Filed 7/12/22 In re T.W. 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

APPEAL from the Superior Court of San Bernardino County. Lynn M. Poncin, Judge. Affirmed.

Christine E. Johnson, under appointment by the Court of Appeal, for Defendant and Appellant K.H.

Christy C. Peterson, under appointment by the Court of Appeal, for Defendant and Appellant J.W.

Tom Bunton, County Counsel, and Joseph R. Barrell, Deputy County Counsel, for Plaintiff and Respondent.

The juvenile court terminated the parental rights of defendants and appellants, K.H. (mother) and J.W. (father) (collectively parents) as to T.W. (the minor, born July 2017). On appeal, parents contend that both the juvenile court and plaintiff and respondent, the San Bernardino Children and Family Services (the department), committed reversible error by failing to comply with their duty of initial inquiry with respect to the Indian Child Welfare Act of 1978 (25 U.S.C. § 1900 et seq; ICWA).[1] We affirm.

I. FACTUAL AND PROCEDURAL BACKGROUND[2]

On March 9, 2020, personnel from the department filed a Welfare and Intuitions Code section 300[3] juvenile dependency petition alleging, in part, that parents had left the minor with unrelated persons for extended periods of time without provision for support. Parents whereabouts were then unknown. On March 10, 2020, the juvenile court detained the minor. Parents did not appear at the detention hearing. The court ordered parents to complete ICWA-020 forms.

In the jurisdiction and disposition report filed May 28, 2020, the social worker opined ICWA did not apply. On March 13, 2020, mother informed the social worker that neither she nor her family had any Native American ancestry or heritage. The social worker met with father on March 13, 2020; he also denied that either he or his family had any Native American ancestry or heritage. The social worker recommended the court render a finding that the minor would not come under the provisions of ICWA.

Parents were not present or represented by counsel at the jurisdiction and disposition hearing on July 1, 2020.[4] The court found clear and convincing evidence that reasonably diligent efforts were made to locate the parents. The court found the allegations in the petition true, removed the minor from parents’ custody, found that the minor did not come within the provisions of ICWA, and ordered reunification services for parents.

In the December 8, 2020, status review report, the social worker concluded that the “Indian Child Welfare Act does not apply.” On November 12, 2020, the social worker spoke on the phone with father; she asked him if he had any Native American ancestry; he responded, “‘Possibly.’” The social worker asked father for the names and contact information of family members who could provide her with further information. Father named his mother. The social worker was unable to contact the paternal grandmother. The social worker noted that the matter would be further assessed when she was able to speak with the paternal grandmother.

Also on November 12, 2020, the social worker spoke with mother on the telephone; the social worker asked mother if she had any Native American ancestry. Mother responded that she believed she had “Blackfoot and Law” ancestry. Mother had no further information but provided the name of her sister. The social worker indicated she would communicate with the maternal aunt “and acquire additional information as to any ICWA in the family.”

On December 8, 2020, mother completed an ICWA-020 (parental notification of Indian status form). Mother checked the box indicating that one or more of her parents, grandparents, or other lineal ancestors is or was a member of a federally recognized tribe. Mother named the tribe as “law” and the band as “Blackfoot.” Mother did not provide any further information. At a status review hearing that same day, the court asked mother if anyone in her family was Native American or American Indian. Mother responded, “No.”[5]

In a status review report filed April 12, 2021, the social worker noted that ICWA “does or may apply.” The social worker reported that she had twice attempted to phone mother in order “to gather more information about possible Native American ancestry.” The social worker had subsequent contacts with both parents but apparently did not make any further inquiries as to their purported Indian ancestry. The social worker concluded, “ICWA is still being assessed on behalf of [father] and [mother]. When the undersigned receives the outcome of the information requested, the undersigned will be submitting an ICWA 030 to” the court.[6]

In the status review report filed August 23, 2021, the social worker again reported that ICWA “does or may apply.” The social worker reported that on August 16, 2021, she had a telephone conversation with father, who said he did not have any Native American ancestry. On August 17, 2021, the social worker had a telephone conversation with mother who, when asked if she had any Native American ancestry, “said she thinks she does [but] did not specify what nation.”

