In re D.W.
Filed 10/12/06 In re D.W. CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION TWO
In re D.W. et al., Persons Coming Under the Juvenile Court Law. | |
RIVERSIDE COUNTY DEPARTMENT OF PUBLIC SOCIAL SERVICES, Plaintiff and Respondent, v. ISAAC W., Defendant and Appellant. | E040490 (Super.Ct.No. SWJ 000774) OPINION |
APPEAL from the Superior Court of Riverside County. Robert Nagby, Temporary Judge. (Pursuant to Cal. Const., art. VI, § 21.) Affirmed.
Michael D. Randall, under appointment by the Court of Appeal, for Defendant and Appellant.
Joe S. Rank, County Counsel, and Michael C. Puentes, Deputy County Counsel, for Plaintiff and Respondent.
Janette F. Cochran, under appointment by the Court of Appeal, for Minor.
Father appeals from a juvenile court order terminating his parental rights[1] to his daughters, D.W. (born in 2001) and S.H. (born in 2004). Father contends the juvenile court lacked jurisdiction over the juvenile dependency proceedings because of noncompliance with Indian Child Welfare Act (ICWA)[2] notice requirements. In addition, father claims the juvenile court exceeded its jurisdiction when it terminated his parental rights to S.H. based on erroneous findings that another man was S.H.’s father. Father also asserts that he was deprived of counsel following the referral hearing.
We conclude there was sufficient ICWA notice and the juvenile court did not exceed its jurisdiction when terminating father’s parental rights to S.H. We also reject father’s claim that he was not represented by counsel after the referral hearing. The order terminating father’s parental rights to his daughters, D.W. and S.H., is affirmed.
1. Factual and Procedural Background
The following is an abbreviated summary of the facts, with the relevant facts and procedural history relating to each issue raised on appeal stated in greater detail in the discussion portion of this opinion.
D.W. and S.H. (the girls) were placed in protective custody in February 2005, after mother gave birth to a baby boy who tested positive for amphetamine. Mother admitted using methamphetamine throughout her pregnancy and being under the influence of methamphetamine in the presence of the girls.
At the time, the girls were living with mother and father was in prison. Father was D.W.’s presumed father and S.H.’s biological father. However, at the inception of the juvenile dependency proceedings, Larry H., who was also in prison, was believed to be S.H.’s presumed father since his name was on her birth certificate. Later in the proceedings paternity testing of father revealed he was S.H.’s biological father and D.W. was dismissed from the proceedings.
The Department of Public Social Services (DPSS) filed a juvenile dependency petition as to both girls in February 2005, alleging mother and father had failed to protect the girls due to abusing drugs. They had a history of using drugs. In addition, mother and father had previously received family maintenance voluntary services for substance abuse but failed to benefit from the services and rehabilitate. Father was in prison for drug-related offenses and for a parole violation. Larry H., who was included in the petition as S.H.’s presumed father, also had a history of abusing drugs and was in prison for drug-related offenses. The girls were ultimately placed with a paternal aunt who wishes to adopt them.
As of the six-month review hearing in November 2005, mother and father had made little progress. The court found that mother and father had failed to comply with their case plans and rehabilitate. As a consequence, the court terminated reunification services and set a section 366.26 hearing. At the section 366.26 hearing in May 2006, the court terminated mother and father’s parental rights to both girls.[3]
2. ICWA Notice
Father contends the juvenile court failed to comply with ICWA notice requirements. We disagree.
A. ICWA Notice Procedural Background
The facts pertinent to father’s ICWA notice challenge are that at the inception of the proceedings, father was determined to be D.W.’s presumed father and Larry H. was identified as S.H.’s presumed father. In actuality, father was S.H.’s biological father but the court did not make this finding until the six-month status review hearing in November 2005, after a paternity test confirmed father’s paternity.
