Filed 8/9/17 In re A.H. CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.


IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION TWO



In re A.H. et al., Persons Coming Under the Juvenile Court Law.

SAN BERNARDINO COUNTY CHILDREN AND FAMILY SERVICES,

Plaintiff and Respondent,

v.

A.H.,

Defendant and Appellant.


E067471

(Super.Ct.Nos. J260839 &
J260840)

OPINION


APPEAL from the Superior Court of San Bernardino County. Steven A. Mapes, Judge. Affirmed.
Rich Pfeiffer, under appointment by the Court of Appeal, for Defendant and Appellant.
Jean-Rene Basle, County Counsel, Jamila Bayati, Deputy County Counsel, for Plaintiff and Respondent.
Defendant and appellant A.H. (Father) is the father of two boys (the Children), who were ages six and almost eight on the date of the challenged orders. Father appeals from the juvenile court’s orders on December 2, 2016, dismissing the dependency and selecting guardianship with a maternal aunt as the Children’s permanent plan. Father contends the court erred when it found the San Bernardino County Children and Family Services (CFS) gave adequate notice to the Indian tribes he identified under the Indian Child Welfare Act (ICWA) (25 U.S.C. §§ 1901 et seq.). Specifically, Father argues CFS failed to adequately inquire about his Native American ancestry so it could include that information on the ICWA notices to the tribes. For the reasons discussed post, we affirm.
FACTS AND PROCEDURE
On June 19, 2015, CFS filed a juvenile dependency petition for each of the Children under Welfare and Institutions Code section 300, subdivisions (b) (failure to protect) and (c) (serious emotional damage). It was alleged as to both parents that they failed to provide a safe living environment, had a history of drug abuse, and engaged in domestic violence. The petitions each had a Judicial Council Forms, form ICWA-010(A) Indian child inquiry attachment that indicated the Children may have Indian ancestry, and that “Father claims has Chickasaw Indian Ancestry in Family.”
At the detention hearing held on June 22, 2015, the Children were placed with a maternal aunt.
The jurisdiction and disposition hearing was scheduled for July 13, 2015. Father submitted on the allegations in section 300, subdivision (b), in exchange for having the emotional abuse allegations in subdivision (c) dismissed. The Children’s mother asked for a contested hearing. County Counsel summarized the position of each party and stated on behalf of CFS, “[a]nd we need three weeks for ICWA.” The court questioned Father about his Native American ancestry, to which Father replied, “It is the Chickasaw Nation, Chyanne tribe. I’m not registered myself, but my grandparents are and their parents. I don’t have that information, but I will do what I have to do to get it.” The court ordered Father to “fill out an ICWA form so that noticing to that tribe can occur.” The court then asked County Counsel, “Can you complete your ICWA noticing by July 30?” County counsel replied, “Yes.” The court set the mother’s contested hearing on the allegations for July 30, 2015. The court told Father he would be receiving reunification services and would need to return to court for the six-month review hearing on January 28, 2016. That same day, Father completed and filed the Judicial Council Forms, form ICWA-020, on which he indicated he may be eligible for membership in the Cheyenne Chickasaw Nation through his grandparents.
Also on July 13, 2015, CFS sent a Judicial Council Forms, form ICWA-030 by certified mail for each of the Children to the Bureau of Indian Affairs, the Cheyenne-Arapaho Tribes of Oklahoma, The Northern Cheyenne tribe, and the Chickasaw Nation. The notice forms included the following information about the Children’s ancestors through Father: full information for Father; the paternal grandmother’s name, current address and birth date, but no birth place or tribal information; the paternal grandfather’s name, and month, year and city of death, and three possible tribes, but no birth date or place; for one of the Children’s paternal great-grandmothers, a name and city of current residence, but no other information; for one of the Children’s paternal great-grandfathers a name and that he was deceased, but no other information; and for the other set of paternal great-grandparents no information. On July 17, the Chickasaw Nation responded that the Children were not Indian children based on the information provided.
