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Kern Cnty. Dep't of Human Servs. v. E.D. (In re Christina F.)

COURT OF APPEAL OF THE STATE OF CALIFORNIA FIFTH APPELLATE DISTRICT
Jul 25, 2017
F074461 (Cal. Ct. App. Jul. 25, 2017)

Opinion

F074461

07-25-2017

In re CHRISTINA F. et al., Persons Coming Under the Juvenile Court Law. KERN COUNTY DEPARTMENT OF HUMAN SERVICES, Plaintiff and Respondent, v. E.D., Defendant and Appellant.

S. Lynne Klein, under appointment by the Court of Appeal, for Defendant and Appellant. Mark L. Nations, Interim County Counsel, and Jennifer E. Feige, Deputy County Counsel, for Plaintiff and Respondent.


NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. Nos. JD134905 & JD134906)

OPINION

APPEAL from a judgment of the Superior Court of Kern County. Peter A. Warmerdam, Juvenile Court Referee. S. Lynne Klein, under appointment by the Court of Appeal, for Defendant and Appellant. Mark L. Nations, Interim County Counsel, and Jennifer E. Feige, Deputy County Counsel, for Plaintiff and Respondent.

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INTRODUCTION

E.D. (Mother) appeals from orders of the juvenile court terminating parental rights to Christina F. and Richard F., Jr. (collectively, Minors). (Welf. & Inst. Code, § 366.26.) Mother contends the court failed to ensure the Kern County Department of Human Services (Department) provided proper notice under the Indian Child Welfare Act of 1978 (ICWA; 25 U.S.C. § 1901 et seq.) to the Colorado River Indian Tribes of which Mother is an enrolled member.

Further statutory references are to the Welfare and Institutions Code unless otherwise specified.

Mother's contention on appeal does not challenge the adequacy of the content of the ICWA notices sent by Department for Minors in this case. Rather, Mother essentially claims that service of the notices was defective because, although Department undisputedly mailed the notices to the correct address for service on the Colorado River Indian Tribes, the notices were addressed to the wrong person. (See § 224.2, subd. (a)(2) ["Notice to the tribe shall be to the tribal chairperson, unless the tribe has designated another agent for service."].)

We reject Mother's claim because the record demonstrates the Colorado River Indian Tribes had actual notice of the dependency proceedings and elected not to participate, rendering any alleged defect in the service of the ICWA notices harmless. (Compare In re J.T. (2007) 154 Cal.App.4th 986, 994 (J.T.) [failure to address notice to any specific individual was error, and, where the tribe did not respond to the notice, the error was not harmless].) Accordingly, we affirm the orders terminating parental rights.

Because the record compels us to dispose of Mother's appeal in Department's favor, we deny, as moot, Department's December 16, 2016, motion, seeking leave to produce additional evidence on appeal and dismissal of the appeal.

FACTUAL AND PROCEDURAL BACKGROUND

Because Mother does not challenge the juvenile court's substantive findings or orders, we give an abbreviated summary of the facts and procedures of the dependency proceedings, focusing on those relating to ICWA compliance.

In July 2015, Minors were living with Mother and their father, Richard F., Sr. (Father), in a "'shack'" from which the family was previously directed to vacate due to a gas leak and the absence of fire alarms or smoke detectors. The home had no front door or running water, an illegal electricity hookup, and trash and food items scattered all over the floor. In addition, lighters and a small "'blunt'" were located in reach of Minors. Further investigation revealed Mother and Father both smoked methamphetamine and marijuana on a regular basis. Department filed dependency petitions on behalf of Minors on July 8, 2015, and the juvenile court ordered Minors detained the following day.

At the uncontested detention hearing on July 9, 2015, the juvenile court stated it had "ICWA statements from both parents" and noted that, while Father claimed no Native American ancestry, Mother claimed to be a member of the Colorado River Indian Tribes. The court then asked whether Mother had an "enrollment number." Mother's counsel replied that Mother "has her ID with her." The court responded: "Great. That takes care of that issue. [¶] So the court at this time will find that these children are members or eligible for membership in a tribe that falls within the [ICWA], therefore, the act does apply to them."

At the uncontested jurisdiction hearing on August 11, 2015, Department's counsel advised the juvenile court she anticipated the case would be "transferred to the tribe." Counsel further stated:

"It took them a while to take the other children who were next door in [Department] J-4 [of the Kern Superior Court]. And I don't know how long it's gonna take. So I'm submitting on jurisdiction, and hopefully we can put out disposition in six weeks or so and that will give them enough time to work it out."

The other parties then submitted on the issue of jurisdiction and the juvenile court found the specific allegations of the dependency petitions to be true and Minors were persons described under section 300, subdivision (b).

After making these findings, the juvenile court had the following discussion with the parties concerning when to set the disposition hearing in view of the tribal transfer anticipated by Department's counsel:

"[DEPARTMENT'S COUNSEL]: Judge, I would expect approximately six weeks. I would hope that in that time frame, we can contact the tribe and find out when they are gonna file their motion. I would imagine, based on my understanding of the case, that they are gonna transfer this unless there is an objection from the family.

