In re N.M.

Filed 10/26/06 In re N.M. CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION TWO

APPEAL from the Superior Court of Riverside County. Christopher J. Sheldon, Judge. Affirmed.

Konrad S. Lee, under appointment by the Court of Appeal, for Defendant and Appellant.

Joe S. Rank, County Counsel, and Carole A. Nunes Fong, Deputy County Counsel, for Plaintiff and Respondent.

Michael D. Randall, under appointment by the Court of Appeal, for Minor.

The Indian Child Welfare Act (ICWA) (25 U.S.C. § 1901 et seq.) requires that notice of a state court juvenile dependency proceeding be provided to any Native American tribe with which the child may be affiliated, or to the Bureau of Indian Affairs if the tribe is not known. Federal guidelines, the California Rules of Court, and California case law require that any notice provided be filed with the juvenile court.

In the present case, proper notices were given but were not filed with the court. Notwithstanding that fact, the juvenile court found the ICWA did not apply to the case and terminated the parental rights of the mother of the subject minor child.

We conclude: (1) the juvenile court should have required filing of the notices before finding the ICWA did not apply; (2) the failure to file the notices could be, and was, cured by the filing of the notices after this appeal was filed; (3) the notices satisfied the ICWA requirements; and (4) therefore, the court’s error was harmless.

I

FACTUAL AND PROCEDURAL BACKGROUND

A. Juvenile Court Proceedings

1. Initial detention

The subject minor child (Minor) was born in January 2005. The day after her birth, the Riverside County Department of Public Social Services (DPSS) received an immediate response referral stating the mother of Minor (Mother) had a history of mental illness. Further, Mother had become violent on December 8, 2004, when she killed her pet cat with a golf club after finding her ex-boyfriend, Minor’s alleged father, with another woman. Mother and the alleged father also had a history of domestic violence.

The alleged father denied paternity. He had been convicted of possession of a controlled substance with intent to sell, and the court had issued a warrant for his arrest, which was still in effect. He could not be located and is not a party to this appeal.

The first reference to the ICWA appeared in the social worker’s report for the detention hearing, which stated: “The Indian Child Welfare Act does not apply. During the course of my interview with [Mother], she denied that either she or [the alleged father] are of American Indian decent [sic]/bloodline.”

On January 20, 2005, the court ordered Minor detained, with supervised visitation for Mother, and set a jurisdictional hearing.

2. Dependency petition

DPSS filed the present dependency proceeding on January 19, 2005. The petition alleged Minor came within Welfare and Institutions Code section 300, subdivision (b)^[1] (failure to protect), based on Mother’s mental health issues and her killing of her cat, the history of domestic violence, and the alleged father’s substance abuse history and disappearance. The petition further alleged Minor came within section 300, subdivision (g) (failure to provide), based on the alleged father’s unknown whereabouts and his failure to provide for Minor.

3. Jurisdictional and dispositional hearing

a. Report

The social worker’s report for the jurisdictional and dispositional hearing stated the most serious concerns regarding Minor’s safety in Mother’s home were Mother’s mental health history and her recent violence in the home, i.e., the killing of the cat. An additional concern was Mother’s maintenance of contact with Minor’s father, who had physically abused Mother in the past.

Regarding the ICWA, the report stated: “The Indian Child Welfare Act does not apply. At the Detention Hearing on 01/24/2005, the maternal grandfather . . . stated that he has Blackfoot ancestry. On 02/02/2005, the mother also stated that her family has Blackfoot ancestry. On 02/02/2005, I contacted the Bureau of Indian Affairs and was informed that the Blackfoot tribe is not a federally recognized American Indian tribe, as it is located in Canada.”

b. Hearing

On February 10, 2005, the court held the jurisdictional and dispositional hearing. It found Minor came within section 300, subdivisions (b) and (g). The court ordered six months of reunification services for Mother and placed Minor in foster care. The court also found Minor did not come under the provisions of the ICWA.

4. Termination of reunification services

The social worker’s report for the six-month review hearing, filed July 15, 2005, stated the ICWA did not apply to the case.

At a review hearing on November 17, 2005, the social worker testified she was recommending Mother’s reunification services be terminated because Mother had not benefited from the services. A doctor who had performed a psychological evaluation of Mother had concluded she had not benefited from mental health treatment, and it was questionable whether she had chosen to benefit. The court found Mother had made unsatisfactory progress in her reunification plan and terminated reunification services. It set a selection and implementation hearing pursuant to section 366.26 for March 16, 2006.