On July 30, 2015, the court found the allegations to be true as to the Children’s mother and ordered reunification services for both parents. The court stated the Children “may come under ICWA. ICWA is initiated.”
On December 1, 2015, CFS filed a “Final ICWA Declaration of Due Diligence.” CFS indicated the notices had been mailed on July 13, 2015, and were received by each of the tribes. The Chickasaw nation had responded as described ante, and the other tribes and the Bureau of Indian affairs failed to respond. On that date, the court issued its written ICWA findings and orders stating ICWA does not apply and no further notice is required. CFS noted this finding in the status review report for the six-month review hearing.
At the six-month review hearing held on January 28, 2016, the court continued the parents’ reunification services.
The 12-month review hearing was held on August 2, 2016. The court terminated reunification services for both parents and set a section 366.26 hearing for November 30, 2016, to consider legal guardianship with the maternal aunt as the Children’s permanent plan. The court advised each parent of their right to file a writ petition to challenge this decision. Neither parent did.
The section 366.26 hearing was held on December 2, 2016. Neither parent attended. Counsel for each parent submitted on the evidence and objected for the record. The court ordered legal guardianship with the maternal aunt as the permanent plan and dismissed the dependency for both Children.
Father filed his notice of appeal on December 30, 2016. Father indicated in the notice that he was appealing from “[t]he status of my childrens case. The custody/guardianship of my children. I don’t understand why this case is closed. I want to do whats necessary to have my children.”
DISCUSSION
Father, through appellate counsel, asks this court to order the dependency reinstated because CFS provided inadequate notice to the three tribes based on CFS’s inadequate inquiry into the Children’s Native American ancestry.
A. No Forfeiture
CFS argues Father forfeited his challenge to the juvenile court’s ICWA findings because he never once raised the issue during the dependency proceedings or in this court by way of writ petition. Recently, however, our Supreme Court held that, “[b]ecause ICWA imposes on the juvenile court a continuing duty to inquire whether the child is an Indian child,” a parent who failed to appeal from a finding that ICWA did not apply can nevertheless challenge that finding in an appeal from a subsequent order terminating parental rights. (In re Isaiah W. (2016) 1 Cal.5th 1, 6.) Here, the trial court had a continuing duty to inquire whether the Children were Indian children. If CFS had not made an adequate inquiry, then the court erred by terminating parental rights. The order terminating parental rights included an implied finding that CFS had made an adequate inquiry, which order and findings Father can challenge in this appeal.
B. Notice and Inquiry
Father argues the notices sent to the Indian tribes contained inadequate information because CFS did not fulfill its continuing duty to inquire about the Children’s Native American ancestry through Father’s family.
“Congress enacted ICWA to further the federal policy ‘“that, where possible, an Indian child should remain in the Indian community . . . .”’ [Citation.]” (In re W.B. (2012) 55 Cal.4th 30, 48.) California has adopted statutes and rules that “implement, interpret, and enlarge upon” ICWA. (In re S.B. (2005) 130 Cal.App.4th 1148, 1157.) Under these provisions, whenever “the court knows or has reason to know that an Indian child is involved,” notice of the proceedings must be given to the relevant tribe or tribes. (25 U.S.C. § 1912(a); accord, Welf. & Inst. Code, § 224.2, subd. (a); Cal. Rules of Court, rule 5.481(b)(1).) “Juvenile courts and child protective agencies have ‘an affirmative and continuing duty to inquire’ whether a dependent child is or may be an Indian child. [Citations.] This affirmative duty to inquire is triggered whenever the child protective agency or its social worker ‘knows or has reason to know that an Indian child is or may be involved.’ [Citation.] At that point, the social worker is required, as soon as practicable, to interview the child’s parents, extended family members, the Indian custodian, if any, and any other person who can reasonably be expected to have information concerning the child’s membership status or eligibility. [Citations.]” (In re Michael V. (2016) 3 Cal.App.5th 225, 233.)
