as: 132 Cal.App.4th 11, 33 Cal.Rptr.3d 242)
of Appeal, Second District,
re ALEXIS H. et al., Persons Coming Under the Juvenile
Angeles County Department of Children and Family Services, Plaintiff and
S., Defendant and Appellant.
Judy Weisberg-Ortiz, under appointment by the Court of Appeal, for
Defendant and Appellant.
Raymond G. Fortner, Jr., County Counsel, Larry Cory, County Counsel,
and Kim Nemoy, Deputy County Counsel, for Plaintiff and Respondent.
RUBIN, Acting P.J.
Father Ernest S. appeals from the court's orders declaring his
children dependents of the court. We affirm.
AND PROCEDURAL BACKGROUND
Ernest and Jennifer had two children, Alexis, born in 1996,
and Nathaniel, born in 1998. In addition, Jennifer had a
third child, Jasmine, born in 2003, with
another man who is part of these proceedings, but not
part of this appeal.
In February 2004, the Department of Children and Family Services
filed a petition under Welfare and Institutions Code section 300.
[FN1] The petition alleged Jennifer let Jasmine's father use illegal
drugs in the house, and that he stored his drugs
where the children had access to them. The petition further
alleged Jennifer and appellant fought physically in front of the
children, and that appellant could not care for his children
because he was in prison. The Department recommended that the
court declare the children dependents of the court, but permit
the children to continue to live with Jennifer. The Department
also recommended that appellant receive reunification services, and that both
he and Jennifer enroll in parenting classes and counseling.
All further undesignated section references are to the Welfare and
Jasmine's father and Jennifer entered into a mediated agreement admitting
the allegations against them and submitted to the court's jurisdiction.
Appellant, however, demanded a contested hearing for the allegations against
him. In addition, he claimed Native American descent from both
the Cherokee Nation and Apache Tribes, making his children subject
to the Indian Child Welfare Act. (25
U.S.C. §§ 1901
The Department sent notices of the proceedings to the Eastern
Band of Cherokee, United Keetoowak Band of Cherokee, Bureau of
Indian Affairs regional office in Sacramento, United States Department of
Interior, Bureau of Indian Affairs, Tonto **244
Apache Tribe of Arizona, White Mountain Apache Tribe, Yuapi-Apache Nation,
Cherokee Nation of Oklahoma, Hcarilla Apache Tribe of New Mexico,
Mescalero Apache Tribe New Mexico, San Carlos Apache Tribe, and
Fort Sell Apache Tribe of Oklahoma. None of the tribes
found the children eligible for tribal membership, and all declined
to intervene in the proceedings.
At the contested hearing, appellant argued the evidence of domestic
violence between him and Jennifer was insufficient to support dependency
court jurisdiction. He also argued evidence of his drug use
was likewise too sketchy to support jurisdiction, although he admitted
being in prison for drug possession. The court sustained the
allegations against appellant, and declared the children dependents of the
court. The court placed the children with Jennifer and ordered
the Department to provide family maintenance services to her. The
court also ordered monitored visitation for appellant while he was
in prison, and directed the Department to provide him reunification
services. This appeal followed.
Violation of Indian Child Welfare Act Was Harmless
Appellant contends we must reverse the court's jurisdictional order because
the Department did not comply with the notice provisions of
the Indian Child Welfare Act. (25 U.S.C. § 1912,
subd. (a); see In
re Samuel P.
(2002) 99 Cal.App.4th 1259, 1267, 121 Cal.Rptr.2d 820.) According to
him, the Department's notices to the Cherokee and Apache tribes
had, among other defects, incomplete names and birthplaces for the
children and incomplete names and inaccurate birthdates for Jennifer and
him. The Department largely concedes appellant's description of the notices'
flaws, but counters we need not reverse because the notice
provisions of the Act did not apply. We need not
decide the merits of the Department's argument about the inapplicability
of the Indian Child Welfare Act (25 U.S.C. §§ 1901
et seq.), however, because the Department's failure to comply fully
with the Act was harmless error.
The Indian Child Welfare Act requires that a Native American
tribe receive notice of involuntary dependency proceedings involving children affiliated
with that tribe. By its own terms, the Act requires
notice only when child welfare authorities seek permanent foster care
or termination of parental rights; it does not require notice
a child of possible or actual Native American descent is
involved in a dependency proceeding. The Act states, "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...." (25 U.S.C. § 1912,
subd. (a); see also 25 C.F.R. § 23.11
[notice requirements when foster placement or termination of parental rights
The notice provision's limited scope coincides with the Act's purpose,
which is to preserve Native American culture. The Act states,
"it is the policy of this Nation to protect the
best interests of Indian children and to promote the stability
and security of Indian tribes and families by the establishment
of minimum Federal standards for the removal of Indian *15
children from their families and the placement of such children
in foster or adoptive homes which will reflect the unique
values of Indian culture...." (25 U.S.C. § 1902.)
When authorities remove a child of Native American descent from
his home, the Act promotes **245
foster care or adoption by a Native American family in
the hope of preserving tribal culture. If, however, authorities do
not move the child to another family, the purpose does
not come into play. (See, e.g., In
re Christopher I.
