Filed 9/20/18 In re Athena H. CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

APPEAL from judgments of the Superior Court of San Diego County, Michael J. Popkins, Judge. Affirmed in part and conditionally reversed in part with directions.

Roni Keller, under appointment by the Court of Appeal, for Defendant and Appellant.

Thomas E. Montgomery, County Counsel, John E. Philips, Chief Deputy County Counsel, and Jesica Fellman, Deputy County Counsel, for Plaintiff and Respondent.

M.M. (Mother) appeals the jurisdiction and disposition orders[1] declaring her daughters Athena H., Amelia H., and A.H. (collectively, the children) dependents of the court under Welfare and Institutions Code section 300, subdivision (b)[2] and removing them from parental custody. Mother contends the orders and findings made at the contested jurisdiction and disposition hearing must be reversed and vacated because the hearing went forward without compliance with the notice requirements of the Indian Child Welfare Act (ICWA; 25 U.S.C. § 1901 et seq.).

The San Diego County Health and Human Services Agency (the Agency) concedes the record does not show sufficient notice under ICWA to any tribes or the Bureau of Indian Affairs (BIA) as to Athena's biological father, Joshua C. Accordingly, we will issue a limited and conditional reversal of the court's finding that ICWA does not apply to Athena's case, and remand with directions to the Agency to comply with ICWA notice requirements as to Joshua. (In re Francisco W. (2006) 139 Cal.App.4th 695, 710.) As to Mother and Christopher H., the presumed father of all three children, we conclude the Agency complied with ICWA notice requirements.

FACTUAL AND PROCEDURAL BACKGROUND

Because Mother's appeal challenges only the sufficiency of ICWA notice, a detailed recitation of the facts and procedural history is unnecessary.

General background

On November 16, 2017, the Agency obtained protective custody warrants for each of the children and filed petitions on their behalf under section 300. Amelia's petition alleged, under section 300, subdivision (a), that Christopher had subjected her to serious physical harm and risk of harm by physically abusing her. Specifically, the petition alleged Christopher had struck Amelia in the chest and pelvic area, causing bruising. The petition further alleged Christopher had a history of inflicting physical discipline on Athena and engaging in violent confrontations with Mother. Athena's and A.H.'s petitions alleged, under section 300, subdivision (j), that there was a substantial risk they would suffer serious physical harm inflicted nonaccidentally by a parent based on Christopher's physical abuse of their sibling Amelia.

At a detention hearing the next day, the court found prima facie showings had been made on the petitions and ordered the children detained out of the parents' home. The court found Christopher was the presumed father of all three children, although he acknowledged he was not Athena's biological father. The court added Joshua to Athena's petition as an alleged father at the Agency's request because Mother informed a social worker that he was Athena's biological father. The court set a jurisdiction and disposition hearing for December 12, 2017.

At the hearing on December 12, the Agency asked the court to continue the jurisdiction/disposition hearing for three to four weeks because the children had potential Navajo, Cherokee, and Apache heritage and the Agency had not completed ICWA noticing. The court granted the request for a continuance and set a settlement conference for February 5, 2018 and a contested jurisdiction/disposition hearing for February 14, 2018.

Joshua appeared telephonically at the settlement conference on February 5, 2018. The court vacated the February 14 date for the jurisdiction/disposition hearing because the Agency needed more time for ICWA noticing and the social worker assigned to the case was not available that day. At a pretrial status hearing on April 20, 2018, the court found that Joshua was Athena's biological father based on his paternity test results. On May 1, 2018, the Agency filed amended petitions on behalf of the children that included new allegations about Mother's behaviors that showed mental instability.

The court ultimately held the contested jurisdiction/disposition hearing on May 2, 2018. After the presentation of evidence and closing arguments, the court sustained and made true findings on the children's petitions. The court declared the children dependents of the court, removed the children from parental custody, and ordered reunification services for Mother and Christopher.

Background regarding ICWA

During the Agency's initial investigation in this case, Mother stated she might be part Navajo and Christopher reported he was part Cherokee. On November 17, 2017, Mother and Christopher both filed "PARENTAL NOTIFICATION OF INDIAN STATUS" forms with the court stating their possible Indian ancestry.

The Agency's jurisdiction/disposition report prepared for the hearing on December 12, 2017 noted that Christopher had represented having both Cherokee and Apache heritage. The Agency had not yet located Joshua. As noted, at the December 12 hearing, the Agency asked the court to continue the jurisdiction/disposition hearing for three to four weeks because it had not completed ICWA noticing. The court continued the contested jurisdiction/disposition hearing to February 14, 2018 and set a settlement conference for February 5, 2018.

