as: 110 Cal.App.4th 1420, 3 Cal.Rptr.3d 16)
of Appeal, Third District, California.
re L. B., a Person Coming Under the Juvenile Court
County Department of Social Services, Plaintiff and Respondent,
N. et al., Defendants and Appellants.
Mario de Solenni, for Appellant Gregory N.; Sharon S. Rollo,
Chatsworth, for Appellant Tanya W., under appointments by the Court
Karen Keating Jahr, County Counsel, David M. Yorton, Jr., Deputy
County Counsel, for Plaintiff and Respondent.
Tonya W. and Gregory N., the mother and father of
the minor, appeal from the juvenile court's order terminating their
parental rights. (Welf. & Inst.Code, §§ 366.26,
395; further undesignated statutory references are to the Welfare and
Institutions Code.) Appellants contend the juvenile court erred by failing
to assure compliance with various provisions of the Indian Child
Welfare Act (ICWA). (25 U.S.C. § 1901
et seq.) We shall affirm.
AND PROCEDURAL BACKGROUND
In November 2001, the Shasta County Department of Social Services
(DSS) filed a dependency petition concerning the minor after he
was born while the mother was in state prison. The
petition alleged the mother had a lengthy criminal record, including
five drug-related convictions. According to the petition, the mother had
failed to reunify with four other children.
At a hearing in May 2002, the juvenile court denied
reunification services to the mother and set the matter for
a hearing pursuant to section 366.26.
Subsequently, the mother disclosed that Gregory N., who was in
prison, was possibly the minor's father. In July 2002, Gregory
N.'s paternity was confirmed through genetic testing.
The social worker's report for the section 366.26 hearing disclosed
that Gregory N. "may be eligible for enrollment in the
Cherokee tribe." The social worker reported: "Notice ( [DSS form]
Soc 319) was sent to the three Cherokee tribes on
7/19/2002." The social worker also reported that responses had been
from two of the tribes--the United Keetoowah *1423
Band and the Eastern Band of Cherokee Indians--"stat[ing] that the
is not eligible for enrollment...." Copies of these responses were
attached to the social worker's report.
At the section 366.26 hearing in October 2002, the juvenile
court found the minor adoptable and terminated appellants' parental rights.
Respondent has filed a motion to take additional evidence regarding
compliance with the ICWA, which evidence existed but was not
presented to the juvenile court at the time of the
hearing in question. Although Code of Civil Procedure section 909
permits an appellate court to take additional evidence, "the power
conferred upon appellate courts by [Code of Civil Procedure] section
909 is to be used sparingly and has been narrowly
construed. [Citations.]" (In
re Elise K.
(1982) 33 Cal.3d 138, 149, 187 Cal.Rptr. 483, 654 P.2d
253 (conc. opn. of Bird, C. J.).) "Decisions limiting the
use of this power involved attempts to introduce on appeal
evidence which (1) existed at the time of trial, (2)
was contested on appeal or was cumulative of evidence that
was contradicted at trial, and (3) was not conclusive on
the question for which its admission was sought." (Ibid.)
All of these reasons for limiting the introduction of new
evidence at the appellate level apply here. Therefore, we
deny respondent's motion.
The father contends that "reversal and remand is required because
the trial court failed to properly notify the tribes, appellant,
and the Secretary of the Interior of the pendency of
the proceedings." (Capitalization omitted.) We disagree.
Congress passed the ICWA in 1978 "to promote the stability
and security of Indian tribes and families by establishing minimum
standards for removal of Indian children from their families and
placement of such children 'in foster or adoptive homes which
will reflect the unique values of Indian culture....' " (In
re Levi U.
(2000) 78 Cal.App.4th 191, 195, 92 Cal.Rptr.2d 648; 25 U.S.C.
Choctaw v. Holyfield
(1989) 490 U.S. 30, 109 S.Ct. 1597, 104 L.Ed.2d 29.)
A major purpose of the ICWA is to protect "Indian
children who are members of or are eligible for membership
in an Indian tribe." (25 U.S.C. § 1901(3).)
For purposes of the ICWA, " 'Indian child' means any
unmarried person who is under age eighteen and 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." (25
U.S.C. § 1903(4).)
Among the procedural safeguards included in the ICWA is the
notice. The ICWA provides, in part: "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...." (25 U.S.C. § 1912(a).)
"Notice shall be sent to all tribes of which the
child may be a member or eligible for membership." (Cal.
Rules of Court, rule 1439(f)(3).) [FN2]
Further undesignated rule references are to the California Rules of
"Determination of tribal
membership or eligibility for membership is made exclusively by the tribe."
