Filed 9/23/16 In re A.K. CA1/5
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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

                                       FIRST APPELLATE DISTRICT

                                                  DIVISION FIVE


In re A.K., a Person Coming Under the
Juvenile Court Law.


ALAMEDA COUNTY SOCIAL
SERVICES AGENCY,
         Plaintiff and Respondent,                                   A147327, A147568
v.
                                                                     (Alameda County
R.B., ET AL.,                                                        Super. Ct. No. OJ14022979)
         Defendants and Appellants.



         R.B. (father) and E.K. (mother) appeal from an order terminating their parental
rights pursuant to Welfare and Institutions Code section 366.26 with respect to minor
A.K.1 Father and mother contend that respondent Alameda County Social Services
Agency (Agency) failed to provide proper notice to several tribes under the Indian Child
Welfare Act of 1978 (ICWA; 25 U.S.C. § 1901 et seq.). We will conditionally reverse
the order and remand for additional notice under the ICWA and further proceedings
consistent with this opinion.




1
        Except where otherwise indicated, all statutory references are to the Welfare and
Institutions Code.


                                                             1
                      I. FACTS AND PROCEDURAL HISTORY
       On May 28, 2014, the Agency filed a dependency petition regarding A.K., then 13
months old, under subdivisions (b), (g), and (j) of section 300. The petition alleged that
mother and father were unable to provide for A.K.’s care due to their mental illness,
asserting that mother had undiagnosed mental health issues that had limited her care for
A.K.’s siblings, father had post traumatic stress syndrome, mother was arrested for
domestic violence, and mother and father had been involved in ongoing domestic
violence in A.K.’s presence. The petition further alleged that mother had previously
abused or neglected A.K.’s siblings, noting she had failed to reunify with two of his
siblings and had been charged with felony endangerment of one of them. The Agency’s
detention report admonished that mother and father had an “extremely volatile
relationship” and advised that A.K. is mother’s seventh child, she does not have custody
of any of her children, and she was on formal probation for felony willful cruelty to a
child at the time.
       The juvenile court found that father was the presumed father of A.K. and detained
the minor.
       A. Initial ICWA Notices
       On some basis not discussed by the parties, the Agency determined that A.K. may
be eligible for membership in the Blackfeet, Sioux, or Potawatomi tribes. The Agency
notified mother and father, the Bureau of Indian Affairs (BIA), the Citizen Potawatomi
Nation, and the Oglala Sioux Tribe of the detention hearing by sending a Notice of Child
Custody Proceeding For Indian Child (form ICWA-030) to the BIA and to the tribes’
purported ICWA representatives or coordinator on May 29, 2014.
       Also on May 29, 2014, father filed a Parental Notification of Indian Status (form
ICWA-020), indicating that he might have Indian ancestry with the Blackfeet tribe. On
that same date, mother filed an ICWA-020 indicating she had no Indian ancestry.
Ostensibly due to father’s ICWA-020, the Agency sent notice of the jurisdiction and
disposition hearing using a ICWA-030 form addressed to the BIA and the Blackfeet
ICWA coordinator on June 14, 2014.


                                             2
       The Citizen Potawatomi Nation signed the return receipt for the ICWA notice and,
by letter dated June 11, 2014, requested full names and dates of birth to determine
whether A.K. might be eligible for membership (although this information seems to have
been provided in the notice already). The Blackfeet tribe signed the return receipts and,
by letters of June 6, 2014, and June 25, 2014, notified the Agency that it did not have
records indicating Native American ancestry of A.K., father, or mother. The Oglala
Sioux Tribe and the BIA also signed return receipts in June 2014.
       B. Jurisdictional Proceedings
       The Agency’s jurisdiction report of June 12, 2014, advised that A.K. was in a
foster home. The Agency recommended that the allegations of the dependency petition
be sustained and that both parents complete a psychological evaluation. The Agency also
noted that the ICWA might apply based on father’s assertion of Blackfeet ancestry.
       The Agency’s addendum report of July 16, 2014, again noted mother’s and
father’s volatility, including incidents in which father screamed in the court hallway on a
prior hearing date, father threatened the foster parent, and mother yelled at the child
welfare worker to the point the worker requested a sheriff escort.
       After a contested jurisdictional hearing on July 16, 2014, the court found the
allegations of the petition true.
       C. Disposition Proceedings
       The Agency’s disposition report of August 1, 2014, recommended that A.K. be
declared a dependent of the court and that mother and father be offered reunification
services. The report noted that mother tried to give A.K. Pepsi in his bottle during a
supervised visit, and when the child welfare worker asked her not to, mother became so
angry that the worker feared for her safety and summoned deputies. Mother later left
several vulgar and threatening messages for the worker’s supervisor. Mother refused to
participate in a psychological evaluation, and father had not participated in one despite a
referral.




