Opinion
NOT TO BE PUBLISHED
Mendocino County Super. Ct. No. SCUK-JVSQ-05-14388
Swager, J.
The mother and father of the dependent child, Caleb L., have both separately appealed from the trial court’s order which terminated parental rights and selected adoption as the permanent plan for the child. They claim that the trial court failed to comply with the notice provisions of the Indian Child Welfare Act (25 U.S.C. § 1901 et seq., hereafter the ICWA). We conclude that the juvenile court complied with all inquiry and notice requirements of the ICWA, and affirm the judgment.
We will refer to the mother and father collectively as appellants or the parents; we will refer to respondent Mendocino County Department of Social Services as respondent or the Department.
STATEMENT OF FACTS AND PROCEDURAL HISTORY
Given the issues presented in this appeal, we will focus our recitation of the evidence upon the facts related to compliance with the ICWA.
Caleb was born in June 2005, and was detained by the Department less than a month later. On July 12, 2005, a dependency petition was filed on the ground that appellants failed to protect the child (Welf. & Inst. Code, § 300, subd. (b)). The petition alleged that appellants had a history of domestic violence and irrational behavior directed at each other. The petition further alleged that the father is “on disability” for serious chronic mental illness for which he receives treatment. He also has an extensive criminal history of multiple arrests and convictions, specifically for possession of controlled substances, false imprisonment and infliction of corporal injury upon his former wife, child endangerment, resisting a peace officer, driving a stolen vehicle, and disorderly conduct. The mother suffers from a “serious chronic mental condition” for which she has been prescribed anti-psychotic medication, and had been recently arrested for a “public dispute” with the father. They both also have a history of serious substance abuse, and the mother admitted use of methamphetamines early in her pregnancy with Caleb.
The father was previously married for 14 years and has four children from that marriage. Due to acts of domestic violence and “suspected abuse of the children” he does not have custody of those children, and has “only supervised visitation” with them.
Neither the mother nor the child tested positive for drugs at birth.
As alleged in the petition, the detention was precipitated by a lengthy incident of domestic violence and hostility between the parents in the presence of the child on the night of July 9, 2005, although several other similar prior incidents and referrals occurred. The Department had “intensively monitored this case” after the child’s birth due to the “volatile and unstable” relationship of the parents, and they had been warned that another incident of domestic violence “would almost certainly lead to detention.” The child was placed with his maternal grandparents in Fort Bragg.
In fact, the Department provided “preplacement services” for appellants pursuant to a voluntary agreement they signed shortly after the child’s birth.
When the child was detained, the father mentioned in response to an inquiry from the social worker that his mother “has Native American heritage, but he does not know where his mother resides or what tribe was involved.” The mother denied “any Native American heritage.”
The detention hearing was held on July 13, 2005. Appellants were both represented by counsel. At the hearing the trial court asked the parents “whether either of you are enrolled or eligible to be enrolled in any Native American Indian tribe thus making your child eligible for enrollment.” The father replied: “I have Native American roots I believe on my mother’s side. I was raised by my father. I’ve only seen my mother a handful of times. I don’t know which tribe it would be that she would belong to or how I’d even go about getting any of that information.” The father was able to give the court his mother’s maiden name, but no other identifying information. The court then directed the father to “fill out the form” given to him, to provide the court with any “information about family members that are enrolled or eligible for enrollment in any tribe.” The father was also requested by the court to contact any of his family members who might have information on his “family’s Native American status.”
The mother again denied that she had Native American heritage.
The father was advised by the court to obtain the assistance of his attorney or the social worker in completing the form.
At the conclusion of the hearing the child was detained and the jurisdictional hearing was set for July 28, 2005. The parents were encouraged to consult with their attorneys before the next hearing.
In the jurisdictional report filed on July 25, 2005, the social worker noted that the father mentioned he “may be of Native American heritage, but was unable to provide any information regarding this, so the Department will continue to investigate ICWA applicability.” The jurisdictional report also provided information on another physical altercation between the parents after the child was detained, during which the mother scratched the father’s face, broke the headlights on their car, and was arrested for domestic battery. The allegations of the petition were found true, and a dispositional hearing was set for August 31, 2005.
