In re Jacob W.

Filed 4/18/07 In re Jacob W. CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FOURTH APPELLATE DISTRICT

DIVISION THREE

Appeal from an order of the Superior Court of Orange County, Carolyn Kirkwood, Judge. Affirmed. Motion to augment record. Granted. Request for judicial notice. Granted.

Roni Keller, under appointment by the Court of Appeal, for Defendant and Appellant.

Benjamin P. de Mayo, County Counsel, Karen L. Christensen and Julie J. Agin, Deputy County Counsel, for Plaintiff and Respondent.

Leslie A. Barry, under appointment by the Court of Appeal, for the Minor.

* * *

Introduction

Janet W. (Mother) appeals from an order under Welfare and Institutions Code section 366.26 terminating parental rights to Jacob W. (All further statutory references are to the Welfare and Institutions Code unless otherwise indicated). Jacobs father (Father) does not appeal. Jacobs counsel has filed a letter brief in support of affirmance.

Mother contends: (1) substantial evidence does not support the juvenile courts finding that Jacob is likely to be adopted, and (2) the evidence in the record fails to establish compliance with the notice requirements of the Indian Child Welfare Act, 25 United States Code section 1901 et seq. (ICWA).

As to the first contention, we conclude substantial evidence supports the juvenile courts determination that Jacob likely will be adopted. As to the second contention, the Orange County Social Services Agency (SSA) has moved to augment the record with, and requested judicial notice of, various documents pertaining to ICWA notice. Jacob has joined in the motion and the request. We grant the motion to augment and the request for judicial notice because the declarations supporting them are sufficient to establish the documents are from Jacobs case file and/or are court records. The augmented record, together with the documents of which we take judicial notice, establishes that the juvenile court and SSA fully complied with ICWA notice requirements and that ICWA does not apply to Jacob. Accordingly, we affirm.

Facts and Proceedings in the Juvenile Court

On November 13, 2003, SSA detained Jacob and his three siblings following Mothers third drug arrest. Jacob was born in 1999. His siblings, Andrew W. (born in 1989), Amanda W. (born in 1990), and Heather W. (born in 1992), are also subjects of the underlying dependency proceeding, but are not subjects of this appeal. SSA had 12 contacts with the family since February 1991.

When the children were detained, their home was unsafe, dirty, and lacked food. Mother had a chronic history of illegal drug use and an unresolved substance abuse problem that impaired her ability to care for and support her children. Mother admitted the home had lacked electricity for the previous four months. She admitted daily methamphetamine use, most recently on the day before Jacob was detained. Fourteen‑year‑old Andrew has found drugs and drug paraphernalia in Mothers room and in her roommates room. When I find drugs, Andrew reported, I flush them in the toilet. Andrew also reported that Mothers heroin‑using boyfriend physically abused his sisters and him. Andrew kept a baseball bat to defend his sisters and Mother.

Andrew disclosed numerous other family problems, including Fathers physical abuse of Mother, several suicide attempts by Mother, and known felons and drug abusers staying in the home with the children. Andrew entertained himself by making explosives with a Bunsen burner.

On November 17, 2003, SSA filed a juvenile dependency petition under section 300 as to Jacob and his three siblings. The petition alleged serious physical harm ( 300, subd. (a)), failure to protect ( 300, subd. (b)), and serious emotional damage ( 300, subd. (c)).

At the detention hearing on November 18 2003, Father told the court that he believed there is American Indian heritage in the family, but was unsure which tribe. The maternal grandmother told the court of possible Cherokee and Choctaw heritage. On November 19, the court ordered SSA to investigate possible American Indian heritage, and to provide notice under ICWA to the Bureau of Indian Affairs (BIA) and to the Cherokee and Choctaw tribes. The court ordered all four children detained and ordered SSA to prepare a case plan and to provide reunification services. All four children were placed at Orangewood Childrens Home.