                                              3
       The disposition report further advised that the ICWA did not apply because,
although father had reported Blackfeet affiliation, the Blackfeet tribe denied having any
record of father’s ancestry.
       The disposition hearing was held on August 25, 2014. On September 3, 2014, the
court adopted the Agency’s recommended findings and orders, declared A.K. a
dependent, and ordered reunification services.
       D. Placement Change
       On December 16, 2014, the Agency filed an ex parte application to move A.K.
from the foster home to the home of the maternal aunt. At a hearing on January 13, 2015,
the court granted the Agency’s request despite the parents’ objection.
       E. Six Month Review
       The Agency’s six-month status review report reiterated that the ICWA did not
apply. In addition, noting the referrals that it had provided to mother and father, the
Agency recommended that reunification services be terminated and a section 366.26
hearing be set. The child welfare worker opined that it would be detrimental to return
A.K. to mother or father because they were involved in an ongoing domestic violence
relationship and had not participated in their case plans. Mother had not participated in a
domestic violence program, psychological evaluation, or parenting classes as ordered by
the court; she admitted that she had not participated in the case plan and was not going to
do so; and although she had visited with A.K., she had not addressed the issues that led to
his removal. Father claimed he had previously participated in a psychological evaluation
through Veteran's Affairs (VA) and was participating in groups through the VA, but his
VA social worker reported that he had not participated in a psychological evaluation and
there was no record of his recent attendance in domestic violence groups, parenting
classes, or mental health services. In December 2014, father was arrested for domestic
battery on mother.
       The Agency’s addendum report again recommended termination of services and a
section 366.26 hearing. Mother had acknowledged a history of domestic violence with
father, yet continued to deny she needed services. Father had not regularly visited A.K.


                                             4
       At the six-month review hearing on May 20, 2015, the court adopted the Agency's
recommended findings and orders, found that the ICWA did not apply, terminated
services as to both parents, and set a section 366.26 hearing for September 2015.
       F. Section 366.26 Proceedings and Additional ICWA Notices
       On August 25, 2015, the Agency filed a 366.26 “WIC Memorandum,” in which it
identified adoption as the permanent plan proposed for A.K. but requested a continuance
of the section 366.26 hearing to complete notice under the ICWA.
       The Agency explained that notice had been sent to only one of the 16 Sioux tribes
and only one of the seven Potawatomi tribes; furthermore, the information in the notice
appeared to be incorrect because it listed father’s date of birth as the birthdate of the
paternal grandfather. The child welfare worker asked father by phone to clarify his tribal
affiliations and supply accurate ancestry information; father indicated he was affiliated
with tribes other than the Blackfeet tribe but refused to give any other information,
referring the worker to his attorney. The worker then tried to obtain the information by
written correspondence with father and his attorney, but to no avail. On July 13, 2015,
the child welfare worker sent a new ICWA-030 notice to the BIA, the Department of the
Interior, the Blackfeet tribe, and all of the Sioux and Potawatomi tribes by certified mail
with return receipt requested. The Agency thereafter received return receipts from all of
the tribes, but because it had not received response letters from all the tribes, the Agency
requested a continuance until after September 27, 2015 (60 days after the last return
receipt was received).
       The court continued the section 366.26 hearing to December 2015 and ordered
father to file an updated ICWA-020.
       On September 9, 2015, father filed a new ICWA-020, asserting that he may be a
member of, or eligible to be a member of, not just the Blackfeet tribe (which he had
disclosed previously) and the Sioux and Potawatomi tribes (which the Agency had
considered), but also the Cherokee, Crow, and Apache tribes. The child welfare worker
obtained additional ancestry information from the paternal grandmother and a paternal
cousin.