The dispositional report indicated, “The child is not of Native American heritage, therefore, Indian Child Welfare Act does not apply.” Nevertheless, at the dispositional hearing on August 31, 2005, the trial court noted the father’s previous statement that “the child may be of Native American heritage,” and the fact that the statutory Judicial Council forms JV-130 and JV-135 had not been “filled out and submitted to the Court.” The father, with the assistance of the social worker and his attorney, was directed to “fill out the paperwork” before any determination would be made on the application of the ICWA and the requirement to give notice to “any tribes and/or the Bureau of Indian Affairs” as “possible tribal affiliations for Caleb.” The allegations of the petition, as amended, were found true, Caleb was declared a dependent child, placed in the care and custody of the Department, and the case was transferred for family reunification services.
The mother and father subsequently completed, signed and filed the Notification of Indian Status (JV-130) forms. Both checked the box that indicated, “I have no Indian ancestry as far as I know.” The JV-130 form admonished the father to file an “updated form” and notify his attorney and the social worker if he discovered “new information” “regarding the child’s Indian status.” The father did not thereafter submit a modified JV-130 form or notify the Department of any change of Indian status information on the child.
After the dispositional hearing, Caleb continued to live with his maternal grandparents in Fort Bragg, where he reportedly received “all the necessary care and nurturance.” They expressed willingness to “care for him as long as necessary.” The six-month review report repeated that, “The child is not of Native American heritage, therefore, ICWA does not apply.”
Although the parents received reunification services, including psychiatric counseling and prescribed medication they took only sporadically, by the date of the six-month hearing on February 8, 2006, they continued to suffer from serious, unabated mental illnesses that severely impacted their ability to parent. Recommendations were made that they both receive intensive psychiatric care for chronic psychotic, schizophrenic, delusional and paranoid disorders. The conflict between them remained severe, manifested by ongoing threats, along with verbal and physical altercations. Continued alcohol, marijuana, and methamphetamine use was also reported.
At the conclusion of the six-month review hearing, the court found that the parents had failed to make significant progress toward alleviating or mitigating the causes that necessitated placement, and remained a significant risk of detriment to the child without out-of-home placement. The child continued “as a dependent of the juvenile court,” placed with the maternal grandparents pending a permanent plan, with supervised visitation granted to the parents. Reunification services to the parents were terminated, and a section 366.26 hearing was set.
The section 366.26 report again noted that the “Indian Child Welfare Act does not apply.” The maternal grandparents discussed adoption of Caleb with the social worker, but were only willing “to seek guardianship” while their daughter continued to attempt to overcome her mental illness. The report recommended appointment of the maternal grandparents as guardians.
The scheduled section 366.26 hearing on June 8, 2006, was continued to allow the grandparents to “think very seriously about adoption.” Both parents subsequently filed section 388 petitions for modification. An addendum to the section 366.26 report indicated that on June 16, 2006, the maternal grandparents “stated that they now” are “willing to adopt” Caleb, and believe adoption would be the “best plan” for him.
Following the contested sections 366.26 and 388 hearing, the juvenile court denied the petitions for modification, terminated parental rights, and selected adoption as the permanent plan for Caleb. The parents have filed separate appeals.
We will resolve the appeals together, as the parents have raised the same issues, and the mother has joined in any issues separately argued by the father.
DISCUSSION
Appellants argue that the failure of the juvenile court to comply with the notice requirements of ICWA compels reversal of the judgment. They complain that when the father asserted “the child might have Indian heritage, a duty arose” on the part of the trial court to “provide notice to any tribe to which the child might belong.” They add that the court also failed to make a “sufficient inquiry” into “the child’s Indian ancestry,” or a formal “finding as to whether ICWA applied.” They maintain that “all earlier orders in the proceedings must therefore be vacated, and the juvenile court must be directed to give the required notice.”
