Opinion
NOT TO BE PUBLISHED
Superior Court County of Santa Barbara Super. Ct. No. J1175074, Arthur A. Garcia, Judge
Darlene Azevedo Kelly, under appointment by the Court of Appeal, for Robert C., Appellant.
Lee Gulliver, under appointment by the Court of Appeal, for Lauarie A., Appellant.
Stephen Shane Stark, County Counsel, County of Santa Barbara ando:proem. Deputy, for Respondent.
YEGAN, Acting P.J.
Laurie A. (mother) and Robert C. (father) appeal from a juvenile court order terminating their parental rights to Bobby A. (minor). (Welf. & Inst. Code, § 366.26.) They contend that the order must be reversed because the juvenile court and the Santa Barbara County Child Welfare Services (CWS) failed to comply with the inquiry and notice requirements of the Indian Child Welfare Act (ICWA, 25 U.S.C. § 1901 et seq.). We affirm.
All statutory references are to the Welfare and Institutions Code.
Factual and Procedural Background
On May 1, 2006, CWS filed a dependency petition alleging that minor, then two years old, came within the jurisdiction of the juvenile court pursuant to section 300, subdivisions (b) (failure to protect), and (g) (no provision for support).
On May 2, 2006, mother completed Form JV-130 (Parental Notification of Indian Status). Mother stated that she may be a member of, or eligible for membership in, the "Blackfoot tribe." Father was not asked to complete, and did not complete, Form JV-130. Nothing in the record indicates that father was ever asked whether he might have Indian ancestry.
At the jurisdictional hearing, the juvenile court found true the factual allegations of the dependency petition. It declared minor a dependent child within the meaning of section 300.
The juvenile court subsequently found that the ICWA does not apply. It set the matter for a hearing pursuant to section 366.26 to select and implement a permanent plan for the minor. On May 24, 2007, the juvenile court terminated the parental rights of both parents.
After the termination of parental rights, ICWA proceedings occurred in the juvenile court. We granted a motion by CWS to augment the record to include documents relating to these proceedings. Among the documents are the following:
(1) Report filed on October 1, 2007, in which CWS notes that it questioned father's grandmother about father's Indian heritage. The report states: "[Father's grandmother] reported that he has Azteca Indian heritage. Since Azteca is not a federally recognized Native American tribe but is a Mexican or Central American tribe, [CWS] respectfully recommends that the Court find that ICWA does not apply as to the presumed father's side of the family."
The report states that the person questioned was father's mother (minor's "paternal grandmother"), K.F. However, as father points out in his reply brief, K.F. is father's grandmother (minor's paternal great-grandmother).
The ICWA requires notice only to federally recognized Indian tribes. (In re A.C. (2007) 155 Cal.App.4th 282, 287.)
(2) Juvenile court minutes showing that, on October 1, 2007, the court found that the "ICWA does not apply to father."
(3) CWS Interim Review Report, dated October 18, 2007. The report states that, during a meeting with a social worker on August 22, 2007, mother provided information concerning her Indian heritage. Mother said that "her Indian heritage comes from her father," P.A., who "is homeless in the Santa Barbara area." P.A.'s "grandmother, his mother's mother, . . . was full Indian." Mother did "not know her grandmother's or her great grandmother's names or any other information about them." The report further states that, on September 26, 2007, a social worker telephoned P.A.'s sister, who provided the name and birthplace of P.A.'s mother and of P.A.'s mother's mother. (Id., at pp. 3-4)
(4) Form JV-135, which incorporates the information provided by mother and P.A.'s sister in August and September 2007. The form gives notice to the Blackfeet Tribe and the Bureau of Indian Affairs (BIA) that minor "is reported to be eligible for membership" in the Blackfeet Tribe and the Blackfeet Tribe Band. Attached to the form are return receipts showing that it was received by the Blackfeet Tribe on October 5, 2007, and by the BIA on October 9, 2007.
On Form JV-130 mother said that she may have "Blackfoot tribe" Indian ancestry. In her opening brief, mother states that the Blackfoot Tribe is one of three tribes comprising a confederacy known as the Blackfeet Tribe. She asserts, "The Blackfeet Tribe of the Blackfeet Indian Reservation of Montana is a federally recognized tribe, and, as such must receive full and comprehensive ICWA notification . . . ." In his opening brief, father declares that "notice to the Blackfeet tribe was appropriate because there is no federally recognized Blackfoot tribe . . . ."
(5) Responsive letter from the BIA, dated October 16, 2007, stating, "The Blackfeet Tribe will determine and provide notice that the child is a tribal member or is eligible or ineligible for membership."