SSAs jurisdiction/disposition report, filed on December 18, 2003, stated: On December 8, 2003 notice was sent by certified mail, return receipt requested to the following: Bureau of Indian Affairs, Cherokee Nation of Oklahoma, Eastern Band of Cherokee Indians and United Keetoowah Band of Cherokee Indians. [] Social Services Agency submitted to the Court all return receipts received up to the hearing date. Social Services Agency has provided all known information regarding the childrens possible Indian heritage, and no other relevant information is known or available at this time. On the same date, a stipulation was filed proposing the court find that ICWA notice, Request for Confirmation of Indian Status and proof of service have been filed with the court. Notice of hearing was given to the BIA and all appropriate Tribe(s) in accordance with ICWA. Both Mothers counsel and Fathers counsel signed the stipulation.

A stipulation signed by Mothers counsel and Fathers counsel, filed on January 6, 2004, stated, ICWA documents submitted to Court; continued for further ICWA notice. The court made that finding.

SSAs addendum report, filed on January 27, 2004, stated: On January 13, 2004, notice was sent by certified mail, return receipt requested to . . . Bureau of Indian Affairs, Cherokee Nation of Oklahoma, Eastern Band of Cherokee Indians, United Keetoowah Band of Cherokee Indians, Choctaw Nation of Oklahoma, Jena Band of Choctaw Indians, and Mississippi Band of Choctaw Indians. [] Social Services Agency submitted to the court all return receipts received up to the hearing date. Social Services Agency has spoken to the parents and all known, available relatives regarding the childs possible Indian heritage. Social Services Agency has provided all known information and no other relevant information is available at this time.

A stipulation signed by Mothers counsel and Fathers counsel and filed on February 2, 2004 proposed the court find that ICWA notice, Request for Confirmation of Indian Status and proof of service have been filed with the court. Notice of hearing was given to the BIA and all appropriate Tribe(s) in accordance with ICWA.

Mother and Father stipulated to declaring the children dependent children of the court, to their removal, and to SSAs proposed case service plan. At the jurisdiction/disposition hearing on February 2, 2004, the court declared Jacob and his siblings to be dependent children of the court under section 360, subdivision (d), removed the children from the parents custody, and vested jurisdiction in SSA to find suitable placement. The court read, considered, and accepted into evidence the SSA reports dated December 18, 2003, and January 6 and 27, 2004. The court found: ICWA notice, request for confirmation of Indian status and proof of service have been filed with the court. Notice of hearing was given to the BIA and all appropriate tribes in accordance with ICWA. [] Court finds ICWA does not apply.

SSAs interim review report, filed April 16, 2004, reported that Jacob had been placed in a foster home with the V.s. His siblings had been placed in other homes. Jacob was adjusting well to the foster placement and was in good health, except for a speech impediment.

At a placement review hearing on April 19, 2004, all counsel signed a stipulation stating, [a]dditional ICWA documents submitted to Court. Court previously found that ICWA does not apply. The juvenile court found, [a]dditional ICWA documents submitted to court and set a six‑month review hearing for July 13, 2004.

SSAs status review report, filed June 22, 2004, reported Jacob was still living with the V.s. He was in good health, adjusting well to the placement, and appeared to be benefiting from the nurturing environment. The report described Jacob as polite and friendly. Except for a speech impediment, he was developing at a normal rate. The report described an incident in which Jacob became angry while at school and hit other children, and another incident in which he became angry during a visit with Mother. The report stated Jacob was adoptable.

According to the status review report, Mother had been terminated from her perinatal program for noncompliance and was not complying with any other component of her case plan. She had been fairly consistent in visiting the children until April 2004. Mother expected to be incarcerated soon for stealing a neighbors wallet. (An interim review report, filed September 10, 2004, stated Mother had not been incarcerated yet.)

At the July 13, 2004 six-month review hearing, the parties stipulated that a response from the United Keetoowah Band of Cherokee Indians had been filed with the court. The response, dated April 29, 2004, stated the children are not eligible for tribal membership. Mother stipulated to continued out-of-home placement and further reunification services as SSA had recommended. The court ordered continued placement and again found that ICWA did not apply.