On February 22, 2005, DPSS sent by return-receipt mail, a Notice of Involuntary Child Custody Proceedings for an Indian Child (form SOC 820) and DPSS Verification of Immigrant/ICWA Eligibility form (form 3608). The Certificate of Mailing states the notice form was sent on February 22d but does not state to whom it was sent. An initialed copy of a receipt for registered mail, however, indicates the notice form was received on February 23, 2005, by the Blackfeet Tribal Business Council, Post Office Box 850, in Browning, Montana. The copy of the notice form in the clerk’s transcript states that the notice is directed to the girls’ parents’ tribe, and the Bureau of Indian Affairs (BIA). The notice form also states the girls are reported to be eligible for the Blackfeet Tribe. The 3608 form states that mother did not have any native ancestry and it is unknown as to whether D.W. and S.H. had native ancestry.
The detention hearing report, filed on February 23, 2005, states that on February 19, 2005, mother said she was informed she had Native American ancestry with the Blackfeet Tribe but she doubted she had any ancestry or affiliation with any Indian tribe. The detention report states it is unknown whether the girls were Indian children or ICWA eligible. The Blackfeet tribe was listed as a possible tribe. According to the detention hearing report, DPSS mailed via registered mail return-receipt requested, a SOC 820 notice form and a DPSS 3608 form, copies of which were attached to the detention hearing report.
On February 24, 2005, mother filled out and filed with the court a Parental Notification of Indian Status form (form JV-130). The form states mother has no Indian ancestry. Mother also stated in a form entitled, “Paternity Inquiry, Mother’s Questionnaire and Offer of Proof,” that father did not have any American Indian heritage. The form was filed with the court on March 29, 2005.
On March 29, 2005, father also filled out and filed with the court a Parental Notification of Indian Status form (form JV-130). The form states father has no Indian ancestry. Father also denied having any American Indian heritage on the form entitled, “Paternity Inquiry, Father’s Questionnaire and Offer of Proof.”
At the jurisdiction hearing on March 29, 2005, both father and Larry acknowledged they had signed and filed with the court Parental Notification of Indian Status forms (form JV-130). The court added that mother had filed a JV-130 form in February. The court noted that Larry had indicated he might have American Indian ancestry through his maternal grandmother but he did not know the tribe. As a consequence, the court ordered, as to S.H., that DPSS give notice to the BIA and notice pursuant to the notice provision, California Rules of Court, rule 1439(f).[4]
The court then found, based on Larry’s possible American Indian ancestry, that S.H. might be an Indian child. As to D.W., the court found that she was not an Indian child and the provisions of ICWA did not apply. Later, at the end of the jurisdiction hearing, the social worker noted that mother just informed him she may be affiliated with the Mohawk Tribe. The court also noted the jurisdiction/disposition report filed on March 25, 2005, stated mother might be affiliated with the Blackfeet Tribe. The court therefore ordered DPSS to notice the Blackfeet and Mohawk tribes and the BIA pursuant to rule 1439.
At the contested jurisdiction hearing on April 20, 2005, the court again ordered DPSS to notice the Blackfeet Tribe and the BIA pursuant to rule 1439.
On May 10, 2005, DPSS filed a jurisdiction/disposition addendum report. The report states that on April 29, 2005, Indian noticing was completed. Attached to the report are Notices of Involuntary Child Custody Proceedings for an Indian Child (form JV-135), as to both girls, providing notice to the Mohawk and Blackfeet tribes that the girls’ maternal grandmother and maternal great-grandmothers may have affiliation with the tribes and the girls were involved in juvenile dependency proceedings.
Attached to the forms were certificates of mailing stating that DPSS mailed the forms to the BIA, Secretary of the Interior, Department of Interior, the Riverside Indian Child & Family Services, the Blackfeet Tribe (P.O. Box 588, Browning MT), and the Mohawk-St. Regis Band.
