Opinion
NOT TO BE PUBLISHED
Alameda County Super. Ct. Nos. 0J05000831 & 0J06003377
Kline, P.J.
INTRODUCTION
Esperanza F. (mother) appeals from June 9, 2006 orders of the Alameda County Juvenile Court following a combined juvenile court hearing on detention, jurisdiction and disposition regarding her two daughters, A.J. (born December 2001) and K.B (born March 2006). The court found that A.J. and K.B. were at substantial risk of emotional or physical abuse and placed the children out of home pursuant to Welfare and Institutions Code sections 300, 361, and 387. Esperanza argues that reversal of the orders is required because the court failed to comply with the Indian Child Welfare Act (ICWA) (25 U.S.C. §§ 1901, et seq.). She further contends there was insufficient evidence to support the dispositional order removing then four-and-one-half year-old A.J. from her home pursuant to section 387. We shall affirm the orders and remand to the juvenile court with directions to comply with the inquiry and notice provisions of the ICWA, if it has not already done so.
All statutory references are to the Welfare and Institutions Code, unless otherwise indicated.
FACTS AND PROCEDURAL BACKGROUND
Initial Detention, Jurisdiction and Disposition Regarding A.J.
A.J. was taken into protective custody on March 11, 2005, after Esperanza placed an ad on the internet site Craig’s List, seeking a couple to adopt three-year-old A.J. Esperanza was living with A.J. at Elizabeth House, a transitional residence for homeless mothers in Oakland, California, having been asked to leave her grandmother’s Union City home the month before. Staff at Elizabeth House reported that Esperanza would yell and scream at A.J., handle her roughly, and that Esperanza would be in the house for long periods of time without the child present. She was overheard telling other residents that she wanted to place A.J. for adoption so that she could go to Italy.
Esperanza’s grandmother, Nona W., reported that Esperanza had ongoing mental health problems, and that she [Nona W.] had called Child Protective Services many times, but no one did anything. She reported that Esperanza would drop off A.J. and be gone for extended periods of time. Esperanza brought men into the home who were violent and at one point an unknown man brought A.J. home saying that Esperanza had asked him to drop off the baby.
Following the discovery of the Craig’s List ad, a meeting was held which was attended by Esperanza, the Alameda County Social Services Agency (Agency) and an Emergency Response Unit (ERU) worker, and various community resource representatives, including the director of Elizabeth House. Esperanza was asked to develop a daily routine for A.J.; she responded that she believed she had the legal right to leave A.J. with someone of her choice and to place A.J. for adoption. She further stated that she would not change her life to satisfy anyone, that she did not want to be confined to the house, and that she would go places with A.J. if she had to. Although she agreed to follow the suggested routine, she failed to return home to Elizabeth House the following night and A.J. was taken into protective custody.
On March 15, 2005, the Agency filed a juvenile dependency petition with allegations under section 300, subdivisions (b) and (g). The court found removal necessary under section 319, subdivision (a). The Agency’s jurisdiction/disposition report informed the court of a number of previous referrals and revealed Esperanza’s arrest record. It also related that A.J. was doing well in her placement, but appeared to be suffering from separation anxiety. Following a contested hearing on jurisdiction and disposition held April 12, 2005, the court found that the allegations of the petition were true with amendments and that A.J.’s welfare required that custody be taken from Esperanza. The court adjudged A.J. a dependent child and ordered reunification services for Esperanza. An amended petition was filed on April 20, 2005.
Return of A.J. to Esperanza’s Care
A six-month status review report recommended that A.J. remain a dependent of the court. The report related that Esperanza’s placement at Elizabeth House was in jeopardy because of her noncompliance with house rules. However, the director stated Esperanza could stay until December 2005, if she complied with house rules. Esperanza reported she was pregnant, but that she had discontinued her relationship with the baby’s father. She had completed a psychological evaluation and a caregiver competence evaluation with clinical psychologist Deepa Abraham.
These psychological evaluations cited a number of issues. Abraham gave her diagnostic impressions of “Mood Disorder Not Otherwise Specified” and “Antisocial Personality Disorder.” “Across tests, Esperanza denied positive symptomatology.” However, “the clinical history suggests that she has threatened suicide in the past; that her mood is labile; that she has altered sleep-wake cycles; erratic appetite; that she has been observed talking to herself. Her judgment was impaired. She lacked insight into her behaviors. She did not accept personal responsibility for her actions.” “Her coping repertoire appears inadequate as the clinical history suggests interpersonal maladjustment. [¶] She manifests sociopathic traits. . . . [¶] In her relationship to her daughter, she perceives her daughter as capable of being on her own. There is an indication that she put her needs above that of others. . . .” Abraham recommended that Esperanza “would benefit from psychoeducation about Mood Disorder” and “from psychotropic medication for Mood Disorder.”