On January 29, 2018, the Agency mailed notice of the dependency proceedings and the February 14, 2018 jurisdiction/disposition hearing to Navajo, Cherokee, and Apache tribes. The ICWA notices provided information about Mother and Christopher but not Joshua.

At the settlement conference on February 5, 2018, Joshua first appeared in the case and the court appointed counsel to represent him. Joshua's counsel informed the court that Joshua indicated he had no Native American heritage, but he had relatives who said he might have Native American heritage. In an addendum report filed on February 5, 2018, the Agency reported that Joshua's mother told a social worker that she believed there was Indian heritage on Joshua's paternal side. The court deferred making a finding on the applicability of ICWA and directed Joshua to fill out the necessary form to provide ICWA notice of his possible Indian heritage. As noted, the court vacated the February 14 date for the jurisdiction/disposition hearing to give the Agency more time to complete ICWA noticing.

On February 23, 2018, an Agency social worker spoke with Joshua's mother about the possible Indian heritage on Joshua's paternal side. Joshua's mother stated she had spoken with Joshua's paternal grandmother, who informed her that the family had "a story of Indian heritage," but there was no specific tribal information.

Attachments to the Agency's addendum report filed on March 8, 2018, showed that the tribes that were sent ICWA notice regarding Mother's and Christopher's possible Indian heritage had received the notice. The latest returned receipts of the notice from tribes were dated February 12, 2018. Attachments to the Agency's addendum report filed on April 20, 2018 for a pretrial conference showed that all of those tribes had either not responded to the ICWA notice after 60 days or had responded that the children were not eligible for enrollment in the tribe.[3] At the pretrial status hearing on April 20, 2018, the Agency's counsel asked the court to find that ICWA did not apply, and the court asked if anyone objected to the court's making that finding. After all parties stated they had no objection, the court found that ICWA did not apply. The court repeated its finding that ICWA did not apply at the contested jurisdiction/disposition hearing on May 2, 2018, after all parties again stated they had no objection.

DISCUSSION

I. Sufficiency of ICWA Notice

Mother contends the orders and findings made at the contested jurisdiction and disposition hearing must be reversed and vacated and the matter must be remanded with directions to assure compliance with the notice requirements of ICWA.

Congress enacted ICWA to "protect the best interests of Indian children and to promote the stability and security of Indian tribes and families." (25 U.S.C. § 1902.) It allows a tribe to intervene in state court dependency proceedings (25 U.S.C. § 1911(c)) because "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." (In re Desiree F. (2000) 83 Cal.App.4th 460, 469 (Desiree F.).) "[W]here the court knows or has reason to know that an Indian child is involved, the party seeking the foster care placement of, or termination of parental rights to, an Indian child shall notify the parent or Indian custodian and the Indian child's tribe, by registered mail with return receipt requested, of the pending proceedings and of their right of intervention. If the identity or location of the parent or Indian custodian and the tribe cannot be determined, such notice shall be given to the Secretary [of the Interior] in like manner, who shall have fifteen days after receipt to provide the requisite notice to the parent or Indian custodian and the tribe. No foster care placement or termination of parental rights proceeding shall be held until at least ten days after receipt of notice by the parent or Indian custodian and the tribe or the Secretary." (25 U.S.C. § 1912(a).)

In California, section 224.2 governs ICWA notice in dependency proceedings. Section 224.2, subdivision (a) provides, in relevant part: "If 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 . . . comply with all of the following requirements: [¶] (1) Notice shall be sent by registered or certified mail with return receipt requested. Additional notice by first-class mail is recommended, but not required. [¶] (2) Notice to the tribe shall be to the tribal chairperson, unless the tribe has designated another agent for service. [¶] (3) Notice shall be sent to all tribes of which the child may be a member or eligible for membership, until the court makes a determination as to which tribe is the child's tribe . . . , after which notice need only be sent to the tribe determined to be the Indian child's tribe." Section 224.2, subdivision (d) provides, in part, that "[n]o proceeding shall be held until at least 10 days after receipt of notice by the parent, Indian custodian, the tribe, or [BIA], except for the detention hearing, provided that notice of the detention hearing shall be given as soon as possible after the filing of the petition initiating the proceeding and proof of the notice is filed with the court within 10 days after the filing of the petition."

