In re F.R. CA4/2

Filed 11/6/14 In re F.R. CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION TWO

In re F.R. et al., Persons Coming Under the
Juvenile Court Law.

SAN BERNARDINO COUNTY E061331
CHILDREN AND FAMILY SERVICES,
(Super.Ct.Nos. J247661, J247662)
Plaintiff and Respondent,
OPINION
v.

A.R.,

Defendant and Appellant.

APPEAL from the Superior Court of San Bernardino County. Cheryl C. Kersey,

Judge. Affirmed.

Lori A. Fields, under appointment by the Court of Appeal, for Defendant and

Appellant.

Jean-Rene Basle, County Counsel, and Kristina M. Robb, Deputy County

Counsel, for Plaintiff and Respondent.

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 A.R. (father) appeals from an order terminating parental rights to his twin infant

sons, F.R. and A.R., Jr. His sole appellate contention is that the trial court and County

Children and Family Services (Department) gave notice of the proceedings in a manner

that failed to conform fully with the Indian Child Welfare Act (ICWA) (25 U.S.C. § 1901

et seq.) and related federal and state law.

We will hold that the father did not forfeit this contention by failing to appeal

earlier, immediately after the juvenile court found that ICWA did not apply. However,

on the merits, we will hold that the trial court’s implied rejection of most of the asserted

defects in the notice was supported by substantial evidence, and the remaining defects

were harmless.

I

PROCEDURAL BACKGROUND

The father and A.C. (mother) are the parents of twins, F.R. and A.R., Jr.

(collectively children). When the children were born, they tested positive for

methamphetamine. At the time, the father was in jail; his expected release date was 18

months away. About three weeks after the birth, the mother was arrested for a parole

violation. Thus, the Department detained the children and filed dependency petitions as

to them.1

1 At the same time, the Department also detained and filed a petition
regarding the children’s half-sister, N.C. Because the only appellant is the children’s
father, and because he is not the father of N.C., N.C. is not a party to this appeal.

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 In February 2013, at the jurisdictional/dispositional hearing, the juvenile court

found jurisdiction over the children based on failure to protect (Welf. & Inst. Code,

§ 300, subd. (b)) and failure to support (id., § 300, subd. (g).) It formally removed the

children from the parents’ custody and ordered reunification services for both parents.

In August 2013, at the six-month review hearing, the juvenile court terminated

reunification services and set a hearing pursuant to Welfare and Institutions Code section

366.26 (section 366.26).

In January 2014, the children were placed with their paternal grandmother, who

wanted to adopt them.

In May 2014, at the section 366.26 hearing, the juvenile court terminated parental

rights.

II

ICWA NOTICE

A. Additional Factual and Procedural Background.

The mother filed an ICWA form stating that she “may have” either Cherokee or

Papago ancestry. At the detention hearing, she confirmed this. The maternal

grandmother, who was also present, stated that her grandfather was a “full-blooded

Cherokee.”

A Department staffer sent ICWA notices to the three federally recognized

Cherokee tribes (the Cherokee Nation of Oklahoma, the Eastern Band of Cherokee

Indians, and the United Keetoowah Band of Cherokee Indians), the two federally

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recognized Papago tribes (the Ak Chin Indian Community Council and the Tohono

O’Odham Nation), and the Bureau of Indian Affairs (BIA). (See State Department of

Social Services, Federally-Recognized Tribes: ICWA Contacts for Noticing Purposes

(2014).2)

The notices included the following information about the mother and her

immediate ancestors:
Current Maiden Current Former
name name address address Birthdate Birthplace

Mother X X X X X

Maternal X X City & X
grandmother state
only

Maternal X City & state
grandfather only

Maternal great- First Not
grandmother name applicable
only (deceased)

Maternal great- X City & state X Month &
grandfather only day only

Maternal great- X State only Month &
grandmother day only

Maternal great-
grandfather

2 Available at , as of
Oct. 29, 2014.

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 With regard to all information not given, the notices stated, “No information

available.” The notices also stated, “I/we have given all information I/we have about the

relatives . . . of the child . . . .” The staffer executed them under penalty of perjury.

The Department represented to the court that it had received responses from all

five tribes “indicating the child does not qualify for membership.” It also filed copies of

the following responses from four of the tribes:

1. The Cherokee Nation of Oklahoma responded that, to make a determination, it

needed the complete name and date of birth of (1) the father, (2) the maternal

grandfather, and (3) one of the maternal great-grandmothers.

The staffer wrote back, stating that she had “contacted the parents/relatives,” and

there was “[n]o additional information.”