"THE COURT: Okay. Now, there was a reference to the siblings of—

"[DEPARTMENT'S COUNSEL]: These aren't—they are not siblings. They are cousins actually.

"THE COURT: Okay.

"[DEPARTMENT'S COUNSEL]: There was a whole set of cases the court transferred next door, but we had this one left.

"THE COURT: All right.

"[MINORS' COUNSEL]: And the tribe took those kids?

"[DEPARTMENT'S COUNSEL]: Yeah.

"THE COURT: Okay. So do we want—do we want to keep them coordinated in any way? Do we have dates that have already been set?

"[DEPARTMENT'S COUNSEL]: No, not that I'm aware of."

According to the report prepared for the jurisdiction hearing, Mother told the social worker that the Colorado River Indian Tribes "already intervened in her sister's case" and "she did not want the tribe to take [Minors] out of Kern County," but was hoping they would be placed with their paternal grandmother. Our record does not contain any specific details concerning the referenced dependency proceedings involving Mother's sister or the reasons for the tribe's intervention in that case.

Following this discussion, the juvenile court set the disposition hearing for September 23, 2015, observing that "[i]f the tribe intervenes in the meantime and takes over, they'll have enough time to do that between now and then."

The report prepared by the social worker for the disposition hearing contained the following pertinent information:

"On August 12, 2015, hearing notices were mailed to the Bureau of Indian Affairs, Secretary of the Interior and the Colorado River Indian Tribe[s] (Kennedy [Drive]) and Colorado River Indian Tribes (Mohave [Road]), via certified return receipt mail, notifying the agencies and tribe of the September 23, 2015, Dispositional Hearing. [¶] ... [¶]

"[M]other is an enrolled member of the Colorado River Indian Tribe[s]. The Tribe has been notified of the dependency proceedings and has chosen not to intervene in the proceedings. [¶] ... [¶]

"On September 9, 2015, written correspondence was received from Elizabeth Mills, Deputy Attorney General for the Colorado River Indian Tribes, 26600 Mohave Road, Parker, AZ .... Ms. Mills noted that the children's cases are not being transferred to the Tribe and there are no Indian placements available for the children."

At the beginning of the uncontested disposition hearing on September 23, 2015, this exchange took place:

"[DEPARTMENT'S COUNSEL]: ... [D]epartment sent notice back in July to the Bureau of Indian Affairs and the Colorado River Indian Tribes. I had a communication from the Colorado River Indian Tribal attorney, Elizabeth Mills, indicating that these were not—these children were not going to be eligible for membership with the tribe. So on that basis, I'm asking the court to go forward.

"THE COURT: All right. The court will find proper notice was provided to the Colorado River Indian Tribe[s]. The court finds that there is no evidence to indicate that these children are eligible for membership or are members, therefore, the [ICWA] does not apply."

The juvenile court thereafter granted reunification services to Mother and Father and set a six-month review hearing.

At the uncontested six-month review hearing on April 8, 2016, the juvenile court, finding clear and convincing evidence Mother and Father had failed to participate regularly and make substantive progress in their court-ordered treatment plans, terminated their reunification services and set a section 366.26 hearing.

At the uncontested section 366.26 hearing on August 5, 2016, the juvenile court terminated Mother's and Father's parental rights over Minors.

DISCUSSION

Mother contends we must conditionally reverse the orders terminating her parental rights over Minors and order a limited remand for the juvenile court to order Department to send "proper ICWA notice" to the Colorado River Indian Tribes. As mentioned above, the only defect in notice Mother claims is in the service of the ICWA notices on the tribe. For reasons discussed below, we conclude any error in service was harmless.

Notice to the tribe must be sent to the tribal chairperson, unless the tribe has designated another agent for service. (§ 224.2, subd. (a)(2).) The designated tribal agents are published in the Federal Register. (See J.T., supra, 154 Cal.App.4th at p. 994; In re Alice M. (2008) 161 Cal.App.4th 1189, 1201; 25 C.F.R. § 23.12 [names and addresses of designated agents are published in Federal Register].)

"The purpose of the requirement that notice be sent to the designated persons is to ensure that notice is received by someone trained and authorized to make the necessary ICWA determinations, including whether the minors are members or eligible for membership and whether the tribe will elect to participate in the proceedings." (J.T., supra, 154 Cal.App.4th at p. 994, italics added.) "Deficiencies in an ICWA notice are generally prejudicial but may be deemed harmless under some circumstances. [Citation.] Thus, where notice has been received by the tribe, as it was in this case, errors or omissions in the notice are reviewed under the harmless error standard." (In re E.W. (2009) 170 Cal.App.4th 396, 402-403.)

Here, the Department sent ICWA notices for Minors to the following address: Colorado River Indian Tribes, Daniel L. Barbara, M.Ed., Executive Director, Department of Health and Social Services, 12302 Kennedy Drive, Parker, AZ 85344. While Mother concedes the notices were sent to the correct street address, she argues they failed to provide proper ICWA notice to the tribe because, at that time, the Federal Register listed a different designated agent for service; namely, Ray Barnett, Social Services Manager. (79 Fed.Reg. 72009 (Dec. 4, 2014).) Thus, Mother complains service of the notices was defective because Department failed to "address the notice to Ray Barnett or include the correct title of Social Services Manager."

