Filed 5/15/18 In re D.B. CA4/1
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COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA



In re D.B., a Person Coming Under the Juvenile Court Law.

SAN DIEGO COUNTY HEALTH AND HUMAN SERVICES AGENCY,

Plaintiff and Respondent,

v.

C.B. et al.,

Defendants and Appellants.
D072890


(Super. Ct. No. EJ3864B)

APPEALS from an order of the Superior Court of San Diego County, Gary M. Bubis, Judge. Affirmed.

Valerie N. Lankford, under appointment by the Court of Appeal, for Defendant and Appellant C.B.
Christopher R. Booth, under appointment by the Court of Appeal, for Defendant and Appellant W.R.
Thomas E. Montgomery, County Counsel, John E. Phillips, Chief Deputy County
Counsel, and Patrice Plattner-Grainger, Deputy County Counsel, for Plaintiff and Respondent.
W.R. (Father) and C.B. (Mother) appeal from an order terminating parental rights over their biological child, D.B. They contend the San Diego County Health and Human Services Agency (the Agency) and the juvenile court had reason to believe D.B. might be an Indian child, but failed to follow the procedures required by the Indian Child Welfare Act (ICWA; 25 U.S.C. §1901 et seq.). They therefore ask this court to remand the case to the juvenile court for the limited purpose of complying with the requirements of ICWA.
After taking judicial notice of the findings and orders in a previous dependency case in which the juvenile court determined ICWA did not apply to D.B.'s full sibling, M.R., and noting that the parents presented no further evidence of Indian heritage in the present case, the juvenile court determined ICWA did not apply. We conclude the court did not err in doing so and that any presumed error is harmless in any event. We therefore affirm the order.
FACTUAL AND PROCEDURAL BACKGROUND
Mother and Father have two children, M.R. and D.B. The Agency filed a dependency petition with respect to M.R., the older of the two siblings, in December 2014, following reports indicating Mother and Father used narcotics while M.R. was in their care. At the outset of the case concerning M.R., the juvenile court ordered Mother and Father to complete the standard ICWA inquiry forms and ordered the Agency to provide notice to the appropriate tribes and agencies. Thereafter, in August 2015, the court made an express finding that ICWA was not applicable. Mother and Father failed to engage in services and, eventually, the court terminated their parental rights as to M.R. On appeal from the final termination order, neither parent contested the juvenile court's ICWA finding with respect to M.R.
D.B. was born to Mother and Father in early 2016. That fall, when D.B. was less than a year old, the Agency received a report indicating Mother was using narcotics and Father had left D.B. in Mother's care while Mother was under the influence despite a police officer instructing him not to do so.
The Agency initiated an investigation and the social worker met with Father on September 27, 2016. Father admitted using heroin approximately five days before the meeting. The Agency inquired as to ICWA and Father denied having any Indian heritage. The social worker attempted to meet with Mother, but Mother failed to appear at the scheduled meeting so the social worker was not able to ask whether Mother claimed Indian heritage.
With the assistance of the police, the Agency located Mother on October 6, 2016. Mother appeared to be under the influence of narcotics and did not cooperate with the police or the social worker. The social worker attempted to contact Father but he was not responsive, so the Agency detained D.B. and filed a juvenile dependency petition on her behalf the next day.
The Agency filed a motion, on October 27, 2016, requesting the juvenile court take judicial notice of the findings of fact, conclusions of law, and judgment from the previous petition related to M.R. On November 2, 2016, the juvenile court held a jurisdictional hearing with respect to D.B. The court raised the issue of ICWA and the Agency explained that the parents had previously claimed Indian heritage in M.R.'s case. The court noted M.R. was a full sibling and had the same two biological parents as D.B. and asked if counsel for the parents had any further information regarding Indian heritage. Counsel for Mother stated, "Mother indicates no Native American Indian heritage." Father's counsel made no statement regarding Father's heritage, but Father filed two forms with the court that day indicating he may have some Seminole heritage. Thereafter, the Agency social worker e-mailed the Seminole Nation of Oklahoma, Seminole Nation of Florida, Jena Band of Choctaw Indians, Mississippi Band of Choctaw Indians, and Choctaw Nation of Oklahoma and asked whether their membership practices had changed since January 2015, when the dependency case concerning M.R. began.
At the contested adjudication and disposition hearing on December 2, 2016, the Agency reported two of the tribes had confirmed their membership practices had not changed, and the remaining tribes had not yet responded. The Agency reiterated its request for judicial notice of the finding in M.R.'s case, noted the parents had not provided any further information that would lead the court to believe D.B. was eligible for membership in an Indian tribe, and argued the court, therefore, had sufficient information to find ICWA also did not apply with respect to D.B. in the present case. Neither parent responded to the Agency's argument regarding ICWA nor offered any further information regarding their Indian heritage. Accordingly, the juvenile court granted the Agency's request for judicial notice and made a finding that ICWA was not applicable.
The case continued without any further discussion of ICWA or either parent's alleged Indian heritage and, in September 2017, the juvenile court terminated Mother's and Father's parental rights.
DISCUSSION
Mother and Father's sole contention on appeal is that the juvenile court failed to follow the statutorily required ICWA notice procedures. They ask this court to remand the case to the juvenile court for the limited purpose of doing so.