In the caregiver competence evaluation, Abraham stated: “The history suggests that Esperanza is an uninvolved, distant parent who relies on family, friends or acquaintances to provide childcare. Her behaviors suggest that she places her needs before that of her daughter. She expects her daughter’s sleep and feeding routine to accommodate to her adult lifestyle. Her disciplining methods appear to be harsh. Also, she expects a level of independence in her daughter which she may be incapable of at her age.” “Esperanza appears to lack an awareness of her daughter’s emotional needs and her need for a stable, safe and secure environment. Also, she appears unaware that placing her interests and lifestyle above that of [A.J.]’s need for nurturance or access to a primary caregiver is impacting her daughter’s emotional health.”
Esperanza completed a medication evaluation with Dr. Lampe of Schuman-Lilies Clinic, who assessed that she did not need psychotropic medication. However, according to social worker Cynthia Thompson, Esperanza filled out a questionnaire that eliminated her from going further with the medication evaluation because she denied any problem with depression, mental health issues or symptoms, and she further denied she had ever had a psychological evaluation. Dr. Lampe told Thompson that Esperanza is not his treatment patient. Dr. Lampe stated that the mother would have to want medication treatment for it to be successful.
Esperanza completed a parenting class, was attending weekly individual therapy regularly and was participating in didactic therapy with A.J. at Children’s Hospital. At the hearing on August 31, 2005, the court authorized a 30-day trial visit for A.J. with her mother at Elizabeth House.
The Agency’s interim review report for an October 5, 2005 hearing recommended that A.J. remain a dependent, return to Esperanza’s home, and that family maintenance services be provided. The report stated that Esperanza had a new place of residence that was suitable for A.J. She had obtained employment as a tutor at Sankofa Academy. Esperanza’s therapist, Dr. Locke, stated firmly that she was in support of A.J.’s return to her mother. The director of Elizabeth House had reservations about Esperanza’s continued noncompliance with house rules. Nevertheless, Esperanza had been compliant with her case plan, and the worker stated that there was no justifiable reason not to return A.J. to her mother.
At the hearing, the court found that Esperanza had made substantial progress, and established a permanent plan of return home. The plan of placing A.J. out of home was set aside, and family maintenance services were ordered. Among other things, the case plan required Esperanza to continue in individual therapy and required that A.J. attend a licensed, structured daycare program funded by the Agency, and required Esperanza to obtain an psychological evaluation.
March 6, 2006 detention of A.J. and K.B.
In March 2006, Esperanza gave birth to K.B. Thompson had received three different calls within the preceding 45-day period from people concerned about who was picking A.J. up from school and dropping her off and the Agency was concerned that A.J. was not being appropriately cared for from 3:30 to 7:00 p.m. at Esperanza’s jobsite. An additional concern was that Esperanza and A.J. had been missing their joint appointments with A.J.’s therapist at Children’s Hospital.
In February and March 2006, the Agency received a number of reports that Esperanza was inappropriately disciplining A.J. and had been observed slapping her at school. On March 6, 2006, the Agency received reports that there was a gas smell in Esperanza’s home, and a report that Esperanza had pinched K.B and had yelled at the infant to “shut up.” Thompson also received a call that Esperanza talks “crazy” to A.J., threatening to take her back to the foster parent if she does not behave. Thompson contacted Esperanza, asking what was going on and instructed her not to pick up A.J. at her daycare as the Agency was placing a hold on A.J. and Thompson was coming to Esperanza’s home to meet with her.
Instead of remaining at home, Esperanza began making arrangements to transfer custody of the infant K.B. She initially asked a coworker, Janice M., to take custody of K.B. to keep the baby “out of the system.” When Janice refused, Esperanza prepared a letter giving “full and sole custody” of K.B. to her next-door neighbor, Yolanda H, identified therein as the baby’s “aunt by birth (maternal Aunt).” In fact, Yolanda H. was no relation to Esperanza or to the baby. Yolanda had known Esperanza for about six months and she had babysat A.J. approximately four times. She did not speak to Esperanza on a regular basis. Thompson and the Agency’s emergency response worker, Lisa Brachman, intercepted Esperanza as she was attempting to give the baby and the notarized letter to Yolanda H. upon Esperanza’s return home from the notary with the baby. Yolanda H. gave Thompson the paper when ordered to do so, despite Esperanza’s telling her not to. Esperanza initially insisted Yolanda H. was K.B.’s father’s sister. She eventually admitted this was untrue.
The Agency had arranged for Esperanza and K.B. to stay with Janice M. when they returned from the hospital, as Esperanza had said she had no one who could help her following her C-section delivery. When Thompson spoke with Esperanza that day, asking Esperanza where she was, Esperanza said she was at Janice’s, which was not true. Esperanza admitted she had spent the night at her own home, although she and K.B. were to have stayed with Janice. When the workers went into Esperanza’s home, they found it dirty and in disarray, with the baby’s things lying on the floor, and A.J.’s bedroom a mess, with no place for A.J. on the bed and no sheets on the bed. Janice M. also testified that the house was “dirty” and “filthy” that morning, with unclean clothes and toys everywhere and every room messed up. Esperanza blamed A.J. for the mess. When Janice, who accompanied Esperanza and K.B. to the notary, told Esperanza that the baby was underdressed in just a T-shirt and booties for that cold, rainy day, Esperanza told her that she had to handle her own business.
