In re Karma L.

Filed 7/19/07 In re Karma L. 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

T.L. (mother) and Christopher L. (father) appeal from an order of the juvenile court terminating their parental rights to their daughter Karma. (Welf. & Inst. Code, 366.26.)[1] Mother and father contend that the Department of Family and Childrens Services (Department) did not comply with the Indian Child Welfare Act (ICWA) (25 U.S.C. 1901 et seq.; Cal. Rules of Court, rule 5.664)[2] because it sent one of the required notices to the wrong address. We have determined, by reference to the record in a case involving mothers older child, that actual notice was provided.[3] Accordingly, we affirm the order.

I.                   ICWA

We begin with a brief summary of the ICWA requirements. As has now been reiterated in numerous appellate decisions, proper and effective ICWA notice is critically important in dependency cases. Social service agencies and courts are responsible for ensuring that the law is rigorously followed. (In re Samuel P. (2002) 99 Cal.App.4th 1259, 1264; see also rule 5.664(d).)

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. (In re Samuel P., supra, 99 Cal.App.4th at p. 1264.) [T]he juvenile court needs only a suggestion of Indian ancestry to trigger the notice requirement. [Citations.] Both the court and the county welfare department have an affirmative duty to inquire whether a dependent child is or may be an Indian child. (In re Nikki R. (2003) 106 Cal.App.4th 844, 848.) Notice is provided via form JV-135, Notice of Involuntary Child Custody Proceedings for an Indian Child. (Rule 5.664(f)(1).) The determination of a childs Indian status is a matter for the tribe. (Rule 5.664(g).)

To satisfy the notice provisions of the [ICWA] and to provide a proper record for the juvenile court and appellate courts, [the social services agency] should follow a two-step procedure. First it should identify any possible tribal affiliations and send proper notice to those entities, return receipt requested. [Citation.] Second, [the social services agency] should provide to the juvenile court a copy of the notice sent and the return receipt, as well as any correspondence received from the Indian entity relevant to the minors status. If the identity or location of the tribe cannot be determined, the same procedure should be used with respect to the notice to BIA [Bureau of Indian Affairs]. (In re Marinna J. (2001) 90 Cal.App.4th 731, 739-740, fn. 4.)

Notice to the tribe shall be to the tribal chairperson, unless the tribe has designated another agent for service. ( 224.2, subd. (a)(2).) The BIA periodically publishes a current list of designated tribal agents for service of notice, along with the appropriate mailing addresses, in the Federal Register. (In re H.A. (2002) 103 Cal.App.4th 1206, 1213.) Sending an ICWA notice to the wrong address is error. (In re Mary G. (2007) 151 Cal.App.4th 184, 211.) The error is prejudicial when the record lacks conclusive evidence the tribe received actual notice. (Ibid.)

The juvenile court must determine whether proper notice was given under the ICWA and whether the ICWA applies to the proceedings. (In re Asia L. (2003) 107 Cal.App.4th 498, 506.) We review the trial courts findings for substantial evidence. (See In re Karla C. (2003) 113 Cal.App.4th 166, 178-179.)

II.                Facts

Karma was born in April 2005. She was placed in protective custody in early December 2005 after mother was found to be under the influence of a stimulant and in possession of methamphetamine. The Department filed a petition pursuant to section 300, subdivision (b), alleging that mother and father were unable to protect her.

Mother and father appeared at the initial hearing on December 7, 2005. Both told the court that they did not have Indian heritage. The court observed, however, that in connection with a previous dependency matter involving Karmas half brother, Kamal, mother had indicated that she might have Cherokee or Choctaw heritage. In Kamals case, ICWA notices were sent to seven tribes and it was concluded that ICWA did not apply.

By the time of Karmas birth mother had some new information. She told the court, I spoke with my dad. He says--my dad has some other information but I cant recall what tribe. The juvenile court directed the Department to interview the maternal grandfather and obtain whatever information he had about the familys tribal affiliations. Grandfather told the Department that his father was maybe a half-blood Blue Foot.

On or about December 20, 2005, the Department sent notices, using the JV-135 form, to six tribes and to the BIA. The six tribes were, Choctaw Nation of Oklahoma, Jena Band of Choctaw, Mississippi Band of Choctaw Indians, Cherokee Nation of Oklahoma, Eastern Band of Cherokee Indians, and Blackfeet Tribe. The Department later realized it had inadvertently neglected to send a notice to the United Keetoowah Band of Cherokee and this was remedied with a notice sent on January 27, 2006.