(2003) 106 Cal.App.4th 533, 564-565, 131 Cal.Rptr.2d 122 [tribe did
not need to receive additional notice before doctors removed life-support
from permanently vegetative Indian child because child's condition, rather than
lack of notice, frustrated Act's purpose, which was preservation of
tribal culture]; see also 25 C.F.R. § 23.2
[the Act covers child custody proceedings involving foster care and
Until 2005, California Rule of Court, Rule 1439 pertaining to
the Act was broader
than the Act itself. Former Rule 1439, subdivision (b) stated
the Act--and presumably the Act's notice requirements--applied to "all proceedings
... including detention hearings [and] jurisdiction hearings" without limiting itself
to only those proceedings involving foster care or adoption. Rule
1439 was amended this year, however, to conform the rule
to the Act. The rule currently states it applies "to
all proceedings ... in which the child is at risk
of entering foster care or is in foster care...." Because
the Department sought neither foster care nor adoption, the Act
seemingly does not apply. (But see Welf. & Inst.Code, § 290.1
[requires notice to child's tribe of all dependency proceedings beginning
with the initial detention petition; no language limiting notice to
only proceedings contemplating foster placement or adoption].)
Appellant ignores the Act's limiting language--possibly because no published decision
requires notice for proceedings not seeking foster placement or termination
of parental rights. In
re Jennifer A.
(2002) 103 Cal.App.4th 692, 127 Cal.Rptr.2d 54, comes closest, but
a careful reading reveals a decision confined to its facts.
There, child welfare authorities took a girl from her mother
and placed her in an emergency shelter. The girl's parents,
who were not married, told the authorities of their Native
American heritage, but the authorities did not give proper notice
of the proceedings to the parents' tribes. Child welfare authorities
thereafter recommended foster care for
the child, but the court rejected the recommendation and placed
her with her father. (Id.
at pp. 697-698, 127 Cal.Rptr.2d 54.)
The mother appealed, arguing the failure to provide proper notice
to the tribes required reversal of the court's dispositional order.
The child welfare department countered that failing to give notice
was harmless error because the court had not placed the
child in foster care. (In
re Jennifer A., supra,
Cal.App.4th at p. 699, 127 Cal.Rptr.2d 54.) The appellate court
rejected the department's argument because the department's recommendation of foster
care had put such care "squarely before the juvenile court."
at p. 700, 127 Cal.Rptr.2d 54.)
Even if, however, the Act applied to proceedings contemplating nothing
more disruptive to an Indian child's home than family reunification
services, the defective notices here were harmless error. (In
re Antoinette S.
(2002) 104 Cal.App.4th 1401, 1409-1410, 129 Cal.Rptr.2d 15 [failure to
follow Act not jurisdictional error, but instead subject to harmless
error analysis]; see In
re Brooke C.
(2005) 127 Cal.App.4th 377, 384-385, 25 Cal.Rptr.3d 590.) The Department
did not pursue foster care or adoption, instead recommending from
the beginning that the children remain with their mother. The
court ordered reunification services for both parents, the hope of
reunification services by definition being the family's preservation. We are
confident, however, that if DCFS ever contemplates **246
any additional action which might
lead to foster care or adoption, it will ensure that
the notices sent to the tribes contain complete and accurate
information, including the names and birthplaces for the children and
the names and accurate birthdates for mother and appellant.
Evidence Supported Jurisdiction
The court sustained the petition's allegations that the children were
at substantial risk of physical harm or illness from, one,
appellant's domestic violence in front of the them and, two,
his inability to care for them because of his history
of drug abuse and current imprisonment. (Welf. & Inst.Code, § 300,
subd. (b).) Appellant contends there was insufficient evidence that his
behavior put the children at risk. His argument focuses on
did anything that endangered the children, the evidence of which
the juvenile court observed was "meager." His focus ignores, however,
that Jennifer's conduct that endangered the children--which she admitted under
the mediated settlement--was enough to establish jurisdiction. As In
re Alysha S.
(1996) 51 Cal.App.4th 393, 58 Cal.Rptr.2d 494, explained, "a jurisdictional
finding good against one parent is good against both. More
accurately, the minor is a dependent if the actions of
either parent bring her within one of the statutory definitions
of a dependent. [Citation.] This accords with the purpose of
a dependency proceeding, which is to protect the child, rather
than prosecute the parent. [Citation.]" (Id.
at p. 397, 58 Cal.Rptr.2d 494; In
re James C.
(2002) 104 Cal.App.4th 470, 482, 128 Cal.Rptr.2d 270.) Be that
as it may, appellant in any event admitted he was
in prison for drug possession. While in prison, he cannot
care for or supervise his children, rendering his imprisonment enough
for the court to exercise jurisdiction under section 300, subdivision
(b). (See In
re James C., supra,
104 Cal.App.4th at p. 482, 128 Cal.Rptr.2d 270; accord Welf.
& Inst.Code, § 300,
The orders are affirmed.
We concur: BOLAND and FLIER, JJ.
132 Cal.App.4th 11, 33 Cal.Rptr.3d 242, 05 Cal. Daily Op.
Serv. 7555, 2005 Daily Journal D.A.R. 10,255
and West Group 1998