Opinion
NOT TO BE PUBLISHED
Contra Costa County Super. Ct. No. J02-01488/J02-01489
NEEDHAM, J.
Appellant Essie B. contends the trial court improperly found that adequate legal notices had been given under the terms of the Indian Child Welfare Act (ICWA) title 25 United States Code section 1901 et seq., prior to the termination of appellant’s parental rights as to the minors C.P. and Christopher P. We affirm.
I. FACTS AND PROCEDURAL HISTORY
This is a dependency appeal filed by appellant concerning two of her five children, who were declared to be dependents subject to the jurisdiction of the Contra Costa County Department of Children and Family Services (Department). The sole issue presented in the present appeal concerns the sufficiency of the ICWA notice compliance as to appellant’s two younger children, C.P. and Christopher. Appellant raises no issues concerning the establishment of dependency jurisdiction as to them, or appellant’s other children. Nevertheless, we will briefly summarize the facts relevant to dependency, for purposes of background to the legal issue presented.
Appellant has requested that we take judicial notice of the contents of the documents filed in two prior appeals dealing with appellant’s children. We deny the request because the documents in the previous appeals are not relevant to the legal issue presented here. The Department has also improperly requested judicial notice of various matters in its briefing on appeal. We deny that request, because it was not properly made by a separate request in accordance with the applicable rule of court. (Cal. Rules of Court, rule 8.252, subd. (a)(1).)
The present appeal concerns C.P., who was born in 2001, and Christopher, who was born in 2002. They were detained on July 22, 2002, due to domestic violence between the parents in the children’s presence. The children were declared dependents of the juvenile court on August 12, 2002, and were placed in out-of-home care. (Welf. & Inst. Code, § 300, subd. (b).)
All further statutory references are to the Welfare and Institutions Code unless otherwise stated.
On December 18, 2002, the children, although remaining dependents, were returned to their parents’ custody under a court-ordered family maintenance plan.
On January 31, 2003, the children were removed from their parents’ custody because of continuing violence between the parents, and they have lived apart from their parents since then. In March 2003, they were continued as dependents following a jurisdiction hearing on a supplemental petition (§ 387). They were placed with a prospective adoptive parent on April 15, 2003.
In July 2003, the Department recommended that there should be termination of reunification services as to both parents, and the setting of a section 366.26 hearing. Reunification services were terminated as to the father (Father) on October 17, 2003, and as to appellant on June 7, 2004. A section 366.26 hearing was scheduled for September 15, 2004. On September 1, 2004, appellant petitioned to set aside the section 366.26 hearing based on changed circumstances (§ 388), specifically, her regular participation in classes and therapy that addressed the issues that led to the children’s removal. On October 1, 2004, her motion was granted and she was ordered to receive six months of additional reunification services.
On January 19, 2005, the Department petitioned for a modification of the October 1, 2004 order, based on another incident of domestic violence between the parents (§ 388). The Department requested termination of reunification services and the setting of a section 366.26 hearing.
On February 17, 2005, the Department’s section 388 petition was granted, reunification services as to appellant were terminated, and a section 366.26 hearing was scheduled for May 18, 2005. Father was not present at the February 17 hearing, but he was represented by counsel.
Neither parent appeared at the May 18, 2005 hearing convened under the terms of section 366.26. The court found by clear and convincing evidence that the children were likely to be adopted, and terminated the parental rights of appellant and Father.
Appellant and Father appealed, and in a prior appeal we concluded that ICWA notices had not been properly given. We reversed and remanded the matter to the trial court in order to achieve compliance with ICWA.
On remand, the Department provided ICWA notices, and the trial court conducted another section 366.26 hearing, finding that proper ICWA notices had now been provided, and that no tribal entities desired to intervene in the action. The trial court therefore terminated the parental rights of appellant and Father.
II. DISCUSSION
Our standard of review in this matter is limited. We do not review this latest trial court ruling de novo, and may only review it for substantial evidence. (See In re Rebecca R. (2006) 143 Cal.App.4th 1426, 1430 (Rebecca R.).)