"[T]he juvenile court has a continuing duty to conduct an inquiry when it has received information that a dependent child might be an Indian child, as defined by ICWA, and to provide notice to any relevant tribe. This duty arises both under ICWA itself and under California's parallel statutes, . . . section 224 et seq. [Citation.][[4]] The purpose of both statutory schemes is to 'enable[] a tribe to determine whether the child [who is the subject of involuntary proceedings in a state court] is an Indian child and, if so, whether to intervene in or exercise jurisdiction over the proceeding.' [Citation.] The juvenile court's duty to inquire when it has reason to know that an Indian child is involved in such a proceeding and to provide sufficient notice to any relevant tribe is independent of any obligation on the part of the parents of the dependent child: The court and the agency must act upon information received from any source, not just the parent [citations], and the parent's failure to object in the juvenile court to deficiencies in the investigation or noticing does not preclude the parent from raising the issue for the first time on appeal from an order entered at any hearing in which the juvenile court determined that ICWA was satisfied or does not apply [citations]. And, because the juvenile court's duty to comply with ICWA's notice requirements is ongoing until it is determined by the relevant tribe, following adequate notice, that the child is not an Indian child [citation], the parent's failure to appeal from an earlier order does not preclude the parent from raising the issue of ICWA compliance in an appeal from a later order, including an order terminating parental rights [citation]." (In re K.R. (2018) 20 Cal.App.5th 701, 706. (K.R.).)

Under section 224.3, subdivision (c), "if the court or social worker knows or has reason to know that an Indian child is involved in dependency proceedings, the social worker must make further inquiry, as soon as practicable, by interviewing the parents, Indian custodian and extended family members to gather the information required, under . . . section 224.2, to be provided to the relevant tribes." (K.R., supra, 20 Cal.App.5th at pp. 706-707.)

Mother contends ICWA notice in the present case was defective in three respects. First, the notices of the dependency proceedings that the Agency mailed to the tribes on January 29, 2018, provided notice of a February 14, 2018 jurisdiction/disposition hearing, but there was no hearing on February 14 because the court vacated that hearing date on February 5, 2018.

Second, none of the tribes or the BIA or Secretary of the Interior received the notices on or before February 4, 2018—i.e., at least ten days before the noticed hearing date, as required under ICWA and section 224.2, subdivision (d). Instead, the record shows all of the recipients received the notice between February 5 and February 12, 2018. Mother also complains of noncompliance with the requirement under section 224.2 that "[n]otice shall be sent whenever it is known or there is reason to know that an Indian child is involved, and for every hearing thereafter, . . . unless it is determined that [ICWA] does not apply to the case . . . ." (§ 224.2, subd. (b), italics added.) Mother states that "the court did not cause notice to be given of any hearing dates after February 14, 2018, including May 2, 2018, the date on which the jurisdictional and dispositional hearing actually occurred." She further notes that section 224.3, subdivision (c)(3), authorizes the court to determine ICWA does not apply to the case if neither a tribe nor the BIA has responded to the ICWA notice within 60 days after receiving the notice, but only "[i]f proper and adequate notice has been provided pursuant to Section 224.2 . . . ." (§ 224.3, subd. (e)(3).)

Finally, Mother contends the ICWA notices were defective because they did not mention Joshua, Athena's biological father. As noted, the Agency concedes the record does not show sufficient ICWA notice regarding Joshua's possible Indian heritage. Accordingly, we are conditionally reversing the court's finding that ICWA does not apply to this case to assure compliance with ICWA noticing requirements as to Joshua. However, as we explain below, we conclude the court sufficiently complied with the ICWA noticing requirements as to Mother and Christopher and properly found ICWA does not apply to this case as to their biological children, Amelia and A.H.

The ICWA notice requirement "serves a twofold purpose: (1) it enables the tribe to investigate and determine whether the minor is an Indian child; and (2) it advises the tribe of the pending proceedings and its right to intervene or assume tribal jurisdiction." (Desiree F., supra, 83 Cal.App.4th at p. 470.) The record shows that the Agency's ICWA noticing regarding Mother and Christopher satisfied this twofold purpose. The notices the Agency sent to the tribes in question and the BIA included the children's dependency petitions and the court's minute orders from the detention hearing, and the notices related the information Mother had provided the Agency regarding her and Christopher's possible Indian heritage. Thus, the notices advised the tribes of the pending proceedings and provided them sufficient information to determine whether the children were Indian children.