                                              5
        On September 15, 2015, the Agency sent a new ICWA-030—including the new
ancestry information—to the BIA, the Department of the Interior, and the Blackfeet,
Sioux, Potawatomi, Cherokee, Crow, and Apache tribes by certified mail with return
receipt requested. The mailing of this notice is at issue in this appeal.
        The Agency set forth the details and results of its latest effort to comply with the
ICWA in its 366.36 WIC Report filed on December 1, 2015 (366.26 Report). The
Agency had received return receipts from all of the tribes. It had also received response
letters from 26 of the tribes, all of whom denied any record of father’s Indian ancestry.
Letter responses had not been received from ten of the tribes. The 366.26 Report
specified the date the notice was mailed, the date of each tribe’s receipt, whether a
response was received from the tribe, and whether the response denied A.K.’s eligibility
in the tribe.2
        The Agency’s notice to the tribes, certified mail receipts, return receipts received
from the tribes, and some of the tribes’ response letters referenced in the 366.26 Report
were filed with the court on November 19, 2015.
        At the section 366.26 hearing on December 16, 2015, the court admitted the
Agency’s reports and father testified. After the evidence was submitted, the court
requested an update regarding the ICWA. The child welfare worker replied that she had
received “one more letter stating that [A.K.] is not eligible. I have not received anything
from any other tribes stating that [A.K.] is eligible.” Father then stated that he had yet
more ICWA information: actual “Indian enroll dates” for his tribe, which supposedly had
been previously refused by the Agency. The court ordered father to present the
information to the Agency by the end of the week and set the matter for December 28,
2015.

2
        The 366.26 Report also stated that the Agency had found A.K. adoptable, it was
likely he would be adopted, and A.K.’s maternal aunt was committed to adopting him.
The report asserted that neither mother nor father ever progressed to unsupervised visits,
and their supervised visits were marred by inappropriate, aggressive, and violent
behavior; the parents also repeatedly threatened child welfare workers, supervisors, and
service providers.


                                               6
       On December 28, 2015, the child welfare worker informed the court that father
failed to provide any additional information, and although she followed up with a
paternal cousin who said he would send her information, no information was received.
The child welfare worker added that she had not received any additional response from
the tribes, and that all the tribes had either advised that A.K. was not eligible for
enrollment or had not responded.
       On that same date, the juvenile court found that A.K. was not an Indian child and
that no further ICWA notice was required. The court further found that the Agency had
provided reasonable services and there was clear and convincing evidence A.K. would
likely be adopted. The court terminated mother’s and father’s parental rights.
       Mother and father each appealed, and we consolidated the appeals.
                                      II. DISCUSSION
       Mother and father challenge the order terminating their parental rights solely on
the ground that the Agency failed to comply with the notice provisions of the ICWA.3
       As set forth in the Agency’s 366.26 Report, notice was provided to all of the
tribes, all of the tribes returned receipts indicating that the notices had reached them, none
of the tribes claimed A.K. was a member of the tribe (or eligible to become a member),
and the tribes who responded stated that A.K. was not, in fact, eligible to become a
member. Parents argue, however, that notice was not properly given as to several tribes,
because the ICWA-030 was not mailed to an individual designated in the Federal
Register as the tribal agent for service of notice, or was sent to an address different from
what was listed in the Federal Register.
       We begin with a brief review of the ICWA notice requirements. We next consider
the notice as to the tribes who did not reply with a letter response. We then address the
notice as to the tribes who replied with a letter response, but whose response was not

3
        An order terminating parental rights may be challenged on the ground that notice
was inadequate under the ICWA, even if the parents had not previously raised the issue.
(In re Isaiah W. (2016) 1 Cal.5th 1, 10, 13; In re Samuel P. (2002) 99 Cal.App.4th 1259,
1267–1268.)