The SSA status review report, filed December 6, 2004, stated Jacob was still living with the V.s and has adjusted well to the placement and appears to be benefiting from the nurturing environment. Jacob was healthy and receiving weekly counseling and speech therapy. Mother and Father divorced in November 2004. Mother reported that the grand theft charges against her had been dropped and that she had to complete 19 days of community service. She was employed full time, started drug testing, attended four sessions with her therapist, attended Narcotics Anonymous meetings, and had attended three parenting classes, but had not yet started a substance abuse program. Mother allowed her boyfriend to move in with her after he was released from prison, but he left on November 9 after renewed domestic violence left her legs bruised.

At the 12‑month review hearing on December 17, 2004, the court approved Mothers stipulation to continue out‑of‑home placement and further services as provided in her case plan.

SSAs status review report, filed May 3, 2005, recommended termination of reunification services for all four children and finding a suitable placement for Jacob. Mother had not complied with any case plan component except for consistently participating in monitored weekly visits. Mother was terminated from a substance abuse program within a week of entering and was terminated from parenting classes for missing three sessions in a row. Mother continued her on‑again, off‑again relationship with her felon boyfriend. The May 3 report stated Jacob remained with the V.s and appeared happy at this placement. Jacob was enrolled in kindergarten, was approaching or meeting grade level standards, and was receiving weekly speech therapy. His behavior was satisfactory, and he was doing an outstanding job at participating in group activities. Jacob was considered easy to place for adoption.

An addendum report, filed July 11, 2005, reported Mother failed to appear for an appointment with SSA and did not return messages. When the social worker was finally able to reach Mother on July 5, 2005, Mother reported a warrant for her arrest was outstanding for failure to complete community service.

At the 18‑month review hearing on August 15, 2005, Mother stipulated to the termination of reunification services and to holding a permanency hearing under section 366.26. The court ordered termination of reunification services and a permanent plan of adoption for Jacob, Amanda, and Heather. The court authorized continued funding for Mothers drug tests, with funding to cease if Mother tested positive or missed a test. The court set a hearing on termination of parental rights for December 12, 2005.

Also on August 15, 2005, the juvenile court found that Andrew was not adoptable, terminated reunification services as to him, and ordered he remain in long‑term foster care. From that point on, Andrews case followed a different track from that of his siblings.

On October 13, 2005, the court granted SSAs request for permission to advertise adoption information about Jacob, Amanda, and Heather.

The permanency hearing was continued several times and ultimately was conducted on September 18, 2006. Between the 18‑month review hearing and the permanency hearing, SSA prepared seven reports. The first, filed November 16, 2005, described Jacob as an engaging, charismatic child with a sweet looking face. He had no known significant physical problems, and was making improvement in speech therapy. However, the report also explained: Recently, [Jacob] has had some acting out resulting in behavioral issues. These issues have included making concerning [sic] statements about doing evil deeds, as well as inappropriate touching of other children in the foster home. It is of concern that Jacob may have a more extensive history of abuse than previously known. Jacobs therapist reported: Jacob began experiencing problems at the foster home. He pushed another resident down and simulated having sex with the female child. The foster mother caught him lying numerous times. Jacob admitted . . . that he did these things and had no insight as to why he acted this way. In addition, Jacob would become upset after visits with Mother and Andrew. Jacobs foster mother expressed concern, but was willing to keep him in her home and help him work through those issues.

The November 16, 2005 report described Jacob as adoptable as a single child, but being considered a member of a sibling set is an issue that makes him less adoptable. The report concluded: Neither mother, father, nor maternal grandmother appears motivated to providing a safe and nurturing environment for the children. The undersigned thinks additional time should be granted to pursue adoptive homes for these children.

The next report, filed December 12, 2005, reported that Mother had been arrested for a probation violation, had two dirty drug tests, and failed to appear for two others. The report concluded neither Mother nor Father had made progress toward having the children returned to them and recommended continued efforts to find permanent adoptive homes for Jacob and his sisters.