We first briefly explain the general legal principles in issue, to provide necessary context to the present claims of inadequate notice. The provisions of ICWA were designed to protect the interests of Indian children, and promote the stability and security of Indian tribes and families. (In re Desiree F. (2000) 83 Cal.App.4th 460, 469 (Desiree F.).) ICWA contains an elaborate procedural scheme to afford this protection, and state courts must yield to the governing federal law. When a court knows that an Indian child is involved in a proceeding to remove the child from his or her parents, the party prosecuting the proceeding must notify the child’s tribe of the pending proceedings and of the tribe’s right to intervene. If the identity of the tribe cannot be determined, notice is given to the federal government, which then has 15 days to notify the tribe or notify the court that it needs additional time. (Ibid.) Violation of ICWA notice provisions may be cause to invalidate the orders issued in the dependency proceeding. (25 U.S.C. § 1914.)
The courts and county agencies have an affirmative duty to inquire whether a child who is the subject of a section 300 petition is or may be an Indian child, when the court has been informed that the child may be an Indian child. (See In re I.G. (2005) 133 Cal.App.4th 1246, 1251-1252 (I.G.).) If, after a section 300 petition has been filed, the court has reason to know that the child may be an Indian child, the child’s tribe must be notified. (Ibid.) If the court has reason to know the child may be an Indian child, it shall proceed as if the child is an Indian child, and shall proceed with all dependency hearings, observing the dependency statutory timelines while complying with the ICWA. (Ibid.)
“In passing the Act, Congress identified two important, and sometimes independent, policies. The first, to protect the interests of the Indian child. The second, to promote the stability and security of Indian tribes and families. [Citations.] The Act sets forth minimum federal standards, both substantive and procedural, for protecting these identified policies. [Citation.]” (In re Kahlen W. (1991) 233 Cal.App.3d 1414, 1421 (Kahlen W.).) “Notice is a key component of the congressional goal to protect and preserve Indian tribes and Indian families. Notice ensures the tribe will be afforded the opportunity to assert its rights under the Act irrespective of the position of the parents, Indian custodian or state agencies. Specifically, the tribe has the right to obtain jurisdiction over the proceedings by transfer to the tribal court or may intervene in the state court proceedings. Without notice, these important rights granted by the Act would become meaningless. [Citation.]” (Kahlen W., supra, at p. 1421.) “The Indian status of the child need not be certain. Notice is required whenever the court knows or has reason to believe the child is an Indian child. ([U.S.C.] § 1912(a); In re Junious M., supra [(1983)] 144 Cal.App.3d 786, 788 . . . .)” (Kahlen W., supra, at p. 1422.)
ICWA entitles parents or the tribe to petition for the invalidation of dependency proceedings conducted without proper notice. (25 U.S.C. § 1914.) Title 25 United States Code section 1912, subdivision (a), states the ICWA notice provisions: “In any involuntary proceeding in a State court, where 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. If the identity or location of the parent or Indian custodian and the tribe cannot be determined, such notice shall be given to the Secretary in like manner, who shall have fifteen days after receipt to provide the requisite notice to the parent or Indian custodian and the tribe. No foster care placement or termination of parental rights proceeding shall be held until at least ten days after receipt of notice by the parent or Indian custodian and the tribe or the Secretary: Provided, That the parent or Indian custodian or the tribe shall, upon request, be granted up to twenty additional days to prepare [for the hearing].” (Italics omitted.)
In the present case, ICWA rules did not initially appear to be applicable at all, because both parents had denied that they were of Indian heritage, or that the children were Indian children. However, a social worker determined that a paternal ancestor of the children might have been of Indian heritage. The record shows the social worker attempted to obtain more information from the family, but was unable to do so.
On remand, ICWA notices were sent to the Bureau of Indian Affairs (BIA) and all tribal entities that could have a possible interest in the children, and none of the tribal entities expressed an interest in intervening in the proceedings regarding the children.
The trial court determined that proper ICWA notices had been given, and that no reason existed to further delay the termination of parental rights based on ICWA grounds. As previously noted, we do not review this ruling de novo, and only review it for substantial evidence. (Rebecca R., supra, 143 Cal.App.4th at p. 1430.)