                                               7
filed with the juvenile court. (Mother and father do not challenge the notice with respect
to tribes whose letter responses were filed with the juvenile court, acknowledging that
any error in notice as to those tribes was harmless.)
       A. Law
       Where the juvenile court knows or has reason to know that an Indian child is
involved, the ICWA requires the Agency to notify the Indian child’s tribe of the pending
proceedings and its right of intervention. (25 U.S.C. § 1912(a); see Cal. Rules of Court,
rule 5.481.) Under California law, the Agency must send notice, return receipt requested,
to “all tribes of which a child may be a member or eligible for membership.” (§ 224.2,
subd. (a)(3).) If the identity or location of the tribe cannot be determined, the same
procedure should be used with respect to notice to the BIA. (In re Marinna J. (2001) 90
Cal.App.4th 731, 739–740 fn. 4 (Marinna J.).)
       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
for service of ICWA notice are published in the federal register. (See In re J.T. (2007)
154 Cal.App.4th 986, 994 (J.T.); In re Alice M. (2008) 161 Cal.App.4th 1189, 1201; 25
C.F.R. § 23.12 (2007).) At the time the ICWA notice in this case was sent in 2015, the
designated tribal agents were identified at 79 Fed.Reg. 72009 et seq.
       As this court has explained, “[t]he 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.)
       The Agency must file with the juvenile court the ICWA notice, return receipts,
and any response received from the BIA and the tribes relevant to the child’s Indian
status. (§ 224.2, subd. (c); see Cal. Rules of Court, rule 5.482(a)(1); Marinna J., supra,
90 Cal.App.4th at pp. 739–740, fn. 4.) No foster care placement or termination of
parental rights proceeding shall be held until at least 10 days after receipt of notice by the



                                              8
parent or Indian custodian and the tribe or BIA. (25 U.S.C. § 1912(a); § 224.2, subd. (d);
Cal. Rules of Court, rule 5.482(a)(1); In re Desiree F. (2000) 83 Cal.App.4th 460, 465.)
       We review the court’s finding that proper ICWA notice was given for substantial
evidence. (J.T., supra, 154 Cal.App.4th at p. 991; In re N.M. (2008) 161 Cal.App.4th
253, 268 (N.M.).)
       B. Notices to Tribes for Which No Letter Response Was Received
       Mother and father contend the notices sent to the following tribes did not comply
with the ICWA; these tribes returned receipts indicating that the notices had indeed
reached them, but they did not send a substantive response indicating whether or not A.K.
had Indian ancestry in the tribe.
              1. Jicarilla Apache Nation
       According to the Federal Register, the designated agent and address for the
Jicarilla Apache Nation was “Olivia Nelson-Lucero, Acting Program Manager, Jicarilla
Behavioral Health, P.O. Box 546, Dulce, NM 87528.” (79 Fed. Reg. 72027.)
       According to the certified mailing receipt, the Agency sent the notice to the
designated address, but directed it to “Director, Mental Health/Social Services” rather
than to “Olivia Nelson-Lucero, Acting Program Manager, Jicarilla Behavioral Health.”4
       The Agency acknowledges the inaccuracy with respect to the addressee but urges
that the error was harmless because notice was sent to the “substantially correct
recipient.” We disagree. The record discloses no basis for concluding that a notice sent
to the Director of Mental Health/Social Services, rather than the Acting Program
Manager of Jicarella Behavioral Health, would 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.)
Furthermore, although a return receipt was received from the tribe, the receipt merely


4
      The ICWA-030 itself, which includes a proof of mailing, identifies the addressee
as “Monica L. Carrasco, Director.”


                                             9
indicates that the notice was delivered to someone at the tribe, not the tribal chairperson
or designated agent. The Agency fails to establish that the error was harmless. (Ibid.)
              2. Tonto Apache Tribe
       The designated agent and address for the Tonto Apache Tribe was “Brian Echols,
Social Services Director, T.A.R. #30, Payson, AZ 85541.” (79 Fed. Reg. 72029.) The
Agency sent the notice to the designated address, but directed it to “Lyndsie Butler,
Social Services Director” rather than to “Brian Echols, Social Services Director.”
       Substantial evidence supported the conclusion that notice was adequately given to
the tribe, or any error in this regard was harmless. Although the mailing address
identified a different individual, the fact that it specified the “Social Services Director” in
accord with the Federal Register, at the address specified by the Federal Register,
demonstrates substantial compliance with the notice requirement and gives rise to an
inference that the notice would be received by someone trained and authorized to make
the necessary ICWA determinations. (See N.M., supra, 161 Cal.App.4th at p. 268
[“[r]equiring literal compliance solely by reference to the names and addresses listed in
the last published Federal Register would exalt form over substance;” the juvenile court
must determine “as a matter of fact from all the circumstances whether appropriate notice
has been given”].)
              3. White Mountain Apache Tribe
       The designated agent and address for the White Mountain Apache Tribe was
“Cora Hinton, ICWA Representative/CPS Supervisor, P.O. Box 1870, Whiteriver, AZ
85941.” (79 Fed. Reg. 72029.) The Agency sent notice to the designated address, but to
“Mariella Dosela, ICWA Representative” rather than to “Cora Hinton, ICWA
Representative/CPS Supervisor.” Since the notice was directed to the ICWA
Representative at the correct address, substantial evidence supported the conclusion that
notice to this tribe was adequate or that any notice error was harmless.
              4. Yavapai Apache Nation
       The designated agent and address for the Yavapai Apache Nation was “Linda Fry,
Director, Department of Social Services, 2400 West Datsi Street, Camp Verde, AZ


