In re P. R.

Filed 11/14/08 In re P. R. CA2/5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION FIVE

APPEAL from a judgment of the Superior Court of Los Angeles County, Elizabeth M. Kim, Juvenile Court Referee. Affirmed.

Linda J. Vogel, under appointment by the Court of Appeal, for Defendant and Appellant A. T.

Thomas S. Szakall, under appointment by the Court of Appeal, for Defendant and Appellant B. R.

Raymond G. Fortner, Jr., County Counsel, James M. Owens, Assistant County Counsel, and O. Raquel Ramirez, Deputy County Counsel, for Plaintiff and Respondent.

A. T. (mother) and B. R. (father) appeal from the orders terminating parental rights to P. R., now two years old, under Welfare and Institutions Code section 366.26.^[1] Parents contend notice of the proceedings was not given as required by the Indian Child Welfare Act of 1978 (the ICWA) (92 Stat. 3069, 25 U.S.C. 1901-1963). We find the contention has no merit and, accordingly, affirm the orders.

FACTS AND PROCEDURAL BACKGROUND

P. lived with mother and father, who were transients. Mother had been sexually and physically abused as a child by her biological father and sexually abused as a teen by her stepfather. Maternal grandfather failed to protect her. Mother had a history of domestic violence and drug use, beginning with the use of crystal methamphetamine at age 14. She cut herself because she preferred to feel physical pain rather than emotional pain. When pregnant with P., mother received no prenatal care, was homeless, and lived outdoors. Father put mother on the street to prostitute and beg for money[,] and [he] smacked[ed] her around. Father had a hair-trigger temper. He used and sold drugs, and drugged mother. Father had a 2005 California conviction for possession for sale of narcotics.

P. was detained when she was six months old, because father was arrested on an outstanding fugitive warrant for burglary from Virginia, mother had a history of prior psychiatric hospitalizations and domestic violence, the motel room where they lived was unsanitary and in disarray, and P. was filthy and unkempt.

When asked whether P. might be an Indian child^[2]under the ICWA, mother stated she may have Indian heritage in the Black Foot tribe^[3]but her family was not registered and maternal great-grandfather H. S. was the last one that she thought could be claimed as Black Foot. Father stated he had no Indian ancestry. The Department of Children and Family Services was ordered to investigate Indian heritage and send notice to the tribes.

The dependency investigator interviewed maternal grandmother L. T. and her mother, maternal great-grandmother S. S. L. T. stated there is Cherokee Indian in the family[,] not Blackfoot Indian. The Department concluded that the only possible heritage was Cherokee. S. S. stated that the family member with Cherokee Indian heritage was the minors maternal great, great, great grandmother. The paternal grandmother stated there is no Indian heritage on the paternal side. The Department sent notice to the three, federally-recognized Cherokee tribes and the Bureau of Indian Affairs. The notice did not include the identity of H. S. or mothers place of birth.

On May 1, 2007, P. was declared a dependent of the court based on sustained allegations under section 300, subdivisions (a) and (b) that parents had a history of domestic violence and mother failed to protect the child; parents had a history of illegal drug abuse, mother currently used cocaine and methamphetamines, and father currently used methamphetamines in the childs presence; and mother had mental and emotional problems, including bipolar disorder, failed to take her medication as prescribed, and had five prior involuntary hospitalizations. Custody was taken from parents and reunification services were ordered. Parents were ordered to participate in drug rehabilitation with random testing, a 52-week domestic violence counseling program, and individual counseling to address case issues. Mothers case issues included childhood sexual abuse and fathers included anger management. Monitored visits were ordered. The Department was to notice the Blackfeet tribe. The Department sent notice to the Blackfeet tribe and the Bureau of Indian Affairs. The notice did not include the identity of H. S.

Return receipt cards and letters were received from all the tribes and the Bureau of Indian Affairs. None of the letters indicated P. was an Indian child. On June 12, 2007, the dependency court found the ICWA did not apply.