On December 14, 2005, the juvenile court found by clear and convincing evidence pursuant to section 366.26, subdivision (c)(3) that termination of parental rights would not be detrimental to the children, that none of the exceptions under section 366.26, subdivision (c)(1) applied, and that Jacob and his sisters had a probability for adoption but were difficult to place. The court identified adoption as the permanent placement goal and ordered continued efforts to find adoptive homes. The matter was continued to May 10, 2006 for selecting a permanent plan pursuant to section 366.26, subdivision (c)(3).

The next SSA report, filed May 10, 2006, concluded Jacob was adoptable and recommended termination of parental rights and referral to the adoption agency for placement. Amanda and Heather were hesitant at the thought of adoption, so Jacob was separately placed in a prospective adoptive home with N. and P. in April 2006. The social worker reported that Jacobs assimilation into the new home generally had been positive, and described the prospective adoptive parents interaction with Jacob as affirmative and constructive. Although Jacob seemed content, he had engaged in defiant behaviors. He often would not do as told, was manipulative at times, and had threatened to break things in the home.

Jacob was struggling with visits with his biological family. He would express indifference or resistance toward the weekly visits, and his behavior changed from one visit to the next. He had to be removed from one visit because he became defiant and hyperactive. When asked why he could not stay calm, he replied, [b]ecause those people give me a headache. Before and after visits, Jacob would become verbally and physically aggressive.

Mother was visiting the children weekly, but she acknowledged she had recently used drugs. In violation of her probation, she was living with Father and using methamphetamine. She enrolled in a residential drug treatment program because she faced up to three years in prison if she did not do so.

The permanency hearing was continued to May 15 and then to May 31, 2006. In an addendum report filed on May 26, SSA again recommended that Jacob be freed for adoption. The report described Jacob as happy and noted he had expressed a desire to remain in the prospective adoptive parents home and to proceed with adoption. The report described Jacob as engaging and charismatic and stated: He has no known significant physical or dental problems and is developmentally on target. He continues to demonstrate adequate age‑appropriate grooming skills as [he] is able to tie his shoes, dress himself, and comb his own hair. He does need the foster mothers assistance with bathing. He keeps up his own room in a neat and tidy manner. He also likes to assert his independence and at times refuses help with certain tasks that he feels he can accomplish. However, he is able to ask for assistance when he needs it. Socially, Jacob presents as a friendly and precocious six‑year‑old who appears his chronological age. Jacob was doing fairly well in school, but did not put enough effort into his schoolwork and often became distracted.

The permanency hearing was continued from May 31 to June 1, and then to July 17, 2006.

SSAs next addendum report, filed July 17, 2006, reported this development: Unfortunately, the prospective adoptive placement for the child Jacob is not working out, and the foster parents have requested that the child be removed from their home. Although the foster mother stated that Jacobs adjustment to the home was more difficult than she felt prepared for, she clearly acknowledged that the placement failure is due to her inability to successfully attach to the child, and not because of the child himself. The foster mother stated that having Jacob in the home has been a catalyst for many different issues. . . . The foster parents have agreed to keep the child until another adoptive home can be secured. The adoptions worker described Jacob as very adoptable and reported that several families had expressed interest in adopting him.

The juvenile court continued the permanency hearing from July 17 to July 20, and then to July 26, 2006, so that SSA could assess Jacobs current adoptive home.

An addendum report, filed August 23, 2006, reported that on August 13 Jacob had been placed with prospective adoptive parents B. and D. They had two children, one of whom was adopted. The adopted child suffered behavioral problems before being placed with B. and D., but through the couples dedication to the child and commitment to parenting was flourishing in their home. Jacob was in a positive mood on August 14, when the social worker picked him up after YMCA day camp. He expressed disappointment when told it was time for his weekly visit with Father and his siblings. When asked if he liked his new placement, Jacob enthusiastically replied, [o]h yeah! I love to live here in this family. I want to live here forever. Jacob appeared comfortable and content with his new prospective adoptive parents, and was able to communicate with and display appropriate affection toward them. Overall, Jacobs transition has been smooth, and his behavior thus far indicates that he is ready to move forward.