                                              10
86322.” (79 Fed. Reg. 72029.) The Agency sent notice to the designated address, but
omitted Linda Fry’s name and title. In other words, it simply sent the notice to the tribe,
rather to any particular person at the tribe. This is the very error that compelled a reversal
in J.T., supra, 154 Cal.App.4th at p. 994. The Agency provides no basis for concluding
that notice to this tribe was sufficient or that the error was harmless. New and proper
notice must be provided to the tribe.
              5. Crow Tribe of the Crow Reservation of Montana
       The designated agent and address for the Crow Tribe of the Crow Reservation of
Montana was “Melveen Paula Fisher, ICWA Coordinator, P.O. Box 340, Crow Agency,
MT 59022.” (79 Fed. Reg. 72026.) The Agency sent notice to the “ICWA
Representative” rather than to Fisher as “ICWA Coordinator.” Moreover, the notice was
not sent to the address designated in the Federal Register; it was sent to P.O. Box 159
rather than to P.O. Box 340.
       The Agency argues that this was good enough, because the BIA Tribal Leader’s
Directory provides an address for the tribe that includes “P.O. Box 159.” The Agency
refers us to N.M., in which the court concluded that the ICWA does not require notice
mailed to the names and addresses in the Federal Register “if a more current or accurate
listing is available and is reasonably calculated to provide prompt and actual notice to the
tribes.” (N.M., supra, 161 Cal.App.4th at p. 268; see also § 224.3, subd. (c) [requiring
social worker to make further inquiry by, among other things, contacting BIA and the
State Department of Social Services “for assistance in identifying the names and contact
information of the tribes in which the child may be a member or eligible for
membership”].) In N.M., the social services agency had obtained the names and
addresses for the notice from those listed on the State Department of Social Services
website. (N.M., supra, 161 Cal.App.4th at p. 268.)
       The Agency’s notice in this case, however, is problematic for two reasons. First,
the Agency does not show that the BIA Tribal Leader’s Directory offered “a more current
or accurate listing” than the Federal Register at the time of the notice. (N.M., supra, 161



                                             11
Cal.App.4th at p. 268.) Second, the Agency did not actually use the full address set forth
in the BIA Tribal Leader’s Directory.
       The BIA Tribal Leader’s Directory provides, for the Crow Tribe of Montana, an
address of “Darrin Old Coyote, Chairman, Crow Tribe of Montana, P.O. Box 159, Crow
Agency, MT 59022.” (http://indianaffairs.gov/cs/groups/xois/documents/document/idc1-
028053.pdf, page 75 of 93; italics added.)5 But the Agency provided notice to “Crow
Tribe of Montana, ICWA Representative, P.O. Box 159, Crow Agency, Montana 59022.”
(Italics added.) The BIA Tribal Leader’s Directory identifies the tribal chairperson, not
an ICWA representative or other designated agent. (See § 224.2, subd. (a)(2) [requiring
notice to tribal chairperson unless an agent is designated].) Moreover, rather than
sending notice to the ICWA Coordinator at P.O. Box 340 (pursuant to the Federal
Register) or to Darrin Old Coyote, Chairman, at P.O. Box 159 (pursuant to the BIA
Tribal Leaders Directory), the Agency merged information from these two sources and
sent the notice to “ICWA Representative” at P.O. Box 159.
       We question whether notice to this tribe was sufficient and whether such an error
could be deemed harmless based on the Agency’s arguments. Since we are remanding
this matter anyway for notice to other tribes, the discrepancies existing between the
address used by the Agency and the address in approved sources lead us to require new
and proper notice to this tribe on remand as well.
              6. Lower Sioux
       The designated agent and address for the Lower Sioux was “Reanna Jacobs,
ICWA Advocate, Darin Prescott, Director, 39568 Reservation Highway 1, Morton, MN
56270.” (79 Fed. Reg. 72021.) The Agency sent notice to “ICWA Representative”
rather than to “Reanna Jacobs, ICWA Advocate, Darin Prescott, Director.” Moreover,
the notice was not sent to the address designated in the Federal Register. The Agency
claims it was sent instead to an address listed in the BIA’s Tribal Leaders Directory, the

5
       The Agency asks us to take judicial notice of the BIA’s Tribal Leaders Directory,
available at http://www.indianaffairs.gov/ cs/groups/xois/documents/ document/idc1-
028053.pdf. Mother and father do not object, and we grant the request.


