Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
Solano County Super. Ct. No. J35340
Lambden, J.
D.C., now eight years old, has been a dependent of the juvenile court since he and a younger half-sister were removed from parental custody on a petition filed in February 2005 by the Solano County Department of Health and Social Services (HSS) for maternal failure to protect and the alleged father’s failure to provide support. (Welf. & Inst. Code, § 300, subds. (b) & (g).) On May 2, 2008, after long delay and 18 months past termination of reunification services, the court, at a permanency planning hearing (§ 366.26), terminated parental rights, and found D.C. adoptable, freeing him for anticipated adoption by his foster care family.
All unstated section references are to the Welfare and Institutions Code.
This appeal by R.C. (mother) raises no substantive challenge to the orders, but claims deficient notice under the Indian Child Welfare Act of 1978 (ICWA) (25 U.S.C. § 1901 et seq.). We affirm, finding no prejudicial error.
Background
Mother’s lack of challenge to the substantive validity of terminating her parental rights allows us to recite only the facts concerning ICWA notice.
Our record was initially supplemented, without objection, at the request of HSS, with copies of ICWA compliance documents that had been on file but somehow omitted from the appellate record. HSS has since requested that we augment the record with further ICWA compliance materials. We grant that request over mother’s objections that this improperly turns this appellate court “into a trier of fact” in that the latest materials were not considered below or available when she filed her opening brief.
We are limited to matters that were before the trial when deciding whether the trial court committed error. (In re Zeth S. (2003) 31 Cal.4th 396, 400.) Mother cites a case where this Division denied judicial notice of material not before the trial court where it had been offered to support an implied finding of ICWA compliance (In re I.G. (2005) 133 Cal.App.4th 1246, 1252-1253.) But here, the record already before us shows errors, and the added material thus serves not to assess whether error occurred, but to assess whether there was resulting prejudice to any affected tribe. (In re Elizabeth W. (2004) 120 Cal.App.4th 900, 908 [agency could have “attempted to mitigate the damage” it caused “by sending a new notice” pending appeal]; In re Christopher I. (2003) 106 Cal.App.4th 533, 566-567 [augmentation allowed]; cf. Alicia B. v. Superior Court (2004) 116 Cal.App.4th 856, 866-867 [same].) The question of prejudice is one of law for this court (Cal. Const., art. VI, § 13), not fact for the trier below, and mother raises no challenges to the authenticity or accuracy of the additional documents.
Additionally, we may consider new materials to assess whether later ICWA compliance has rendered the appeal issue “moot” (In re C.D. (2003) 110 Cal.App.4th 214, 224 [augmenting with post-order efforts]), the underlying problem there similarly being a legal question of whether there remains an actual controversy for which we may grant effectual relief (Paul v. Milk Depots, Inc. (1964) 62 Cal.2d 129, 132).
Also, a reversal, in these circumstances where no substantive error is claimed in the termination of parental rights, would be limited to a remand for ICWA compliance and then, if no tribe came forward, reinstating the judgment without change. (In re Francisco W. (2006) 139 Cal.App.4th 695, 704-705.) Nothing would be accomplished, beyond delay, by refusing to consider new efforts that might obviate the need for such a remand, and unnecessary delay defeats the strong interest in dependency cases that actions “be resolved expeditiously.” (In re Jesusa V. (2004) 32 Cal.4th 588, 625.) And finally, mother suffers no prejudice. Her reply brief addresses the question of ICWA compliance in light of the new documents.
In early detention proceedings of January 2005, the father denied any Indian heritage and mother, while suggesting that D.C. might have some, was unable to identify a tribe or relatives who might make the identification. No new information came to light for nearly two years, until mother had rid herself of existing counsel on a Marsden challenge (People v. Marsden (1970) 2 Cal.3d 118) on the eve of what was to be a contested section 366.26 hearing. On December 21, 2007, her new counsel, Greta Jenkins, submitted a form JV-130 (“Parental Notification of Indian Status”) in open court that mother had filled out by hand. This led to a continuance for ICWA compliance and, ultimately, tribal notices via the standard form JV-135 (“Notice of Involuntary Child Custody Proceedings Involving an Indian Child”).
