Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of San Bernardino County No. J200748, A. Rex Victor, Judge.
Konrad S. Lee, under appointment by the Court of Appeal, for Defendant and Appellant.
Ruth E. Stringer, County Counsel, and Jeffrey L. Bryson, Deputy County Counsel, for Plaintiff and Respondent.
Karen J. Dodd, under appointment by the Court of Appeal, for Minor.
OPINION
McKinster, J.
Defendant and appellant Kellie C. (mother) is the natural mother of V.C., a dependent child of the juvenile court. On February 6, 2007, the juvenile court entered orders terminating mother’s parental rights under Welfare and Institutions Code section 366.26. Mother appeals, raising the sole issue that notice under the Indian Child Welfare Act (ICWA) was improper because of an error in listing the father’s birth date in the notices given to the Bureau of Indian Affairs (BIA) and a potential tribe. We affirm.
FACTS AND PROCEDURAL HISTORY
The circumstances leading to the dependency and the facts, pleadings and procedures relating to the course of the dependency proceedings have no bearing on the sole issue on appeal—ICWA compliance.
Mother herself never argued or presented any indication that the child had any Indian heritage. The dependency began in March 2005. The presumed father, Victor C. (father), did not appear in the case until May 2005. At that time, father hinted that he may have had some Indian heritage: “I believe there’s some, but I don’t know. . . .[¶] [A] few times my mother has said something about a tribe. I’ve never heard that from anybody else but her.” (Italics added.) Father thought the tribe might be “Zuni.”
Plaintiff and respondent San Bernardino County Department of Children’s Services (DCS) investigated the matter after father’s appearance. DCS interviewed father, and attempted to contact his sister. Father’s mother, Katherine, told DCS, “I don’t know nothing [sic] about Indians.” She speculated that father may have thought there was Indian heritage because the family had lived in New Mexico. Katherine’s mother, Helen, also denied knowing anything about Indian heritage, though she remarked that her deceased mother, Adeline, might have had some Indian heritage.
DCS sent notices to the BIA and the Zuni Tribe in June 2005. These notices listed the child’s name, father’s name, the paternal grandmother’s (Katherine’s) name, the paternal great-grandmother’s (Helen’s) name, and the paternal great-great-grandmother’s (Adeline’s) name.
The sole point of contention mother has raised is that the birth date for father, listed on the notices, was “08/15/59” (August 15, 1959); whereas other evidence in the record indicated that father’s birth date was September 15, 1959, or “09/15/59.”
Both the Zuni tribe and the BIA responded to the notices. The Zuni tribe indicated that “the family of [the child] are/were not enrolled members of the Zuni Tribe from the years 1907 to the present date. Therefore, please be advised that . . . [the child] is not eligible for membership.” The BIA letter related that there was “insufficient information substantiating any federally recognized tribe.”
Based on these responses, the juvenile court found that the ICWA did not apply.
Mother never objected below to any alleged mistake in the record concerning father’s birth date on the ICWA notices. She waited until after her parental rights were terminated and raises the matter now, for the first time, on appeal.
ANALYSIS
I. Mother Has Standing to Raise the Issue
Notwithstanding that mother is neither the parent with alleged Indian heritage, nor the child whose Indian status is of concern, she nevertheless has standing to raise the issue of ICWA compliance. (In re Jonathon S. (2005) 129 Cal.App.4th 334, 339.)
II. The Issue Is Not Waived
DCS relies on In re Pedro N. (1995) 35 Cal.App.4th 183 (Pedro N.) as upholding a doctrine of waiver where a parent knew about possible defects or errors in the ICWA notices at the time of the dispositional hearing, but failed to bring the matter to the juvenile court’s attention until her parental rights were about to be terminated, some two years later. In Pedro N., apparently, original notices were sent; but in 2002, the mother belatedly identified another possible tribe. No further notices were sent to the newly-identified tribe. The mother did not bring this oversight to the court’s attention, however, until nearly two years later, in 2004, when her parental rights were about to be terminated. (Pedro N., supra, 35 Cal.App.4th 183, 189-190.) The Pedro N. court held that the mother was foreclosed from raising the issue, because she could have raised it at the time of the dispositional hearing and did not do so.