(6) Responsive letter from the Blackfeet Tribe, dated October 8, 2007, stating that minor does not qualify as an Indian child under the ICWA.
(7) Juvenile court minutes showing that, on November 1, 2007, the court found that the "ICWA does not apply to mother or father."
Discussion
A. Augmentation of Record
After the filing of CWS's motion to augment, appellants had 15 days in which to file opposition to the motion. (Cal. Rules of Court, rule 8.54(a)(3).) Because no opposition was filed within the 15-day period, we granted the motion. (See Rule 8.54 (c) ["A failure to oppose a motion may be deemed a consent to the granting of the motion."].) In his reply brief, filed 21 days after the filing of the motion to augment, father opposes the augmentation. We reject father's opposition as untimely and without merit. (See In re Louis S. (2004) 117 Cal.App.4th 622, 630, fn. 4; Alicia B. v. Superior Court (2004) 116 Cal.App.4th 856, 867 [court granted motion to augment, noting that "denying [the agency's] motion to augment would be counterproductive to 'the state's strong interest in the expeditiousness and finality of juvenile court dependency proceedings.' "].)
All rule references are to the California Rules of Court.
In re Zeth S. (2003) 31 Cal.4th 396, is distinguishable. In Zeth S. our Supreme Court concluded that, in the absence of exceptional circumstances, a reviewing court may not "receive and consider postjudgment evidence that was never before the juvenile court, and rely on such evidence outside the record on appeal to reverse the judgment [terminating parental rights.]" (Id., at p. 399.) Here we augment the record to include postjudgment evidence that was before the juvenile court. Moreover, we rely on such evidence to affirm the judgment terminating parental rights, not to reverse it.
B. ICWA
"Congress enacted the ICWA in 1978 to 'protect the best interests of Indian children and to promote the stability and security of Indian tribes and families.' (25 U.S.C. § 1902.) It allows a tribe to intervene in state court dependency proceedings (25 U.S.C. § 1911(c)), because 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 Louis S. (2004) 117 Cal.App.4th 622, 628.) Both the juvenile court and "the county welfare department . . . have an affirmative and continuing duty to inquire whether a child for whom a petition under section 300 . . . is to be, or has been, filed is or may be an Indian child." (Rule 5.664(d).)
Rule 5.664, effective January 1, 2007, was formerly designated as rule 1439.
"The notice requirements of the ICWA are intended to ensure the tribe will have the opportunity to assert its rights to intervene in juvenile dependency proceedings irrespective of the position of the parents or state agency. [Citation.] The ICWA provides that when the court knows or has reason to know an Indian child is involved, the agency must notify the child's tribe, or if the tribe is unknown, the BIA, as agent for the Secretary of the Interior. (25 U.S.C. § 1912(a) . . .) The notice must include all known names of the child's biological parents, maternal and paternal grandparents and great-grandparents. [Citation.]" (In re X.V. (2005) 132 Cal.App.4th 794, 802.)
For purposes of the ICWA, " 'Indian child' means an unmarried person under the age of 18 who: [¶] (A) Is a member of an Indian tribe; or [¶] (B) Is eligible for membership in an Indian Tribe and is the biological child of a member of an Indian tribe." (Rule 5.664(a)(1).) "The Indian tribe determines whether the child is an Indian child. [Citation.] 'A tribe's determination that the child is or is not a member of or eligible for membership in the tribe is conclusive.' [Citation.]" (Alicia B. v. Superior Court, supra, 116 Cal.App.4th at p. 865; see also rule 5.664(e)(3)(A).)
As to mother, the augmented record on appeal shows that CWS fulfilled its duty of inquiry in August and September 2007 when it inquired of both mother and the sister of mother's father (P.A.) concerning mother's Indian ancestry. The augmented record also shows that CWS included relevant information concerning mother's ancestry on the Form JV-135 mailed to the Blackfeet Tribe after the termination of appellants' parental rights. Appellants have not "shown that any relevant known information was excluded on the form[] . . . ." (Alicia B. v. Superior Court, supra, 116 Cal.App.4th at p. 867.)
However, the notice to the Blackfeet Tribe was defective because it was not addressed to the tribal chairperson or to the tribe's designated agent for service. Section 224.2, subdivision (a)(2), and rule 5.664(f)(2) both provide, "Notice to the tribe shall be to the tribal chairperson unless the tribe has designated another agent for service." As of August 2, 2006, the Blackfeet Tribe's designated agent for service was as follows: "Blackfeet Tribe of Montana, Indian Child Welfare Act [ICWA] Coordinator, P.O. Box 588, Browning, Montana 59417." (71 Fed.Reg. 43788, 43804 (Aug. 2, 2006).) The address on the notice mailed by CWS omitted the reference to the ICWa Coordinator.