Mother then filed in this court a petition for an extraordinary writ pursuant to California Rules of Court, rule 38.1(a), seeking review of the juvenile court’s order. This court denied the petition on February 14, 2006, finding the evidence clearly showed Mother failed to make substantive progress in her reunification plan. (N.M. v. Superior Court of Riverside County (Feb. 14, 2006, E039373) [nonpub. opn., p.8].)

5. Mother’s modification petition

On March 3, 2006, Mother filed a request to change the order of November 17, 2005, terminating her reunification services, and to return Minor to her. As the changed circumstances supporting reconsideration of the order, Mother stated she had completed more classes, had visited Minor regularly, had housing, and was self-employed.

6. Selection and implementation hearing

a. Reports

The notice of the selection and implementation hearing, which was served on Mother by mail on February 6, 2006, stated that if Minor was of Native American heritage, the parent, Native American custodian, and tribe had a right to intervene in the proceedings and to be granted a continuance of 20 days to prepare for the proceedings.

The social worker’s initial report for the selection and implementation hearing, filed March 6, 2006, recommended the court terminate the parental rights of Mother and the alleged father. Regarding ICWA notification, the report stated a Judicial Council mandatory ICWA notification form (JV-135) had been sent to the Blackfeet tribe and the Bureau of Indian Affairs (BIA).^[2] The tribe had reported Minor was not an “Indian child” as defined in the ICWA. The BIA had reported that DPSS had provided appropriate notice to the tribe or tribes. Attached to the report were copies of the responses from the tribe and the BIA.

Also attached to the report was the social worker’s service log, which stated that Minor’s maternal grandmother had said there was Native American blood in the family, but she did not know about the tribe. Mother apparently said she would have the maternal grandfather contact the social worker about the Blackfeet ancestry. The grandmother later stated the family might have “Blackfoot history,” but she knew they were not enrolled in the tribe. She refused to give the social worker the maternal grandfather’s phone number and stated he had refused to give it to her.

b. Hearing

On April 11, 2006, the court held the selection and implementation hearing. Mother by this time had completed a second parenting class, with high marks, and a domestic violence anger management program, again with high marks. However, she had not completed counseling services, because DPSS was no longer paying for them, and had had three attempts at completing the domestic violence program.

The court stated Mother had made extraordinary progress but was still showing very poor judgment. It terminated the parental rights of Mother, the alleged father, and all unknown fathers and ordered adoption as the permanent plan for Minor. The court also denied Mother’s modification petition.

Neither the court’s written order of termination nor its oral statement of its ruling contained a finding that the ICWA did not apply. However, the minute order of the April 11, 2006, hearing stated, “ICWA does not apply to this case.” In addition, the order of termination provided that “[a]ll prior orders not in conflict with this order will remain in full force and effect.” Previously, the court had stated in an order of March 16, 2006, that the ICWA did not apply to the case.

B. Proceedings on Appeal

On April 17, 2006, Mother appealed from the orders terminating her parental rights and denying her modification petition.^[3] In her opening brief in this court, Mother argued that DPSS failed to comply with the ICWA. She contended that although DPSS asserted it had sent proper notice of the dependency proceeding to the Blackfeet tribe and the BIA, it failed to file a copy of the notice and proof of mailing with the juvenile court, as required by the ICWA.

After Mother’s brief was filed, DPSS filed a copy of the notice and proof of mailing with the juvenile court and filed with this court a motion to augment the record to include the notice and proof of mailing. This court granted the motion.

II

DISCUSSION

A. ICWA Notices Must Be Filed With Court

The ICWA provides that in a state court dependency proceeding in which “the court knows or has reason to know that an Indian child is involved,” the child welfare agency shall notify the child’s tribe of its right to intervene in the proceeding. (25 U.S.C. § 1912(a).) If the identity of the tribe cannot be determined, the agency shall notify the Secretary of the Interior, i.e., the BIA. (Ibid.) An “Indian child” is “any unmarried person who is under age eighteen and 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).) “The Indian status of a child need not be certain or conclusive to trigger the ICWA’s notice requirements. [Citation.]” (In re D.T. (2003) 113 Cal.App.4th 1449, 1454.)

