Filed 11/20/18 In re A.P. CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION TWO

APPEAL from the Superior Court of Riverside County. Judith C. Clark, Judge. Affirmed.

Elizabeth Klippi, under appointment by the Court of Appeal, for Defendant and Appellant.

Gregory P. Priamos, County Counsel, James E. Brown, Guy B. Pittman, and Prabhath Shettigar, Deputy County Counsel, for Plaintiff and Respondent.

A.P. (mother) appeals from an order terminating her parental rights to her three children. The sole issue she raises is lack of compliance with the Indian Child Welfare Act of 1978, or ICWA (25 U.S.C. § 1901 et seq.), and with Welfare and Institutions Code[1] section 224 et seq. We affirm.

PROCEDURAL BACKGROUND

Because we address only an ICWA claim, a brief synopsis of the factual and procedural history will suffice.

The Riverside County Department of Public Social Services (DPSS) filed a section 300 petition on January 22, 2016, as to mother’s children (the children), then age three years, 22 months, and two months. The petition alleged that the children came within subdivision (b) (failure to protect), in that mother and the children’s father, D.M. (father),[2] exposed their children to domestic violence and neglected their health and safety. DPSS filed a first amended petition on January 27, 2016. The court detained the children on January 28, 2016.

DPSS filed a second amended petition on April 13, 2016, which still alleged the children came within section 300, subdivision (b), but changed some of the specific allegations. The court sustained this petition on April 13, 2016, and ordered reunification services. Ultimately, the court terminated mother’s reunification services for failure to make substantive progress in her case plan. The social worker recommended that the children remain in the foster home that they had been placed in for the past 15 months and be adopted by the prospective adoptive parent. On May 24, 2018, the court terminated parental rights and set adoption as the permanent plan.

Mother filed a timely notice of appeal on May 30, 2018.

ANALYSIS

DPSS Complied with ICWA

Mother contends that DPSS did not adequately investigate the children’s Indian heritage since it failed to even attempt to locate and interview the paternal great-grandmother (the PGG), who was the relative with Indian ancestry. She further claims that, as a result, the ICWA notices sent out were essentially meaningless. We disagree.

A. Requirements Under ICWA

“The social worker has ‘a duty to inquire about and obtain, if possible, all of the information about a child’s family history’ ” required under ICWA regulations. (In re

S.M. (2004) 118 Cal.App.4th 1108, 1115-1116.) “This duty arises both under ICWA itself and under California’s parallel statutes, Welfare and Institutions Code section 224 et seq.” (In re K.R. (2018) 20 Cal.App.5th 701, 706 (K.R.).) “[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.” (25 U.S.C. § 1912, subd. (a); see also In re Samuel P. (2002) 99 Cal.App.4th 1259, 1264-1265.) For purposes of ICWA, an “Indian child” is a child who is either a member of an Indian tribe or 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); Welf. & Inst. Code, § 224.1, subd. (a) [adopting federal definitions].)

“One of the primary purposes of giving notice to the tribe is to enable it to determine whether the minor is an Indian child. [Citation.] Notice is meaningless if no information or insufficient information is presented to the tribe. [Citation.] The notice must include . . . information about 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, current and former addresses, tribal enrollment numbers, and/or other identifying information. [Citations.]” (S.M., supra, 118 Cal.App.4th at pp. 1115-1116, fn. omitted.)

“The juvenile court must determine whether proper notice was given under ICWA and whether ICWA applies to the proceedings. [Citation.] [¶] We review the trial court’s findings for substantial evidence. [Citation.] ‘ “On review of the sufficiency of the evidence, we presume in favor of the order, considering the evidence in the light most favorable to the prevailing party, giving the prevailing party the benefit of every reasonable inference and resolving all conflicts in support of the order.” [Citation.]’ [Citation.] . . . Deficiencies or errors in an ICWA notice are subject to harmless error review.” (In re Charlotte V. (2016) 6 Cal.App.5th 51, 57 (Charlotte V.).)

B. ICWA Procedural Background

At the detention hearing on January 28, 2016, mother informed the court that she did not have any Indian ancestry. Father indicated that he may have Indian ancestry on his mother’s side, and his mother would be the one to ask. The court directed DPSS to speak with the paternal grandmother, T.M. (the PG). The court also ordered father to talk to his mother and then talk to DPSS and give them any information on his Indian ancestry.

The social worker filed an addendum report, which stated that, on February 25, 2016, she spoke with the PG on the phone. The PG said she did not have any Indian ancestry, but her mother,[3] G.D. (the PGG), whose date of birth was July 27, 1947, had Cherokee Indian ancestry from the state of Texas. The PG said the PGG was not a registered member and denied that anyone in her family was a registered member. The social worker further noted that father’s family had come before the Riverside County Juvenile Court previously, with respect to another dependency case (SWJ005384), in which the court found that ICWA did not apply.