Although the infant was inadequately dressed to go out, neither Thompson nor Brachman observed signs of physical abuse on the infant K.B. After about 45 minutes in the apartment with the social workers, Esperanza explained to the workers that she planned to give the newborn to Yolanda H. as a “precaution” because she had recently received a telephone call from the alleged father threatening to “come and take the baby” even though he was not listed on the birth certificate and did not know where she lived. Esperanza had not mentioned the father or his alleged threat to take the baby to Janice M., who was with her that morning and during the trip to the notary’s; she did not mention it to the police who came with the social workers; and she had not told Thompson during their phone calls that morning.
Thompson considered both children to be at risk. K.B. and A.J. were removed due to Esperanza’s history and impaired judgment after Thompson saw the notarized letter. The children were placed together in foster care.
During the disposition-jurisdiction hearing, Esperanza testified she had not told Thompson about the father’s threat that morning or previously because Thompson had cut her off and would not listen. Thompson testified that she had a couple of telephone conversations with Esperanza on the day of removal and, contrary to Esperanza’s testimony, Esperanza had ample opportunity to tell her about any threats from the father. Thompson was not abrupt, did not limit Esperanza’s opportunity to speak or cut her off. Thompson really wanted to know what was going on and asked Esperanza what was happening. During the dependency proceedings, on the day Janice M. was testifying, Janice reluctantly acknowledged that Esperanza had called her that morning, before Janice’s testimony, and for the first time had told Janice of the father’s alleged threat. After first claiming not to recall the substance of the phone call and being reminded that she was under oath, Janice testified that Esperanza told her that “they’re going to ask me [Janice] about [the father], you know, that the father wanted to have custody of the baby, that’s why she wrote the letter or whatever. So she wanted me to say that, I guess.” Asked why she had not called her grandmother for help after the father’s call, Esperanza testified that she did want to drop the children with her grandmother, who had raised Esperanza and looked after A.J. when she was a baby, but that the Agency had told her she would lose custody if she did so. Thompson flatly denied this, stating that it was Esperanza who had informed the Agency she was estranged from her family. The grandmother testified she would offer Esperanza respite care if she needed it, but that Esperanza had told her that she could no longer leave A.J. with her without supervision because Thompson did not like the grandmother and grandfather and did not want the children at the grandparents’ home.
At the team meeting after removal, Esperanza insisted that what she had done was not improper and she wanted the children to be returned to her. She denied that her judgment was impaired.
Combined Detention, Jurisdiction/Disposition Hearings
The Agency filed a section 387 supplemental petition for A.J. on March 8, 2006. The section 300 original petition for K.B. was filed the same day. Detention was contested in both cases, and the hearings were continued several times. A jurisdiction report was filed for both children with a hearing scheduled for March 23, 2006. The report contained summaries of reports from witnesses who had heard or seen Esperanza inappropriately discipline A.J. The report stated that Esperanza’s therapist had stated that she did not know whether she could continue working with Esperanza because the therapist did not feel that their therapeutic relationship was of benefit to either of them. Thompson testified at the beginning of the hearing that although therapist Locke related that Esperanza had attended therapy regularly over the last year, Locke had advised Thompson that Esperanza was not working on the issues that had resulted in A.J.’s initial detention and that not much progress was being made in therapy. By the end of the hearing, Esperanza had rescinded her consent to allow Locke to discuss her case with the Agency. Before Esperanza rescinded permission for Locke to discuss her case with the Agency, Locke sent Thompson a letter dated March 16, 2006 indicating, among other things, that once A.J. was returned to her “sessions largely consisted of reporting current cris[e]s or conflicts in relationships” and that Esperanza would report that everything was fine, she loved her work, A.J. was fine and she did not want to use therapy to work on her own history of abuse. Locke also related difficulties with scheduling therapy and some missed sessions, which Esperanza attributed to not knowing that she had to attend therapy for the children to remain with her. Thompson testified that the therapy requirement was a clear part of the case plan and that Esperanza knew it “from day one.”
Esperanza testified that she was aware of a mental health diagnosis in the past, but that she did not agree she was bipolor or depressed or that she had a mood or personality disorder. She asserted that she had posttraumatic stress disorder. She denied threatening A.J. with return to foster care.
Testimony continued over several sessions. A jurisdiction/disposition report was filed on May 1, 2006. The Agency recommended that A.J. continue as a dependent and that K.B. be adjudged a dependent and that both be placed out of home. The report stated that during visits Esperanza paid a lot of attention to the baby to the point that A.J. felt left out and had started to act out by soiling her underpants and expressing jealousy. The report noted that Esperanza’s aunt, Kathy W., had stated that she would be interested in being considered for placement of the children.