Where notice is required, a child, a parent, or the tribe may petition to invalidate any court action taken without notice having been given. (25 U.S.C. § 1914.) Furthermore, “‘where the notice requirements of the Act were violated and the parents did not raise that claim in a timely fashion, the waiver doctrine cannot be invoked to bar consideration of the notice error on appeal.’” (In re Suzanna L. (2002) 104 Cal.App.4th 223, 232, quoting In re Marinna J. (2001) 90 Cal.App.4th 731, 739; accord, In re Jennifer A. (2002) 103 Cal.App.4th 692, 707 [“[c]ase law is clear that the mother could not waive the ICWA requirements regarding notice to the tribes”]; In re Nikki R. (2003) 106 Cal.App.4th 844, 849 [“[c]ase law is clear that the issue of ICWA notice is not waived by the parent’s failure to first raise it in the trial court”]; In re Dwayne P. (2002) 103 Cal.App.4th 247, 261 [court’s duty to ensure proper notice is given “is sua sponte”].)^[4]

The ICWA itself does not require that a copy of a notice provided to a tribe or the BIA be filed with the court. However, a filing requirement is contained in the federal guidelines implementing the ICWA. The BIA’s Guidelines for State Courts; Indian Child Custody Proceedings (44 Fed.Reg. 67584 (Nov. 26, 1979)) (Guidelines) state: “The original or a copy of each notice sent pursuant to this section shall be filed with the court together with any return receipts or other proof of service.” (Id. at p. 67588.) The Guidelines “by their terms are ‘not intended to have binding legislative effect’ [citation] . . . .” (In re S.B., supra, 130 Cal.App.4th at p. 1157, citing Guidelines, supra, 44 Fed.Reg. at p. 67584.) However, “‘the construction of a statute by the executive department charged with its administration is entitled to great weight.’” (In re C.D. (2003) 110 Cal.App.4th 214, 224, fn. omitted.) Accordingly, California courts have concluded that “insofar as the ICWA notice provisions are concerned, the Guidelines ‘represent a correct interpretation of the [ICWA].’” (In re Dwayne P., supra, 103 Cal.App.4th 247, 255; accord, C.D., at p.224.)

The California Rules of Court also contain a filing requirement. Rule 1439(f) provides that where ICWA notice is required, “proof of such notice, including copies of notices sent and all return receipts and responses received, must be filed with the juvenile court.” The Rules of Court “‘have the force of statute to the extent that they are not inconsistent with legislative enactments and constitutional provisions.’ [Citation.]” (Sara M. v. Superior Court (2005) 36 Cal.4th 998, 1011, quoting In re Richard S. (1991) 54 Cal.3d 857, 863.)

Finally, a filing requirement is recognized in numerous California court decisions. (E.g., In re X.V. (2005) 132 Cal.App.4th 794, 802 [“the ICWA notices, return receipts and responses of the BIA and tribes must be filed in the juvenile court”]; In re Louis S. (2004) 117 Cal.App.4th 622, 629 [“[b]ecause the social worker did not file the notices, or copies of the notices and any return receipts, with the court, it was error for the court to conclude the ICWA did not apply”]; In re Suzanna L., supra, 104 Cal.App.4th 223, 232 [when neither the notices nor the return receipt cards are filed with the court, there is insufficient evidence the parties received actual notice].)

The filing requirement is not merely perfunctory, but is “an essential component of the ICWA notice process.” (In re Karla C. (2003) 113 Cal.App.4th 166, 178.) The commentary for the Guidelines explains that the filing requirement is imposed “so there will be a complete record of efforts to comply with the Act.” (Guidelines, supra, 44 Fed.Reg. at p. 67589.) As the court observed in Louis S., without the notices “it is impossible for the court to determine . . . whether the notices provided the tribe with relevant information and therefore with a meaningful opportunity to evaluate whether the dependent minor is an Indian child within the meaning of the ICWA. [Citation.]” (In re Louis S., supra, 117 Cal.App.4th at p. 629.) “Without a review of the notices, the juvenile court is unable to determine whether they complied with the ICWA [citation], the Guidelines [citation] and the federal regulation [citation] . . . .” (Karla C., at p. 178.)

As no copies of the ICWA notices that DPSS sent to the Blackfeet tribe and the BIA had been filed with the court when it terminated Mother’s parental rights, the court erred in finding that the ICWA did not apply.

B. Failure To File Notice May Be Cured On Appeal

Several decisions have concluded that an agency’s failure in the juvenile court to show compliance with the ICWA notice requirements may be cured by making the necessary showing on appeal. Alicia B. v. Superior Court (2004) 116 Cal.App.4th 856 is instructive. There, the mother sought writ review of an order denying her reunification services and setting a hearing pursuant to section 366.26. She claimed the juvenile court erred in finding that the ICWA did not apply. The court agreed, because the agency had sent ICWA notices but had not filed them with the juvenile court. Therefore, the juvenile court could not determine whether the notices provided all known relevant information. (Id. at pp. 859, 864-865.)