The court held a jurisdiction hearing on February 29, 2016, and the PG was present. Counsel for father stated that the PG had provided information to the social worker with regard to her mother’s Indian ancestry, but acknowledged that a court in a prior dependency found that ICWA did not apply. However, he believed DPSS still needed to send notices “as to information that paternal grandmother provided at this time” out of an abundance of caution. The court addressed the PG directly and confirmed that the possible Indian ancestry was Cherokee ancestry from the state of Texas. The PG added that “she’s not registered, though. We got that settled years . . . back.” The court then directed DPSS to give ICWA notice, based on the updated information from the PG.

Previously, DPSS mailed ICWA notices to the Eastern Band of Cherokee Indians, United Keetoowah Band of Cherokee, and Cherokee Nation of Oklahoma (collectively, the Cherokee tribes), and the Bureau of Indian Affairs (BIA). After DPSS obtained information from the PG, DPSS mailed ICWA notices, on March 23, 2016, to the Cherokee tribes by certified mail again. The notices included the respective children’s names and birthdates. They also included the parents’ names, current addresses, and birthdates and birthplaces. DPSS listed the Cherokee tribes for father’s tribal information, and stated, “Does not apply,” for mother’s tribal information. As to the tribal information or the maternal relatives (grandmother, grandfather, great- grandmother), the notices stated either, “Does not apply,” or “No information available.”

The notices listed the PG’s name, current address, former address, and birthdate and birthplace. They listed the Cherokee tribes for her tribal information. They also listed the paternal grandfather’s name, current address, former address, and birthdate and birthplace but stated, “Does not apply,” for his tribal information.

The notices listed information as to both of father’s grandmothers (the paternal great-grandmothers), including D.M.’s name, current address, and state of birth. They also listed G.D.’s (the PGG’s) name and tribal information as the Cherokee tribes. For her current address, they listed only the city of Yucaipa. They listed her birthdate as July 22, 1949 or July 24, 1949, and her birthplace as unknown. The notices listed information for just one of father’s grandfathers—his name, current state, and birthdate; the other information was either unknown or not applicable.

On March 30, 2016, the United Keetoowah Band of Cherokee Indians responded to the ICWA notices with a letter stating that there was no evidence the children were descendants from anyone on the Keetoowah Roll and that it would not intervene in this case. On April 6, 2016, the Cherokee Nation also sent a response letter stating that the children were not Indian children, and it would not intervene.

At a hearing on April 13, 2016, the court found good ICWA notice and that ICWA did not apply to the United Keetoowah Band of Cherokee Indians. No one objected to the ICWA findings.

At the contested six-month review hearing on December 13, 2016, the court found that ICWA did not apply to the children. No one objected to the ICWA findings.

At the contested 12-month review hearing on May 18, 2017, the court again stated that ICWA did not apply. No one objected to the ICWA findings.

At the contested 18-month review hearing on August 30, 2017, the court stated that ICWA did not apply, terminated reunification services, and set the matter for a section 366.26 hearing. No one objected to the ICWA findings.

On May 24, 2018, the court terminated parental rights.

C. DPSS Complied With its Duties

The crux of mother’s claim is that DPSS’s investigatory efforts to obtain information about the children’s Cherokee heritage fell short of the standard in section 224.3, subdivision (c). Specifically, she contends that DPSS never tried to contact the PGG, the relative with the Cherokee heritage, as evidenced by the notices, which did not contain her current address, but only the city she lived in; they also listed two alternative birthdates and stated that her birthplace and former address were unknown. We conclude that DPSS complied with its duties.

Section 224.3, subdivision (c), provides: “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 the parents, Indian custodian, and extended family members to gather the information . . . .”

Here, the social worker interviewed the parents, and mother said she had no Indian ancestry. Father indicated that he may have Indian ancestry on his mother’s side and named his mother as the one to ask. Thus, the court directed DPSS to speak with the PG. On February 25, 2016, the social worker contacted the PG by phone. The PG said she did not have any Indian ancestry, but her mother (the PGG) had Cherokee Indian ancestry from the state of Texas. However, the PG said the PGG was not a registered member and denied that anyone in her family was a registered member. Nonetheless, the social worker sent ICWA notices, pursuant to the court’s order. The notices included the parents’ names, current addresses, birthdates and birthplaces. DPSS listed the Cherokee tribes for father’s tribal information, and stated, “Does not apply,” for mother’s tribal information. They also listed information for the PGG, including her name, tribal information, and current city (Yucaipa). They listed two possible birthdates and her birthplace as unknown.