On September 3, 2021, the court terminated both parents’ reunification services and set the section 366.26 hearing. In the section 366.26 report filed December 17, 2021, the social worker reported that the minor was adoptable. The minor had been placed with the paternal aunt since March 5, 2020, and the minor “and the family have developed mutual attachments.” The paternal aunt “is dedicated to [the minor] and committed to raising her to adulthood. It is recommended that the child be freed from her birth parents in order to be placed for adoption with” the paternal aunt. On March 7, 2022, the court found the minor adoptable and terminated parents’ parental rights.[7]

II. DISCUSSION

Parents contend that both the juvenile court and the department failed to comply with their duty of initial inquiry with respect to ICWA. Thus, parents maintain the matter must be conditionally reversed and remanded for compliance with ICWA. The department agrees that the juvenile court erred in determining that ICWA did not apply because it failed to make adequate initial inquiries and further inquiries were pending at the time of the court’s determination. The department, however, requests that we augment the record with postjudgment evidence which the department maintains renders parents’ appeals moot.

A. Motion to Augment.[8]

The department requests that we augment the record with postjudgment inquiries made by the social worker regarding the parents’ ICWA status and the court’s subsequent ruling that ICWA did not apply. The department maintains augmentation of the record with these materials renders parents’ appeals moot.

Mother opposes the request noting that it is “an attempt to avoid appellate review of an important, ongoing, and pervasive systemic failure of the juvenile court and the” department to comply with ICWA. Mother objects to the department’s effort “to remedy their errors with post-judgement evidence rather than acknowledge error, request a stipulated reversal, and an immediate remand to the juvenile court . . . .” We grant the motion to augment.

In a May 18, 2022, information for the court, the social worker reported that she contacted the paternal aunt, who indicated she had no information as to any Indian ancestry. The social worker additionally reported that she had interviewed the paternal grandmother who was not aware of any Indian ancestry. The paternal grandmother was also confident that the paternal grandfather had passed away, and that he had no Indian ancestry.

The social worker reported that mother had “knowledge” that the maternal grandmother had Indian ancestry through the Canadian Blackfoot tribe. However, mother could not provide any contact information for the maternal grandmother or any of mother’s sisters. Mother claimed her father had Indian ancestry through the “LAU Indian tribe.” However, mother could not provide any contact information for her father.

The social worker noted that the Canadian Blackfoot tribe is “not Federally recognized in the United States.” The social worker conducted a search of all Indian tribe units, which reflected there was no “tribe listed as LAU, or any tribe that was once identified as LAU and renamed.” On May 19, 2022, the juvenile court considered the report and found ICWA did not apply.

“It has long been the general rule and understanding that ‘an appeal reviews the correctness of a judgment as of the time of its rendition, upon a record of matters which were before the trial court for its consideration.’” (In re Zeth S. (2003) 31 Cal.4th 396, 405.) “[F]or an appellate court routinely to solicit postjudgment evidence in order to reopen and reconsider trial court findings and reverse the trial court’s judgment ‘would violate both the generally applicable rules of appellate procedure and the express provisions of section 366.26 which strictly circumscribe the timing and scope of review of termination orders, for the very purpose of expediting the proceedings and promoting the finality of the juvenile court’s orders and judgment.’” (In re Josiah Z. (2005) 36 Cal.4th 664, 676.) “[A]n appellate court should not consider postjudgment evidence going to the merits of an appeal and introduced for the purposes of attacking the trial court’s judgment.” (Ibid.)