P. was placed in a foster-adopt home in the fall of 2007. She adjusted well, thrived, and was happy. She became very attached to her foster family.

Stating she is an herbalist, mother treated her mental health and medical issues by smoking marijuana twice a day instead of taking prescribed medications. Father returned to California from Virginia in November 2007.

Parents did not succeed in reunifying. Father did not enroll in any court-ordered programs. He saw no need to comply with the reunification plan because he felt he had done nothing to cause P. to be detained. He claimed he was selling drugs, not using them, when she was detained. On November 14, 2007, he appeared to be under the influence during a contact with the social worker. He did not actively pursue visitation with P. until January 7, 2008. Mother did not participate in drug testing or counseling and did not complete a parenting program. Mother was allowed one-hour, monitored weekly visits, but her visitation was infrequent and sporadic. Weeks went by without a visit, as mother failed to show up and cancelled visits. Her behavior and affect were inappropriate during visits. On one occasion, she just sat and stared. Another time she kept her back turned to P. She arrived once with oozing, open sores on her skin. She brought P. an inedible green banana and broken toy. P. had no attachment to mother and cried when mother tried to hold her.

Reunification services were terminated on January 14, 2008, and a permanent plan hearing was set. Father filed a petition for extraordinary writ under California Rules of Court, rule 8.452, which was denied. (Order dated May 5, 2008, in B.R. v. Superior Court, B205174.)

Mother wanted maternal grandfather, whom she previously accused of sexually and physically abusing her and offering her up for satanic rituals, to adopt P. Maternal grandfather lived in Illinois, had suffered two heart attacks, and was disabled. He was complacent about allegations that mothers older daughter was being sexually molested by the maternal step-grandfather, and he did not like the fact that P. was of mixed-race. Mother and maternal grandfather planned that maternal grandfather would turn P. over to mother as soon as P. was released to him. Mother requested that the social worker transition one-year-old P. to greasy food because maternal grandfather did not eat anything unless it was dripping with fat.

Father and mother resumed their relationship and joined a cult. Mother continued to use drugs throughout her pregnancy with another mans child. Mother and father married, but mother left father for another man and became whereabouts unknown. She married the other man. Father was ejected from the cult. Father and mother resumed their relationship and homeless lifestyle. Mother became incarcerated in May 2008.

Parents visited P. sporadically. After April 8, 2008, father did not take advantage of a court order granting increased visits. Parents missed most of their visits. During one visit, father demonstrated to P. how to beat up a teddy bear and left early. During several visits, parents did not interact with P., who appeared afraid of them. Parents came to a visit on April 30, 2008, filthy and with aggressive body odor. They were not engaging with minor during the visit and were causing her a great deal of stress. . . . P. appeared fearful of [father] and rejected [mothers] many attempts to get near her. Minor clung to [the social worker] for the entire visit.

Summarizing the quality of parents visits, the social worker wrote: P. appears distressed during visits. After visits with birth parents minor naps for 3-5 hours, on other days she only naps for 1 hour. [] She consistently cries and demands for mommy and daddy [i.e., the foster parents] while pointing outside and running out to the lobby to check if either one is there. [] She avoids [father] and [mother], greets everyone in the office, but the two of them. [] In visits she whispers and becomes shy and timid often latching on to the social worker. This is very unusual for P., she is normally a social, loud, outgoing, energetic little girl. [] If P. hurts herself[,] she immediately runs to social worker -- if birth parents move towards her she cries louder, shakes her head no and refuses them. [] [Father] refused to change P. because according to him, he has issues with changing diapers. When social worker assisted [fathers] one attempt to change P.s diaper, he did not know how to remove or apply the diaper, he did not clean the feces off of her and made a mess of feces all over the changing table and Ps clothing. Social worker cleaned up after him because [father] wanted to end the visit and smoke a cigarette. [] [Mother] would end her visits after 20 minutes due to minor crying and calling for foster parents. [] Both parents do not clean up after themselves. The room is left a mess with food, toys all over and dirty diapers after their visits. Birth parents also leave behind their aggressive odor of cigarettes and poor hygiene. [] Since the 4/08/08 hearing [father] has missed 7 of 11 visits. [Mother] has missed 4 of 6 visits. . . . [] . . . [] It is important to note the inconsistency of both birth parents, failure to bond after many visits and coaching from social worker, failure to care for minor in visits and the volatile relationship between the two of them which they bring with them each week. [Parents] cannot manage their personal problems outside of the visits which interferes with the quality of their interaction with P.