The fact that the February 14, 2018 jurisdiction/disposition hearing date specified in the ICWA notices was vacated after the notices were sent does not render the notices prejudicially defective. Substantial compliance with ICWA noticing requirements is sufficient as long as the tribes or BIA were given actual notice of the dependency proceedings, the opportunity to intervene, and information reasonably necessary to determine the child's Indian status. (In re Christopher I. (2003) 106 Cal.App.4th 533, 566; In re C.Y. (2012) 208 Cal.App.4th 34, 39; In re Suzanna L. (2002) 104 Cal.App.4th 223, 236-237; § 224.2, subd. (a)(5).)

The Agency substantially complied with ICWA notice requirements by providing the tribes sufficient information to determine whether the children were eligible for tribal membership and giving them the opportunity to exercise jurisdiction over the proceedings in the event they determined the children were eligible for membership. The Agency's failure to provide at least 10-days' notice of the vacated February 14 hearing and failure to provide notice of the subsequent hearing dates constituted mere technical noncompliance with ICWA notice requirements. "[A]ppellate courts in California have recognized that technical compliance with [ICWA's] notice requirements may not be required where there has been substantial compliance." (In re Jonathan D. (2001) 92 Cal.App.4th 105, 110.) Because the evidence shows the Agency substantially complied with ICWA's purpose of ensuring "that notice is received by someone trained and authorized to make the necessary ICWA determinations[]" (In re J.T. (2007) 154 Cal.App.4th 986, 994), its technical noncompliance with ICWA in specifying a vacated hearing date was not reversible error.

Nor was the Agency's failure to send the tribes notice of the May 2, 2018 jurisdiction/disposition hearing prejudicial error. "A notice violation under ICWA is subject to harmless error analysis. [Citation.] 'An appellant seeking reversal for lack of proper ICWA notice must show a reasonable probability that he or she would have obtained a more favorable result in the absence of the error.' " (In re Autumn K. (2013) 221 Cal.App.4th 674, 715; In re E.W. (2009) 170 Cal.App.4th 396, 402-403 (E.W.) ["[W]here notice has been received by the tribe, . . . errors or omissions in the notice are reviewed under the harmless error standard."]; In re Cheyanne F. (2008) 164 Cal.App.4th 571, 576 [same].) "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." (In re I.W. (2009) 180 Cal.App.4th 1517, 1530.)

As noted, the BIA and all of the tribes that Mother and Christopher identified received ICWA notice more than 60 days before the May 2, 2018 hearing and either did not respond to the notice or responded that the children were not eligible for enrollment in the tribe. No tribe asked for additional information. Because none of the tribes indicated any interest in the dependency proceedings, neither the failure to provide them notice of the May 2, 2018 hearing nor the erroneous notice of the vacated February 14, 2018 hearing date constituted prejudicial error. (See In re Marinna J. (2001) 90 Cal.App.4th 731, 736; In re Kahlen W. (1991) 233 Cal.App.3d. 1414, 1424.) In the words of the E.W. court, remanding the matter back to reissue ICWA notices regarding Mother's and Christopher's possible Indian ancestry "would be an empty formality and a waste of ever-more-scarce judicial resources." (E.W., supra, 170 Cal.App.4th at pp. 401-402.)

Regarding the failure to give proper ICWA notice as to Joshua, we will conditionally reverse the finding that ICWA does not apply to his biological daughter, Athena, and remand with directions to ensure compliance with ICWA. However, because there is not yet a sufficient showing that Athena is an Indian child within the meaning of ICWA, we will not reverse the jurisdictional or dispositional orders (the latter being the judgments in these proceedings). (In re Hunter W. (2011) 200 Cal.App.4th 1454, 1467; accord, In re Damian C. (2009) 178 Cal.App.4th 192, 199-200.)

DISPOSITION

The judgments are affirmed. The finding that ICWA does not apply is affirmed as to Amelia's case and A.H.'s case. The finding that ICWA does not apply is conditionally reversed as to Athena's case and the matter is remanded to the juvenile court with directions to order the Agency to comply with the notice provisions of ICWA regarding Joshua's possible Indian ancestry. After proper notice under ICWA, if it is determined that Athena is an Indian child and ICWA applies to her case, any of the parents, Athena, or the relevant tribe may petition the juvenile court to invalidate any orders that violated

ICWA. If, after proper notice, the court finds Athena is not an Indian child, the finding that ICWA does not apply to her case shall be reinstated.

IRION, J.

WE CONCUR:

BENKE, Acting P. J.

DATO, J.