Nonetheless, “appellate courts routinely consider limited postjudgment evidence in” other contexts. (In re Josiah Z., supra, 36 Cal.4th at p. 676 [postjudgment evidence properly considered in the context of a motion filed by the minor’s counsel to dismiss the appeal]; In re A.C. (2021) 65 Cal.App.5th 1060, 1071 [court could consider father’s postjudgment failure to claim Indian ancestry because it demonstrated that he suffered no prejudice from the juvenile court’s failure to inquire]; In re A.B. (2008) 164 Cal.App.4th 832, 843 [court could consider postjudgment evidence of parent’s statement, in another case, that she did not have Indian heritage to determine that juvenile court’s failure to inquire was harmless]; In re Salvador M. (2005) 133 Cal.App.4th 1415, 1422 [proper to augment record to include postjudgment addendum report disclosing that adoptive study had been approved and issue raised on appeal was moot].)

This is particularly true where using the evidence has a “‘“beneficial consequence . . . to ‘expedit[e] the proceedings and promot[e] the finality of the juvenile court’s orders and judgment.”’” (In re A.C., supra, 65 Cal.App.5th at p. 1073; see Alicia B. v. Superior Court (2004) 116 Cal.App.4th 856, 866-867 [proper for appellate court to augment record with ICWA notices filed after judgment, which reflected juvenile court’s premature finding ICWA did not apply was not prejudicial.]; In re Allison B. (2022) 79 Cal.App.5th 214 [Accepting postjudgment evidence reflecting that the required ICWA inquiries had been made in granting a motion to dismiss the appeal.].) “[S]everal cases that have concluded that an agency’s failure in the juvenile court to show compliance with the ICWA notice requirements may be cured by making the necessary showing in the appellate court.” (In re Justin S. (2007) 150 Cal.App.4th 1426, 1432.)

Here, augmentation of the postjudgment documents will not be used to attack the juvenile court’s judgment. (In re Josiah Z., supra, 36 Cal.4th at p. 676.) Moreover, the requested documents relate directly to whether parents have suffered any prejudice with respect to the juvenile court’s erroneous ICWA determination. (In re A.C., supra, 65 Cal.App.5th at p. 1071; In re A.B., supra, 164 Cal.App.4th at p. 843; Alicia B. v. Superior Court, supra, 116 Cal.App.4th at pp. 866-867; In re Allison B., supra, 79 Cal.App.5th 214.)

Furthermore, parents have not shown that there is an “ongoing and pervasive systemic failure” of the court and the department to comply with ICWA. Finally, the postjudgment evidence may have a “‘“beneficial consequence . . . to ‘expedit[e] the proceedings and promot[e] the finality of the juvenile court’s orders and judgment.”’” (In re A.C., supra, 65 Cal.App.5th at p. 1073.)

Here, the minor has been in placement with the paternal aunt for more than two years, approximately half her life. The minor’s interest in permanence and stability militates toward considering postjudgment evidence, which may expedite the finality of the juvenile court’s judgment. Thus, we grant the department’s motion and augment the record with the postjudgment documents described ante.

B. Initial Inquiry.

Parents contend that both the juvenile court and the department failed to comply with their duty of initial inquiry with respect to ICWA. The department concedes that the juvenile court did not make an initial inquiry of father and that further inquiry regarding mother was required, but contends, based on the postjudgment materials, that the errors were harmless. Mother replies that the postjudgment documents do not remedy the juvenile court’s errors because department personnel had contact information for the maternal aunt and failed to document what efforts they had made to contact her. We agree with the department.

“‘“‘Federal regulations implementing ICWA . . . require that state courts “ask each participant in an emergency or voluntary or involuntary child-custody proceeding whether the participant knows or has reason to know that the child is an Indian child.” [Citation.] The court must also “instruct the parties to inform the court if they subsequently receive information that provides reason to know the child is an Indian child.”’”’ [Citations.] ‘State law, however, more broadly imposes on social services agencies and juvenile courts (but not parents) an “affirmative and continuing duty to inquire” whether a child in the dependency proceeding “is or may be an Indian child.”’” (In re J.C. (2022) 77 Cal.App.5th 70, 77 (J.C.).)