Also attached are six initialed receipts for registered mail, dated May 2, 2005, from the Blackfeet Tribe (P.O. Box 588, Browning, MT), the BIA in Riverside, the BIA in Sacramento, the Secretary of Interior, Department of the Interior in Washington, D.C., Indian Child & Family Services in Temecula, and the Mohawk-St. Regis Band in New York.
On June 1, 2005, DPSS filed an amended petition, which states D.W. may be of Indian ancestry. As to S.H., the amended petition does not state she may be of Indian ancestry. Attached to the amended petition is a letter dated April 11, 2005, from an “Inquiry Technician” of the Blackfeet ICWA Program (P.O. Box 588), stating that inquiry technician researched the Blackfeet Tribal Enrollment records and was not able to find D.W., father, mother or maternal grandmother listed on the tribal rolls. Therefore the Blackfeet inquiry technician concluded D.W. was not an “Indian Child” under ICWA.
At the contested jurisdiction/disposition hearing on June 1, 2005, the court noted that on April 20th, the hearing was continued to allow notice of the “tribe.” Counsel for DPSS requested the court to file a letter responding to ICWA notice from the Blackfeet Tribe. The court acknowledged it had the letter dated April 11, 2005, and various documents which the court confirmed it had read and considered. There being no objection, the court received into evidence the reports and letter from the Blackfeet ICWA program.
DPSS concludes in the six-month status review report filed on October 4, 2005, that ICWA does not apply.
B. Mohawk Notice and Response
Both mother and Larry indicated they might have Indian ancestry. Father has consistently denied any Indian ancestry. Since Larry is neither of the girls’ biological or presumed father, his Indian ancestry is irrelevant. As to mother, she initially stated she did not have any Indian ancestry but later indicated she might have Blackfeet and Mohawk ancestry through her grandmother. ICWA notice was thus required based on possible Indian ancestry through mother. Father complains the record contains no copies of the ICWA notice given to the Mohawk Tribe and no response.
Rule 1439, subdivision (f), states in relevant part: “The parent or legal guardian and Indian custodian of an Indian child, and the Indian child’s tribe, must be notified of the pending petition and the right of the tribe to intervene in the proceedings, and proof of such notice, including copies of notices sent and all return receipts and responses received, must be filed with the juvenile court.”
Here, the record contains copies of JV-135 notices sent to the Blackfeet and Mohawk tribes on April 29, 2005. There are also copies of six receipts for registered mail indicating that the notices were sent to, and received by, the Blackfeet Tribe, BIA, Secretary of Interior, Indian Child & Family Services, and Mohawk-St. Regis Band of Mohawk Indians.
While there is no filed copy of the Mohawk Tribe’s response, counsel for DPSS, Lisya McGuire, informed the juvenile court during the six-month review hearing on November 17, 2005, that DPSS received a letter from the Mohawk Tribe on May 26, 2005, stating the girls had no affiliation with the Mohawk Tribe. Father argues this representation is insufficient. Citing In re Karla C. (2003) 113 Cal.App.4th 166, 179, father argues ICWA requires the Mohawk letter be filed with the court.
Karla C. is distinguishable. In Karla C., the record contained “no suggestion as to what [notice] form or forms the Agency used or what information the notice included. Therefore, the court was unaware of whether the Agency sent the tribe a copy of the dependency petition, or notified it of the names and addresses of the parents, or, if known, the names and addresses of the grandparents or great-grandparents, the dates of hearings, or its right to intervene. Because the court’s ruling the ICWA is inapplicable is unsupported by the evidence, we reverse the order with directions.” (In re Karla C., supra, 113 Cal.App.4th at p. 179.)
Here, father’s objection concerns the Mohawk response, not the notice form. The court file contains copies of the Mohawk notice, along with copies of the return receipts showing the Mohawk Tribe received the notice. The court in Karla C. does not address the issue of the failure to file a copy of a response to notice.