The form claimed Indian status from: “[M]ater[n]al great-grandmother, Alice Welch, tribe unknown. Maternal great-grandfather, Mavis Dennis, Blackfoot Cherokee tribe born on KinKay Ranch in Novasoda, TX on 1/17/1924 died in 1997.”
The notices were mailed in January and February of 2008 (all unspecified further dates are in 2008). Notices were initially sent to Cherokee tribes based on mother’s JV-130 form, but it developed by the next hearing date, January 25, that while those tribes had indicated no membership or eligibility, mother had since submitted more complete information on a JV-135 form that necessitated further notices. The matter was continued again, and all responses were received by the close of February, with every tribe reporting no membership or eligibility. The court accordingly found at the conclusion of the section 366.26 hearing, on May 2, that the ICWA did not apply. Mother now challenges that finding, noting that, since notice principally serves the interests of Indian tribes, the issue is not forfeited where, as here, a parent raised no objection below. (Nicole K. v. Superior Court (2007) 146 Cal.App.4th 779, 784; In re Samuel P. (2002) 99 Cal.App.4th 1259, 1267-1268; In re Marinna J. (2001) 90 Cal.App.4th 731, 738-739.)
The JV-135, mostly in mother’s hand, confirmed that she claimed no Indian ancestry through D.C.’s father but, on her own side of the family, claimed Blackfeet or Choctaw ancestry through her mother and Cherokee ancestry through her father. Mother’s writing betrays some obvious spelling errors, but she identifies, beyond herself, two generations of ancestors on her side of the family (no enrollment numbers known). We identify the ancestors by familial relationship to D.C.
There is no dispute that all appropriate tribes and the Bureau of Indian Affairs (BIA) were sent notices at correct addresses, and that all responses were negative as to membership and eligibility. The issues have to do with some errors or inconsistencies in two rounds of notice. We discuss those details later in this opinion and state for now only the undisputed notices and responses for each tribe.
The Eastern Band of Cherokee Indians was noticed by fax on January 7 and responded through a January 22 letter from the Cherokee Boys Club, Inc. The tribe was noticed again on February 1, by certified mail, and responded by sending another copy of the prior letter.
The United Keetoowah Band of Cherokee was also noticed twice, first by fax on January 7 and then by certified mail on February 1. It responded by letters of January 7 and February 11.
The Cherokee Nation of Oklahoma was likewise noticed twice, and responded three times, by letters of January 7 and 25, and February 6.
The Jena Band of Choctaw Indians and Blackfeet Tribe were also noticed twice, first by fax on January 16, and then, as with the others, by certified mail on February 1. The former responded by letters of January 17 and February 22; the latter responded by letters of January 30 and February 11.
Two further Choctaw tribes and the BIA were noticed just once, by certified mail posted February 1. The Mississippi Band of Choctaw Indians and Choctaw Nation of Oklahoma responded by letters dated February 6 and 21, and the BIA by a letter of February 7 advising that tribal responses were final for ICWA purposes.
Discussion
I. Issue Overview
“The ICWA is designed to protect the interests of Indian children, and to promote the stability and security of Indian tribes and families. It sets forth the manner in which a tribe may obtain jurisdiction over proceedings involving the custody of an Indian child, and the manner in which a tribe may intervene in state court proceedings involving child custody. When the dependency court has reason to believe a child is an Indian child within the meaning of [ICWA], notice on a prescribed form must be given to the proper tribe or [BIA], and the notice must be sent by registered mail, return receipt requested.” (In re Elizabeth W., supra, 120 Cal.App.4th at p. 906.) All potential tribes here received actual notice and responded, and our record properly contains the notices and responses. (Ibid.)
