Opinion
B165746.
11-25-2003
In re J. K., a Person Coming Under the Juvenile Court Law. LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent, v. DAWN B., Defendant and Appellant.
Holly J. Jackson, under appointment by the Court of Appeal, for Defendant and Appellant. Lloyd W. Pellman, County Counsel, and Kim Nemoy, Deputy County Counsel, for Plaintiff and Respondent.
Dawn B., the mother of J.K. (born in Aug. 1994), appeals from adjudication and disposition orders of February 24 and 25, 2003, declaring J.K. a dependent of the juvenile court under Welfare and Institutions Code section 300, subdivisions (b) and (c), removing her from parental custody, and ordering reunification services. Dawn B. seeks to vacate the dispositional order and all previous orders on the grounds that the Department of Children and Family Services (DCFS) failed to comply with the notice requirements of the Indian Child Welfare Act (25 U.S.C. §§ 1901—1952) (hereafter ICWA) and the juvenile court failed to make any findings as to J.K.s Indian heritage. We affirm the orders because our record is sufficient to establish compliance with the notice provisions of the ICWA and any omissions with respect to the issue of notice constitute harmless error.
FACTUAL AND PROCEDURAL BACKGROUND
Dawn B. (Mother) and J.K.s father, M.K. (Father), had been involved in an acrimonious paternity and custody dispute in the family law court for about seven years, during which time each parent had accused the other of domestic violence and each parent had reported the other to DCFS for child abuse. Mother had primary physical custody of J.K. and Father had visitation several days per week. From January 2002 until August 2002, DCFS had an open voluntary family maintenance case on the family because of the repeated reports of abuse. DCFS was not able to substantiate the allegations of physical abuse of J.K., but determined there may be "possible emotional abuse of the child" by the parents. On September 12, 2002, DCFS detained J.K. and placed her in a foster home because of ongoing conflicts between the parents and ongoing allegations by J.K. that Father hit her and touched her inappropriately. J.K. remained in foster care throughout these proceedings.
At a September 17, 2002 detention hearing, Mothers counsel informed the juvenile court that Mother believed that she was part of the Shoshone Tribe in Louisiana. The court ordered DCFS to investigate the matter and stated that any information that Mother could give DCFS as to her Indian heritage would be very helpful and important. On October 10, 2002, DCFS, by certified or registered mail, sent notice of the proceedings to the Te-Moak Shoshone Tribe, as well as to the Cherokee Nation of Oklahoma, and the Bureau of Indian Affairs (BIA). The notices contained the names of the child and both parents, their birth dates, and places of birth; the notices also contained the date the dependency petition was filed, the date of the next hearing, and contact information for the juvenile court and the caseworker. The record contains copies of the notices and proofs of service for each notice.
By a letter dated November 6, 2002, the Te-Moak Tribe of Western Shoshone (Tribe) wrote that neither J.K. nor Mother were enrolled with the Tribe. The record contains no return receipts and no responses from the Cherokee Nation or the BIA.
On February 24, 2003, the court sustained an amended petition pursuant to Welfare and Institutions Code section 300, subdivisions (b) (neglect) and (c) (emotional abuse), based on findings that the parents were engaged in an ongoing family law dispute resulting in their making child abuse allegations against each other and violating orders issued by the family law court, by engaging in domestic disputes and making negative comments about each other in the presence of J.K., and that the parents actions caused emotional and social problems for J.K. After a contested dispositional hearing, the court removed J.K. from parental custody and ordered DCFS to provide reunification services.
Mother filed a timely notice of appeal from the jurisdictional and dispositional orders. She does not challenge the merits of those orders but contends that those orders, as well as all previous orders, should be vacated because DCFS failed to comply with the notice provisions of the ICWA and the juvenile court failed to make findings regarding J.K.s Indian heritage. With respect to notice, Mothers principal complaint is that DCFS failed to obtain or file with the court the signed return receipts for the notices.
DISCUSSION
"The ICWA is designed `to protect the interests of the Indian child 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 child custody proceedings involving an `Indian child or intervene in the state court proceedings. The notice requirements of the ICWA ensure a tribe will have `the opportunity to assert its rights under the statute." (In re C.D. (2003) 110 Cal.App.4th 214, 222, fn. omitted.) "The ICWA defines an Indian child as an unmarried person under the age of 18 who `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. (§ 1903(4).)" (In re Antoinette S. (2002) 104 Cal.App.4th 1401, 1406 (Antoinette S.).)
Each Indian tribe has sole authority to determine its membership criteria and who meets those criteria; a tribes determination that the child is or is not a member of or eligible for membership in the tribe is conclusive. (Dwayne P. v. Superior Court (2002) 103 Cal.App.4th 247, 255; see also Cal. Rules of Court, rule 1439(e) [determination by the tribe or the BIA "that the child is not an Indian child shall be definitive"] and rule 1439(g)(1) ["tribes determination that the child is or is not a member of or eligible for membership in the tribe is conclusive"].)
A courts failure to comply with the notice provisions of the ICWA is not jurisdictional error. (Antoinette S., supra, 104 Cal.App.4th at p. 1411.) Although deficient notice is usually prejudicial, it is not invariably so. (Ibid .) In Antoinette S., the court held that a violation of the ICWA notice provision was harmless error, where the Court of Appeal accepted new evidence on appeal consisting of the BIAs negative response to a notice (sent to the BIA the day before the termination hearing), which response constituted evidence that no Indian heritage could be traced for the child. (Id. at pp. 1412—1413; see also In re H. A. (2002) 103 Cal.App.4th 1206, 1213 [failure to comply with ICWA notice requirements is prejudicial error unless a tribe has participated in or expressly indicated no interest in the proceedings].)