(Rule 1439(g).) "[O]ne of the primary purposes of giving
notice to the tribe is to enable the tribe to determine whether the child
involved in the proceedings is an Indian child. [Citation.]" (In
re Desiree F. (2000)
83 Cal.App.4th 460, 470, 99 Cal.Rptr.2d 688.) "The Indian status
of the child need not be certain to invoke the notice requirement. [Citation.]
Because the question of membership **19
rests with each Indian tribe, when the juvenile court knows or
has reason to believe the child may be an Indian child, notice must be
given to the particular tribe in question or the Secretary [of the Interior].
at p. 471, 99 Cal.Rptr.2d 688.)
Initially, we note that appellants have failed to provide us
a sufficient record to determine whether the juvenile court engaged
in additional inquiry regarding the ICWA notice provided. Following the
filing of the social worker's report containing the relevant information
concerning the minor's possible Indian heritage, three hearings took place,
yet the record on appeal includes a reporter's transcript from
only the last of these hearings. It is certainly possible
that, in response to inquiry from the court, additional information
was provided concerning the manner and content of the ICWA
notice that was provided to the tribes. It is appellants'
responsibility to provide a record that is adequate for appellate
review of their claims (see Ballard
(1986) 41 Cal.3d 564, 574, 224 Cal.Rptr. 664, 715 P.2d
624); as they have failed to do so, we are
unable to fully evaluate what measures the juvenile court may
have taken in regard to the claimed errors.
In any event, we conclude that the record adequately establishes compliance
with the relevant provisions of the ICWA. In the present matter, the social
worker discovered that the minor may have Cherokee Indian ancestry through
his biological father. This information was sufficient to trigger
the notice provisions of the ICWA, requiring notice "to all tribes
of which the child
may be a member or eligible for membership." (Rule 1439(d)(2)
and (f)(3).) The Federal Register, which lists the recognized Indian
entities, contains three Cherokee entities: the Cherokee Nation
of Oklahoma, the Eastern Band of Cherokee Indians of North Carolina, and
the United Keetoowah Band of Cherokee Indians of Oklahoma. (61 Fed.Reg.
58211 (Nov. 13, 1996).) Accordingly, the social worker reported that notice
was sent to "the three Cherokee tribes." Responses were
received from two of these *1425
tribes-- the United Keetoowah Band of Cherokee Indians in Oklahoma and
the Eastern Band of Cherokee Indians. Appellants do not suggest
there is insufficient evidence that the proper tribes were provided notice.
Instead, the father protests the absence in the record of
a proof of service establishing that notice was by certified
mail and that a copy of the petition was provided
with the notice. (See 25 U.S.C. § 1912(a);
rule 1439(f)(1).) He also complains it cannot be "ascertain[ed] if
the notice set forth current or previous addresses of the
parents or any other relatives." (See 25 C.F.R. § 23.11(a)
However, ordinarily, when a social worker's 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. (See Evid.Code, § 664.)
Thus, for example, in In
78 Cal.App.4th at page 195, 92 Cal.Rptr.2d 648, we rejected
the mother's claim that " '[a] conclusory statement in the
social worker's report' " that notice had been sent to
the Bureau of Indian Affairs (BIA) was insufficient to establish
compliance with the ICWA. In that case, the mother suggested
DSS was required to submit evidence of the actual notice,
a proof of service, and the responses received. (Ibid.)
This court held "[c]ontrary to appellant's assertion, there is no
requirement that [the social **20
services agency] demonstrate it did anything more than send notice....
at p. 198, 92 Cal.Rptr.2d 648.)
The forms utilized by DSS in this case (SOC 318
and SOC 319), which are issued by the State of
California Health and Welfare Agency and the Department of Social
Services to provide notice in compliance with the ICWA, direct
that a copy of the petition is to be attached
to the form. There is nothing in the record to
indicate that notice was in any way deficient and no
basis for us to conclude that DSS did not follow
the required procedures. Neither the ICWA nor rule 1439 requires
copies of the notices be made part of the record.
Thus, although the information in the record is minimal, we
find it sufficient to establish that notice in compliance with
the ICWA was provided to all possible tribes.
This court has suggested that, "[t]o satisfy the notice provisions
of the [ICWA] and to provide a proper record for
the juvenile court and appellate courts, [a social services agency]
should follow a two-step procedure" of sending proper notice to
all possible tribal affiliations and filing with the court copies
of the notices, the return receipts and any correspondence from
the tribes. (In
re Marinna J.