On May 5, 2006, the court granted the Agency’s motion to consolidate the detention, jurisdiction and disposition hearings.
According to the Agency’s dependency investigation worker, Marie Moore, A.J. was not doing well at the foster home. A.J. was “a very angry little girl,” jealous of the new baby, and clamoring for Esperanza’s attention during her four-times-per-week visits. Moore opined that A.J. needed a lot of attention and that it was very difficult for her to get the attention she needed during the visits as Esperanza was focused on the baby. Based upon her discussions with A.J.’s therapist, Moore recommended a therapeutic nursery school for A.J. A.J.’s foster parents had given the Agency a seven-day removal notice to remove her from their home and the Agency was considering placement with a relative.
The hearings continued through additional sessions until completion on June 9, 2006. The court announced its decision on that date, finding the allegations of both petitions true as amended, continuing A.J. as a dependant and adjudging K.B. a dependent, and placing both children in the home of their great aunt Kathy W. The court found by clear and convincing evidence that both children had to be removed from Esperanza’s custody, as leaving or returning them home would cause a substantial danger to the safety, protection, or physical or emotional well-being of the children. The court also found by clear and convincing evidence that there were no reasonable alternative means to protect the children.
Esperanza filed a timely notice of appeal in each of the children’s cases on June 19, 2006.
DISCUSSION
I. Substantial Evidence Supports the Disposition Order for A.J.
Esperanza contends that there is insufficient evidence supporting the disposition order placing A.J. out of home. Although she emphasizes the “clear and convincing” standard applied by the trial court, it is well established that on appeal we apply the “substantial evidence” standard of review. “We review the record in the light most favorable to the trial court’s order to determine whether there is substantial evidence from which a reasonable trier of fact could make the necessary findings based on the clear and convincing evidence standard. [Citation.]” (In re Isayah C. (2004) 118 Cal.App.4th 684, 694-695; see In re J.I. (2003) 108 Cal.App.4th 903, 911.)
Section 361, subdivision (c)(1), provides in relevant part: “A dependent child may not be taken from the physical custody of his or her parents or guardian or guardians with whom the child resides at the time the petition was initiated, unless the juvenile court finds clear and convincing evidence of any of the following circumstances . . . . [¶] (1) There is or would be a substantial danger to the physical health, safety, protection, or physical or emotional well-being of the minor if the minor were returned home, and there are no reasonable means by which the minor’s physical health can be protected without removing the minor from the minor’s parent’s or guardian’s physical custody.”
The juvenile court here found with respect to A.J.: Esperanza had written a notarized letter giving full and sole custody of A.J.’s sibling, five-day-old K.B., to an unrelated childcare provider whom she hardly knew and that she did so to prevent the Agency from taking the baby into custody. The court also found Esperanza failed to take A.J. to her preschool consistently and that A.J. had missed a significant number of days over the past several months; Esperanza had been observed threatening to return A.J. to foster care if she did not behave or stop crying and A.J. continued to cry; Esperanza suffers from a mental illness or a mental disorder that impairs her judgment and her ability to safely parent A.J. The court found by “clear and convincing evidence” that both children must be removed from the physical custody of the mother, as leaving and/or returning the minors home would pose a substantial danger to their physical health and emotional well being. The court also found that there were no reasonable alternative means to protect the children, explaining that the substantial risk of harm to the children was due to the mother’s inability to protect them from her impaired judgment due to the lack of treatment of her mental illness. The court discussed the reasonable efforts that had been made to prevent or eliminate the need for removal, including that the mother had been receiving family maintenance services and child welfare services for A.J. for approximately one year at the time she prepared the letter purporting to give away K.B. and had it notarized. The court did not find true allegations that Esperanza had left A.J. with unrelated caregivers or that she had physically abused either child.
Substantial evidence supports the court’s disposition order removing A.J. from her mother and placing her out of home.
The record shows that Esperanza suffers from mental illness or disorder that prevents her from being able to safely parent A.J. Esperanza denies her illness and, although having received nearly a year of therapy and other family maintenance services, she still engaged in the same type of behavior (trying to give away her child to people she knew only slightly or not at all) that caused A.J. to become a dependent child in the first place. There was ample evidence that Esperanza acts rashly with respect to her children when she is under stress; that she lies repeatedly about her behavior to the Agency and to others; and that she refuses to acknowledge that she suffers from serious mental illness or mental disorder (for example, eight days after the children were removed, during a visit to Schuman-Liles Clinic, Esperanza reported she was “very happy,” and that she had no mental health issues going on). These circumstances clearly pose a substantial risk of serious physical and emotional harm to the children. Moreover, Esperanza’s denial of her mental health issues, and her persistent pattern of misrepresentation to the Agency, to mental health professionals, to family, and to others who could assist her, fully supports the finding that there were no reasonable alternative means to protect the children.