Where a child services department does not know the identity of the tribe, section 1912(a) of the ICWA and California Rules of Court, rule 1439(f)(4), require the department to send notice to the BIA. (In re Levi U. (2000) 78 Cal.App.4th 191, 198 (Levi U.).)
In this case, we follow In re L. B. (2003) 110 Cal.App.4th 1420 (L. B.), which holds: "[O]rdinarily, when a social workers report or other documentation indicates that ICWA notice has been provided, it can properly be presumed that such notice complied with the requirements of the ICWA in the absence of any evidence in the record to the contrary or any challenge to this representation in juvenile court." (Id . at p. 1425.) While the social service agency should follow a two-step procedure of (1) sending notice to all possible tribal affiliations and (2) filing with the court copies of the notices, the return receipts, and any correspondence from the tribes, "the second step of this procedure is not required by the ICWA or by rule 1439. The BIAs `Guidelines for State Courts; Indian Child Custody Proceedings, which are advisory only, would require copies of notices and return receipts or other proof of service to be filed with the court. (44 Fed.Reg. 67584, 67588 (Nov. 26, 1979).) This Guideline has not been adopted in California." (L. B., supra, 110 Cal.App.4th at pp. 1425—1426, fn. 3; contra, In re Asia L. (2003) 107 Cal.App.4th 498, 507—509 [failure to file with the juvenile court copies of the completed notice forms, return receipt cards, and correspondence from tribes was reversible error because neither trial nor appellate court had ability to evaluate whether the forms were defective and record provided reason to question whether proper designated agent for tribes had been served].)
Pursuant to L. B., we reject Mothers contention that the lack of any return receipts for the notices establishes a failure to comply with the notice provisions of the ICWA. The copies of the notices and proofs of service, and the lack of any evidence to the contrary, are sufficient to establish that DCFS and the juvenile court complied with the notice requirements of the ICWA. And our record also establishes that the Te-Moak Tribe of Western Shoshone received actual notice because the Tribe responded to it. Finally, we are bound by the determination by the Tribe that neither Mother nor J.K. is enrolled with the Tribe. Accordingly, to the extent that any failure by DCFS to document any return receipts or response by the Tribe at the time of the dispositional hearing constitutes error, it was harmless error. To the extent that the juvenile court erred in failing to make an explicit or implicit determination of J.K.s membership in the Tribe, such error also would be harmless and it would afford no ground for reversal. (Antoinette S., supra, 104 Cal.App.4th at pp. 1413—1414.)
In light of the lack of response by BIA and the Cherokee Nation of Oklahoma to the notice, neither the court nor DCFS had any further obligations under the ICWA. The record fails to indicate why DCFS sent notice to the Cherokee Nation of Oklahoma, as there is nothing in our record to indicate that Mother or Father claimed any Cherokee heritage. The record indicates that Mother claimed only Shoshone heritage. "`Neither the [ICWA] nor the various rules, regulations, and case law interpreting it requires [a child services department] or the juvenile court to cast about, attempting to learn the names of possible tribal units to which to send notices, or to make further inquiry with the BIA. ([Levi U., supra,] 78 Cal.App.4th 191, 199 . . . .) In Levi U., however, we observed that, when a party proffers the name of a tribe, there is a duty to notify the tribe. There, `the lack of any information suggesting anyone in the family had a specific tribal affiliation constituted a determination that neither appellant nor the minor was eligible to become tribal members. (Id. at p. 198.)" (In re Marinna J. (2001) 90 Cal.App.4th 731, 737.)
Assuming that DCFS had a duty to notice the BIA and the Cherokee Nation of Oklahoma, our record contains sufficient evidence that DCFS fulfilled that duty. In addition, "the lack of any response from the BIA, and the absence of any communication sent to [DCFS] by a tribe, were tantamount to determinations that the minor was not an `Indian child within the meaning of the [ICWA]." (Levi U., supra, 78 Cal.App.4th at p. 198.)
The juvenile court here could have reasonably inferred that the BIA and the Cherokee Nation of Oklahoma were sent notice of the dependency proceedings and the available information about J.K.s heritage and that the organizations chose not to intervene in the proceedings. Under those circumstances, the juvenile court "was not even required to make an express determination whether the [ICWA] applied to the proceedings." (Levi U. , supra, 78 Cal.App.4th at p. 199.) Even if the juvenile court were required to make an express finding on the issue of J.K.s Indian heritage, such purported error would be harmless because there was no showing that J.K. was an Indian child under the ICWA.
Mother fails to establish any violation of the notice provisions of the ICWA or that the juvenile court erred in impliedly finding that the ICWA was inapplicable.
DISPOSITION
The orders are affirmed.
We concur: SPENCER, P. J. and VOGEL (MIRIAM A.), J.
This letter was not in the clerks transcript and does not appear to have been brought to the attention of the juvenile court. On September 4, 2003, we granted DCFSs motion to take additional evidence on appeal, to wit, the November 6, 2002 letter. Appellate counsel for DCFS declared that she received a copy of the letter from the social worker in August 2003.