In the instant case, counsel represented to the court that the Mohawk tribe responded by letter, stating there was no ancestry affiliation. Such representation by counsel, an officer of the court, may serve as evidence of the Mohawk Tribe’s response where no objection has been made to the response not having been filed and to relying on counsel’s representation. (People v. Medina (1995) 11 Cal.4th 694, 732; People v. Mroczko (1983) 35 Cal.3d 86, 113; People v. Laudermilk (1967) 67 Cal.2d 272, 287.)
While the letter response should have been filed with the court, the failure to do so under these circumstances does not constitute reversible error. There was substantial compliance with ICWA. (In re Christopher I. (2003) 106 Cal.App.4th 533, 566; In re Kahlen W. (1991) 233 Cal.App.3d 1414, 1421-1422.) The record shows that DPSS provided the Mohawk tribe with notice and the tribe received it. The record also shows that the Mohawk tribe responded by sending a letter stating there was no Indian affiliation.
C. ICWA Notice to the Blackfeet Tribe
Father argues that ICWA notice to the Blackfeet Tribe is not valid because it was not addressed to the tribal chairperson or designated agent for service, as required under rule 1439(f)(2). Also, father complains notice was sent to the wrong post office box.
Rule 1439(f)(2) states in pertinent part: “Notice to the tribe must be to the tribal chairperson unless the tribe has designated another agent for service.” In the instant case, there is a registered mail receipt dated February 23, 2005, stating notice was sent to the Blackfeet Tribal Business Council, and a registered mail receipt dated May 2, 2005, for a notice sent to the “Blackfeet Tribe of the Blackfeet Indian Reservation.”
Father complains that notice was sent to the Blackfeet Tribal Business Council. While it is true the first notice was addressed to the Blackfeet Tribal Business Council, at Post Office Box 580, the second notice was addressed to the “Blackfeet Tribe of the Blackfeet Indian Reservation,” at Post Office Box 588. Notice was also sent to the BIA in Sacramento and Riverside, to the Secretary of Interior, Department of Interior in Washington, D.C., and to the Indian Child & Family Services in Temecula.
The address of the tribal chairperson or agent designated by the tribe for service of ICWA notice can be found in the Federal Register (68 Fed. Reg. 68420 (Dec. 8, 2003). The Federal Register states Blackfeet Tribal notice shall be addressed as follows: “Blackfeet Tribe of Montana, Indian Child Welfare Act Coordinator, P.O. Box 588, Browning, Montana 59417.” (68 Fed. Reg. 68420 (Dec. 8, 2003).) The current address for notice can also be found on the California Department of Public Social Service’s ICWA web page: www.childsworld.ca.gov. According to that website, as of May 2006, service of the Blackfeet Tribe was to be sent to the following: “Blackfeet Tribe, ICWA Representative, P.O. Box 588, Browning, MT 59417.”
Father agrees in his appellant’s opening brief that the correct address for notice at the time in question was Post Office Box 588, Browning, MT 59417. While the first notice, sent in February 2005, was sent to Post Office Box 580, rather than Post Office Box 588, the receipt for registered mail indicates the Blackfeet Tribe Business Council received the notice. Even if this notice was insufficient, notice was sent a second time to the Blackfeet Tribe at the correct address, Post Office Box 588. The receipt for registered mail indicates the Blackfeet Tribe received the notice. Furthermore, the Blackfeet Tribe responded to the notice by sending a letter stating that Blackfeet tribal enrollment records were searched and D.W., father, and maternal grandmother were not listed on the tribal rolls. If this were true as to D.W., it would also be the case as to S.H., since she has the same parents.
Although neither notice was addressed to the “tribal chairperson” or designated agent for service, this is not a fatal defect since the second notice was sent to the correct Post Office box, was addressed to the Blackfeet Tribe, and the Blackfeet Tribe letter response from the Blackfeet Tribe establishes that the Blackfeet Tribe received actual notice. (In re Christopher I., supra, 106 Cal.App.4th at p. 566; In re Kahlen W., supra, 233 Cal.App.3d at pp. 1421-1422.)