The Cherokee Nation of Oklahoma then responded that the information provided

was insufficient for it to make a determination, and it was “closing [the] inquiry.”

2. The United Keetoowah Band of Cherokee Indians responded that, based on the

information provided, there was no evidence that the children were members or eligible

to be members of the tribe.

3. The Eastern Band of Cherokee Indians responded that, based on the

information provided, the children were not members or eligible to be members of the

tribe.

4. The Ak Chin Indian Community Council responded that it had determined that

the children were not members or eligible to be members of the tribe.

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 The Department did not file the response from the Tohono O’Odham Nation.

In April 2013, at a “non-appearance review” hearing, the juvenile court found that

“ICWA does not apply.”

B. Analysis.

1. Legal background.

“Congress enacted ICWA to further the federal policy ‘“that, where possible, an

Indian child should remain in the Indian community . . . .”’ [Citation.]” (In re W.B.

(2012) 55 Cal.4th 30, 48.) “In certain respects, California's Indian child custody

framework sets forth greater protections for Indian children, their tribes and parents than

ICWA. [Citations.] Both federal and state law expressly provide that if a state or federal

law provides a higher level of protection to the rights of the parent or Indian guardian of

an Indian child, the higher standard shall prevail. [Citations.]” (In re Jack C. (2011) 192

Cal.App.4th 967, 977.)

Under ICWA, whenever “the court knows or has reason to know that an Indian

child is involved,” notice of the proceedings must be given to “the parent . . . and the

Indian child’s tribe. . . .” (25 U.S.C. § 1912(a).) “If the identity . . . of the . . . tribe

cannot be determined,” the notice must be given to the BIA. (Ibid.; 25 C.F.R. § 23.11(b),

(c).) “The juvenile court ‘“needs only a suggestion of Indian ancestry to trigger the

notice requirement.”’ [Citation.]” (In re J.M. (2012) 206 Cal.App.4th 375, 380.)

Under federal regulations implementing ICWA, as well as under state law, the

notice must include the names (including maiden, married, and former names), current

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and former addresses, birthdates, and places of birth and death of the child’s parents,

grandparents, and great grandparents, “if known.” (25 C.F.R. § 23.11(a), (d); Welf. &

Inst. Code, § 224.2, subd. (a)(5)(C).) Under state law, “[p]roof of the notice, including

copies of notices sent and all return receipts and responses received, shall be filed with

the court . . . .” (Welf. & Inst. Code, § 224.2, subd. (c).)

State law further provides that “[t]he court [and the] county welfare department

. . . have an affirmative and continuing duty to inquire whether a child for whom a

[dependency] petition . . . has been[] filed is or may be an Indian child . . . .” (Welf. &

Inst. Code, § 224.3, subd. (a); see also Cal. Rules of Court, rule 5.481(a).) “If the court

[or] social worker . . . knows or has reason to know that an Indian child is involved, the

social worker . . . is required to make further inquiry regarding the possible Indian status

of the child, and to do so as soon as practicable, by interviewing the parents, Indian

custodian, and extended family members . . . .” (Welf. & Inst. Code, § 224.3, subd. (c).)

“The juvenile court must determine whether proper notice was given under ICWA

and whether ICWA applies to the proceedings. [Citation.] We review the trial court’s

findings for substantial evidence. [Citation.]” (In re E.W. (2009) 170 Cal.App.4th 396,

403-404.)

“A notice violation under ICWA is subject to harmless error analysis. [Citation.]

‘An appellant seeking reversal for lack of proper ICWA notice must show a reasonable

probability that he or she would have obtained a more favorable result in the absence of

the error.’ [Citation.]” (In re Autumn K. (2013) 221 Cal.App.4th 674, 715.)

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 2. Failure to appeal from the ICWA finding.

Preliminarily, the Department contends that the father has forfeited his contention

by failing to appeal sooner and by failing to raise the contention in such an appeal.

The leading case on which the Department relies is In re Pedro N. (1995) 35

Cal.App.4th 183 [Fifth Dist.]. There, at the disposition hearing in July 1992, the mother

indicated that she was a member of a particular Indian tribe. Nevertheless, the trial court

proceeded to make dispositional orders. The social services agency never gave notice to

the tribe. (Id. at p. 187.) In August 1994, the juvenile court terminated parental rights.

(Id. at p. 185.)