Where, as here, there was actual notice, our role is to assess whether any errors in notice were prejudicial (Nicole K. v. Superior Court, supra, 146 Cal.App.4th at p. 784) or whether there was substantial compliance with notice requirements (In re Christopher I., supra, 106 Cal.App.4th at p. 566; In re Elizabeth W., supra, 120 Cal.App.4th at p. 907). Substantial compliance means not perfect compliance, but “actual compliance in respect to the substance essential to every reasonable objective of the statute.” (Stasher v. Harger-Haldeman (1962) 58 Cal.2d 23, 29.)
The object of tribal notice is to enable a review of tribal records to ascertain a child’s status under the ICWA. (In re D.T. (2003) 113 Cal.App.4th 1449, 1455; In re Desiree F. (2000) 83 Cal.App.4th 460, 470.) Notice requirements are strictly construed and “must contain enough information to be meaningful. [Citation.] The notice must include: if known, (1) the Indian child’s name, birthplace, and birth date; (2) the name of the tribe in which the Indian child is enrolled or may be eligible for enrollment; (3) names and addresses of the child’s parents, grandparents, great grandparents, and other identifying information; and (4) a copy of the dependency petition.” (In re Francisco W., supra, 139 Cal.App.4th at p. 703.) “It is essential to provide the Indian tribe with all available information about the child’s ancestors, especially the ones with the alleged Indian heritage. [Citation.] Notice . . . must include available information about the maternal and paternal grandparents and great-grandparents, including maiden, married and former names or aliases; birthdates; place of birth and death; current and former addresses; tribal enrollment numbers; and other identifying data.” (Ibid.; In re C.D. (2003) 110 Cal.App.4th 214, 224-225.)
II. Asserted Notice Defects
Mother contends that tribal notice was deficient in that the second notice (a) did not reveal the filing date of the petition, (b) erroneously gave a great-grandparent’s birth date as 1906 rather than 1946, and (c) stated as “[u]nknown” whether the grandfather was deceased. Also (d) all notices listed four great-grandmothers, but no great-grandfathers. We find no prejudicial error in these defects.
A. Petition filing date.
The second JV-135 oddly stated, “No information available,” as to the filing date of the petition by which the child’s custody had been placed with HSS, and mother posits that “length of time in the dependency system might have been important information necessary for a tribe’s evaluation.” There are two fatal problems with this argument. First, no case, statute or rule is cited, and nothing in the record suggests, that the filing date was necessary to a tribe’s evaluation. Rather, the JV-135 call for notice that the child’s custodial status was “Based on a petition filed (date) . . .” seems designed to further identify the petition in order to help a tribe intervene once it decides to do so.
Second, even if something supported mother’s speculation that a filing date was important to a tribe’s evaluation, the record shows without dispute that each of the second notices, which were received by all tribes, was properly mailed along with a copy of the petition (In re Francisco W., supra, 139 Cal.App.4th at p. 703; § 224.2, subd. (a)(5)(E)), from which the filing date was obvious. The “No information available” statement was thus obviously wrong, and obviously harmless since any tribe that deemed the date relevant would have easily discovered the filing date from the full documents. Stated differently, HSS substantially complied.
A third reason to reject mother’s prejudice argument is that, even if copies of the petition had not accompanied the second round of notices, any tribe that received the first round (while evidently conveyed by seven-page faxes that could not have included copies of the petition), would have seen the date of the petition correctly stated on the first page of form JV-135 as then sent.
B. Great-grandparent birth date.
Mother notes that the second JV-135 notice states that grandmother Frances Cabrellis (maiden name Johnson) was born on July 13, “1906,” whereas she was in fact born that day in 1946. It seems that this error may have been due to a misreading of mother’s handwriting in typing up the form. The first notice, which had left that particular page of the JV-135 in mother’s hand, correctly stated the birth year as 1946, yet the year has a “4” that is so open at the top, and with cross-stroke so low, that it can easily be read as a zero. In any event, mother correctly observes that an HSS social worker had spoken with the grandmother, specifically about her age, and that this information indicated a birth year around 1946.