However, the court found the error was harmless. The court explained that while the writ proceeding was pending, the agency had filed copies of the notices with the juvenile court and had moved to augment the record to include the notices. Since the notices had been sent before the juvenile court made its finding, they were not new evidence and would have been admissible had they been timely presented. Under the circumstances, denying the motion to augment would have been “counterproductive to ‘the state’s strong interest in the expeditiousness and finality of juvenile court dependency proceedings.’ [Citation.]” (Alicia B. v. Superior Court, supra, 116 Cal.App.4th at p. 867.) The juvenile court’s finding that the ICWA did not apply “was premature, but it was not prejudicial.” (Ibid.)

In In re S.M. (2004) 118 Cal.App.4th 1108, the father appealed from the termination of his parental rights, arguing the agency’s ICWA notices were defective. The initial appellate record did not show that the agency’s ICWA notices included any information about the child’s paternal grandmother or paternal great-grandmother, the person with alleged Native American heritage. (Id. at pp. 1114, 1116.) While the appeal was pending, the agency augmented the record to show that in August 2002, shortly before parental rights were terminated, it sent ICWA notices that did include the information. (Id. at p. 1117 & fn. 5.)

The court stated: “We may conclude the inadequate initial ICWA notice is harmless if the August 2002 notices sent by the Agency comply with the ICWA. [Citation.]” (In re S.M., supra, 118 Cal.App.4th at p. 1117.) The court explained that while normally a party cannot augment the record to include material that was not before the lower court, it is appropriate to do so in dependency cases because denying augmentation and requiring a remand would cause unnecessary delay. (Id. at p. 1117, fn. 5.) Ultimately, however, the court “reluctantly” reversed the termination order and remanded the case, because it found the agency had improperly failed to respond to requests from the tribes for additional information. (Id. at pp. 1118-1119, 1123.)

In In re Louis S., supra, 117 Cal.App.4th 622, the social worker stated in a report that she had sent ICWA notices to the relevant tribe and the BIA, but she failed to file copies of the notices or any return receipt with the court. The mother asserted on appeal that because no copies had been filed, it was improper for the juvenile court to terminate her reunification services. The court permitted the agency to augment the record to include copies of the notices it had sent before and after the reunification services were terminated, stating: “We may conclude the court’s error is harmless if the notices sent by the Agency in January 2003 and January 2004 comply with the ICWA. [Citation.]” (Id. at pp. 628, 630.) However, the court found the notices did not contain accurate information and therefore reversed the termination order. (Id. at p. 631.)

Finally, in In re C.D., supra, 110 Cal.App.4th 214, 217, 222, 224, the juvenile court entered a dispositional order removing two children from the custody of their father. He appealed, claiming the agency’s ICWA notices were defective because they did not include the name of the children’s paternal grandfather or his tribal affiliation. While the appeal was pending, the agency provided the relevant tribe with the name of the paternal grandfather. Affirming the dispositional order, the court stated the agency had “cured any notice problem father complains about.” (Id. at p. 224.)

These decisions demonstrate that if an agency shows on appeal that it sent notices that complied with the ICWA, its failure to comply with the ICWA in other respects, including a failure to file the notices with the juvenile court, may be found harmless. We therefore consider whether the notices DPSS sent in this case complied with the ICWA.

C. DPSS’s Notices Complied With ICWA

The information that is to be contained in ICWA notices is described in the Code of Federal Regulations. An agency must “provide as much information as is known on the Indian child’s direct lineal ancestors including, but not limited to,” specified information. (25 C.F.R. § 23.11(b).) As relevant here, the information includes: “All 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.” (25 C.F.R. § 23.11(d)(3).)

As stated, DPSS in this case gave notice to the Blackfeet tribe and the BIA using Judicial Council form JV-135, adopted for mandatory use effective January 1, 2005. That form contains spaces for insertion of all of the information specified in the federal regulation. DPSS inserted Minor’s name, birth date, and place of birth; DPSS’s identity and address; the date and location of the selection and implementation hearing; Mother’s name, address, birth date, and place of birth; Mother’s claim of “Blackfoot ancestry”; the name, last known address, and birth date of the alleged father; the names and addresses of Minor’s maternal grandparents; and answers to some additional optional questions.

There is no indication in the record, nor has Mother claimed, that any of this information was inaccurate, except that the social worker mistakenly listed the maternal grandfather as a maternal “grandmother.” This inaccuracy could not have misled any recipient of the notice, because the true maternal grandmother, with the same last name as the grandfather, also was listed as a maternal grandmother. Therefore, a recipient readily would have determined that one of the names was that of the maternal grandfather and would have searched the relevant records for that name.