The requirements of the ICWA are well delineated. “ ‘[W]here 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 child’s tribe, by registered mail with return receipt requested, of the pending proceedings and of their right of intervention.’ (25 U.S.C. § 1912(a).) If the identity of the tribe cannot be determined, notice must be given to the Bureau of Indian Affairs.” (In re Robert A. (2007) 147 Cal.App.4th 982, 988; see also In re Santos Y. (2001) 92 Cal.App.4th 1274, 1300.)
“To satisfy the notice provisions of the [ICWA] and to provide a proper record for the juvenile court and appellate courts, [a social services agency] should follow a two-step procedure. First, it should identify any possible tribal affiliations and send proper notice to those entities, return receipt requested. (Rule 1439(f).) Second, [the agency] should provide to the juvenile court a copy of the notice sent and the return receipt, as well as any correspondence received from the Indian entity relevant to the minor’s status. If the identity or location of the tribe cannot be determined, the same procedure should be used with respect to the notice to [the Bureau of Indian Affairs].” (In re Marinna J. (2001) 90 Cal.App.4th 731, 739–740, fn. 4; see also In re Jennifer A. (2002) 103 Cal.App.4th 692, 702–703; People ex rel. DSS in Interest of C.H. (S.D. 1993) 510 N.W.2d 119, 123–124.) “The ICWA notice requirement is not onerous. ‘[C]ompliance requires no more than the completion of a preprinted form promulgated by the State of California, Health and Welfare Agency, for the benefit of county welfare agencies.’ [Citation.]” (Dwayne P. v. Superior Court (2002) 103 Cal.App.4th 247, 254.)
All references to rules are to the California Rules of Court.
Rule 1439 has been renumbered, and is now rule 5.664.
“Pursuant to California Rules of Court, rule 1439(d), the court and Department ‘have an affirmative and continuing duty to inquire whether a child for whom a petition under section 300 . . . has been[ ] filed is or may be an Indian child.’ Under rule 1439[(d)(2)], ‘the social worker must ask . . . the parents . . . whether the child may be an Indian child or may have Indian ancestors.’ Further, under rule 1439[(d)(3)], ‘[a]t the first appearance by a parent or guardian in any dependency case, . . . the parent . . . must be ordered to complete form JV-130, Parental Notification of Indian Status.’ ” (In re J.N. (2006) 138 Cal.App.4th 450, 461; see also In re Antoinette S. (2002) 104 Cal.App.4th 1401, 1409; In re Aaliyah G. (2003) 109 Cal.App.4th 939, 941–942.) When any of the notice or inquiry provisions are “violated, an Indian child, parent, Indian custodian, or the Indian child’s tribe may petition the court to invalidate the proceeding.” (In re Marinna J., supra, 90 Cal.App.4th 731, 735.)
“ ‘The Indian status of the child need not be certain to invoke the notice requirement. [Citation.] Because the question of membership rests with each Indian tribe, when the juvenile court knows or has reason to believe the child may be an Indian child, notice must be given to the particular tribe in question or the Secretary [of the Interior].’ [Citation.]” (In re O.K. (2003) 106 Cal.App.4th 152, 156.) “The showing required to trigger the statutory notice provisions is minimal; it is less than the showing needed to establish a child is an Indian child within the meaning of ICWA. [Citation.] A hint may suffice for this minimal showing. [Citation.] ‘The determination of a child’s Indian status is up to the tribe; therefore, the juvenile court needs only a suggestion of Indian ancestry to trigger the notice requirement.’ [Citation.]” (In re Miguel E. (2004) 120 Cal.App.4th 521, 549; see also In re Merrick V. (2004) 122 Cal.App.4th 235, 246.)