D. Other Claimed Blackfeet Notice Deficiencies
Father complains the Blackfeet Tribe notice was invalid because it did not include a copy of the juvenile dependency petition. But the certificate of mailing notice, sent in April 2005, states that a copy of the notice was mailed with a copy of the petition to the Blackfeet Tribe, Post Office Box 588, Browning, MT 59417. The certificate of mailing the notice sent in February 2005, also states this, although the clerk’s transcript copy of the certificate of mailing is not signed. The record thus provides sufficient evidence that DPSS sent a copy of the petition with the notice.
Father also complains Blackfeet Tribal notice was deficient in the following ways: (1) it did not provide the name and phone number of DPSS’s attorney; (2) it did not provide the mailing address for the juvenile court, and (3) it did not include identifying information such as the names and addresses of the girls’ parents and grandparents.
Rather than stating DPSS’s attorney’s name and address, DPSS provided DPSS’s own address and telephone number. Likewise, the juvenile dependency petition states DPSS’s own address and telephone number on the face of the petition rather than that of its attorney.
Federal Guidelines suggest that ICWA notice should include DPSS’s attorney’s name and address but this is not a mandatory requirement for ICWA notice compliance. It is a guideline and is not included in the ICWA statutory notice requirements. (44 Fed.Reg. 67584 (Nov. 26, 1979); In re Karla C., supra, 113 Cal.App.4th at p. 176.) Therefore the absence of such information is not fatal to ICWA notice compliance, particularly when the record reflects that the two named tribes actually received notice and responded that the girls did not have any Indian ancestry.
We also reject father’s contention that DPSS’s ICWA notice was defective because (1) it did not provide the mailing address for the juvenile court and (2) it did not include identifying information such as the names and addresses of the girls’ parents and grandparents.
The court address is included on the face of the notice form, with the department of the next hearing stated at the bottom of the form and the location of the court stated as “Located at above address,” referring to the court address stated at the top of the notice form.
While the February 2005 notice does not include the names and addresses of the girls’ parents and grandparents, perhaps because they were not known at the inception of the proceedings, the ICWA notice provided in April 2005, includes all of this information. The April notices contain the names and addresses of the girls’ mother and maternal grandmother. The names of the maternal great-grandmothers are also listed, with addresses “unknown.” The absence of the names and addresses of father and his relatives is not significant since father denied any Indian ancestry. The ICWA notices thus provide adequate information as to the girls’ maternal relatives whom mother thought might have Indian ancestry.
Father’s final complaint, that there was no evidence the individual who responded to the ICWA notice had authority to speak for the Blackfeet tribe on the question of intervention, also lacks merit. The Blackfeet Tribe response is on letterhead stating the response is from the Blackfeet Tribe, ICWA Program, located at the address listed in the Federal Register designated for service of ICWA notice. In addition, the author of the letter states her job title is Inquiry Technician and that she researched the Blackfeet Tribal Enrollment records and did not find the girls, mother, father, or maternal grandmother on the tribal roles.
This information contained in the letter is sufficient to establish that the author of the letter was authorized to research the Blackfeet Tribe records and advise DPSS that the girls, their parents, and their maternal grandmother are not listed on the Blackfeet tribal rolls. In turn, this is sufficient to establish the girls do not have Indian ancestry and thus ICWA does not apply.
We conclude ICWA notice was sufficient.
3. Termination of Parental Rights
Father contends the juvenile court lacked jurisdiction to terminate his parental rights to S.H. because the juvenile court never made jurisdictional findings based on father being S.H.’s father. Rather, the court’s jurisdictional findings were based on the erroneous finding Larry was S.H.’s presumed father.
At the time of the jurisdiction hearing, a paternity test had not yet established that father was S.H.’s biological father. Larry was named on S.H.’s birth certificate as her father and the court thus initially found that Larry was S.H.’s presumed father. It was not until after the jurisdiction hearing that the court determined, based on the paternity test results, that father was S.H.’s biological father and the court granted Larry’s request to withdraw his claim that he was S.H.’s presumed father and dismiss him from the proceedings.