Appellant specifically objected in the trial court to typographical errors on one notice for the hearing under 366.26 that listed an address of “the grandmother.” On appeal, appellant repeats and refines this claim, contending that the notice sent to the minor’s paternal grandmother in Vicksburg, Mississippi listed an incorrect and defective address, because even though the street address was correct, the state abbreviation in the final line of that address showed that Vicksburg was in “MI 39180” i.e., using the state code for Michigan, not Mississippi.
The respondent Department concedes there was a minor error in that address for the section 366.26 hearing, but points out that the state code listed on the ICWA notice itself was correct, and any error in the notice for the section 366.26 hearing was harmless. The respondent also points out that although there is another typographical error in the ICWA notice, which inconsistently lists the zip code for Vicksburg as both “39180” (which is correct) and “34180” (which contains a typographical error). This error is also harmless because it could not have affected the outcome.
In her reply brief, appellant concedes that the error in the address regarding the incorrect state abbreviation code for Mississippi occurs only in the section 366.26 notice, and not in the ICWA notice.
The record shows that on a notice for the section 366.26 hearing, the final line of the address listed for the paternal grandmother was “Vicksburg, CA MI 39180.” There were clearly errors in the address listed on that notice, relating to the fact that Vicksburg is in the state of Mississippi, not California or Michigan, and its proper postal abbreviation code is MS, not MI. However, that notice was not the ICWA notice in issue here. The ICWA notice actually contained the proper city and state, “Vicksburg, MS.” The ICWA notice also contains an error, because it inconsistently lists the zip code for Vicksburg both correctly and incorrectly, but it does at least list the correct city and state, and sometimes the correct zip code as well.
In any event, these typographical errors have not been shown to have been prejudicial in any way, and do not justify another remand. There was no showing that any such errors would have prevented the tribes from determining whether the children were Indian children, and no tribes asked about or were concerned with this inconsistency or error. The trial court’s finding that adequate notice was given in substantial compliance with ICWA is supported by substantial evidence. (See Rebecca R., supra, 143 Cal.App.4th at p. 1430.)
Appellant also suggests the Department should have done more to satisfy its affirmative duty of inquiry regarding possible Indian ancestors. (See I.G., supra, 133 Cal.App.4th at pp. 1251-1255.) Appellant suggests the Department should have gathered further information about the deceased paternal great-grandfather, George Martin, which might have aided tribal efforts to determine whether that person may have been a tribal member.
The record shows that the Cherokee Nation of Oklahoma noted in its response to the ICWA notice that it could not be determined that the children were Indian children, because there was insufficient information on George Martin, especially his full name and birth date, which was not known. The record, however, shows that the Department did seek to gather such information, but the ancestor in question, George Martin, was deceased, and other family members had no more information concerning him that they could share with the Department. Thus, the record contains substantial evidence that the Department did make reasonable efforts to inquire as to relevant information, and substantially complied with ICWA requirements in this respect. (See Rebecca R., supra, 143 Cal.App.4th at p. 1430; I.G., supra, 133 Cal.App.4th at p. 1252.)
Appellant also now suggests generally that the Department should have done more to interview family members, and affirmatively seek to find more relevant information regarding possible tribal affiliations. (See I.G., supra, 133 Cal.App.4th at pp. 1251-1255.) Appellant suggests specifically that the Department should have done more to further interview the Father and the paternal grandfather. However, once again, it appears from the record that the Department did speak with these persons, and did the best it could to gather such information by interviewing available family members, but the family members did not know any more relevant information. Thus, the tribal entities were supplied with the best information available to the Department, which was the most the Department could reasonably be asked to provide. The information provided was sufficient under the circumstances. (Ibid.)
Thus, substantial evidence supports the trial court’s conclusion that the Department did make reasonable efforts to inquire about the children’s more remote ancestors who might have had an Indian heritage, and that the Department’s efforts and the notices provided on remand in this case were in substantial compliance with ICWA requirements. (See Rebecca R., supra, 143 Cal.App.4th at p. 1430; I.G., supra, 133 Cal.App.4th at p. 1252.)
Having determined that the Department’s ICWA notice was adequate, we need not reach any other issues stated in appellant’s opening brief, parts I.C., I.D., or I.E.
III. DISPOSITION
The order terminating parental rights is affirmed. The requests for judicial notice are denied.
We concur. JONES, P. J., SIMONS, J.