“Because ‘ “failure to give proper notice of a dependency proceeding to a tribe with which the dependent child may be affiliated forecloses participation by the tribe, [ICWA] notice requirements are strictly construed.” ’ [Citation.]” (In re Robert A., supra, 147 Cal.App.4th 982, 989.) “The circumstances under which a juvenile court has reason to believe that a child is an Indian child include, but are not limited to, the following: ‘(i) Any party to the case, Indian tribe, Indian organization or public or private agency informs the court that the child is an Indian child. [¶] (ii) Any public or state-licensed agency involved in child protection services or family support has discovered information which suggests that the child is an Indian child. [¶] (iii) The child who is the subject of the proceeding gives the court reason to believe he or she is an Indian child. [¶] (iv) The residence or the domicile of the child, his or her biological parents, or the Indian custodian is known by the court to be or is shown to be a predominantly Indian community. [¶] (v) An officer of the court involved in the proceeding has knowledge that the child may be an Indian child.’ (Guidelines for State Courts; Indian Child Custody Proceedings (44 Fed.Reg. 67584, 67586 (Nov. 26, 1979)) (Guidelines); rule 1439(d)(2).)” (In re O.K., supra, 106 Cal.App.4th 152, 156.)
I. The Failure of the Parents to Pursue the Issue of Compliance with the ICWA Notice Requirements in the Trial Court .
As a threshold matter we confront respondent’s argument that appellants “waived the ICWA notice issue by failing to raise it below.” Respondent points out that the parents were aware of the issue of “the child’s Indian ancestry,” and were at all times represented by counsel, but nevertheless “raise, for the first time, their contentions that the ICWA notice requirements were violated” in this appeal. Respondent adds that the father also “disavow[ed] Indian ancestry.” The Department thus claims that the parents either waived or are “estopped from asserting” the “failure to provide notice pursuant to the ICWA” as “grounds for reversal” of the judgment.
We agree with respondent that in the particular context of the appeal before us, the issue of compliance with the notice provisions of the ICWA is in all respects one that should justify a finding of waiver or forfeiture on appeal. However, a tenet has emerged that: “The notice requirements of ICWA are mandatory and cannot be waived by the parties.” (In re Robert A., supra, 147 Cal.App.4th 982, 988–989.) “ ‘Because the notice requirement is intended, in part, to protect the interests of Indian tribes, it cannot be waived by the parents’ failure to raise it.’ [Citation.] The right to raise the issue for the first time on appeal is not limited solely to the affected tribes. Instead, ‘any parent . . . may petition any court of competent jurisdiction to invalidate’ foster care placement or termination of parental rights ‘upon a showing that such action violated any provision of sections 1911, 1912, and 1913.’ [Citation.] Thus, because it is critical to the tribes in which the dependent child may have existing or future membership, and because tribes depend on parents in the first instance to notify state social workers and courts of known or potential Indian ancestry, parents who have failed to raise the notice issue below may raise it on appeal.” (In re Antoinette S., supra, 104 Cal.App.4th 1401, 1408; see also In re Jennifer A., supra, 103 Cal.App.4th 692, 706; In re Marinna J., supra, 90 Cal.App.4th 731, 738–739.) “ ‘Notice ensures the tribe will be afforded the opportunity to assert its rights under the [ICWA] irrespective of the position of the parents, Indian custodian or state agencies.’ [Citation.]” (Dwayne P. v. Superior Court, supra, 103 Cal.App.4th 247, 253.) We thus find that appellants neither waived nor are estopped from complaining of the lack of notice under the ICWA, and proceed to resolve the issue on the merits.
II. The Duty of the Juvenile Court to Inquire and Send Notice .
We agree with appellants that once the father stated to the social worker and then at the detention hearing that he believed his mother may have “Native American heritage” of unknown nature or extent, the juvenile court’s duty of inquiry was triggered. (In re Jennifer A., supra, 103 Cal.App.4th 692, 702–703.) The court properly responded by directing the father to consult with his attorney and the social worker, “fill out the form” given to him, and contact any family members who might have information on the “Native American status” of his family. In the jurisdictional report, the social worker mentioned that the Department would “continue to investigate ICWA applicability” although the father had not provided information on the child’s “Native American heritage.” Then, at the dispositional hearing the court continued the inquiry by refusing to make any finding on the ICWA notice requirements in the case until the father completed the statutory JV-130 and JV-135 forms. We conclude that the court satisfied its duty pursuant to rule 1439(d) to undertake an inquiry into any possible tribal affiliations of the child. (In re Aaliyah G., supra, 109 Cal.App.4th 939, 942.)