Esperanza maintains that this case is like In re Jamie M. (1982) 134 Cal.App.3d 530, in which the reviewing court reversed a disposition order upon finding no evidence to show how a mother’s schizophrenia would adversely affect her children. (Id. at p. 537.) The delusional mother in that case had taken the children to the police and asked them to take custody because she was afraid. At the time of the disposition order, mother had restarted her medication, was rational and pleasant, and she recognized she would have to be under psychiatric care for the rest of her life. (Id. at p. 534.) The appellate court concluded that “[t]he basic premise of the juvenile court’s order [was] that a schizophrenic parent will per se be detrimental to a child, as no evidence was presented to show how [the mother’s] illness would adversely affect her children.” (Id. at p. 537.)
That is not the case here. The court engaged in the appropriate weighing process and the record on the whole supports the dispositional order. The court did not merely assume that Esperanza’s mental health issues were per se detrimental to A.J. Rather, it considered evidence that despite nearly a year of family maintenance services, including individual therapy, Esperanza engaged in the same type of behavior that had led to A.J.’s dependency and initial removal.
Moreover, on this record there is ample evidence that unlike the mother in In re Jamie M., supra, 134 Cal.App.3d 530, Esperanza is unwilling or unable to address her mental health issues in a meaningful way and that she is untruthful with the Agency, health care providers, the court, and others seeking to assist her. Furthermore, where there was no evidence of substantial risk of physical harm to the children in In re Jamie M. from the mother’s taking them to the police, here mother impulsively tried to give A.J. first to complete strangers over the internet and, in the recent instance, had tried to give A.J.’s sister to persons she had not known very well or for very long. Esperanza contends she has improved insofar as she did not use the internet to find strangers to take her children and she did at least know Janice W. and Yolanda H. However, she did not know them well, she did not turn to family who stood willing to help, and it is also the case that she was in a hurry to avoid any interference by the Agency. (Placing another ad on the internet might have taken longer.) In these circumstances, continued family maintenance services with the children remaining in her home appears to be totally unworkable and insufficient to ameliorate the risk.
We conclude that substantial evidence supports the challenged disposition order.
II. ICWA Inquiry
Esperanza contends that the juvenile court failed to comply with the inquiry requirements of the ICWA. Specifically, she claims the dispositional orders made as to both children on June 9, 2006 should be set aside because there is no documentation (form JV-130) in the record to show that the Agency or the court inquired of Esperanza whether A.J. or K.B. had any Indian ancestry. The Agency concedes that the form JV-130 was required and was not completed, but argues that the record shows that sufficient inquiry was made by the Agency and further contends that Esperanza has forfeited any challenge to the sufficiency of the court’s compliance with ICWA and that any error was harmless.
In a supplemental letter brief filed August 21, 2007, the Agency relates that on June 12, 2007, Esperanza stated to an Agency worker that she is part Blackfeet Indian. This disclosure came after filing of respondent’s brief in this action on May 29, 2007, in which respondent argued that any inquiry error was harmless, but before filing of Esperanza’s reply brief on July 9, 2007. The reply brief contains no mention of such disclosure.
This court issued a request for supplemental letter briefs from the parties on August 14, 2007, asking the parties to address whether we should issue a stay of the section 366.26 permanent plan selection hearing set for August 28, 2007. We declined to issue a stay.
The Agency has also submitted a declaration of counsel in support of its supplemental letter brief and a copy of the report prepared in anticipation of the section 366.26 hearing relating that disclosure, subsequent steps purportedly taken by the Agency to notify the Blackfeet tribe, and the tribe’s responsive letter confirming that the children are not Blackfeet. The Agency requests that we take judicial notice of these matters pursuant to Evidence Code sections 452, subdivision (d), and 459. Esperanza opposes our taking of judicial notice. As an appellate court, we are ill-equipped to take evidence. Moreover, should we take judicial notice of the report prepared for the section 366.26 hearing, that does not obviate the question whether the notice was properly given in this instance. These issues are best determined in the trial court after all the evidence relating to the question has been presented. In these circumstances, we decline the invitation to take judicial notice on this appeal of the facts regarding notice to the tribe related by the Agency.
ICWA and the duty of inquiry
The purpose of the ICWA is to “ ‘protect the best interests of Indian children and to promote the stability and security of Indian tribes and families.’ ” (In re Karla C. (2003) 113 Cal.App.4th 166, 173-174, quoting 25 U.S.C. § 1902; see also In re Suzanna L. (2002) 104 Cal.App.4th 223, 229; In re Santos Y. (2001) 92 Cal.App.4th 1274, 1299.) “The ICWA presumes it is in the best interests of the child to retain tribal ties and cultural heritage and in the interest of the tribe to preserve its future generations, a most important resource. [Citation.]” (In re Desiree F. (2000) 83 Cal.App.4th 460, 469.) The provisions of the ICWA apply to juvenile dependency proceedings in this state. (In re Junious M. (1983) 144 Cal.App.3d 786, 791.)
