In re Raymond B.

Filed 4/25/06 In re Raymond B. CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

APPEAL from a judgment of the Superior Court of San Diego County, Joe O. Littlejohn, Judge. Affirmed.

Evangeline B. appeals a judgment of the juvenile court terminating her parental rights to her minor sons Raymond B. and Bradford B. (together the minors) under Welfare and Institutions Code^[1] section 366.26. Evangeline contends the court failed to ensure full and adequate compliance with the notice provisions of the Indian Child Welfare Act (ICWA) (25 U.S.C. § 1901 et seq.) before terminating her parental rights. We affirm the judgment.

FACTUAL AND PROCEDURAL BACKGROUND

In February 2004, the San Diego County Health and Human Services Agency (Agency) filed petitions in the juvenile court on behalf of seven-year-old Raymond and four-year-old Bradford under section 300, subdivision (b), alleging Evangeline repeatedly left them with strangers or friends, and she abused marijuana and alcohol. Each petition contained a line for marking the following provisions under item 1, subdivisions l and m: "Child may be a member of, or eligible for, membership in a federally recognized Indian tribe" and "Child may be of Indian ancestry." The lines next to these provisions were unmarked.

According to a report prepared for the detention hearing, the social worker interviewed Evangeline about the circumstances of her homelessness, drug use and habit of leaving the minors with strangers. The report noted the ICWA "does not apply." On a "FIELD WORKSHEET FOR UPDATING CLIENT DEMOGRAPHICS," attached to the detention report, were two boxes next to the question "ICWA?," allowing for a "Yes" or "No" response. The "No" box next to Bradford's name was checked but the boxes next to Raymond's name were left blank. The space for indicating "Tribe" next to each minor's name was also left blank.

Evangeline was not present at the detention hearing. The minors' father,^[2] who was present with appointed counsel, filed two responses to paternity inquiries, one for each minor. Question 7 asks: "(a) Do you have any American Indian heritage? [¶] (b) If yes or maybe, what tribe and band?" No responses to these questions were provided.

According to the minute order from the detention hearing for Bradford, the court deferred appointing counsel for Evangeline and also deferred making a finding on the applicability of the ICWA pending information from her. The minute order for Raymond did not show any ICWA findings. The court detained the minors in out-of-home care.

In a report prepared for the jurisdiction/disposition hearing, the social worker stated the ICWA "does not apply." Neither Evangeline nor the father was present at the jurisdiction/disposition hearing, but the father's attorney was present. County counsel asked the court to make a finding as to the applicability of the ICWA, noting the court had previously deferred a finding until it received more information from the parents. The court responded, "Well, the only thing that I can at this point indicate is, based on the lack of information from [Evangeline] and the input from father, which indicated no Native American heritage from his side, I would have to say from what I know now, the [ICWA] doesn't apply in this case, which is subject to change if [Evangeline] comes in indicating that she is full-blooded whatever." The court sustained the allegations of the petitions, declared the minors dependents and removed them from parental custody. However, after realizing Evangeline had not received notice of the proceedings, the court vacated its findings and orders, and set another hearing following proper notice to Evangeline. The court further stated, "I'm going to keep the ICWA finding also, based on what I have. The ICWA finding is kept, so the ICWA finding is still the order of the court." The minute order from that hearing reflects the ICWA "DOES NOT, BASED ON THE CURRENT INFORMATION, apply in this case."

Evangeline was present in court on the date set for the new jurisdiction/disposition hearing. The court appointed counsel for her. The matter was continued and the court ordered Evangeline to maintain contact with her attorney and return for the continued hearing. Although the court made no findings regarding the ICWA, it stated, "[a]ll prior orders not in conflict are to remain in full force and effect."

Evangeline was not present in court at the continued jurisdiction/disposition hearing, but was represented by counsel. The court sustained the allegations of the petitions as to both minors, declared them dependents and removed them from parental custody. The court placed the minors with their paternal aunt and uncle. Reunification services, including substance abuse treatment and parenting classes, were ordered for both parents.

In addressing the applicability of the ICWA, the court stated, "Counsel, [ICWA] finding was deferred. That is what my notes tell me." County counsel responded, "Your Honor, it appears that that was actually deferred originally, but then the court found that it did not apply [at the first jurisdiction/disposition hearing]." Evangeline's counsel did not object to this statement or address the ICWA. The court then stated, "[a]ll prior orders not in conflict are to remain in full force and effect."