The prospective adoptive parents were approved to adopt P.

The section 366.26 permanent plan hearing was held on May 27, 2008. Parents were not present. Parental rights were terminated. Parents timely appeals followed.

DISCUSSION

Parents contend: (1) notice to the Blackfeet and Cherokee tribes did not contain information about H. S.; and (2) the Department failed to conduct an inquiry about the maternal great grandfather. Father contends further: (1) the first page of form JV-135 contains an incorrect case name and number; (2) notice to the Cherokee tribes did not include mothers place of birth; and (3) notice to the Blackfeet and Cherokee did not include fathers name. We conclude any error or omission was harmless.

The ICWA

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, and by providing for assistance to Indian tribes in the operation of child and family service programs. (25 U.S.C. 1902.)

The minimum federal standards applicable to termination of parental rights to Indian children include the following. The parent has a right to a court-appointed attorney, and the child has the right to a court-appointed attorney in the exercise of the dependency courts discretion. (25 U.S.C. 1912(b).) The parties to the proceeding have the right to examine all reports. (25 U.S.C. 1912(c).) The child welfare agency shall satisfy the court that active efforts have been made to provide remedial services and rehabilitative programs designed to prevent the breakup of the Indian family and that these efforts have proved unsuccessful. (25 U.S.C. 1912(d).) No termination of parental rights may be ordered in such proceeding in the absence of a determination, supported by evidence beyond a reasonable doubt, including testimony of qualified expert witnesses, that the continued custody of the child by the parent or Indian custodian is likely to result in serious emotional or physical damage to the child. (25 U.S.C.  1912(f).)

The ICWA establishes preferences for adoptive placement. In any adoptive placement of an Indian child under State law, a preference shall be given, in the absence of good cause to the contrary, to a placement with (1) a member of the childs extended family; (2) other members of the Indian childs tribe; or (3) other Indian families. (25 U.S.C.  1915(A).)

The ICWA gives the Indian childs tribe a right to intervene in the dependency proceeding if the tribe determines that the child is an Indian child. (25 U.S.C. 1911(c).) To this end, the ICWA requires that notice of the proceedings be given to the Indian tribe. (25 U.S.C. 1912(a).) [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 childs tribe . . . 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 [Bureau of Indian Affairs]. (Ibid.)

To determine if the safeguards and standards of the ICWA apply, the dependency court must ascertain whether the child is an Indian child. (See 25 U.S.C. 1912(a).) The tribes response to notice of the proceedings sent when the dependency court knows or has reason to know that an Indian child is involved will determine if the child is an Indian child. (In re Jose C. (2007) 155 Cal.App.4th 844, 848; In re Francisco W. (2006) 139 Cal.App.4th 695, 702.)