                                            12
Lower Sioux’s website and directory, and the State Department of Social Services on the
California government website.6
       The parties debate the propriety of this notice in their briefs. It raises enough
questions that we will require new and proper notice to this tribe upon remand.
               7. Oglala Sioux Tribe
       The designated agent and address for the Oglala Sioux Tribe was “Juanita Sherick,
Director ONTRAC, P.O. Box 2080, Pine Ridge, SD 57752.” (79 Fed. Reg. 72020.)
Although the Agency sent notice to the designated address, it directed it to the “ICWA
Administrator” rather than to “Juanita Sherick, Director ONTRAC.” While sending
notice to an ICWA Administrator may well be sufficient in some instances, the record in
this case does not explain why it would be sufficient when the designated agent is
someone who is instead the Director of “ONTRAC.” We will therefore require new and
proper notice to this tribe on remand.
               8. Santee Sioux Nation
       The designated agent and address for the Santee Sioux Nation was “Clarissa
LaPlante, ICWA Specialist, Dakota Tiwahe Service Unit, Route 2, Box 5191, Niobrara,
NE 68760.” (79 Fed. Reg. 72020.) The Agency sent notice to the designated address,
but directed it to the “ICWA Specialist” rather than to “Clarissa LaPlante, ICWA
Specialist.”
       Substantial evidence supports the conclusion that notice was sufficient, or that a
notice error was harmless. It is reasonable to conclude that notice addressed to the
“ICWA Specialist” at the correct address was delivered to the tribe’s ICWA Specialist—
the authorized person for membership eligibility purposes or one who would ensure its
delivery to that person—whether or not the ICWA Specialist was identified by name.




6
       The Agency requested in its respondent’s brief that we take judicial notice of the
Lower Sioux online tribal directory and a list provided by the State Department of Social
Services. We grant the unopposed request.


                                             13
              9. Standing Rock Sioux Tribe
       The designated agent and address for the Standing Rock Sioux Tribe was
“Terrance Yellow Fat, Director, Indian Child Welfare Program, P.O. Box 770, Fort
Yates, ND 58538.” (79 Fed. Reg. 72020.) According to the certified mail receipt and
return receipt, the Agency sent notice to the designated address, but directed it to “Raquel
Franklin” rather than to “Terrance Yellow Fat, Director.”
       The Agency does not tell us who Raquel Franklin is. The ICWA-030 notice
indicated it was being sent to the tribe’s “ICWA Representative,” but there is no
indication that Franklin was in fact the ICWA Representative at the time. (We do note
that Franklin is listed as the ICWA Director in the current list of designated agents, set
forth at 81 Fed. Reg. 10900.) Moreover, while the notice says it was being sent to the
ICWA Representative, the words “ICWA Representative” do not appear on the certificate
of mailing. We will require new and proper notice to this tribe on remand.
              10. Hannahville Indian Community of Michigan7
       The designated agent and address for the Hannahville Indian Community of
Michigan was “Jessica Brock, ICWA Worker, N15019 Hannahville B1 Road, Wilson,
MI 49896.” (79 Fed. Reg. 72021.) The Agency sent notice to the designated address, but
directed it to “ICWA Worker” rather than to “Jessica Brock, ICWA Worker.”
Substantial evidence supported the conclusion that notice was sufficient or that any error
was harmless.
              11. Fort Sill Apache Tribe of Oklahoma
       The designated agent and address for the Fort Sill Apache Tribe of Oklahoma was
“Ramona Austin, ICWA Director, 43187 US Highway 281, Apache, OK 73006.” (79
Fed. Reg. 72027.) The Agency sent the notice to the designated address, but directed it to
“ICWA Director” rather than to “Ramona Austin, ICWA Director.” The ICWA-030