In an addendum report, filed September 15, 2006, SSA reported that Jacobs adjustment to his new placement had been relatively smooth and that Jacob had expressed comfort and contentment with his prospective adoptive family. The report continued: The prospective adoptive parents report that Jacob appears to be settling in nicely, however they do acknowledge that Jacob will most likely demonstrate some increasingly problematic behaviors as he continues to transition. They report that Jacob has been defiant at times, but they do not seem affected as they expect challenging behaviors to be present from time to time. As mentioned in previous reports, the prospective adoptive family has experience with adoptions as their second son has been adopted. The parents are well acquainted with the pitfalls and difficulties associated with the process, as well as the emotional toll the child must endure. The prospective adoptive parents have both verbalized and demonstrated their commitment to nurture Jacob through any obstacle he might encounter for the rest of his life.

The social worker had personal contact with Jacob three times after his placement with B. and D. and reported: [Jacob] appears to be happy to be with his new family, and expresses a strong desire to build a relationship with them. Jacob continues to make statements such as, I love to live here. Jacob enjoys showing affection, and the prospective adoptive parents are capable of offering and accepting affection to the degree that Jacob is comfortable. The undersigned has observed the child to run up and hug his prospective adoptive parents when he sees them. Jacob is also developing a bond with his new adoptive brothers. Jacob is well socialized and enjoys playing with [his] siblings.

The social worker and the prospective adoptive parents encouraged Jacob to attend visits with his biological family. He refused, and consistently made statements such as [n]o. I dont want a visit. Maybe another day.

SSA recommended the juvenile court find by clear and convincing evidence that Jacob is likely to be adopted and to terminate parental rights under section 366.26.

The permanency hearing was held on September 18, 2006. The court read, considered, and received into evidence the SSA reports filed December 12, 2005; May 10 and 26, 2006; July 17, 2006; August 23, 2006; and September 15, 2006. Mother submitted without cross-examination of the social worker. Father argued, but did not cross-examine the social worker or present evidence. The juvenile court found by clear and convincing evidence pursuant to section 366.26, subdivision (c)(1) that Jacob likely will be adopted. The court stated: I do note that while the child Jacob is reported to be defiant at times, the evidence is that this prospective adoptive family is committed to the child. And the fact that there is a prospective adoptive parent who has expressed an interest in adopting the minor, thats evidence that the minors young age and other factorshis socialization, his emotional state, and other factors relating to the childare not likely to dissuade individuals from adopting the minor. [] I do note in todays report that the child is described as well‑socialized and that he has developed a bond to his caretaker as well as his new prospective adoptive brother. And . . . he has refused to visit with his biological family.

The juvenile court found that the provisions of section 366.26, subdivision (c)(1) (A), (B), (C), (D), and (E) did not apply, and that adoption and termination of parental rights are in Jacobs best interest. The court ordered parental rights terminated. Mother timely appealed.

Discussion

I. Substantial Evidence Supports the Finding That
Jacob Likely Will Be Adopted.

Mother challenges the juvenile courts finding that Jacob is adoptable, arguing the evidence on that issue was not clear and convincing. To terminate parental rights and order adoption, the juvenile court must find by clear and convincing evidence it is likely the child will be adopted. ( 366.26, subd. (c)(1).) However, as Mother concedes, our review is limited to determining whether substantial evidence supports the juvenile courts finding of adoptability. (In re Jeremy S. (2001) 89 Cal.App.4th 514, 523, disapproved on other grounds in In re Zeth S. (2003) 31 Cal.4th 396, 408, 414; In re Lukas B. (2000) 79 Cal.App.4th 1145, 1154.)

