that the Department asked various maternal relatives for more information about the maternal great-grandmother, Rita Luna.
We first note that appellant does not suggest that any of the maternal relatives provided additional information about the maternal great-grandmother, Rita Luna, which the social worker failed to include in the notification forms. “[N]either the court nor [the Department] is required to conduct a comprehensive investigation into the minors’ Indian status. [Citations.]” (In re C.Y. (2012) 208 Cal.App.4th 34, 39.) Moreover, “[i]t is presumed that official duty has been regularly performed.” (Evid. Code, § 664.) Thus, this court must assume that, in the absence of any contrary evidence, the social workers complied with their affirmative and continuing duties of inquiry and diligently sought to include all available, relevant information on the ICWA notices regarding the maternal great-grandmother, Rita Luna. Accordingly, we find no error.

III. Disposition
The order is affirmed.








_______________________________
Mihara, J.



WE CONCUR:






______________________________
Elia, Acting P. J.






______________________________
Bamattre-Manoukian, J.












In re J.M.
H044084