(See ante, fn. 9.)
The remaining issue is whether any further inquiry or notice was required once the Notification of Indian Status (JV-130) form filed by the father specified, “I have no Indian ancestry as far as I know.” While the father’s initial assertion that he may have Native American heritage through his mother was speculative and inconclusive, his subsequent statement in the form was explicit. Rather than mark the boxes that indicated he did or even may have Indian ancestry, the father positively informed the court that he had no knowledge of any Indian ancestry in his family. He appeared with counsel at the hearing during which the court admonished him to consult with his attorney or the social worker before completing the form, and retained the assistance of counsel thereafter throughout the proceedings, without updating the form or advising the court of any new information on the child’s Indian status. Nor did he contest the statements in succeeding reports that the ICWA did not apply in this action.
Presented with a definitive representation in the JV-130 form that both contradicted the father’s prior, somewhat equivocal statement and positively denied any Indian ancestry, the trial court did not have an affirmative duty to make an additional inquiry or provide notice absent any subsequent suggestion of the child’s Indian status. (In re Aaron R. (2005) 130 Cal.App.4th 697, 707–708; In re Aaliyah G., supra, 109 Cal.App.4th 939, 943.) Despite the father’s prior assertion of his mother’s Native American heritage, his subsequent declaration that he had no Indian ancestry went beyond a mere lack of information of membership; it conclusively disproved membership. “[T]he obligation is only one of inquiry and not an absolute duty to ascertain or refute Native American ancestry.” (In re Antoinette S., supra, 104 Cal.App.4th 1401, 1413.) Once the father submitted his Notification of Indian Status form in which he denied Indian ancestry, the court had no reason to know that Caleb was or even might be an Indian child within the meaning of the ICWA, and thus no duty of further inquiry or notice. (In re E.H. (2006) 141 Cal.App.4th 1330, 1334–1335; In re S.B. (2005) 130 Cal.App.4th 1148, 1161–1162.)
We are not persuaded to find that the statement of lack of Indian ancestry in the form is in any way suspect or must be disregarded because, as appellants suggest, the “unexplained change in the father’s position” “seemed to come without the advice of counsel as directed by the trial court.” Although a parent has the right to counsel, including appointed counsel, if necessary, in a dependency proceeding, (Welf. & Inst. Code, § 317, subds. (a) & (b); rule 5.660; In re S.B., supra, 130 Cal.App.4th 1148, 1160), nothing in the ICWA requires proof in the record that a parent received assistance of an attorney in completing a JV-130 form or providing information on Indian heritage to the Department. In this dependency proceeding the father was at all times represented by counsel as required. The court directed the father to consult with his appointed attorney before completing the form, and we have no reason to believe he failed to adhere to the court’s advice. The court had no further obligation to insure that counsel actually assisted the father to fill out and sign the form.
Finally, we reject appellants’ claim that the “juvenile court has the obligation to make a formal finding as to whether ICWA applied,” and therefore no “sufficient inquiry” was made in this case. “[T]he court was not even required to make an express determination whether the Act applied to the proceedings. Here, it is apparent the court found implicitly the Act was inapplicable. In that determination, it was correct. There was no violation of the notice provisions of the Act or the rules of court.” (In re Levi U. (2000) 78 Cal.App.4th 191, 199; see also In re Aaliyah G., supra, 109 Cal.App.4th 939, 942–943; In re O.K., supra, 106 Cal.App.4th 152, 157–158.)
Accordingly, the judgment is affirmed.
We concur: Marchiano, P. J., Stein, J.