Esperanza relies on California Rules of Court, rule 1439(d), which provides that both the juvenile court and the county welfare department “have an affirmative and continuing duty to inquire whether a [dependent] child . . . is or may be an Indian child.” Rule 1439(d)(2) provides that “the social worker must ask . . . the parents . . . whether the child may be an Indian child or may have Indian ancestors.” Rule 1439(d)(3) provides that, “[a]t the first appearance by a parent . . . in any dependency case, . . . the parent . . . must be ordered to complete Parental Notification of Indian Status (Juvenile Court) (form JV-130).” For purposes of the ICWA, an “Indian child” is a child who is either a member of an Indian tribe or 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); rule 1439(a)(1)(A) & (B).)
Effective January 1, 2007, the California Rules of Court were renumbered, and rule 1439 is now rule 5.664. In this opinion, we will refer to this rule as rule 1439, the number in effect as of all hearings relevant to this appeal, and quote from the rule as it read at that time. All further rule references will be to the California Rules of Court.
Sufficiency of the evidence of inquiry
The requirement that the court order the parent to complete a form JV-130 became effective on January 1, 2005. The initial dependency petition regarding A.J. was filed on March 15, 2005. Boxes on that petition (Judicial Council form No. JV-100) indicating tribal membership or eligibility for membership, or Indian heritage were not checked. Nor were these boxes checked on the subsequent amended petition filed April 20, 2005, or on the section 387 supplemental petition for A.J. filed March 8, 2006. The detention report prepared for the March 16, 2005 hearing affirmatively stated “The Indian Child Welfare Act does not apply,” as did every Agency report thereafter. (See jurisdiction/disposition report for March 30, 2005 hearing; status review report for August 31, 2005 six-month review; interim review report for October 5, 2005; the detention report for the March 9, 2006 hearing; the jurisdiction report for the March 23, 2006 hearing; and the jurisdiction/disposition report for the May 1, 2006 hearing.) Counsel was appointed for Esperanza at the initial detention hearing of March 16, 2005, and she was represented by counsel at all subsequent hearings.
The parties have not provided us the reporter’s transcripts of the initial detention hearing for A.J. (March 16, 2005), the uncontested hearing on the initial dependency petition for A.J. (March 30, 2005), the jurisdictional hearing for A.J. (April 4 through April 12, 2005), or for any hearing before March 15, 2006, the first day of the detention hearing on the section 387 supplemental petition for A.J. and on the original section 300 petition for K.B.
Esperanza argues that the absence of a completed form JV-130 from the record shows that the juvenile court failed to inquire into the Indian heritage of A.J. and K.B. and that the court failed to ensure that the inquiry provisions of the ICWA were followed. (See rule 1439(d).) The Agency contends that, although completed JV-130 forms in the record would provide evidence of the inquiry, their absence is not conclusive evidence that an inquiry was not made.
The Agency points to the absence of any checked box on the three form JV-100 petitions and the affirmative statement in every Agency report, stating “The Indian Child Welfare Act does not apply,” as evidencing an adequate inquiry was made. Such evidence was found sufficient to support compliance by the Agency with the duty of inquiry in cases predating adoption of the form JV-130 requirement. (See In re Rebecca R. (2006) 143 Cal.App.4th 1426, 1430; In re Aaron R. (2005) 130 Cal.App.4th 697, 708; In re S.B. (2005) 130 Cal.App.4th 1148, 1160-1162; In re Aaliyah G. (2003) 109 Cal.App.4th 939, 941-942.)
The Court of Appeal, in In re J.N. (2006) 138 Cal.App.4th 450, reached a different result. There, the appellate court refused to find evidence of inquiry was sufficient and remanded to the trial court with directions for failure to inquire of the mother whether the child had Indian ancestry. Like the case before us, the dependency in In re J.N. began in 2005, after provisions for the form JV-130 went into effect. Neither box on the form petition (JV-100) was checked. However, in that case there was a completed form on file for the father, but none for the mother. Social worker’s reports indicated the father was asked about Indian ancestry, but did not indicate the mother was asked, and there were inconsistencies between the oral record and the documentary record—the reporter’s transcript did not state that the juvenile court had no reason to know of Indian ancestry for the child. The appellate court concluded that these inconsistencies could give rise to the inference that no inquiry was ever made of the mother. (Id. at pp. 460-461.) The court could not find the error harmless, despite the absence in the record of anything to indicate the mother had any Indian ancestry. (Id. at p. 461.) It distinguished cases finding harmless error on the basis that “none involve the complete failure to inquire of a parent regarding his or her ancestry. [Citations.]” (Id. at p. 461, fn. 6.) The appellate court refused to “speculate about what mother’s response to any inquiry would be” and remanded to the juvenile court with directions. (Id. at p. 461.)
