In re A.S.

Filed 9/27/07 In re A.S. CA1/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 FOUR

E. L. (mother) appeals from the order terminating her parental rights to her son, A. S. She contends that the order is voidable because the San Francisco Department of Human Services (Department) failed to comply with the Indian Child Welfare Act of 1978 (26 U.S.C.  1901) (ICWA). We affirm.

I. FACTUAL BACKGROUND

On June 3, 2005, the Department filed a Welfare and Institutions Code[1] section 300 petition including allegations that mother neglected A. S. by leaving him in the care of drug addicts, that mother has a substance abuse problem, and that mother failed to make adequate provisions for A. S. and failed to protect him by leaving him alone in the home or in the presence of people using drugs. The petition further alleged that mother had not been able to reunify with A. S.s two half-siblings, X. R. and W. B., who were dependents of the Department and in foster care. On June 6, 2005, the court ordered that A. S. be detained and placed in foster care.

On August 22, 2005, the court sustained the majority of the allegations of the section 300 petition.[2] Mother failed to appear for the hearing. The disposition hearing was held on September 6, 2005. Mother again failed to appear. The court declared A. S. a dependent of the court and ordered that he be placed in foster care. The court did not order reunification services and set a section 366.26 hearing for December 21, 2005.

On September 20, 2005, the court, per an ex parte request by mothers attorney, continued the matter to September 28, 2005, for a contested jurisdiction/disposition hearing. On September 29, 2005, the Department filed a first amended petition alleging that mother gave birth to another child and that both mother and child tested positive for methamphetamines. The petition further alleged that this childs symptoms required that she be placed in the intensive care unit. The contested jurisdiction/disposition hearing was initially set for September 30, 2005, but was continued first to December 5, 2005, and then to January 10, 2006.

The Departments report for the jurisdiction/disposition hearing recommended that no reunification services be provided because of mothers failure to reunify with A. S.s siblings ( 361.5, subd. (b)(10)), and that the court set a section 366.26 hearing. Mother had not visited A. S. since his detention in June 2005.

Mother failed to appear at the jurisdiction/disposition hearing held on January 10, 2006. The court adopted the Departments recommendations and set the matter for a section 366.26 hearing.

On April 18, 2006, the Department filed its report for the section 366.26 hearing recommending that mothers parental rights be terminated and that A. S. be placed for adoption. The Department identified fost-adopt parents for A. S., and completed an adoptive home study and assessment.

On June 14, 2006, mother filed a form JV-130 with the court indicating that she might have Indian ancestry. On July 7, 2006, the Department notified the Bureau of Indian Affairs (BIA) of the pending proceedings. On July 19, 2006, the court granted the fost-adopt parents application for de facto parent status. On July 31, 2006, mother filed another form JV-130, this time indicating that she is or may be a member of the Blackfoot tribe, that she may have Indian ancestry, and that A. S. may be a member or eligible for membership in a tribe. On August 15, 2006, the Department notified the Blackfeet Tribe that A. S. may be eligible for membership.

On August 21, 2006, the Blackfeet Tribe requested that the Department send it additional information regarding extended family members, and requested that it fill out a Family Tree Chart and provide the names of the grandparents in order to determine tribal membership.

On September 6, 2006, the court held a hearing on the ICWA issue. Mother appeared for the hearing. The Department informed the court that it was providing additional information to the Blackfeet Tribe in order to determine A. S.s eligibility. The court continued the section 366.26 hearing to September 22, 2006.

Mother appeared for the section 366.26 hearing. The court noted that a letter from the Blackfeet Tribe was filed with the court on September 19, 2006, indicating that A. S. was not eligible for enrollment. The court therefore determined that the ICWA did not apply. The court took judicial notice of the findings and orders in the cases of A. S.s three half-siblings and stated that it was familiar with the cases.

The Departments child welfare worker testified that A. S. was currently placed in a fost-adopt home with the de facto parents. A. S. was very bonded with his de facto parents and was thriving. The de facto parents home study was approved. Mother had not had any contact with A. S., and the alleged father had not come forward to contact the Department and request visits. The Department recommended adoption as the permanent plan for A. S. The court terminated parental rights and ordered adoption as the permanent plan.

II. DISCUSSION

Mother contends that the juvenile court failed to secure compliance with the notice provisions of the ICWA. She argues that the information provided to the tribe was incomplete and inaccurate and hence the courts finding that the ICWA did not apply was premature. The record refutes mothers argument.

The ICWA provides the following notice requirements pertaining to dependent children who may belong to Indian tribes: In any involuntary proceeding in a State court, where the court knows or has reason to know that an Indian child is involved, the party seeking the foster care placement of, or termination of parental rights to, an Indian child shall notify the parent or Indian custodian and the Indian childs tribe, by registered mail with return receipt requested, of the pending proceedings and of their right of intervention. . . . No foster care placement or termination of parental rights proceeding shall be held until at least ten days after receipt of notice by the parent or Indian custodian and the tribe. . . . (25 U.S.C.  1912(a), italics added.)

In In re Marinna J. (2001) 90 Cal.App.4th 731, 739-740, footnote 4, the court set forth the two-step procedure for complying with the notice requirements of the ICWA: First, [the Department] should identify any possible tribal affiliations and send proper notice to those entities, return receipt requested. . . . Second, [the Department] should provide to the juvenile court a copy of the notice sent and the return receipt, as well as any correspondence received from the Indian entity relevant to the minors status.