This defect was harmless in view of the letter from the Blackfeet Tribe stating that minor does not qualify as an Indian child under the ICWA. The letter bears the tribe's letterhead for its "Indian Child Welfare Act Program." "An ICWA notice violation may be held harmless when the child's tribe has actually participated in the proceedings [citation] or when, even if notice had been given, the child would not have been found to be an Indian child, and hence the substantive provisions of the ICWA would not have applied [citations]." (In re S.B. (2005) 130 Cal.App.4th 1148, 1162; see also In re J.T. (2007) 154 Cal.App.4th 986, 994 [failure to comply with ICWA notice requirements was harmless where "the tribes responded to the [deficient] notice with a determination that the minors were not members or eligible for membership in the tribes"].)
Father argues that CWS failed to give notice to mother of the hearing conducted on November 1, 2007, at which the juvenile court determined the ICWA to be inapplicable as to her ancestry. Father lacks standing to challenge the adequacy of notice to mother. (In re Jeffrey A. (2002) 103 Cal.App.4th 1103, 1109.) In any event, the augmented record shows that, on October 18, 2007, notice was mailed to both mother and her counsel.
Father contends that he was not given notice of the hearings conducted on October 1 and November 1, 2007, at which the juvenile court determined the ICWA to be inapplicable as to his ancestry. Father further contends that at these hearings both he and mother were not represented by counsel. But the augmented record shows that, on October 18, 2007, CWS mailed notice of the November 1, 2007, hearing to both father and his counsel.
The augmented record also shows that father's counsel was present at the hearing conducted on October 1, 2007, and that counsel for both parents were present at the hearing conducted on November 1, 2007.
In his reply brief, father has requested that the record be augmented to "include the reporter's transcripts of the October 1 and November 1, 2007 hearings." We deny the request because father failed to file a formal motion to augment as required by rule 8.54, and because father has not shown that consideration of these transcripts is necessary to resolve the issues on appeal.
On the other hand, father meritoriously claims that the ICWA inquiry requirements were not satisfied because he was never asked to complete Form JV-130 and because neither the court nor CWS asked him about his Indian ancestry. Instead, CWS asked father's grandmother to provide the necessary information. The inquiry made of father's grandmother cannot substitute for the inquiry required to be made of father himself. Rule 5.664(d)(2) provides: "In dependency cases, the social worker must ask . . . the parents or legal guardians whether the child may be an Indian child or may have Indian ancestors." Rule 5.664 (d)(3) provides: "At the first appearance by a parent or guardian in any dependency case, . . . the parent or guardian must be ordered to complete" Form JV-130.
Based on In re Rebecca R. (2006) 143 Cal.App.4th 1426, we conclude that, despite the violation of ICWA inquiry requirements as to father's Indian ancestry, a reversal is not warranted. In Rebecca R. the father claimed that he was entitled to a reversal because "no form JV-130 is in the record to show that he was ever asked whether the child might have Indian heritage and . . . the [juvenile] court never asked him personally on the record whether the child might have any Indian ancestry." (Id., at p. 1429.) The appellate court rejected father's claim because he had "failed to show a miscarriage of justice, which is the fundamental requisite before an appellate court will reverse a trial court's judgment. (Cal. Const. art. VI, § 13.)" (Id., at p. 1430.) The appellate court reasoned as follows: "Father complains that he was not asked below whether the child had any Indian heritage. Fair enough. But, there can be no prejudice unless, if he had been asked, father would have indicated that the child did (or may) have such ancestry.¶Father is here, now, before this court. There is nothing whatever which prevented him, 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 the absence of such a representation, the matter amounts to nothing more than trifling with the courts. [Citation.] 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 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. [¶] The burden on an appealing parent to make an affirmative representation of Indian heritage is de minimis. In the absence of such a representation, there can be no prejudice and no miscarriage of justice requiring reversal." ( Id ., at p. 1431.)
Here, as in Rebecca R., the appealing parents have failed to show a miscarriage of justice. They have not "made an offer of proof or other affirmative representation that, had [father] been asked, he would have been able to proffer some Indian connection sufficient to invoke the ICWA." (In re Rebecca R., supra, 143 Cal.App.4th at p. 1431.) Such an offer of proof or affirmative representation is especially necessary here in view of the statement by father's grandmother that he has only Azteca Indian heritage. Accordingly, appellants' "claim that the termination order should be reversed is without merit." (Id., at p. 1432.)
Disposition
The judgment (order terminating parental rights) is affirmed.
We concur: COFFEE, J., PERREN, J.