The instant case is somewhat distinguishable from In re J.N. in that there is no similar affirmative inquiry as to one parent supporting an inference that it had not been made as to the other. (See In re Rebecca R., supra, 143 Cal.App.4th at p. 1430 [“There are no inconsistencies in the evidence to rebut the presumption that [the agency] properly carried out its duties in contrast to In re J.N., supra, 138 Cal.App.4th 450, where an affirmative showing that inquiry was made as to one parent supported an inference that it had not been made as to the other”].)
We have no reporter’s transcript of the initial detention and jurisdiction proceedings for A.J., where inquiry should have taken place. It is the appellant’s burden to show error and to provide an adequate record for that purpose. We can presume that as to A.J., the trial court made the rule 1439 inquiry and ordered Esperanza to complete the form JV-130 at that time. However, as to K.B., the same presumption does not apply as we have the reporter’s transcript of the initial detention proceeding and it is clear from that transcript that the court did not at that time conduct the ICWA inquiry as required by the statute. In this circumstance, the inconsistency referred to in In re J.N. is arguably present. Moreover, we are aware of no case holding that the duty of inquiry was satisfied despite the absence of the form JV-130 and the failure of any reporter’s transcript to show that the juvenile court inquired of the parent about the children’s Indian status on the record, where the parent’s first appearance in the case (for instance in the initial detention proceeding) occurred after the effective date of the statute.
In these circumstances, we conclude that the court’s duty of inquiry pursuant to rule 1439(d)(3) was not satisfied.
Harmless error
The Agency contends in its respondent’s brief that any error in the court’s failure to make the required inquiry was harmless—despite the absence of the form JV-130 in the record before us and the incomplete reporters transcripts that do not show that the juvenile court inquired of Esperanza about the children’s Indian status on the record. (See In re E.H. (2006) 141 Cal.App.4th 1330, 1334; In re Rebecca R., supra, 143 Cal.App.4th at p. 1431; In re S.B., supra, 130 Cal.App.4th at p. 1162.)
The source of the duty of inquiry is rule 1439(d), not the ICWA. “[A]ny failure to comply with a higher state standard, above and beyond what the ICWA itself requires, must be held harmless unless the appellant can show a reasonable probability that he or she would have enjoyed a more favorable result in the absence of the error. [Citations.]” (In re S.B., supra, 130 Cal.App.4th at p. 1162.)
Here, there was absolutely nothing in the record before the trial court when it entered the orders attacked herein to suggest that, if the juvenile court or the Agency had inquired, Esperanza would have reported any Indian ancestry. The issue she raises in this appeal is nearly identical to that raised by the appellant father and rejected by the appellate court in In re Rebecca R., supra, 143 Cal.App.4th 1426. In that case, the father sought a reversal of a termination of parental rights by alleging the department did not satisfy its duty of inquiry because there was no form JV-130 in the record. (Id. at pp. 1428-1429.) The Fourth Appellate District affirmed the termination of parental rights, finding that form JV-130 was not required at the time father first appeared in the case, as rule 1439(d) did not become effective until January 1, 2005; that the record consistently indicated the ICWA did not apply; and, as an independent basis for affirming the judgment, that father had “failed to show a miscarriage of justice, which is the fundamental requisite before an appellate court will reverse a trial court’s judgment. [Citation.]” (Id. at p. 1430.)
All reports filed by the Agency stated that the ICWA did not apply. Esperanza appeared for the first time at the March 16, 2005 initial detention hearing for A.J. and was appointed counsel. She also appeared at the subsequent hearings and testified at the April 11, 2005 jurisdictional hearing, and at the combined detention, jurisdiction and disposition hearing for both children held March 15 through May 26, 2006. She never objected to the social worker’s statements in the various reports that the ICWA did not apply. Furthermore, in each of the dependency petitions and in the supplemental dependency petition, the two boxes indicating the child’s possible Indian ancestry were not checked.
The court reasoned: “There is nothing whatever which prevented [father], in his briefing or otherwise, from removing any doubt or speculation. He should have made an offer of proof or other affirmative representation that, had he been asked, he would have been able to proffer some Indian connection sufficient to invoke the ICWA. He did not.” (In re Rebecca R., supra, 143 Cal.App.4th at p. 1431.) “The knowledge of any Indian connection is a matter wholly within the appealing parent’s knowledge and disclosure is a matter entirely within the parent’s present control. The ICWA is not a ‘get out of jail free’ card dealt to parents of non-Indian children, allowing them to avoid a termination order by withholding secret knowledge, keeping an extra ace up their sleeves. Parents cannot spring the matter for the first time on appeal without at least showing their hands. Parents unable to reunify with their children have already caused the children serious harm; the rules do not permit them to cause additional unwarranted delay and hardship, without any showing whatsoever that the interests protected by the ICWA are implicated in any way.” (Ibid, italics added.)