“Section 224.2 ‘“‘creates three distinct duties regarding ICWA in dependency proceedings.’”’ [Citations] First, section 224.2, subdivision (b), requires the child protective agency to ask ‘the child, parents, legal guardian, Indian custodian, extended family members, others who have an interest in the child, and the party reporting child abuse or neglect, whether the child is, or may be, an Indian child and where the child, the parents, or Indian custodian is domiciled.’ [Citations.] Although commonly referred to as the ‘initial duty of inquiry,’ it ‘begins with the initial contact’ [citation] and continues throughout the dependency proceedings.” (J.C., supra, 77 Cal.App.5th at p. 77.)

“Second, if the court or child protective agency ‘has reason to believe that an Indian child is involved in a proceeding, but does not have sufficient information to determine that there is reason to know that the child is an Indian child,’ the court and the Department ‘shall make further inquiry regarding the possible Indian status of the child, and shall make that inquiry as soon as practicable.’ [Citations.] Third, if the further inquiry ‘“‘results in a reason to know the child is an Indian child, then the formal notice requirements of section 224.3 apply.’”’” (J.C., supra, 77 Cal.App.5th at p. 78.)

“‘“‘The juvenile court must determine whether proper notice was given under ICWA and whether ICWA applies to the proceedings.’” [Citation.] “If the court makes a finding that proper and adequate further inquiry and due diligence as required in [section 224.2] have been conducted and there is no reason to know whether the child is an Indian child, the court may make a finding that [ICWA] does not apply to the proceedings, subject to reversal based on sufficiency of the evidence.”’” (J.C., supra, 77 Cal.App.5th at p. 78.)

“Because the failure here concerned the agency’s duty of initial inquiry, only state law is involved. Where a violation is of only state law, we may not reverse unless we find that the error was prejudicial.” (In re Benjamin M. (2021) 70 Cal.App.5th 735, 742.) “n ICWA cases, a court must reverse where the record demonstrates that the agency has not only failed in its duty of initial inquiry, but where the record indicates that there was readily obtainable information that was likely to bear meaningfully upon whether the child is an Indian child.” ([i]In re Benjamin M., at p. 744 [The department “failed its duty of inquiry by not asking ‘extended family members’ . . . whether there [was] reason to believe [the minor was] an Indian child.”]; compare In re Dezi C. (2022) 79 Cal.App.5th 769, 779 [“[A]n agency’s failure to conduct a proper initial inquiry into a dependent child’s American Indian heritage is harmless unless the record contains information suggesting a reason to believe that the child may be an ‘Indian child’ within the meaning of ICWA, such that the absence of further inquiry was prejudicial to the juvenile court's ICWA finding.”].)

Here, the department concedes, and we agree, that the juvenile court erred in determining ICWA did not apply when it failed to ensure adequate initial inquiries had been made and while further inquiries were still pending. The court failed to ensure that father filed an ICWA-020 form. Similarly, although the court orally inquired of mother regarding any potential Indian ancestry, the court did inquire as to father. Finally, the social worker had indicated that further inquiries were pending.

Nonetheless, neither parent provided any further “readily obtainable information that was likely to bear meaningfully upon whether the [minor was] an Indian child.” (In re Benjamin M., supra, 70 Cal.App.5th at p. 744.)[9] Neither parent ever provided the social worker with any information as to how to contact any further relatives whom parents believed may have information as to their purported Indian ancestry.[10] Thus, any error is harmless. (In re A.C., supra, 65 Cal.App.5th at p. 1073 [Where the parent cannot show prejudice from the court’s ICWA determination, the judgment is affirmed.]; In re A.B., supra, 164 Cal.App.4th at p. 843 [same]; Alicia B. v. Superior Court, supra, 116 Cal.App.4th at pp. 864-867 [petition denied where there was no prejudice from juvenile court’s ICWA determination]; In re Dezi C., supra, 79 Cal.App.5th at p. 779 [“[A]gency’s failure to conduct a proper initial inquiry into a dependent child’s American Indian heritage is harmless unless the record contains information suggesting a reason to believe that the child may be an ‘Indian child’ within the meaning of ICWA . . . .”].)