In response, the Agency asserts Mother and Father waived any argument regarding ICWA notice by failing to raise it in the juvenile court. However, as the Agency recognizes, the juvenile court and the Agency have an ongoing duty to ensure compliance with the provisions of ICWA and, therefore, California law permits parents to raise ICWA notice issues for the first time on appeal. (See In re Isaiah W. (2016) 1 Cal.5th 1, 11-15; Dwayne P. v. Superior Court (2002) 103 Cal.App.4th 247, 251.) Accordingly, we address the merits of Mother and Father's contentions, but ultimately conclude they are without merit.
Congress enacted ICWA to "promote the stability and security of Indian tribes and families" by allowing Indian children to retain their tribal ties and cultural heritage. (25 U.S.C. § 1902; In re Desiree F. (2000) 83 Cal.App.4th 460, 469.) In accordance with the statute, the Agency must notify "the Indian child's tribe, by registered mail with return receipt requested, of the pending proceedings and of their right of intervention" when the Agency seeks foster placement of a child or termination of parental rights and the juvenile court "knows or has reason to know that an Indian child is involved." (25 U.S.C. § 1912(a).) ICWA defines an Indian child as an "unmarried person who is under age eighteen [who] is either (a) a member of an Indian tribe or (b) is eligible for membership in an Indian tribe and is the biological child of a member of an Indian tribe." (25 U.S.C. § 1903(4).) Thus, the notice requirement is triggered when the court has reason to believe the child or at least one of the child's parents is a member of an Indian tribe.
Here, the juvenile court had no reason to believe D.B. was an Indian child and, therefore, correctly concluded ICWA did not apply. There is no dispute M.R. and D.B. are full siblings and that Mother and Father are the biological parents of both children. The court in D.B.'s case took judicial notice of the orders and findings of fact from the previous case involving M.R., and those orders establish the court in that case found ICWA did not apply after ordering the Agency to provide the appropriate ICWA notices to all the relevant tribes based on the ICWA inquiry forms submitted by the parents. Additionally, the court asked D.B.'s parents if they had any further relevant information regarding Indian heritage and neither had anything to add.
Based on the previous determination in M.R.'s case, the lack of any additional information from the parents, and confirmation from the tribes that the relevant tribal membership requirements had not changed since that determination, the Agency argued there was sufficient information for the court to find that ICWA also did not apply with respect to D.B. at the December 2, 2016 hearing. In response, neither parent indicated there was any additional information available regarding their Indian heritage or suggested any other reason the finding in M.R.'s case would not apply equally to D.B. On this record, the court had no reason to believe D.B. was an Indian child and, thus, the court did not err in finding ICWA did not apply.
Father argues the findings in M.R.'s case were not sufficient to support the juvenile court's finding that ICWA was not applicable because ICWA notices are not fungible between siblings. However, the case he relies on, In re Robert A. (2007) 147 Cal.App.4th 982, 990, is not instructive here. First, the siblings in that case were half siblings that shared only one parent—and therefore did not have identical heritage—while the children in the case at hand are full siblings with the same two parents. (Ibid.) More importantly, though, in Robert A., the relevant ICWA findings from the half sibling's case were not before the juvenile court at the time it determined ICWA did not apply to Robert. (Id. at pp. 989-990.) To the contrary, here, the previous orders and ICWA finding from M.R.'s case were before the juvenile court in D.B.'s case, the court took judicial notice of it, the court specifically asked if either parent had any further information regarding Indian heritage, and neither parent offered any. Although we recognize the importance of strict compliance with the ICWA notice provisions, under the circumstances present here, there was no reason for the juvenile court to believe D.B. may be an Indian child.
Father also asserts the Agency's e-mail to the tribes inquiring whether membership requirements had changed was insufficient, and that the communication should have been sent through registered mail. This argument is equally unavailing. Both the federal statute and the California rule implementing it require the Agency to send a tribe a notice of the proceedings via registered mail with return receipt if there is reason to know the child is Indian. (See 25 U.S.C. § 1912(a); Cal. Rules of Court, rule 5.482.) Here, the communication to the tribes was not a notice pursuant to ICWA and no such notice was required because the juvenile court had no reason to believe D.B. was an Indian child in the first instance.
Finally, even if we were to find the juvenile court erred in concluding ICWA did not apply based on the findings in M.R.'s case, reversal of the order would not be warranted if "the court's noncompliance with the inquiry requirement constitutes harmless error." (In re A.B. (2008) 164 Cal.App.4th 832, 839.) Here, there is no reason to believe the outcome would have been any different had the Agency sent separate ICWA notices related to D.B. to the tribes. D.B. and M.R. have the same two biological parents, the tribal requirements for membership had not changed since M.R.'s case, and there was no additional information available to the court or Agency with respect to their Indian heritage than there was when the Agency sent the notices related to M.R. Thus, there is no reason to believe ICWA notices related to D.B. would have yielded a different result than the ICWA notices sent with respect to M.R., or that ICWA would apply to D.B. when it did not apply to M.R. As such, any presumed error was harmless. (See In re J.M. (2012) 206 Cal.App.4th 375, 380 [harmless error where Agency sent ICWA notice as to only one of two full siblings to relevant tribes]; In re A.B., at pp. 836, 843 [harmless error where father had no Indian heritage and mother previously filed in a sibling's case stating she had no Indian heritage].)
On this record, we conclude the juvenile court did not err in concluding ICWA was not applicable and, even if the court did err, any such error was harmless.
DISPOSITION
The order is affirmed.



McCONNELL, P. J.

WE CONCUR:



DATO, J.



GUERRERO, J.