The appellate court held that the mother could not raise the failure to give ICWA

notice in an appeal from the termination order: “Although the proceedings leading up to

and including the juvenile court’s disposition were appealable [citations], the mother did

not raise the question of notice until the court terminated her rights approximately two

years later. . . . An appeal from the most recent order entered in a dependency matter

may not challenge prior orders for which the statutory time for filing an appeal has

passed. [Citation.] Here, the mother could have challenged the court’s decision to

proceed at the dispositional hearing and did not do so.” (Id. at p. 189.) In conclusion, it

cautioned, “we have only addressed the rights of the mother and do not attempt to

determine the rights of any tribe . . . .” (Id. at p. 191.)

A string of subsequent cases rejected Pedro N. In In re Marinna J. (2001) 90

Cal.App.4th 731 [Third Dist.], the court noted that ICWA gives Indian tribes specific

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rights, including not only the right to notice, but also the right to “petition any court to

invalidate a child dependency proceeding on a showing of a violation of the notice

provisions of the Act.” (Id. at p. 738.) When a tribe does not receive notice, it is unable

to assert its rights under ICWA. (Id. at p. 739.) The court concluded that “it would be

contrary to the terms of [ICWA] to conclude, as the court did implicitly in In re Pedro N.,

. . . that parental inaction could excuse the failure of the juvenile court to ensure that

notice under the Act was provided to the Indian tribe named in the proceeding.” (Ibid.)

In Dwayne P. v. Superior Court (2002) 103 Cal.App.4th 247, the court

“respectfully disagree[d] with Pedro N. and follow[ed] Marinna J., albeit under a

different analysis.” (Id. at p. 260.) It noted that under rule 1439(f)(5) of the California

Rules of Court, then in effect, “‘[n]otice shall be sent whenever there is reason to believe

the child may be an Indian child, and for every hearing thereafter unless and until it is

determined that the child is not an Indian child.’ [Citation.][3] Because the court’s duty

continues until proper notice is given, an error in not giving notice is also of a continuing

nature and may be challenged at any time during the dependency proceedings. . . .

Though delay harms the interests of dependent children in expediency and finality, the

parents’ inaction should not be allowed to defeat the laudable purposes of the ICWA.”

(Id. at p. 261; accord, In re B.R. (2009) 176 Cal.App.4th 773, 779 [First Dist., Div. One]

3 Rule 1439 is no longer in effect, but Welfare and Institutions Code section
224.2, subdivision (b) now similarly provides that “[n]otice shall be sent whenever it is
known or there is reason to know that an Indian child is involved, and for every hearing
thereafter, . . . unless it is determined that [ICWA] does not apply to the case . . . .”

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[“We agree with the view taken in In re Marinna J. . . . , which questioned the conclusion

reached in Pedro N. . . . .”]; see also In re A.G. (2012) 204 Cal.App.4th 1390, 1400 [First

Dist., Div. Three] [father’s ICWA claim not barred by res judicata even though he could

have, but did not, raise it in appeal from previous termination of parental rights as to

child’s sibling.].)4

Most recently, however, In re Isaiah W. (2014) 228 Cal.App.4th 981 [Second

Dist., Div. Three], (pet. for rev. filed Sept. 17, 2014), became the first case to agree with

Pedro N. There, at the jurisdictional/dispositional hearing, the juvenile court found that

ICWA did not apply. At that point, the mother did not appeal. Later, however, she

appealed from the order terminating parental rights and argued that the juvenile court had

erred by finding that ICWA did not apply. (Id. at p. 986.)

The appellate court held that mother had forfeited any challenge to the finding that

ICWA did not apply. (In re Isaiah W., supra, 228 Cal.App.4th at pp. 986-988.) It

explained: “We decline to adopt the implied conclusion in Marinna J. and Dwayne P.

that there is no time limit on a parent’s right to raise the issue of ICWA compliance. To

allow a parent unlimited time within which to raise this challenge would violate the

child’s constitutional right to a stable and permanent home. [Citation.] Children have a

4 For the sake of completeness, we note In re Miracle M. (2008) 160
Cal.App.4th 834. There, the court held that the mother had forfeited her ICWA notice
claim; however, it is not entirely clear whether it relied on her failure to file a timely
appeal from the juvenile court’s ICWA finding, or on her failure to raise the asserted
notice defect in the trial court. (See id. at pp. 846-847.) The ambiguity is compounded
by the fact that the court did not cite Pedro N., Marinna J., or Dwayne P.