Immediately after these findings and orders were made, Evangeline arrived in court. The court reheard the matter, and ordered Evangeline to participate in the Substance Abuse Recovery Management System program (SARMS). The court also ordered Evangeline to return for future hearings. It made no findings regarding the applicability of the ICWA.

Evangeline was not present at the six-month review hearing but was represented by counsel. Agency recommended six more months of reunification services. Evangeline remained homeless and continued to test positive for drugs. She had not completed any of her reunification services and visited the minors only sporadically. The court ordered further services for Evangeline. Although the social worker's report noted the ICWA did not apply, the court made no findings regarding the ICWA's applicability and none of the parties raised this issue.

Evangeline was present with counsel at the 12-month review hearing. Agency recommended terminating reunification services and setting the matter for a section 366.26 selection and implementation hearing. The minors were doing well in their placement with the paternal aunt and uncle. Evangeline was still homeless, unemployed and continued to test positive for drugs. She did not complete any aspect of her reunification plan or regularly visit the minors. Evangeline set the matter for trial, claiming Agency had not provided her with reasonable services. The social worker's report prepared for this hearing noted the ICWA did not apply. The court made no specific findings regarding the ICWA's applicability, but confirmed "[a]ll prior orders not in conflict are to remain in full force and effect."

On the date set for trial, Evangeline and her attorney were present in court. Evangeline withdrew her request for a contested hearing and submitted on the social worker's recommendations. The court found Evangeline had not made substantive progress on her case plan and set the matter for a section 366.26 selection and implementation hearing. The court made no reference to the ICWA, nor was the ICWA's applicability raised by Evangeline or her counsel.

Evangeline filed a notice of intent to seek writ review of the court's order setting a selection and implementation hearing. (Cal. Rules of Court, former rule 39.1B, now rule 38.1.)^[3] Counsel assigned to review Evangeline's writ petition informed this court there were no viable issues for writ review. We dismissed the matter when no amended writ petition was timely filed.

In its assessment report, Agency recommended a permanent plan of adoption for the minors, who continued to do well in the home of their paternal aunt and uncle. Raymond wanted to be adopted by them. The report noted the ICWA did not apply.

Evangeline requested the matter be set for trial. The court made no findings regarding the ICWA's applicability and Evangeline did not raise the issue. The court stated, "[a]ll prior orders not in conflict are to remain in full force and effect."

At the contested selection and implementation hearing, the parties stipulated that if called to testify, Evangeline would say she loves the minors, wants to reunify with them and does not want her parental rights terminated. The court also accepted an offer of proof on behalf of the minors that they wanted to be adopted by their relative caregivers. The court found the minors were adoptable and none of the circumstances of section 366.26, subdivision (c)(1) applied to preclude terminating parental rights. The court terminated parental rights and referred the minors for adoptive placement. Although the court made no findings regarding the applicability of the ICWA, it stated, "[a]ll prior orders not in conflict are to remain in full force and effect."

DISCUSSION

Evangeline contends the court and Agency violated their duties of inquiry under the ICWA. She asserts there is no substantial evidence the court or Agency inquired about whether the minors had Indian heritage, and thus the judgment terminating parental rights must be reversed.^[4]

A

The ICWA protects the interests of Indian children and promotes the stability and security of Indian tribes and families by establishing certain minimum federal standards in juvenile dependency cases. (In re Kahlen W. (1991) 233 Cal.App.3d 1414, 1421; In re Jullian B. (2000) 82 Cal.App.4th 1337, 1344.) The ICWA defines an Indian child as any unmarried person who is under age 18 and is either: (1) a member of an Indian tribe, or (2) eligible for membership in an Indian tribe and the biological child of a member of an Indian tribe. (25 U.S.C. § 1903(4).)

When a court "knows or has reason to know that an Indian child is involved" in a juvenile dependency proceeding, a duty arises under the ICWA to give the Indian child's tribe notice of the pending proceedings and its right to intervene. (25 U.S.C. § 1912(a); In re Aaliyah G. (2003) 109 Cal.App.4th 939, 941.) Alternatively, if there is insufficient reason to believe a child is an Indian child, notice need not be given. (In re O.K. (2003) 106 Cal.App.4th 152, 157; In re Aaron R. (2005) 130 Cal.App.4th 697, 707.)