Although the social worker designated some of the requested information as “unknown,” an agency is only required to provide the specified information that is “known.” (25 C.F.R. § 23.11(b), (d)(3).) Therefore, where a parent “has not shown that any relevant known information was excluded on the forms,” the forms comply with the ICWA and the agency’s failure timely to file them with the juvenile court is harmless error. (Alicia B. v. Superior Court, supra, 116 Cal.App.4th at p. 867, italics added.)

Here, the record showed that after the social worker became aware Mother’s side of the family might have Blackfeet ancestry, she notified the tribe of information sufficient to identify and contact Mother and the maternal grandmother. She also supplied the name and city of residence of the maternal grandfather. Mother has not claimed or shown there was additional relevant information the worker could have supplied but did not. We find, therefore, that the notices to the tribe and the BIA complied with the ICWA requirements.

D. Error in Finding ICWA Did Not Apply Was Harmless

Where there is no indication that any relevant known information was not provided to parties entitled to receive it under the ICWA, the failure to comply with a procedural requirement in providing ICWA notice is harmless error under any standard of reversibility. In In re Antoinette S. (2002) 104 Cal.App.4th 1401, the court found the agency “clearly violated” Title 25 United States Code section 1912(a) by sending ICWA notices only one day before the section 366.26 hearing. (Antoinette, at p. 1408.) However, the court found the error was harmless. It noted that the parties who received the notices had replied, after the father’s parental rights were terminated, that they could not determine the minor’s Native American status. Moreover, the agency had no more information it could have provided. (Id. at pp. 1412-1413.)

Here, DPSS’s noncompliance consisted of not timely filing the notices with the juvenile court and making an immaterial mistake in filling out one section of the notices. Neither error caused any outcome that would not have occurred absent the error. Even if DPSS had strictly complied, the responses of the tribe and the BIA would have been the same, and Mother’s parental rights would have been terminated. The court’s error in not ensuring strict compliance does not warrant reversal.

III

DISPOSITION

The orders appealed from are affirmed.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

RICHLI

J.

We concur:

RAMIREZ

P.J.

MILLER

J.

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^[1] All further statutory references are to the Welfare and Institutions Code unless otherwise specified.

^[2] The Blackfeet tribe is federally recognized; however, there is no reference in the list of recognized tribes to the “Blackfoot” tribe. (68 Fed.Reg. 68180-01 (2003).) The difference, if any, between the Blackfoot and Blackfeet tribes is unclear. It appears that, at least historically, the “Blackfeet” tribe was one of several that composed the “Blackfoot” nation. (See Colliflower v. Garland (9th Cir. 1965) 342 F.2d 369, 372 [“[o]n October 17, 1855, a second treaty was made with the Blackfoot nation, composed of Piegans, Bloods, Blackfeet and Gros Ventres”]; see also Marceau v. Blackfeet Housing Authority (9th Cir. 2006) 455 F.3d 974, 988, fn. 1 [referring to “Treaty with the Blackfoot Indians, art. X, October 17, 1855, 11 Stat. 727”].) Our record does not indicate when or how the social worker became aware that the Blackfeet tribe was federally recognized.

^[3] Mother has limited her argument in her briefing in this court to the termination of her parental rights. Therefore, we do not consider whether the court erred in denying Mother’s modification motion. (Brown v. Professional Community Management, Inc. (2005) 127 Cal.App.4th 532, 536, fn. 2 [claim of error raised in notice of appeal but not argued in brief is waived].)

^[4] In In re S.B. (2005) 130 Cal.App.4th 1148, this court held that “although a parent cannot waive an Indian tribe’s rights under the ICWA, the parent can waive his or her own rights.” (Id. at p. 1154.) This does not mean, however, that if a parent does not object in the trial court to lack of compliance with ICWA notice requirements, she cannot appeal on that ground unless the tribe joins in the appeal. Instead, it means that where the tribe “has appeared and has not asked, on its own behalf, that any prior actions be invalidated,” thus rendering any defective notice harmless as to the tribe, the parent’s failure to object to the defect in the trial court will preclude her from arguing noncompliance on appeal. In that situation, any remaining right to invalidate actions taken without ICWA compliance belongs only to the parent and can be waived by her. (Id. at p. 1159.) In S.B., in fact, the tribe not only had appeared, it had expressly taken the position that removal of the child from the mother was in the child’s best interest. (Id. at pp. 1155-1156.) The waiver rule we recognized in S.B. should not apply where, as here, there is no way to tell whether the tribe has been given the necessary information to decide whether it should intervene.