Even though at the time the court found jurisdiction over the girls, it was assumed Larry, rather than father, was S.H.’s father, this is not fatal to the court’s subsequent order terminating father’s parental rights over S.H. This is because “‘a jurisdictional finding good against one parent is good against both. More accurately, the minor is a dependent if the actions of either parent bring her within one of the statutory definitions of a dependent. [Citation.] This accords with the purpose of a dependency proceeding, which is to protect the child, rather than prosecute the parent. [Citation.]’ [Citations.]” (In re Alexis H. (2005) 132 Cal.App.4th 11, 16, quoting In re Alysha S. (1996) 51 Cal.App.4th 393, 397; see also In re Joshua G. (2005) 129 Cal.App.4th 189, 202; In re Janet T. (2001) 93 Cal.App.4th 377, 392.)
Here, the DPSS removed the girls from mother’s care and custody because she was abusing drugs and not protecting the girls from harm. Larry and father were in prison for drug-related crimes when the girls were removed from mother. At the jurisdiction hearing, the girls were adjudged dependent children of the court and were ordered removed from mother’s, father’s, and Larry’s care and custody.
Since the juvenile court appropriately found jurisdiction over the girls due to mother’s failure to protect both girls and father’s failure to protect D.W., the fact that father had not yet been found to be S.H.’s biological father when the court found jurisdiction, is not fatal to the court’s subsequent order terminating father’s parental rights over S.H. This is because dependency proceedings are designed to protect the child, not to punish the parent; the court takes jurisdiction over children (§ 300), not parents; and the court has jurisdiction over the children if the actions of either parent bring the child within one of the statutory definitions in section 300. (In re Joshua G., supra, 129 Cal.App.4th at p. 202; In re Alysha S., supra, 51 Cal.App.4th at p. 397; In re Janet T. (2001) 93 Cal.App.4th 377, 392.)
4. Deficient Representation
Father challenges the order terminating his parental rights over the girls on the ground he received essentially no representation after the six-month hearing (referral hearing) on November 17, 2005. Although father acknowledges he had court-appointed counsel, he nevertheless claims he was, in effect, without counsel because his attorneys were replaced on three or four occasions.
After the November referral hearing, father was appointed three different attorneys. On March 16, 2006, his attorney, Sunshine Sykes, withdrew as counsel and the court appointed Lori Torrisi to represent father. At the contested section 366.26 hearing on May 15, 2006, Torrisi withdrew and the court appointed Gloria Rincones to represent father. Since Rincones was unable to attend the hearing, another attorney, Jason Seward, made a special appearance at the hearing in place of Rincones.
Father notes that he did not receive prior notice to any of the attorney substitutions or any explanation for the substitutions, and no attorney withdrawal motions were filed. Furthermore, at the section 366.26 hearing, his attorney, Seward, did not submit any affirmative evidence on father’s behalf and, after a brief hearing, the court terminated his parental rights.
Father’s contention that he was not represented by counsel is without merit. At all times and at every stage of the proceedings after the referral hearing, father was represented by counsel. Also, at no time during the lower court proceedings did father complain that he was not represented by counsel or that representation was inadequate. There is no evidence that the attorney substitutions resulted in a lack of representation or interfered with the preparation of father’s defense. We thus reject father’s claim that he received essentially no representation following the referral hearing in November 2005.
5. Disposition
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
s/Gaut
J.
We concur:
s/Ramirez
P. J.
s/Hollenhorst
J.
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[1] Welfare and Institutions Code section 366.26. Unless otherwise noted, all statutory references are to the Welfare and Institutions Code.
[2] Title 25 United States Code section 1901 et seq.
[3] Mother is not a party to this appeal.
[4] All further rule references are to the California Rules of Court unless otherwise stated.