We are not cited any case suggesting that an error in just the year of birth is prejudicial, but mother stresses in her rely brief the fact that the February 21 response from the Choctaw Nation of Oklahoma stated that they had researched their records “with the information you provided us,” also advising: “Please note that all records are pulled by maiden names and date of birth[;] therefore, the lack of this information may hinder the process.”
For several reasons in combination, we do not find prejudice from this error. We presume that tribes read all pertinent information to reconcile any evident incongruities, and one highly suspicious one was that no year of death was given (“N/A” shown), which would have made the grandmother over 101 years old at the time of the notice if truly born in 1906. Also suspicious, from the same page, was that her husband, born June 27, 1946, would have been 40 years older than her. But an impossible anomaly appears two pages later, where a common name shows that Frances (Johnson) Cabrellis’s mother was the great-grandmother, Rubby Lee (Young) Johnson, born in 1924. That would make the great-grandmother 18 years younger than the daughter born in 1906. It was therefore internally obvious that the 1906 date was incorrect. Those tribes that received an earlier correct notice, of course, had that further means to discern the error.
It may be that the Cherokee Nation of Oklahoma did the math, assumed that the zero in 1906 was in error, and adopted 1946 as logically making the grandmother her husband’s age, and age 21 when she gave birth to a daughter who in turn bore a child (mother) in 1971, at age 25. Each of the tribe’s three response letters (Jan. 7 & 25, and Feb. 6) starts by listing every relative inquired about and their dates of birth. The first response states “????????” for the grandmother’s birth date. The second (still before the faulty JV-135), correctly states it as “07/13/1946,” and so does the third (despite the faulty notice).
Finally, all tribes were assisted by the name Frances (Johnson) Cabrellis, which was presumably not a common name on the rolls. This made it extraordinarily unlikely that any researcher turned up more than one such name and was stymied by having the wrong birth year. This is particularly so since the grandmother’s birth day and month were accurate. This also undermines mother’s reliance on the letter from the Choctaw Nation of Oklahoma stating, “[a]ll records are pulled by maiden names and date of birth[;] therefore, the lack of this information may hinder the process.” While a search by maiden name would involve the more common name, Johnson, and might not reveal a married name, the first name of Frances, in conjunction with the accurate birth day and month, vastly reduced the chance of confusing multiple people with the same last name. Any such confusion, of course, would trigger a look at the birth date being exactly 40 years off, alerting the researcher to the other anomalies of impossible birth order, plus unlikely centurian age and wide difference spousal ages.
C. Whether grandparent was deceased.
Mother’s complaint that the second notice erroneously gave the grandfather’s date and place of death “Unknown” rather than “N/A” offers no rationale for finding prejudice, and we see none. Her implicit premise has to be that membership or eligibility for any of the tribes was assessed not just generationally, but in some combination of generations and survivorship. That is not intuitive, and there is no support for that in the record. But even if there were support for a survivorship requirement, the indication of “Unknown” did not eliminate the prospect of eligibility; it only left it unresolved. “Unknown” did not strongly imply, in the circumstance, that the grandfather (by then age 61) was dead or had predeceased his seven-year-old grandchild.
Also, mother does not factually dispute that the first rounds of notices—received by all but two Choctaw tribes—correctly stated the grandfather’s date and place of death as “N/A,” thus providing another point of reference should survivorship have been an issue for the dual-noticed tribes. Mother correctly observes that the two Choctaw tribes never received the earlier, correct notice, but she ignores that both of the JV-135 forms specified that mother claimed Choctaw heritage only through her mother and, from her father, only Cherokee lineage. All Cherokee tribes received both notices, and this makes any misinformation to Choctaw tribes about the non-Choctaw grandparent harmless. (In re Brandon T. (2008) 164 Cal.App.4th 1400, 1414; cf. In re Cheyanne F. (2008) 164 Cal.App.4th 571, 577-578.)