Here, mother faults the Department because it did not include all of her names or aliases on the notices to the tribe, her birthplace may have been incorrect, and the notices did not include all of her maternal relatives. We conclude that the Department substantially complied with the ICWA notice requirements. (See In re I.G. (2005) 133 Cal.App.4th 1246, 1252 [substantial compliance with ICWA notice requirements may be sufficient under certain circumstances].)

A social worker has a duty to inquire about and obtain, if possible, all of the information about a childs family history  required under regulations promulgated to enforce [the] ICWA. (In re Robert A. (2007) 147 Cal.App.4th 982, 989.) Section 224.2, subdivision (a)(5) requires that the notice to the tribe include the Indian childs name, birthdate and birthplace, and the known names of the Indian childs biological parents, grandparents, and great-grandparents, or Indian custodians including maiden, married and former names or aliases, as well as their current and former addresses, birthdates, places of birth and death, tribal enrollment numbers, and any other identifying information, if known.

Here, mother first notified the court that she might have Indian ancestry on June 14, 2006, after the court had set the matter for a section 366.26 hearing. Up to this point, mother had not even appeared for any of the hearings in the matter. While the Department thereafter notified the BIA of the pending action, it does not appear that it conducted the appropriate inquiry to obtain the necessary information of mothers family history in order to provide adequate notice. (See In re Robert A., supra, 147 Cal.App.4th at p. 989.) In any event, mother filed an additional notice of Indian status with the court on July 31, 2006, this time indicating that she might be a member of the Blackfoot tribe. Again, while the Department notified the Blackfeet Tribe, the Departments investigation into mothers family background was lacking and its notice to the tribe was inadequate. Hence, it was not surprising that on August 21, 2006, the Blackfeet Tribe notified the Department that it needed additional information regarding extended family members in order to determine tribal eligibility status.

At a hearing on September 6, 2006, the Department informed the court that it had acquired additional information from the dependency file as well as from mother to send to the tribe. The Department requests that we consider additional evidence or grant its request for judicial notice of certain documents to demonstrate the additional information provided to the tribe. Mother opposes the Departments motion, arguing that the documents are postjudgment evidence. We note, however, that exhibit A appears to have been sent to the Blackfeet Tribe prior to its September 7, 2006, response to the Department. It lists A. S.s maternal grandmothers name and her alias, A. S.s maternal grandfather, and his maternal great-grandparents; all of these names were in turn listed on the Blackfeet Tribes September 7, 2006, letter to the Department stating that its search of the tribal enrollment records had not disclosed any of those names. Hence, it is apparent that the Department provided the supplementary information to the tribe prior to its response and that the juvenile courts finding on September 22, 2006, that the ICWA was inapplicable was based on that documentation.

While we recognize that an appellate court should consider postjudgment evidence only in extraordinary circumstances (Alicia B. v. Superior Court (2004) 116 Cal.App.4th 856, 866), the courts have recognized that it would be counterproductive to deny the request here where the evidence would have been admissible if it had been timely presented in the court below,[3] and it would be counterproductive to the states strong interest in the expeditiousness and finality of juvenile court dependency proceedings  to deny the motion. (Id. at p. 867; see also In re Louis S. (2004) 117 Cal.App.4th 622, 630, fn. 4.) Accordingly, we grant the Departments request in part and augment the record to include the ancestry charts the Department sent to the Blackfeet Tribe after the hearing, exhibit A to the motion. We decline to consider the additional postjudgment evidence offered by the Department as these documents were not before the juvenile court. (See In re I.G., supra, 133 Cal.App.4th at p. 1253.)

Mother argues that the Department failed to provide complete information about her relatives to the Blackfeet Tribe, that post office verifications were not filed in court, and that her place of birth might have been incorrect. Our review of the record, however, indicates that the Department substantially complied with the notice requirements. (See In re I.G., supra, 133 Cal.App.4th at p. 1252.) It is clear from the Blackfeet Tribes letter of September 7, 2006, that it researched its tribal enrollment records for mother,[4] her parents, and grandparents. While mother faults the Department for not providing information it had about maternal relatives, as we have discussed above, the Blackfeet Tribes letter reflects that it searched for mothers maternal relatives and found no eligible tribe members. Mother also contends that the Department should have provided the name of her maternal aunt, Deanna S., to the Blackfeet Tribe. But there is no requirement that the Department provide information about mothers aunts to the tribe. (See  224.2, subd. (a)(5).)

In short, although the Departments compliance with the notice requirements of the ICWA was not technically complete, it substantially complied, and sufficient information was before the juvenile court for it to make a finding that the ICWA was not applicable.

III. DISPOSITION

The order is affirmed.

________________________

RIVERA, J.

We concur:

___________________________

RUVOLO, P.J.

___________________________

REARDON, J.

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[1] All further statutory references are to the Welfare and Institutions Code.

[2] The court did not sustain the allegations that: (1) mother had no means to provide for A. S.; (2) mother and the alleged father were involved in a relationship characterized by domestic violence; (3) the alleged father has a substance abuse problem; and (4) mother has a long history with the Department.

[3] It appears that the court relied on the Departments representation that the supplementary information was provided instead of requiring that the relevant documents be filed with the court. In this respect, the court erred. We are chagrined by the continuing practice of dependency courts of ignoring the ICWA notice requirements. While we do not remand this matter, we direct the court in the future to observe the importance of complying with ICWA standards. (See In re I.G., supra, 133 Cal.App.4th at pp. 1254-1255.)

[4] The Department provided the Blackfeet Tribe with mothers name as she listed it on her notice to the court of possible Indian ancestry.