Esperanza argues that application of a harmless error standard “is tantamount to reviving the ‘existing Indian family doctrine.’ ” That doctrine, whatever its continued validity, is irrelevant to the issue here. The existing Indian family doctrine as originally developed, “held that the ICWA was inapplicable if the child was not removed from an existing Indian ‘environment.’ [Citations.]” (In re Vincent M. (2007) 150 Cal.App.4th 1247, 1260.) California courts have split on the continued vitality of the doctrine. (Id. at pp. 1264-1265.) The doctrine has been invoked in circumstances where it is claimed that the child has or may have Indian heritage, but the child had never had any significant ties with the tribe or with any Indian community. (See id., at p. 1269 [concurring opn. of Bamattre-Manoukian, J.].) There is no indication that the doctrine has any relevance to the situation here where the question is not the adequacy of notice to the tribe or application of the substantive provisions of the act, but rather the initial step of inquiring of the parent whether the child may have Indian ancestry.
As a general proposition, we are convinced that an error in complying with rule 1439(d) may be found harmless where there is nothing in the record to indicate that had the court ordered the parent to complete the form JV-130, the parent would have disclosed any Indian ancestry; where nothing else in the record indicates the child has any Indian heritage or tribal affiliation; and where appellant never asserted in the trial court that such was the case.
Unfortunately for the children in this case, we cannot rely upon the miscarriage of justice standard as did the court in In re Rebecca R. Because we are now aware that Esperanza has claimed Indian heritage, we cannot say that in the absence of a representation by Esperanza that the children do or may have Indian ancestry, the ICWA claim here amounts to “nothing more than trifling with the courts.” (In re Rebecca R., supra, 143 Cal.App.4th at p. 1431, citing People v. Beebe (1989) 216 Cal.App.3d 927, 932.) Nor can we stand upon the proposition that “there can be no prejudice unless, if [s]he had been asked, [Esperanza] would have indicated that the child did (or may) have such ancestry.” (In re Rebecca R., at p. 1431.) Although Esperanza did not make that representation in the juvenile court before entry of the orders attacked on this appeal, and did not make it in her initial briefing on this appeal, at this point we cannot say with certainty that the children do not in fact have any Indian ancestry. Esperanza has made that representation to the Agency below and both parties have acknowledged in their supplemental letter briefs that she has done so. “It is not ‘acceptable for juvenile courts to completely ignore indications that a child may be of Indian ancestry.’ [Citation.]” (In re Nikki R (2003) 106 Cal.App.4th 844, 855.)
In these circumstances, we cannot conclude that the failure to make the requisite rule 1439(d)(3) ICWA inquiry was harmless. Consequently, we believe that a limited remand is required.
The Agency argues that any error in the court’s failure to comply with rule 1439 requires only a limited remand here, citing In re Brooke C. (2005) 127 Cal.App.4th 377, 385, among other cases. Esperanza disagrees and seeks reversal of the jurisdiction and disposition orders. In In re Brook C., the court discussed insufficient ICWA notice in the context of a dispositional order. The court concluded that an ICWA notice error is not jurisdictional, and therefore ordered a limited remand to the juvenile court for the agency to comply with ICWA notice requirements, with directions to the juvenile court depending on the outcome of such notice. (Id. at pp. 385-386.) We are aware that other courts have held that a violation of the ICWA constitutes jurisdictional error. (See Nichole K. v. Superior Court (2007) 146 Cal.App.4th 779, 781.) However, we are persuaded that In re Brooke C. states the better view—that the error here was not “jurisdictional” in the fundamental sense and that reversal is only appropriate where parental rights have been terminated. (Id. at p. 385; see In re Jonathon S. (2005) 129 Cal.App.4th 334, 340-343.) Appellant’s parental rights were not terminated here. Consequently, the appropriate remedy is remand for ICWA compliance.
Were we to follow the Third District in Nicole K. v. Superior Court, supra, 146 Cal.App.4th 779, and reverse the jurisdiction and disposition orders for failure to conduct the proper inquiry, that reversal would still be a limited or conditional one. The appellate court in Nichole K. ordered the trial court to vacate the challenged orders terminating reunification services and referring the matter for a section 366.26 hearing and also ordered notice to the relevant Indian tribe. The disposition also provided that the juvenile court was to conduct a new review hearing in conformity with ICWA if the tribe determined that the children were Indian children, or other information showed the minors were Indian children as defined by ICWA. However, if the tribe determined “that the minors are not Indian children, or if no response is received indicating the minors are Indian children, the juvenile court shall reinstate the vacated orders.” (Id. at p. 786, italics added.)
DISPOSITION
The jurisdiction and disposition orders challenged herein are affirmed, and the matter is remanded to the juvenile court with directions to comply with inquiry and notice provisions of the ICWA, if it has not already done so. After proper notice under the ICWA, if it is determined that either A.J. or K.B. is an Indian child and the ICWA applies to these proceedings, Esperanza is entitled to petition the juvenile court to invalidate orders that violated the ICWA. (See 25 U.S.C. § 1914; rule 5.664(n)(1).)
We concur: Haerle, J., Lambden, J.