Father indicated it was “[p]ossibl[e]” he had Indian ancestry and named only the paternal grandmother as someone from whom the social worker could obtain further information. The social worker interviewed the paternal grandmother who was not aware of any Indian ancestry in their family. The paternal grandmother was also confident both that the paternal grandfather had passed away and that he had no Indian ancestry. The social worker reported that she contacted the paternal aunt, who also indicated she had no information as to any Indian ancestry in their family. Thus, department personnel made every effort to contact anyone known to father who could have any information regarding any Indian ancestry in his family.

Mother believed she had “Blackfoot and Law” ancestry. Mother had no further information but provided the name of her sister. The social worker indicated she would communicate with the maternal aunt “and acquire additional information as to any ICWA in the family.” Mother listed no contacts on her ICWA-020 form. The social worker made further efforts to obtain additional information from mother to no avail.

The social worker later reported that mother had “knowledge” that the maternal grandmother had Indian ancestry through the Canadian Blackfoot tribe. However, mother could not provide any contact information for the maternal grandmother or any of mother’s sisters. Regardless, the social worker noted that the Canadian Blackfoot tribe is “not Federally recognized in the United States.” (See In re Wanomi P. (1989) 216 Cal.App.3d 156, 166-168 [Canadian tribes are not federally recognized under ICWA.].)

Mother claimed her father had Indian ancestry through the “LAU Indian Tribe.” However, mother could not provide any contact information for her father. Regardless, the social worker conducted a search of all Indian tribal units, which reflected there was no “tribe listed as LAU, or any tribe that was once identified as LAU and renamed.” “The requirements of the ICWA apply only to federally recognized tribes. (25 U.S.C. § 1903(8).” (In re A.C. (2007) 155 Cal.App.4th 282, 286-287.) Thus, neither tribe from which mother alleged ancestry were recognized under ICWA.

Mother contends that the maternal aunt was a source of “readily obtainable information that was likely to bear meaningfully upon whether the child is an Indian child.” However, there is no information in this record that mother ever provided the department with any contact information for the maternal aunt. Moreover, since both tribes identified by mother are not federally recognized, there would be no information the maternal aunt could offer, which would give reason to believe or bear meaningfully upon whether the minor is an Indian child.

III. DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

McKINSTER

J.

We concur:

RAMIREZ

P. J.

CODRINGTON

J.

[1] Father merely joins the arguments made by mother.

[2] We present only an abbreviated recitation of the facts as relevant to the issue raised on appeal.

[3] All further statutory references are to the Welfare and Intuitions Code unless otherwise stated.

[4] In her opening brief, mother contended that the juvenile court violated parents’ due process rights by determining that ICWA did not apply when parents were not present or represented by counsel. Mother maintained the ruling was per se reversible. However, mother withdrew that argument in her reply brief.

[5] The December 8, 2020, minute order reflects that the court made an ICWA inquiry as to both parents and that both parents denied any Indian heritage. However, the reporter’s transcript reflects the court only inquired as to mother. (People v. Jones (2012) 54 Cal.4th 1, 89 [The minute order “‘does not control if different from the trial court’s oral judgment and may not add to or modify the judgment it purports to digest or summarize.’”].)

[6] The record does not reflect that the social worker ever filed an “ICWA 030.”

[7] Mother notes that on “March 7, 2022, the juvenile court took ‘judicial notice of all prior findings, orders, and judgements in the proceedings’ therefore adopting the July 1, 2020 finding that the ICWA did not apply.”

[8] On June 8, 2022, we reserved ruling on respondent’s motion to augment filed May 20, 2022, and appellant’s opposition filed June 3, 2022. The motion is granted.

[9] For the same reasons, as described post, there was no “reason to believe that the child may be an ‘Indian child’ within the meaning of ICWA . . . .” (Dezi C., supra, 79 Cal.App.5th at p. 779.)

[10] This is aside from the fact that the parents routinely informed the court and the department that they had no Indian ancestry. (In re S.R. (2021) 64 Cal.App.5th 303, 312, 316 [Where the parents initially represented that the minor did not have Indian ancestry, the court’s ICWA finding was “plainly supported at the time it made the finding.”].)