7
      The Hannahville Indian Community is affiliated with the Potawatomi. (77 Fed.
Reg. 45849, 45850 (8/2/2012).)


                                             14
form indicated that the notice was being sent to Ramona Austin. Substantial evidence
supports the conclusion that the notice was sufficient, or any error was harmless.
       C. Notice to Tribes for Which a Letter Response was Received but Not Filed
       Mother and father next argue that the notice sent to the following tribes also did
not comply with the ICWA; according to the Agency, these tribes did send a response
indicating that A.K. was not eligible for membership in the tribe, but the responses were
not filed with the court. We address the notice to these tribes separately in light of the
parties’ arguments concerning harmless error.
              1. Prairie Island Indian Community8
       The designated agent and address of the Prairie Island Indian Community was
“Nancy Anderson, Family Service Manager, 5636 Sturgeon Lake Road, Welch, MN
55089.” (79 Fed. Reg. 72021.) The Agency sent notice to the designated address, but
directed it to “ICWA Representative” rather than to “Nancy Anderson, Family Service
Manager.” The record does not disclose why the notice would ensure that it would be
delivered to the appropriate person.
       However, according to the Agency’s 366.26 Report, the tribe sent a response to
the Agency indicating that A.K. is not eligible for membership. A response from the
tribe that the child is not eligible for tribal membership generally renders harmless an
error in the notice, since it indicates that the appropriate person received and acted upon
it. (J.T., supra, 154 Cal.App.4th at p. 994.)
       Parents nonetheless complain that a copy of the purported response from this tribe
was not included in the responses filed with the juvenile court, as required by section
224.2. (§ 224.2, subd. (c) [“Proof of the notice, including copies of notices sent and all
return receipts and responses received, shall be filed with the court in advance of the
hearing except as permitted under subdivision (d),” inapplicable here]; see Marinna J.,
supra, 90 Cal.App.4th at pp. 739–740 fn. 4.) Thus, they urge, the child welfare worker’s


8
      The Prairie Island Indian Community is affiliated with the Sioux. (77 Fed. Reg.
45852; 79 Fed.Reg. 72021 12/4/2012.)


                                                15
representation in the 366.26 Report and to the court that a response was received, and
that the response said A.K. was ineligible for membership, is insufficient to render the
notice error harmless.
       The Agency counters that an official is presumed to have complied with statutory
and regulatory standards under Evidence Code section 664. We do not see how a
presumption that an official has performed his or her duty could apply to the question of
whether a notice error is harmless where a response letter has not been filed with the
court. The presumption is inapplicable if the standards set forth in the relevant statute or
regulation were not observed in some respect. (Davenport v. Department of Motor
Vehicles (1992) 6 Cal.App.4th 133, 144.) Here, by not filing all the responses received,
the child welfare worker failed to comply with the standard set forth in section 224.2,
subdivision (c). Furthermore, the child welfare worker made (or adopted) mistakes in the
very report that represented the Prairie Island Indian Community had sent a response: the
366.26 Report sets forth the names and addresses to which notice was purportedly sent to
the tribes, but this information is different than what actually appears on the certified mail
receipts for the Jicarilla Apache Nation, the Standing Rock Sioux Tribe, and the
Hannahville Indian Community of Michigan.
       While we do not hold that a notice error can never be harmless unless the tribe’s
response has been filed with the court, we conclude that the Agency has not demonstrated
in this case that the notice error was harmless. We will therefore require that new and
proper notice be given to the tribe on remand.
              2. Sisseton-Wahpeton Oyate9
       The designated agent and address for the Sisseton-Wahpeton Oyate tribe was
“Evelyn Pilcher, ICWA Specialist, P.O. Box 509 Agency Village, SD 57262.” (79 Fed.
Reg. 72020.) The Agency sent notice to the designated address, but directed it to “ICWA
Director” rather than Pilcher as “ICWA Specialist,” and added “Lake/Traver” to the