“The purpose of the ICWA notice provisions is to enable the tribe . . . to investigate and determine whether the child is in fact an Indian child. [Citation.] Notice given under ICWA must therefore contain enough information to permit the tribe to conduct a meaningful review of its records to determine the child’s eligibility for membership. [Citations.]” (In re Cheyanne F. (2008) 164 Cal.App.4th 571, 576.) “It is essential to provide the Indian tribe with all available information about the child’s ancestors, especially the ones with the alleged Indian heritage. [Citation.]” (In re Francisco W. (2006) 139 Cal.App.4th 695, 703.)
Under federal law, an ICWA “[n]otice must . . . include the following: [¶] (1) The child’s name, birthdate, and birthplace; [¶] (2) All names known (including maiden, married, and former names or aliases) of the parents, the parents’ birthdates and birthplaces, and Tribal enrollment numbers if known; [¶] (3) If known, the names, birthdates, birthplaces, and Tribal enrollment information of other direct lineal ancestors of the child, such as grandparents.” (25 C.F.R. § 23.111(d)(1)-(3)) Similarly, under state law, an ICWA notice must include specified information regarding “the Indian child’s biological parents, grandparents, and great-grandparents . . . if known.” (Welf. & Inst. Code, § 224.2, subd. (a)(5)(C), italics added.)
“We review the trial court’s findings whether proper notice was given under ICWA and whether ICWA applies to the proceedings for substantial evidence.” (In re D.N. (2013) 218 Cal.App.4th 1246, 1251.) “‘“On review of the sufficiency of the evidence, we presume in favor of the order, considering the evidence in the light most favorable to the prevailing party, giving the prevailing party the benefit of every reasonable inference and resolving all conflicts in support of the order.” [Citation.]’ [Citation.] ‘Mere support for a contrary conclusion is not enough to defeat the finding [citation]; nor is the existence of evidence from which a different trier of fact might find otherwise in an exercise of discretion [citation].’ [Citation.]” (In re Charlotte V. (2016) 6 Cal.App.5th 51, 57.)
Father stresses numerous times in his brief that CFS could not have complied with the ICWA inquiry and notice requirements because it told the court at the July 13, 2015 hearing that it would need three weeks to complete noticing but in fact mailed the notices later that same day. Father argues this means the “Department knew it needed more information when it asked the court for three weeks to give the Tribes ICWA notice.” As CFS explains in its responsive brief, this is incorrect. Tribes are entitled to a 10-day notice before the hearing referred to in the ICWA notice. (25 U.S.C. § 1912). Thus, the three weeks CFS stated it needed, and the 17 days to which it eventually agreed, were to complete its noticing requirement before the next hearing, not to obtain additional information.
Father also argues, “The record contains no information that this missing information was ever attempted to be found by the Department.” However, he cites no requirement that CFS must document its information-gathering process, much less that it must file such documentation. Further, the extensive amount of information in the ICWA notices that were mailed out on July 13, 2015, indicates CFS had already conducted an ICWA inquiry before that date, and that the notices contained all of the information available from Father at that point.
Most important on this point, the record on appeal does not suggest, and Father in this appeal does not provide, any indication that he possessed or obtained new information that would have triggered additional noticing duties under ICWA. Yet, Father would have this court delay the Children’s permanent plan of legal guardianship so that CFS could conduct additional inquiry about their Native American heritage, without any hint whatsoever that such an inquiry might result in a determination that the Children are Indian Children. On appeal, “[t]he juvenile court’s judgment is presumed to be correct, and it is appellant’s burden to affirmatively show error. [Citation.]” (In re S.C. (2006) 138 Cal.App.4th 396, 408; see In re Kathy P. (1979) 25 Cal.3d 91, 102 [appellant failed to present adequate record to rebut official duty presumption].) Father has not done this. We therefore conclude that Father has not affirmatively shown that the juvenile court erred by finding that ICWA did not apply.
DISPOSITION
The court’s orders are affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS

RAMIREZ
P. J.


We concur:


McKINSTER
J.


FIELDS
J.