Duties Imposed By State Law

The ICWA does not impose a duty to inquire about Indian ancestry, nor does it set forth what information should be included in the notice of proceedings. (See, e.g., In re H.B. (2008) 161 Cal.App.4th 115, 120 [the ICWA imposes no specific duty to inquire as to Indian ancestry].) These matters are addressed in state law and federal guidelines. (See, e.g., 224 et seq.; In re H.B., supra, 161 Cal.App.4th at pp. 120-121.) Federal guidelines are not binding on state courts. (In re Karla C. (2003) 113 Cal.App.4th 166, 175; accord, In re H.B., supra, at p. 120, fn. 4.) Federal guidelines and state legislation impose duties to make further inquiry about Indian status and to provide notice of parents information, including place of birth, and all known names and addresses of the grandparents and great-grandparents. ( 224.2, subd. (a)(5)(C);^[4]224.3, subd. (c);^[5]In re Karla C., supra, at p. 175; In re C.D. (2003) 110 Cal.App.4th 214, 225; see also In re Francisco W., supra, 139 Cal.App.4th at p. 703, citing In re Karla C., supra; In re Louis S. (2004) 117 Cal.App.4th 622, 630, citing In re Karla C., supra, and In re C.D., supra.)

Standard for Reversal: Harmless Error Analysis

[The] ICWA [does not] mandate[] reversal, without regard to prejudice, if there is any deficiency in the notice given to the tribe or the [Bureau of Indian Affairs]. Rather, where 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.) Harmless error analysis applies to failures to comply with duties imposed by state law or set forth in federal guidelines. (E.g., In re A.B. (2008) 164 Cal. App. 4th 832, 839; In re S.B. (2005) 130 Cal.App.4th 1148, 1162; In re H.B., supra, 161 Cal.App.4th at pp. 121-122.) An ICWA notice violation may be held harmless when the childs tribe has actually participated in the proceedings [citation] or when, even if notice had been given, the child would not have been found to be an Indian child, and hence the substantive provisions of the ICWA would not have applied [citation]. Moreover, any failure to comply with a higher state standard, above and beyond what the ICWA itself requires, must be held harmless unless the appellant can show a reasonable probability that he or she would have enjoyed a more favorable result in the absence of the error. (Cal. Const., art. VI, 13; People v. Watson (1956) 46 Cal.2d 818, 836.) (In re S.B., supra, 130 Cal.App.4th at p. 1162, fn. omitted.)

Any Errors Were Harmless

Harmless error analysis applies in this case, because notice was received by the tribes. The claimed errors reflect state-imposed duties beyond what the ICWA itself requires. We conclude that any error in the notice and inquiry concerning possible Indian ancestry is harmless.

To the extent father contends the first page of the notice provided an incorrect name and case number, we hold there is no reason to believe that the error caused confusion. The correct name was provided on the first page under childs name, and the correct name and case number were provided on the subsequent pages of the notice. The responses from the tribes referred to P.s correct name and birth date.

Omission of mothers place of birth in the notice to the Cherokee tribes was also harmless. The notice provided mothers birth date and all known information, including the birth dates and birth places, of the maternal grandmother and maternal great-grandmother. This constitutes substantial compliance with section 224.2, subdivision (a)(5)(C). (In re Christopher I. (2003) 106 Cal.App.4th 533, 566 [substantial compliance with the notice requirements of the ICWA is sufficient].) There is no indication the provision of mothers place of birth would have yielded a different response from the tribes. (See In re Cheyanne F., supra, 164 Cal.App.4th at p. 577.) To the extent father contends the notice did not contain information about father, any error is harmless because there is no claim father had Indian heritage. (See In re Brandon T. (2008) 164 Cal.App.4th 1400, 1414-1415.) To the extent father contends he was not provided with a set of the notices, he forfeited the contention by failing to raise it below. (In re S.B. (2004) 32 Cal.4th 1287, 1293; In re Miracle M. (2008) 160 Cal.App.4th 834, 847.)

As to parents final contention that the Department failed to inquire about, and provide notice of, H. S., any error is harmless. The record indicates that mother misspoke when she claimed heritage in the Blackfeet tribe. When interviewed about this claim, the maternal grandmother stated the Indian heritage was Cherokee, not Blackfeet. The maternal great-grandmother confirmed this. Accordingly, the Department concluded the only possible Indian heritage was Cherokee. In any event, there is no possibility the result would be different, either for parents or the Blackfeet tribe,^[6]if P. were determined to be an Indian child and the case was subject to the safeguards and standards of the ICWA.