D. No great-grandfathers listed.
Mother lastly complains that there are no maternal great-grandfathers identified in the notices, and she complains that the listing of four great-grandmothers, on the other hand, was confusing since there could only be two biological great-grandmothers. We first correct mother’s mathematics. HSS correctly observes that grandparents ordinarily have two sets each of biological great-grandparents, and thus mother could have four great-grandmothers on her side of the family. As for the lack of indicated great-grandfathers, since the record clearly shows that mother worked cooperatively with DSS to complete the JV-135 information “regarding her suspected Indian Ancestry,” the overwhelming inferences are that mother either could not identify great-grandfathers or did not claim that they brought any Indian heritage to her ancestry. The record does not show any prejudice.
On this record, the four asserted errors in ICWA notice, singly or in combination, do not reveal prejudice (Cal. Const., art. VI, § 13).
Disposition
The order is affirmed.
We concur: Haerle, Acting P.J., Richman, J.
Grandmother:
Francis (Johnson) Cabrellis, born July 13, 1946, “Tendo,” LA; later resident in Suisun City, CA, date and place of death “N/A.”
Grandfather:
Ceariaco Cabrellis, born June 27, 1946, “French Camp” Stockton, CA; later of Sacramento, CA; date and place of death “N/A.”
Great-grandparent:
Rubbylee (Young) Johnson; born October 27, 1924, Tendal, LA; former address “Wavery,” LA; died 1962; possibly “Backfoot or Choctaw.”
Great-grandparent:
Alice (Smith) Welch, born October 10, 1910, Tendal, LA; former address “Wavery,” LA; died 1986; possibly “Backfoot.”
Great-grandparent:
Eleanor (Hunter) Day; born “1910 Novasoda, TX”; possibly “Charokee,” indicating “KinKay Ranch Novasoda, Texas”; date/place of death “N/A.”
Great-grandparent:
Mavis (Hunter) Dennis; born January 17, 1924 “Novasoda,” TX; later resident in Sacramento, CA; died February 7, 1997; possibly “3rd Charokee,” identifying “KinKay Ranch Novasoda,” TX.
The form also reports attendance by Mavis Dennis and Eleanor Hunter at an Indian school called “KinKay Ranch,” in “Novasoda” (dates unknown), and residence by those same great-grandparents on January 17, 1924 (Dennis) and in 1910 (Hunter).
Having never objected to the initial augmentation that brought the January fax transmissions to light as having been on file (without evident objection below, either) but somehow overlooked in preparing the appellate record, mother belatedly urges in her reply brief that we refuse to consider them and thus discourage an “ ‘apparent practice of holding onto the evidence of its notice efforts and revealing it only when an issue arises on appeal’ ” (In re Kikki R. (2003) 106 Cal.App.4th 844, 852-853, quoting In re Jennifer A. (2002) 103 Cal.App.4th 692, 703). The record here, however, shows that the augmentation was with copies of evidence that was on file below as early as April of 2007, so there is no HSS practice to discourage. In any event, the cited cases involved reluctance to augment with evidence on whether error occurred, and we have already explained at length, in the background portion of this opinion, that consideration of new materials, even if not part of the trial record at the time of a ruling on ICWA compliance, may be considered in assessing either prejudice to the affected tribes, or mootness of the appellate issue.
Mother also objects that section 224.2, subdivision (a)(1), mandates notice by registered or certified mail, with additional notice by first-class mail recommended but not required. She notes that this provision does not mention fax use. This argument is fruitless on this record, however, where HSS did ultimately employ the code-required notice, and nothing in the statute forbade additional notice by fax. Indeed, the provision seems to generally encourage additional notice.