(2001) 90 Cal.App.4th 731, 739-740, fn. 4, 109 Cal.Rptr.2d 267;
see also In
(2002) 103 Cal.App.4th 1206, 1214-1215, 128 Cal.Rptr.2d 12; In
re Asia L.
(2003) 107 Cal.App.4th 498, 507-508, 132 Cal.Rptr.2d 733; In
re Jennifer A.
(2002) 103 Cal.App.4th 692, 702-703, 127 Cal.Rptr.2d 54.) However, while
this practice would head off numerous appellate complaints of non-compliance
with the ICWA, the second step of this procedure is
not required by the ICWA or by rule 1439. The
BIA's 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).) Those
Guidelines has not been adopted in California.
father also complains that the record does not reflect a copy of the ICWA
notice was sent to the BIA. The father is correct that the Code of Federal
Regulations requires copies of the ICWA notices to be sent to the Secretary
of the Interior and the area director of the BIA.
[FN4] (25 C.F.R.
§ 23.11(a).) There is nothing in the record to indicate
there was compliance with this requirement.
Notice to the BIA satisfies notice to the Secretary of
the Interior. (See 25 U.S.C. § 1a
[delegation to the BIA of powers and duties of the
Secretary of the Interior regarding laws governing Indian affairs].)
However, the father has failed to demonstrate any prejudice resulted
from this omission. (See In
re Antoinette S.
(2002) 104 Cal.App.4th 1401, 1411, 129 Cal.Rptr.2d 15.) "No judgment
shall be set aside, or new trial granted, in any
cause, ... for any error as to any matter of
procedure, unless, after an examination of the entire cause, including
the evidence, the court shall be of the opinion that
the error complained of has resulted in a miscarriage of
justice." (Cal. Const., art. 6, § 13.)
The record here indicates that the three federally recognized Cherokee
tribes were sent notice months before the section 366.26 hearing.
Thus, the tribes had ample time to investigate the minor's
tribal affiliation and to request any additional information that might
assist in this investigation. None of the tribes responded that
the minor was a member or eligible for membership. The
father has failed to demonstrate any prejudice flowed from the
failure to send copies of the ICWA notices to the
Next, the father complains that
was not provided notice in compliance with the ICWA. Again, he is correct
that the ICWA's provisions include a requirement that the parent of the
Indian child be provided notice. (25 U.S.C. § 1912(a).) However,
by failing to raise this issue in **21
juvenile court, appellant has waived it. (In
re Asia L., supra,
107 Cal.App.4th at p. 508, fn. 4, 132 Cal.Rptr.2d 733; see also
In re Jennifer A., supra,
103 Cal.App.4th at p. 707, 127 Cal.Rptr.2d 54.) Furthermore, appellant
participated in the proceedings, obviating the need to remand based on
any claimed deficiency in the notice he was provided. (In
re Jeffrey A. (2002)
103 Cal.App.4th 1103, 1109, 127 Cal.Rptr.2d 314; see In
re Kahlen W. (1991)
233 Cal.App.3d 1414, 1424, 285 Cal.Rptr. 507.)
The father argues that providing ICWA notice to parents "enables
them to note where the notices are being sent, and
what information is being provided to the tribal entities." This
argument is flawed because the ICWA does not require that
the parents receive copies of the documents sent to the
tribes. (See 25 U.S.C. § 1912(a).)
The father's claim that he was precluded from *1427
contesting the sufficiency of the ICWA notice because he was
not provided copies is similarly flawed--had he requested copies of
the notices, he could have challenged any perceived inadequacies.
Finally, the mother contends the
juvenile court was required to apply the
higher evidentiary standards of the ICWA at the section 366.26 hearing,
citing rule 1439(e). She is incorrect.
Aside from its notice provisions, the ICWA applies only to
Indian children. (25 U.S.C. § 1901
et seq.; see rule 1439(b) and (g)(5).) Only when information
before the juvenile court is sufficient to show that the
child is a member of a tribe, or is eligible
for membership and is the child of a member, does
rule 1439(e) require compliance with all of the provisions of
the ICWA. On the other hand, when no response is
received from the tribes after proper inquiry and notice, this
is "tantamount to [a] determination[ ] that the minor [i]s
not an 'Indian child' within the meaning of the [ICWA]."
re Levi U., supra,
78 Cal.App.4th at p. 198, 92 Cal.Rptr.2d 648.) Under such
circumstance, "neither the court nor [the social services agency] ha[s]
any further obligations under the [ICWA]." (Id.
at p. 199, 92 Cal.Rptr.2d 648.)
The juvenile court's order is affirmed.
We concur: BLEASE, Acting P.J., and NICHOLSON, J.