Mother challenges on similar grounds the ICWA notices Department sent to the following address: Colorado River Indian Tribes, Office of the Attorney General, 26600 Mohave RD, Parker, AZ 85344. Mother observes Department failed to direct these notices to either the designated agent or the street address then listed in the Federal Register.

Mother's claim that reversible error occurred because the juvenile court failed to ensure Department provided proper ICWA notice to the Colorado River Indian Tribes fails because Mother has not demonstrated the outcome would have been different had Department sent its ICWA notices to the tribal chairperson or designated tribal agent then listed in the Federal Register. Indeed, any error in the service of the ICWA notice appears to be harmless because, despite Mother's contrary assertions, the record contains evidence showing the Colorado River Indian Tribes received actual notice of the proceedings and that Department substantially complied with section 224.2, subdivision (a)(2)'s purpose of ensuring receipt of notice by a person charged with making ICWA determinations for the tribe.

The social worker's report for the uncontested disposition hearing on September 23, 2015, at which time the juvenile court found proper ICWA notice had been given, set forth the unchallenged facts that notice of the dependency proceedings had been given to the Colorado River Indian Tribes and the tribe had elected not to participate in the proceedings. A little later, the report specifically referenced "written correspondence" received on September 9, 2015, from the "Deputy Attorney General for the Colorado River Indian Tribes," advising that Minors were "not being transferred to the Tribe" and "no Indian placements [were] available" for Minors. (Italics added.) The social worker's report is admissible and competent evidence of the facts asserted therein. (See § 281; see also In re M.B. (2011) 201 Cal.App.4th 1057, 1071 [§ 281 is very broad, and is generally understood to authorize the admission of a social worker's report, including hearsay in the report, in any dependency proceeding]; In re Keyonie R. (1996) 42 Cal.App.4th 1569, 1572-1573 [Legislature intended that social worker reports be admitted as competent evidence in dependency proceedings].)

The social worker's apparent failure to file a copy of the written correspondence referenced might arguably constitute a violation of section 224.2, subdivision (c), which provides: "Proof of the [ICWA] notice, including copies of notices sent and all return receipts and responses received, shall be filed with the court in advance of the hearing ...." (Italics added.) However, Mother cites, and we are aware of no authority, that failure to comply with the statute would preclude the court from considering the social worker's description of the correspondence reportedly received from the deputy attorney general representing the Colorado River Indian Tribes as evidence the tribe received actual notice of the dependency proceedings. --------

Even if Minors might have otherwise qualified for enrollment in the Colorado River Indian Tribes, the record provides no basis for Mother's suggestion the tribe would have elected to intervene in Minors' dependency proceedings if the ICWA notices had been sent to the tribal chairperson or designated agent in strict compliance with section 224.2, subdivision (a)(2). Mother offers no evidence or persuasive reason that would lead us to doubt the tribe had actual notice of the proceedings or that Elizabeth Mills, the person identified in the social worker's report as the "Deputy Attorney General for the Colorado River Indian Tribes" was not a person trained or authorized to make the necessary ICWA determinations.

On this record, "[r]equiring literal [ICWA] compliance solely by reference to the names and addresses listed in the last published Federal Register would exalt form over substance." (In re. N.M. (2008) 161 Cal.App.4th 253, 268.) In light of evidence the Colorado River Indian Tribes received actual notice of the dependency proceedings and chose not to intervene, any error in service of the ICWA notices at issue was harmless and the juvenile court could properly determine, "as a matter of fact from all the circumstances" that the tribe was given "appropriate notice" of the proceedings. (In re N.M., supra, at p. 268; see In re. I.W. (2009) 180 Cal.App.4th 1517, 1531, 1532 [ICWA notices do not have to be perfect; de minimus deficiencies and inaccuracies are not cause for reversal].)

DISPOSITION

The orders terminating parental rights are affirmed.

/s/_________

MEEHAN, J. WE CONCUR: /s/_________
DETJEN, Acting P.J. /s/_________
PEÑA, J.


Summaries of

Kern Cnty. Dep't of Human Servs. v. E.D. (In re Christina F.)

COURT OF APPEAL OF THE STATE OF CALIFORNIA FIFTH APPELLATE DISTRICT
Jul 25, 2017
F074461 (Cal. Ct. App. Jul. 25, 2017)
Case details for

Kern Cnty. Dep't of Human Servs. v. E.D. (In re Christina F.)

Case Details

Full title:In re CHRISTINA F. et al., Persons Coming Under the Juvenile Court Law…

Court:COURT OF APPEAL OF THE STATE OF CALIFORNIA FIFTH APPELLATE DISTRICT

Date published: Jul 25, 2017

Citations

F074461 (Cal. Ct. App. Jul. 25, 2017)