Pedro N. is not, however, the sole authority on the issue of waiver, forfeiture or foreclosure from raising ICWA notice issues. Another court, in In re Marinna J. (2001) 90 Cal.App.4th 731 (Marinna J.), rejected Pedro N., holding that the principal purpose of ICWA is to protect and preserve Indian tribes, and therefore militates against finding any waiver or forfeiture by inaction of the parent. (Marinna J., supra, 90 Cal.App.4th 731, 739.)
This court has followed Marinna J., not Pedro N., in a published case. (See, e.g., In re Suzanna L. (2002) 104 Cal.App.4th 223, 232.) We conclude that mother did not waive the issue.
III. The Notices Substantially Complied with the ICWA and Any Error Was Harmless
DCS argues that the notice requirements were substantially complied with and, in any case, whatever mistake was made was harmless.
We agree that what happened here was not a wholesale failure to follow the requirements of the ICWA. The error was technical and minor, and is subject to harmless error analysis. (In re Antoinette S. (2002) 104 Cal.App.4th 1401, 1409-1410.) We conclude that any error was indeed harmless.
First, DCS points out, the record itself is inconsistent on the issue of father’s correct birth date. Some parts of the record show September 15, 1959, as father’s birth date; but other places show his birth date as August 15, 1959. August 15, 1959, is the date actually included on the notices, and is thus consistent with some portions of the record. Mother responds that the ICWA notice requirements were not substantially complied with because “[c]learly, the record is unsettled on which date is correct.” To the contrary, in view of mother’s admission that she is unsure which is father’s correct birth date, her claim that the notices used an incorrect birth date is undermined.
Reversal of a judgment is only required when the appealing party carries the burden of showing a miscarriage of justice has occurred. (Cal. Const., art. VI, § 13.) Because mother has been unable to substantiate that the notice was in fact erroneous, she has failed to show any such miscarriage of justice.
Second, “[s]ubstantial compliance with the notice requirements of ICWA may be sufficient under certain circumstances.” (In re I.G. (2005) 133 Cal.App.4th 1246, 1252, citing In re Christopher I. (2003) 106 Cal.App.4th 533, 565; see also In re Kahlen W. (1991) 233 Cal.App.3d 1414, 1421-1422.) Here, both the BIA and the Zuni Tribe received actual notice of the dependency proceedings and the right to intervene. (In re Kahlen W., supra, 233 Cal.App.3d 1414, 1421-1422.) Both entities expressly declined to intervene.
Mother does not complain of any error in the information concerning the child, the paternal grandmother, the paternal great-grandmother, or the paternal great-great-grandmother. She does not complain of any error in the data concerning the child’s father, other than the birth date, which may or may not have been in error. All the other identifying information was, as far as known, complete and correct. Much of that information indicated that, in fact, the child was neither an Indian child nor eligible to be enrolled as an Indian child, inasmuch as several of father’s maternal ancestors denied any Indian heritage or association.
Third, as DCS points out, it is undisputed that father himself was not an enrolled member of any tribe, nor were his mother or grandmother (paternal grandmother and paternal great-grandmother). A child is an “Indian child” for purposes of the ICWA only when the child (1) is a member of a tribe, or (2) is eligible to be a member of a tribe through having a parent (here, father) who is a tribe member. (Cal. Rules of Court, rule 5.664(a)(1)(A) & (B).)
Mother cannot demonstrate, under the circumstances here, that giving further notices, with a different birth date for father, would be anything other than an essentially meaningless act, where all of the available information from the most knowledgeable relatives indicates that there is no Indian connection in father’s (and thus, the child’s) family.
Any error in the notices concerning father’s birth date must be deemed harmless under these circumstances.
DISPOSITION
The order terminating mother’s parental rights is affirmed.
We concur: Hollenhorst, Acting P.J., Richli, J.