Two of the seven tribes, the United Keetoowah Band of Cherokee and the Blackfeet, responded by letter saying that Karma was not an Indian child. The other five tribes did not respond but postal return receipt cards were received from all of them. At the 90-day review hearing on April 19, 2006, the juvenile court found that ICWA did not apply.

Mother waived reunification services. Services to father were eventually terminated and the juvenile court set a hearing to select a permanent plan. Karma was living with her maternal grandmother and was thriving in her care. After trial on November 22, 2006, the juvenile court selected a permanent plan of adoption and terminated parental rights. This appeal followed.

III.             Discussion

The issue on appeal concerns the notice sent to the Mississippi Band of Choctaw Indians. The address for that tribe, as listed in the Federal Register during the pertinent time period, was P.O. Box 6050, Choctaw, Mississippi. Maurice Calistro is listed as the Director. The Department sent the notice addressed to the tribe at P.O. Box 6365 and received a return receipt card signed by one Angela Stevens. Mother and father argue that since this notice was not sent to the address listed in the Federal Register and because it was not directed to Maurice Calistro, the notice was ineffective. Mother cites Nicole K. v. Superior Court (2007) 146 Cal.App.4th 779, 783-784, in which the appellate court decided that even though a postal return receipt had been received, one could not determine whether the tribe had actually received a misaddressed ICWA notice because there was no way to tell from the receipt whether the signature was that of a tribal representative. In this case, however, we have evidence that the recipient was connected to the tribe.

As we noted above, we have taken judicial notice of the record in the case involving mothers older child, Kamal. Mothers appeal in that case concerned the adequacy of the ICWA notices provided to the Cherokee and Choctaw tribes. Notice had been sent to the Mississippi Band of Choctaw Indians at the address indicated in the Federal Register. The tribe responded with a letter dated March 12, 2003, stating that the child was not eligible for enrollment with the tribe. The letter went on to note: For immediate response to ICWA cases in the future, please send the letter to Tribal Enrollment, P.O. Box 6365, Choctaw, MS 39350. The letter is signed on behalf of Angela Stevens who was then the tribal enrollment officer.

We requested and received supplemental briefing from the parties concerning the effect this letter might have upon the argument that the Department sent the notice to the wrong address. Both parents argue that the letter does not serve as evidence that Angela Stevens was authorized to act on behalf of the tribe and, further, that the letter was well over two years old and the address in the Federal Register had been changed in that time (70 FR 13518, March 21, 2005). In effect, mother and father contend that the letter is not evidence that the address, P.O. Box 6365, was the proper address for notice. We agree. The proper address for notice is the address set forth in the Federal Register and the person listed therein is the tribes designated agent for service of ICWA notices. However, we conclude that the 2003 letter is evidence that the tribe received actual notice in this case and, therefore, any error in addressing the notice was harmless.

The 2003 letter shows that, at least in 2003, Angela Stevens was the tribal enrollment officer for the Mississippi Band of Choctaw Indians. Angela Stevens is also the person who signed the return receipt in this case. Thus, unlike the situation in Nicole K., supra, 146 Cal.App.4th at page 784, where there was no way to tell from the return receipt whether the tribe had actually received the notice, in this case Ms. Stevenss signature on the receipt shows that notice actually made its way to the tribe. Thus, the Departments failure to address the notice as indicated in the Federal Register was not prejudicial.

Mother and father also argue that the notices were insufficient because the Department listed Cherokee as one of the tribes with which Karma might be affiliated but then did not list any of mothers relatives as having Cherokee heritage. (Father does not claim any Indian heritage.) If the forms were defective in the manner described, there was, again, no prejudice. In Kamals case, mother had claimed possible Cherokee or Choctaw heritage. Notices were sent to the same Cherokee and Choctaw tribes that received notices in this case. On appeal, this court held that the tribes had been given sufficient information to determine whether Kamal was an Indian child. (In re Kamal G., No. H027299 [nonpub. opn.].) None of the Cherokee tribes found Kamal to be eligible for membership. Since there was no additional information about mothers Cherokee heritage, the tribes conclusion pertaining to Karmas half brother would necessarily be applicable to Karma. Accordingly, any error in identifying the relatives claimed to have Cherokee heritage was not prejudicial.

IV.              Disposition

The order of the juvenile court terminating parental rights is affirmed.

Premo, J.

WE CONCUR:

Rushing, P.J.

Elia, J.

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[1] Hereafter, all undesignated statutory references are to the Welfare and Institutions Code.

[2] Further references to rules are to the California Rules of Court.

[3] We take judicial notice, on our own motion, of the record in In re Kamal G. (Oct. 12, 2004, No. H027299 [nonpub. opn.].)