The issue of adoptability . . . focuses on the minor, e.g., whether the minors age, physical condition, and emotional state make it difficult to find a person willing to adopt the minor. (In re Jeremy S., supra, 89 Cal.App.4th at p. 523, quoting In re Sarah M. (1994) 22 Cal.App.4th 1642, 1649.) Substantial evidence supports the juvenile courts finding it is likely Jacob will be adopted. Jacob was not yet seven years old at the time of the permanency hearingyoung enough for him still to be an attractive candidate for adoption. The SSA reports repeatedly described him as engaging, charismatic with a sweet looking face. He was in good health, had no known significant physical or dental problems, and was on target developmentally. He had age‑appropriate grooming skills, kept his room tidy, and was performing fairly well in school. Succeeding SSA reports concluded Jacob was adoptable. Jacob does not have characteristics likely to dissuade individuals from adopting [him]. (In re Sarah M., supra, 22 Cal.App.4th at pp. 1649‑1650.)

As the juvenile court acknowledged, Jacob has displayed some emotional and behavioral problems that will present challenges for prospective adoptive parents. Jacobs therapist reported, however, that Jacob was progressing in counseling and that his anger was subsiding. Further, we decline to hold a child is not likely to be adopted solely because the child has behavioral or emotional problems particularly where, as here, the problems appear to be diminishing, the childs age, health, and physical development support adoptability, and a prospective adoptive parent exists. (See In re Jeremy S., supra, 89 Cal.App.4th 514 [childs medical and behavioral problems no impediment to adoptability]; In re Lukas B., supra, 79 Cal.App.4th 1145, 1154 [behavioral problems did not make children unadoptable].)

In In re Jeremy S., supra, 89 Cal.App.4th 514, the mother challenged the juvenile courts finding of adoptability on the ground the social worker did not know the severity of the childs medical, developmental, and behavioral problems. In that case, it was undisputed the five-year-old child had a seizure disorder and some physical and behavioral problems caused by the abuse he had suffered. The social worker testified those conditions would not impede the childs chances for adoption. (Id. at p. 523.) The child was taking medication for the seizure disorder, and children with seizure disorders had been placed in adoptive homes. (Id. at pp. 523-524.) The childs behavior problems were diminishing. (Id. at p. 524.) The child was too young to determine whether he was developmentally delayed and the extent of his medical condition. (Ibid.) The social worker reported the child was affectionate (ibid.) and the childs current foster family wanted to adopt him (id. at p. 525). Despite the uncertainty of the childs medical condition, the social worker opined that even if the current foster family did not adopt the child, another foster family would adopt him. (Id. at p. 525.) A panel of this court held the evidence sufficient to support the juvenile courts finding the child likely would be adopted. (Id. at pp. 523‑525.)

Jacobs behavioral issues are far less severe than those of Jeremy S.,and are diminishing. Unlike Jeremy S., Jacob is in good health, has no known significant medical problems, and it is known he is developing appropriately.

Mother contends the juvenile courts finding of adoptability was erroneous because Jacob had been placed three times and had been in the current prospective adoptive home only one month at the time of the permanency hearing. Jacobs first placement was with a foster family that never considered adoption as a possibility. Although Jacobs placement with the first prospective adoptive family failed, the prospective mother acknowledged the failure was due to her inability to successfully attach to Jacob. She emphasized the placement failed through no fault of Jacob.

The second placement with a prospective adoptive family was going well, and the prospective adoptive parents have had experience with adoptions. They are prepared for a possibly bumpy road ahead. Granted, Jacob was in the home a month at the time of the permanency hearing. But for the juvenile court to find adoptability, it is not necessary that the minor already be in a potential adoptive home or that there be a proposed adoptive parent waiting in the wings. (In re Sarah M., supra, 22 Cal.App.4th at p. 1649.) It follows that if there is a potential adoptive home, it is not necessary to wait to determine if the placement is successful to terminate parental rights.