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constitutional interest in stability, [citation], and in California, the courts have held that

this includes the ‘right to a reasonably directed early life, unmarked by unnecessary and

excessive shifts in custody . . . .’ [Citation.] Accordingly, in the context of dependency

proceedings, ‘where a child has formed familial bonds with a de facto family with whom

the child was placed owing to a biological parent’s unfitness [citation] . . . and where it is

shown that the child would be harmed by any severance of those bonds, the child’s

constitutionally protected interests outweigh those of the biological parents.’ [Citation.]”

(Id. at p. 986.) It concluded by “not[ing] that, as in Pedro N., we are only addressing the

rights of mother, not the rights of a tribe under the ICWA. [Citation.]” (Id. at p. 988.)

It could be argued that our case is factually distinguishable from Pedro N.,

because here, the juvenile court made its finding that ICWA did not apply at the six-

month review hearing, not at the jurisdictional/dispositional hearing. Also at the six-

month review hearing, it set a section 366.26 hearing. Thus, the father was barred from

filing an immediate appeal. (Welf. & Inst. Code, § 366.26, subd. (l).) However, he could

have filed an extraordinary writ petition. (Ibid.) Moreover, by statute, his failure to file a

timely extraordinary writ petition prohibits him from filing any later appeal from the

orders entered at that hearing. (Ibid.)

In any event, we agree with Marinna J. that the ICWA notice issue has not been

forfeited, for two reasons. First, as the court reasoned in Marinna J., it is all too well-

established that “‘[t]he notice requirements serve the interests of the Indian tribes

“irrespective of the position of the parents” and cannot be waived by the parent.

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[Citation.]’ [Citation.] Thus, ‘where the notice requirements of the Act were violated

and the parents did not raise that claim in a timely fashion, the waiver doctrine cannot be

invoked to bar consideration of the notice error on appeal.’ [Citation.]” (In re

Suzanna L. (2002) 104 Cal.App.4th 223, 231-232 [Fourth Dist., Div. Two].) We see no

relevant distinction between failure to raise the issue in the court below and failure to

raise the issue in a prior appeal. In both circumstances, allowing a parent to raise the

issue protects the tribe’s right to notice. Contrary to Pedro N. and Isaiah W., it is not an

adequate remedy that the tribe could still challenge the ICWA notice; if it never gets

notice, it will never know that there is anything to be challenged.

Second, after Pedro N. was decided, the Legislature enacted Welfare and

Institutions Code section 224.3, which provides, as relevant here, that “[t]he court [and

the] county welfare department . . . have an affirmative and continuing duty to inquire

whether a child for whom a petition under Section 300 . . . is to be, or has been, filed is or

may be an Indian child . . . .” (Welf. & Inst. Code, § 224.3, subd. (a), emphasis added.)

Admittedly, “[i]f proper and adequate notice has been provided . . . , and neither a tribe

nor the Bureau of Indian Affairs has provided a determinative response within 60 days

after receiving that notice, the court may determine that [ICWA] does not apply to the

proceedings . . . .” (Welf. & Inst. Code, § 224.3, subd. (e)(3).) By negative implication,

however, a finding that ICWA does not apply can be reopened if “proper and adequate

notice” has not been provided.

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 Thus, in this appeal, the father is not raising an untimely challenge to the ICWA

finding at the six-month review hearing. Rather, he is raising a timely challenge to the

trial court’s failure to revisit the ICWA issue at the section 366.26 hearing.

We also question Isaiah W.’s reliance on constitutional principles. Perhaps giving

parents “unlimited time” to raise an ICWA notice challenge would violate due process,

but our holding does not do so. Rather, the challenge must be raised, at the latest, in an

appeal from the order terminating parental rights, which is processed expeditiously under

special “fast-track” rules. (See Cal. Rules of Court, rule 8.416.) Moreover, even if the

challenge is successful, it does not result in the reversal of any earlier orders. (In re

Jonathon S. (2005) 129 Cal.App.4th 334, 340-342 [Fourth Dist., Div. Two].) It merely

results in a limited remand for the purpose of ICWA compliance. (E.g., In re

Francisco W. (2006) 139 Cal.App.4th 695, 711.) We see no reason why it is any more

unconstitutional to let a parent raise an ICWA notice issue, albeit belatedly, than it is to

let a parent raise any other issue that could potentially result in reversal of the order

terminating parental rights.

Congress and/or the Legislature could well decide, as a matter of policy, that a

parent must raise an ICWA notice issue on appeal at the first possible opportunity, and

that the failure to do so forfeits the issue. However, they have not done so. In light of the

weight of the authority to the contrary, we feel constrained to hold that, under current

law, there is no forfeiture under these circumstances.