The substantive provisions of section 1912 were complied with. Parents and P. were provided with court-appointed counsel (25 U.S.C. 1912(b)) and copies of the reports (25 U.S.C. 1912(c)). (See 317; In re Valerie W. (2008) 162 Cal.App.4th 1, 12, fn. 7.) The dependency court found, essentially, that active efforts were made to prevent the breakup of the family and such efforts were unsuccessful (25 U.S.C. 1912(d)), when it found reasonable efforts were made to prevent the need for removal and reasonable services were provided but were unsuccessful (see 319. subd. (d)(1); 361, subd. (d); 366.21, subd. (e)). (In re S.B., supra, 130 Cal.App.4th at p. 1165.) As to the requirement that the continued custody of the child by the parent or Indian custodian is likely to result in serious emotional or physical damage to the child (25 U.S.C. 1912(f)), only one conclusion can be drawn from the record in this case. Parents long history of drug use, a transient and chaotic life style, and domestic violence; their utter failure to rehabilitate themselves and complete lack of a bond with P.; and P.s fear and distress during visits, leaves no doubt that parental rights would be terminated based on the ICWA standard for termination.

Moreover, there was no prejudice to the Blackfeet tribe. Intervention would not have resulted in the application of the adoptive placement preferences in this case. The only member of P.s extended family who sought custody was maternal grandfather, and he was found unsuitable. The record is devoid of any indication that a member of the Blackfeet, a Montana tribe, would want to adopt. P. has no ties to the Blackfeet tribe or any tribe: she did not attend an Indian school, receive health care at an Indian clinic, or live on a reservation or other Indian tribe-related land. In any event, P.s attachment to her foster-adopt home, where she thrived, was good cause not to apply the adoption placement preferences in this case. (See 25 U.S.C. 1915(a).)

Based on the foregoing, any error in failing to inquire further about or provide notice of H. S. is harmless. (Compare In re Gerardo O. (2004) 119 Cal.App.4th 988, 991, 992, 995, 996 [omission of all information about ancestors was prejudicial, where the ancestors had Indian heritage, the mother had a Bureau of Indian Affairs enrollment number, the mother and maternal grandmother received ongoing Bureau of Indian Affairs food distributions services, the entire family received health services through an Indian agency, and the maternal aunt once attended an Indian school].)

DISPOSITION

The judgment is affirmed.

KRIEGLER, J.

We concur:

TURNER, P. J.

ARMSTRONG, J.

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^[1] Hereinafter, all statutory references are to the Welfare and Institutions Code unless otherwise specified.

^[2] Indian child means any unmarried [minor 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).)

^[3] There is a Blackfeet tribe of Montana, but no Blackfoot tribe. (See 71 Federal Register 43788 (Aug. 2, 2006).)

^[4] Section 224.2, subdivision (a)(5)(C) provides that notice to the tribe shall include All names known of the Indian childs biological parents, grandparents, and great-grandparents, or Indian custodians, including maiden, married and former names or aliases, as well as their current and former addresses, birthdates, places of birth and death, tribal enrollment numbers, and any other identifying information, if known.

^[5] Section 224.3, subdivision (c) provides in pertinent part: If the court, social worker, or probation officer knows or has reason to know that an Indian child is involved, the social worker or probation officer is required to make further inquiry regarding the possible Indian status of the child, and to do so as soon as practicable, by interviewing parents, Indian custodian, and extended family members to gather the information required in paragraph (5) of subdivision (a) of Section 224.2, contacting the Bureau of Indian Affairs and the State Department of Social Services for assistance in identifying the names and contact information of the tribes in which the child may be a member or eligible for membership in and contacting the tribes and any other person that reasonably can be expected to have information regarding the childs membership status or eligibility.

^[6] The only tribal heritage claimed through H. S. was Blackfeet tribe heritage.