II. The Juvenile Court and SSA Complied
with ICWA Notice Requirements.

Mother argues the evidence in the appellate record does not support a finding the juvenile court and SSA complied with ICWA notice requirements. We agree the clerks transcript alone fails to prove ICWA notice compliance. However, the clerks transcript, together with the documents attached to SSAs motion to augment the record and request for judicial notice, establishes that the juvenile court and SSA fully complied with ICWA notice requirements and that Jacob is not subject to ICWA.

Congress enacted ICWA in 1978 to protect American Indian children and their tribes from the erosion of tribal ties and cultural heritage and to promote the stability of Indian tribes and families. (25 U.S.C.  1902; see also In re Nikki R. (2003) 106 Cal.App.4th 844, 848.) ICWA confers on Indian tribes the right to intervene at any point in state dependency proceedings. (25 U.S.C.  1911(c).)

To ensure the right to intervene is meaningful, ICWA contains specific notice requirements. ICWAs notice provision states: 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. If the identity or location of the parent or Indian custodian and the tribe cannot be determined, such notice shall be given to the Secretary [of the Interior] in like manner, who shall have fifteen days after receipt to provide the requisite notice to the parent or Indian custodian and the tribe. 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 or the Secretary. (25 U.S.C.  1912(a).) If the notice provision is not followed, an Indian child, parent, or tribe may petition any court of competent jurisdiction to invalidate such action. (Id.,  1914.)

Both the juvenile court and the county welfare department have an affirmative duty to inquire whether a dependent child is or might be an Indian child. (Cal. Rules of Court, rule 5.664(d).) The determination of a childs Indian status is up to the tribe; therefore, the juvenile court needs only a suggestion of Indian ancestry to trigger the notice requirement. (In re Nikki R., supra, 106 Cal.App.4th at p. 848; see Cal. Rules of Court, rule 5.664(d)(4)(A).)

The juvenile court and SSA made the necessary inquiries and determined Jacob and his siblings might be Indian children under ICWA. Social workers interviewed Father, Mother, the maternal grandmother, and one of Mothers aunts. The potential tribes identified were Cherokee and Choctaw. The social workers obtained detailed information about Jacobs ancestors back to his great‑grandparents.

Mother contends the record does not include the necessary ICWA notification documents. SSA and Jacobs counsel readily concede the clerks transcript does not include copies of the various ICWA notices and responses from the tribes and from the BIA. SSA and Jacobs counsel argue the juvenile court fully complied with ICWA but the copies of the requisite notices and responses either did not make it into the clerks transcript, or were filed in Andrews juvenile court file, In re Andrew W. (Super. Ct. Orange County, No. DP009422). SSA has submitted a motion to augment the record and a request for judicial notice, attached to which are various documents relating to ICWA compliance. Mother opposed the request for judicial notice arguing only one document bears a file stamp and none of the attached documents was filed in this matter. Mother opposed the motion to augment the record, arguing none of the attached documents bears a file stamp and these documents do not evidence that ICWA notice requirements were complied with.

The request for judicial notice is supported by a declaration from Julie J. Agin, a deputy county counsel, stating she found the attached exhibits in Andrews juvenile court file lodged in the juvenile court clerks office. The exhibits attached to the request are ICWA‑notice‑related documents pertaining to all four children. Mother does not challenge the declarations veracity, and we have no reason to doubt it. Agins declaration is sufficient to establish the documents attached to the request for judicial notice are court records (Evid. Code,  452, subd. (d)) and are relevant (id.,  210, 350). Based on the declaration and the record in this case, it appears the ICWA notice documents for all four children were placed in Andrews case file, which apparently was separated from Jacobs file sometime after August 15, 2005, when the juvenile court terminated reunification services as to Andrew and ordered he remain in long-term foster care. We therefore grant SSAs request for judicial notice.