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 3. Substantial evidence of ICWA compliance.

We turn, then, to whether there has, in fact, been an ICWA notice violation.

“‘On review of the sufficiency of the evidence, we presume in favor of the order,

considering the evidence in the light most favorable to the prevailing party, giving the

prevailing party the benefit of every reasonable inference and resolving all conflicts in

support of the order.’ [Citation.]” (In re I.W. (2009) 180 Cal.App.4th 1517, 1525.)

“Mere support for a contrary conclusion is not enough to defeat the finding [citation]; nor

is the existence of evidence from which a different trier of fact might find otherwise in an

exercise of discretion [citation].” (In re H.E. (2008) 169 Cal.App.4th 710, 724.)

As should be apparent from all the blanks and qualifications in the table above, the

notices did not include all of the information that they were supposed to include, “if

known.” (25 C.F.R. § 23.11(a), (d).) However, the Department staffer stated, under

penalty of perjury, that no other information was available. In response to the letter from

Cherokee Nation of Oklahoma, she also stated that she had “contacted the

parents/relatives,” and there was “[n]o additional information.” This was substantial

evidence that the notice complied with ICWA requirements.

The father argues that the Department evidently did not contact the maternal

grandmother, Brenda C., because she would have known her own maiden name, both of

her parents’ full names, and her full former address, as well as other omitted information.

As the father points out, the Department was in contact with Brenda. She gave her phone

14
number at the detention hearing, the Department assessed her as a possible relative

placement, and she accompanied the mother to visits with the children.

The failure to list Brenda’s maiden name was harmless error, however, because

the notice did list the last names of two of the maternal great-grandparents; the last names

of the other two great-grandparents were unknown. While it did not indicate which of

the last names listed was Brenda’s maiden name, it was obviously one or the other.

Leaving aside Brenda’s maiden name, it is possible that Brenda did not know the

omitted information. Some children — sad though it is to say — simply do not know

who their fathers are. Women have children by men without learning their birthdates or

birthplaces. And we do not necessarily remember our former street addresses, especially

from years ago. It is also possible that Brenda was evasive or uncooperative and simply

claimed that she did not know. “On appeal, ‘[t]estimony may be rejected only when it is

inherently improbable or incredible, i.e., “‘unbelievable per se,’” physically impossible

or “‘wholly unacceptable to reasonable minds.’” [Citations.]’ [Citation.]” (Nevarez v.

Tonna (2014) 227 Cal.App.4th 774, 786.) The staffer’s testimony here was not

incredible.

The father complains that the notice did not indicate which of the persons listed

were supposedly Cherokee. While there is a space on the Judicial Council form for

“[t]ribe or band, and location,” it was already established that Brenda did not know which

Cherokee tribe her grandfather was affiliated with. Moreover, the failure to provide this

15
information, if error at all, was harmless. Presumably all of the tribes checked to see if

any of the persons listed were members.

The father argues that the Department did not introduce any evidence as to what

investigation it carried out or as to whom it interviewed. However, he does not point to

any requirement that it do so. If he had raised the ICWA notice issue in the juvenile

court, he could have subpoenaed Department employees and questioned them about their

efforts (or lack thereof). In that event, of course, the Department could also have

introduced additional evidence to show that it made an adequate inquiry. Instead, the

father lay in wait and did not spring this issue until the matter was on appeal. At this

point, he must take the record as he finds it. As long as there is substantial evidence of

ICWA compliance, the fact that the Department did not introduce additional evidence is

irrelevant.

The father also argues that the Department failed to file the response from the

Tohono O’Odham Nation. This is harmless error, because the Department represented

that all five responses indicated that the children were not Indian children. The father

labels this representation “erroneous.” Admittedly, only one of the responses stated

definitively that the children were not Indian children; another response stated that there

was not enough information to determine whether the children were Indian children,

while still others stated that the children were not Indian children based on the

information provided. Obviously the Department was not trying to mislead the court,

however, as it attached the responses themselves. Moreover, the Department’s

16
characterization of the responses, while not strictly accurate, was not materially false.

Regardless of whether the responses stated definitively that the children were not Indian

children, or merely stated that it could not be determined whether they were Indian

children, their effect was the same — the juvenile court could find that ICWA did not

apply. (Welf. & Inst. Code, § 224.3, subd. (e)(3).)

We therefore conclude that the father has not demonstrated any prejudicial error.

III

DISPOSITION

The order appealed from is affirmed.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

RICHLI
Acting P. J.

We concur:

KING
J.

MILLER
J.

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