Mother points out that the missing information regarding the PGG demonstrates that DPSS did not comply with its duty to investigate. She asserts that the social worker apparently did not bother to follow up with the PG or attempt to contact the PGG and claims that the missing crucial information was “likely readily available.” However, the social worker interviewed the PG, the one who father said would have information concerning any Indian heritage in their family. (§ 224.3, subd. (c).) The PG said her mother had Cherokee ancestry, but expressly stated that the PGG was not a registered member and denied that anyone in her family was a registered member. The social worker confirmed that information, as indicated by her report that father’s family had come before the Riverside County Juvenile Court with respect to a prior dependency case, and the court found that ICWA did not apply. In light of this information, the social worker had no reason to believe further inquiry was necessary.

Mother contends that we should follow K.R., supra, 20 Cal.App.5th 701, in which this court remanded the matter for compliance with ICWA and section 224.3, after finding that there was no evidence DPSS attempted to contact extended paternal relatives to see if they had any relevant information regarding the father’s Indian ancestry. (Id. at pp. 707-709.) In K.R., the mother indicated that the children might have Indian heritage through their father, who was deceased. (Id. at pp. 704-705.) DPSS sent ICWA notices that included the father’s name, birthdate and birthplace, and possible tribal affiliations. They identified his father (the paternal grandfather), his last known address, birthdate, and birthplace. The notices also identified the paternal great-grandfather by name, but listed all other information as unknown or unavailable. On appeal, the mother contended that this information demonstrated that DPSS failed to comply with its duty to interview extended family members and stated that the paternal grandmother and paternal aunt were readily available. She also pointed out that DPSS had a last known address for the paternal grandfather, and that if DPSS had contacted him, he could have supplied the biographical information for his father, the paternal great-grandfather. (Id. at p. 707.) This court agreed, since there was no information that DPSS contacted the paternal grandfather at his last known address to seek that information concerning his father. DPSS also had the last known address of the paternal great-grandmother, but there was no evidence DPSS attempted to contact her for any relevant information on the family’s Indian ancestry. (Id. at pp. 707-708.)

K.R. is inapposite. In that case, DPSS had the last known addresses for certain extended paternal relatives, but failed to contact them to find out who had Indian heritage in the father’s family. In the instant case, mother is not alleging that DPSS had the last known addresses for relatives who were readily available, but failed to contact them. Moreover, unlike K.R., father specifically indicated which relative had information on his Indian heritage. DPSS interviewed the PG, and she stated that her mother was the one with Cherokee heritage, but said she was not a member. Furthermore, unlike K.R., here there was a previous dependency case in which the court determined that ICWA did not apply.

Considering the evidence in the light most favorable to the prevailing party, giving the prevailing party the benefit of every reasonable inference, and resolving all conflicts in support of the order, as we must, we conclude that DPSS complied with its duties, and that the court properly found ICWA did not apply. (See Charlotte V., supra, 6 Cal.App.5th at p. 57.)

D. Any Error Was Harmless

Even if we assume mother has shown inquiry or notice error, any error would be harmless. “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.) We note that mother does not suggest how the alleged deficiencies in the notices would have made a difference.

Furthermore, “one of the primary purposes of giving notice to the tribe is to enable the tribe to determine whether the child involved in the proceedings is an Indian child.” (In re Desiree F. (2000) 83 Cal.App.4th 460, 470.) “Each Indian tribe has sole authority to determine its membership criteria, and to decide who meets those criteria. [Citation.] Formal membership requirements differ from tribe to tribe, as does each tribe’s method of keeping track of its own membership.” (In re Santos Y. (2001) 92 Cal.App.4th 1274, 1300.) Here, DPSS sent ICWA notices, and the United Keetoowah Band of Cherokee Indians responded with a letter stating there was no evidence the children were descendants from anyone on the Keetoowah Roll and that it would not intervene in this case. The Cherokee Nation also sent a response letter stating that the children were not Indian children, and it would not intervene. Neither the United Keetoowah Band nor the Cherokee Nation indicated that they had insufficient information to make that determination.[4]

Moreover, the evidence showed that father’s family had come before the Riverside County Juvenile Court in a previous dependency case, and the court found that ICWA did not apply. The children’s Indian ancestry, which would have been through father’s family, would not change over time. Significantly, mother does not argue that the prior ICWA finding was wrong.

We conclude that there has been no prejudicial error and remand to send out ICWA notices again would be an idle act. The children “deserve permanence and stability as soon as possible.” (In re E.W. (2009) 170 Cal.App.4th 396, 402.) We decline to further delay the proceedings, particularly where mother makes no specific claim that the ICWA finding in the prior dependency case was erroneous. (See In re Shane G. (2008) 166 Cal.App.4th 1532, 1539 [when agency performed reasonable inquiry and found no reason to believe minor was an Indian child, “reversing the judgment . . . for the sole purpose of sending notice to the tribe would serve only to delay permanency . . . rather than further the important goals of and ensure the procedural safeguards intended by ICWA”].)

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

McKINSTER

Acting P. J.

We concur:

CODRINGTON

J.

FIELDS

J.