A second declaration from Julie J. Agin supports SSAs motion to augment the record. In this declaration, Agin states she found the documents attached to the motion in Jacobs case file lodged in the juvenile court clerks office. Agin explains she found the documents in the file near a stipulation by the parties dated April 19, 2004 and a minute order of the same date stating additional ICWA documents had been submitted to the court. The exhibits attached to the motion are: (1) SSAs ICWA tracking log and (2) copies of green receipt cards and response letters from six Indian tribes or bands. Although the exhibits do not bear file stamps, Agins declaration is sufficient to establish they are part of the juvenile court file in Jacobs case. (Cal. Rules of Court, rule 8.155(a).) We therefore grant SSAs motion to augment the record.

Augmenting the record and granting the request for judicial notice are not in conflict with In re Zeth S., supra, 31 Cal.4th 396, 400, which bars a reviewing court from considering postjudgment evidence. The documents attached to the request and the motion to augment are not postjudgment, but were generated long before entry of the order being appealed. (See Alicia B. v. Superior Court (2004) 116 Cal.App.4th 856, 866‑867.) Denying the motion to augment and the request for judicial notice would be counterproductive to the states strong interest in the expeditiousness and finality of juvenile court dependency proceedings. (Id. at p. 867.)

The augmented record shows that SSA timely sent proper notice on state‑approved forms to the BIA, the Cherokee Nation of Oklahoma, the Eastern Band of Cherokee Indians, the United Keetoowah Band of Cherokee Indians in Oklahoma, the Choctaw Nation of Oklahoma, the Jena Band of Choctaw Indians, and the Mississippi Band of Choctaw Indians. The notices provided enough information to be meaningful. (In re Karla C. (2003) 113 Cal.App.4th 166, 175.) Green receipt cards were received from the BIA and all of the tribes or bands. Each tribe or band responded to the notice, and none sought to intervene in Jacobs case. The Cherokee Nation of Oklahoma, the United Keetoowah Band of Cherokee Indians in Oklahoma, the Choctaw Nation of Oklahoma, the Jena Band of Choctaw Indians, and the Mississippi Band of Choctaw Indians confirmed Jacob was not eligible to register as a member of the respective tribe or band. The response from the Eastern Band of Cherokee Indians refers only to Heather, but there is no question that Heather and Jacob have the same parents. The juvenile court terminated parental rights more than 10 days after receiving those responses from the tribes and bands.

In addition, the jurisdictional history of this case, recited ante, establishes the parties repeatedly stipulated that proper ICWA notice had been given and ICWA documents had been submitted to the court. A stipulation signed by Mothers counsel and Fathers counsel and filed on February 2, 2004 proposed the court find that ICWA notice, Request for Confirmation of Indian Status and proof of service have been filed with the court. Notice of hearing was given to the BIA and all appropriate Tribe(s) in accordance with ICWA. On February 2, 2004, the juvenile court found: ICWA notice, request for confirmation of Indian status and proof of service have been filed with the court. Notice of hearing was given to the BIA and all appropriate tribes in accordance with ICWA. [] Court finds ICWA does not apply. At a placement review hearing on April 19, 2004, all counsel signed a stipulation stating, [a]dditional ICWA documents submitted to Court. Court previously found that ICWA does not apply. The juvenile court found, [a]dditional ICWA documents submitted to court and set a six‑month review hearing for July 13, 2004.

In each instance, the juvenile court determined that ICWA does not apply as to all four children. Thus, we can conclude the juvenile court had before it the documents ultimately found in Andrews case file when the court made its ICWA findings as to Jacob.

In sum, the augmented record establishes SSA and the juvenile court meticulously complied with ICWA notice requirements. The juvenile court correctly found ICWA does not apply to Jacob. Any technical defect in ICWA notice compliance was harmless because the responses from the tribes and bands confirmed that none intended to intervene in Jacobs case. (See In re Antoinette S. (2002) 104 Cal.App.4th 1401, 1414, fn. 4.)

Disposition

The order terminating parental rights as to Jacob is affirmed.

FYBEL, J.

WE CONCUR:

RYLAARSDAM, ACTING P. J.

IKOLA, J.

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