9
      The Sisseton-Wahpeton Oyate tribe is affiliated with the Sioux. (77 Fed. Reg.
45852, 45853 (8/2/2012).)


                                             16
name of the tribe. Substantial evidence supports the conclusion that the notice was
sufficient or the error was harmless.
              3. United Keetoowah Bank of Cherokee Indians in Oklahoma
       The designated agent and address for the United Keetoowah Band of Cherokee
Indians in Oklahoma was “Joyce Hawk, Tribal Secretary, P.O. Box 746, Tahlequah, OK
74464.” (79 Fed. Reg. 72020.) The Agency sent notice to the designated address, but
directed it to “ICWA Representative” rather than to “Joyce Hawk, Tribal Secretary.”
Substantial evidence supports the conclusion that the notice was sufficient or the error
was harmless.
              4. Shakopee Mdewakanton Sioux Community
       The designated agent and address for the Shakopee Mdewakanton Sioux
Community was “Karen Ross -- ICWA Representative, 2330 Sioux Trail NW, Prior
Lake, MN 55372.” (79 Fed. Reg. 72021.) The Agency sent notice to the designated
address, but directed it to “ICWA Representative” rather than to “Karen Ross -- ICWA
Representative.” Substantial evidence supports the conclusion that the notice was
sufficient or the error was harmless.
              5. Upper Sioux Community of Minnesota
       The designated agent and address for the Upper Sioux Community of Minnesota
was “Linette Tellinghuisen, ICWA Manager, P.O. Box 147, 5744 Hwy. 57, Granite Falls,
MN 56241.” (79 Fed. Reg. 72021.) The Agency sent notice to the designated address,
but directed it to “ICWA Representative” rather to than “Linette Tellinghuisen, ICWA
Manager.” Substantial evidence supports the conclusion that the notice was sufficient or
the error was harmless.
              6. Yankton Sioux Tribe
       The designated agent and address for the Yankton Sioux Tribe was “Raymond
Cournoyer, ICWA Director, P.O. Box 1153, 108 East Avenue South East, Wagner, SD
57380.” (79 Fed. Reg. 72020.) The Agency sent notice to designated address, but
directed it to the “ICWA Director” rather than to “Raymond Cournoyer, ICWA



                                            17
Director.” Substantial evidence supports the conclusion that the notice was sufficient or
the error was harmless.
       D. Conclusion
       We will conditionally reverse the order terminating parental rights and remand the
matter to the juvenile court on a limited basis. The juvenile court shall order the Agency
to send proper ICWA notice to the following tribes: Jicarilla Apache Nation, Yavapai
Apache Nation, Crow Tribe of the Crow Reservation of Montana, Lower Sioux, Oglala
Sioux Tribe, Standing Rock Sioux Tribe, and Prairie Island Indian Community.
       If the tribes receive proper notice and a tribe or tribes conclude that A.K. is
eligible for membership in the tribe, the juvenile court must further comply with the
ICWA. (Tina L. v. Superior Court (2008) 163 Cal.App.4th 262, 267–269 (Tina L.); J.T.,
supra, 154 Cal.App.4th at p. 995.) If it is determined that A.K. is an Indian child, the
orders terminating parental rights shall be vacated and the juvenile court shall hold a new
section 366.26 hearing in compliance with the ICWA procedural and evidentiary
requirements. If, on the other hand, no tribe responds with a statement that A.K. is a
member or eligible for membership in its tribe and the juvenile court finds that A.K. is
not an Indian child, the order terminating parental rights shall be reinstated. (Tina L.,
supra, at pp. 267–269; In re J.T., supra, at p. 995.)
                                    III. DISPOSITION
       The order terminating parental rights is conditionally reversed. The matter is
remanded to the juvenile court, and the juvenile court is directed to order the Agency to
send proper ICWA notice to the following tribes: Jicarilla Apache Nation, Yavapai
Apache Nation, Crow Tribe of the Crow Reservation of Montana, Lower Sioux, Oglala
Sioux Tribe, Standing Rock Sioux Tribe, and Prairie Island Indian Community. If the
tribes receive proper notice and a tribe or tribes conclude that A.K. is eligible for
membership in the tribe, the juvenile court must further comply with the ICWA. If it is
determined that A.K. is an Indian child, the orders terminating parental rights shall be
vacated and the juvenile court shall hold a new section 366.26 hearing in compliance
with the ICWA procedural and evidentiary requirements. If, on the other hand, no tribe


                                              18
responds with a statement that A.K. is a member or eligible for membership in its tribe
and the juvenile court finds that A.K. is not an Indian child, the order terminating parental
rights shall be reinstated.




                                                  NEEDHAM, J.




We concur.




JONES, P.J.




BRUINIERS, J.




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