Rule 1439(d), which implements the ICWA's notice provisions in California courts, provides that the 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 1439(d).)^[5] "[T]he social worker must ask the child, if the child is old enough, and the parents or legal guardians whether the child may be an Indian child or may have Indian ancestors." (Rule 1439(d)(2).)^[6] "The circumstances that may provide probable cause for the court to believe the child is an Indian child include, but are not limited to, the following: [¶] (A) A person having an interest in the child . . . informs the court or the county welfare agency . . . or provides information suggesting that the child is an Indian child; [¶] (B) The residence of the child, the child's parents, or an Indian custodian is in a predominantly Indian community; or [¶] (C) The child or the child's family has received services or benefits from a tribe or services that are available to Indians from tribes or the federal government, such as the Indian Health Service." (Rule 1439(d)(4).)

B

The juvenile dependency petition (version one), filed on behalf of the minors in 2004, provided two lines on which to indicate the minors' Indian status. Neither line was marked, indicating the minors had no Indian heritage. The initial detention report and all subsequent reports throughout the proceedings stated the ICWA did not apply, and there was never any suggestion to the contrary. "From the affirmative representation that the ICWA did not apply, it is fairly inferable that the social worker did make the necessary inquiry." (In re S.B. (2005) 130 Cal.App.4th 1148, 1161; In re Aaliyah G., supra, 109 Cal.App.4th at p. 942.) Because Evangeline has offered no evidence to the contrary, we presume Agency's official duty has been regularly performed. (Evid. Code, § 664; see Furman v. Department of Motor Vehicles (2002) 100 Cal.App.4th 416, 422; People v. Martinez (1999) 22 Cal.4th 106, 125.)

Further, the court was aware of the necessity of making a finding under the ICWA and addressed this issue at four separate hearings and in its minute orders. Although

Evangeline was not present at any of those hearings, she was represented by counsel from the time of the jurisdiction/disposition hearing. At one of those hearings, county counsel reminded the court it had previously found the ICWA did not apply and the court agreed. Evangeline's counsel did not object to the adequacy of the ICWA inquiry or the validity of the court's finding, nor did counsel give the slightest indication the minors may have Indian heritage. From this, it is fairly inferable the necessary inquiry had been made, and no information was forthcoming regarding the possibility of Indian heritage. (In re S.B., supra, 130 Cal.App.4th at p. 1160 [parent's counsel has duty to protect his or her client's interest under ICWA and bring forth information at "earliest possible time"].) The court reasonably relied on uncontroverted evidence in Agency's petitions, reports and demographic data in making its finding the ICWA did not apply. Because the court did not know, or have reason to know, an Indian child was involved in the proceedings, the ICWA's notice provisions were not triggered. (25 U.S.C. § 1912(a); In re O.K., supra, 106 Cal.App.4th at p. 157; In re Aaron R., supra, 130 Cal.App.4th at p. 707.)

Even were we to conclude the court and Agency did not adequately discharge their duties of inquiry under rule 1439(d), reversal is not required. Neither Evangeline nor her appellate counsel has given us any indication the minors may be Indian children within the meaning of the ICWA, or that remand for further inquiry in the trial court would produce a more favorable outcome for Evangeline. Where, as here, the record is devoid of any evidence the minors have Indian heritage, reversing the judgment terminating parental rights for the sole purpose of inquiring about possible Indian ancestry would serve only to delay permanency for the minors rather than further the important goals and protect the procedural safeguards intended by the ICWA.

DISPOSITION

The judgment is affirmed.

NARES, Acting P. J.

WE CONCUR:

HALLER, J.

McDONALD, J.

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^[1] Statutory references are to the Welfare and Institutions Code unless otherwise specified.

^[2] Raymond B., Sr., is the minors' presumed father. He is not a party to this appeal.

^[3] Rule references are to the California Rules of Court.

^[4] We disagree with county counsel's claim this appeal is frivolous, requiring dismissal. Rather, we proceed to address the merits of Evangeline's claim regarding the ICWA.

^[5] The words "and continuing" were added to rule 1439(d), effective January 1, 2005.

^[6] Effective January 1, 2005, the following provision was added to rule 1439(d): "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, Parental Notification of Indian Status." Evangeline's first appearance was March 29, 2004, before form JV-130 was required to be used.