Opinion
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Merced County No. 27541, Harry Jacobs, Commissioner.
Lynn S. Klein, under appointment by the Court of Appeal, for Defendant and Appellant.
James N. Fincher, County Counsel, and James B. Tarhalla, Deputy County Counsel, for Plaintiff and Respondent.
OPINION
Before Levy, Acting P.J., Gomes, J. and Dawson, J.
J.C. (father) appeals from an order terminating parental rights (Welf. & Inst. Code, § 366.26) to his son. Father challenges, on notice grounds, an earlier juvenile court finding made at a six-month status review hearing (§ 366.21, subd. (e)) that the Indian Child Welfare Act (ICWA; 25 U.S.C. § 1901 et seq.) was inapplicable to the child’s dependency.
All statutory references are to the Welfare and Institutions Code unless otherwise indicated.
At the same six-month status review hearing, the juvenile court set the section 366.26 permanency planning hearing and ordered father be served by mail with notice of his writ remedy (§ 366.26, subd. (l)). However, respondent Merced County Human Services Agency (agency) did not serve father with timely notice of his writ remedy to challenge the juvenile court’s decision. Also, the record is silent regarding contents of the actual notice given. Father contends and we agree that he may raise his ICWA-related argument in this appeal from the subsequent order terminating parental rights. (In re Cathina W. (1998) 68 Cal.App.4th 716, 722 [a superior court’s failure, through no fault of a parent, to discharge its duty to give timely, correct notice of the writ remedy constitutes good cause for an appellate court to excuse a parent’s failure to seek writ review].)
Nevertheless, on the merits, we conclude the juvenile court did not err by finding that ICWA was inapplicable to the child’s dependency. We therefore affirm.
PROCEDURAL AND FACTUAL HISTORY
Given the narrow scope of father’s appeal, we need not summarize the entire appellate record. Instead, we limit the following history to the evidence related to his ICWA argument.
Around the time of the child’s detention in December 2008, father claimed he might have Cherokee Indian heritage. As a result, the agency served notice of the underlying dependency proceedings and a jurisdictional/dispositional hearing, calendared for mid-January 2009, on the three federally recognized Cherokee tribes and the Bureau of Indian Affairs (BIA). Proofs of service, bearing the child’s juvenile court case number and filed with the court, established all three tribes received proper notice as of December 30, 2008. The BIA received proper notice no later than mid-January 2009.
The agency had not received any response to its notice, when one of its social workers prepared a January 2009 jurisdiction report for the court. The court exercised its dependency jurisdiction (§ 300, subd. (b)) over the child and set a dispositional hearing for early March 2009.
In a disposition report prepared in late February 2009, a social worker stated there were responses from BIA and the Cherokee Nation that the child was ineligible for membership. No response had been received, however, from either of the other Cherokee tribes. Although the social worker wrote “Please see copy attached” in reference to the two responses the agency reportedly received, those responses do not appear in the record.
The court conducted its dispositional hearing on March 9, 2009. It adjudged the child a dependent and adopted the agency’s other recommended findings and orders, including removing the child from parental custody and ordering reunification services for father. The agency had not recommended any finding or order as to the ICWA and the court made none.
In a September 2009, six-month status review report, the agency requested the court find that ICWA did not apply to the child’s dependency. It reported having received a letter from another of the Cherokee tribes stating the child was not eligible for membership. The record does not contain a copy of this reported response.
At the six-month status review hearing eventually held in December 2009, the court announced “[f]rom the information that’s currently available to the Court, the Court makes a finding that ICWA does not apply to this child.” During the same hearing, the court terminated reunification services for father and set a section 366.26 hearing to select and implement a permanent plan for the child.
The court, in May 2010, found the child likely to be adopted and ordered parental rights terminated.
DISCUSSION
Notice for ICWA purposes shall be sent in juvenile dependency proceedings “whenever it is known or there is reason to know that an Indian child is involved, and for every hearing thereafter ... unless it is determined that ICWA does not apply to the case.” (§ 224.2, subd. (b); italics added.) Proof of the notice, including copies of notices sent and all return receipts and responses received, shall be filed with the court in advance of the hearing for which the notice is served. (§ 224.2, subd. (c).)
Father contends the agency should have served notice of the six-month status review hearing upon the Cherokee tribes and the BIA and documented proof of such notice with the court (§ 224.2, subds. (b) & (c)) because the court had not as yet determined that ICWA did not apply. There is, however, no record of evidence that the agency ever served such notice. Consequently, father argues the juvenile court committed prejudicial error by finding, at the six-month status review hearing, that ICWA did not apply. He adds the juvenile court could not rely on the previous notice the agency served on the Cherokee tribes and the BIA because there was insufficient evidence that the BIA ever received the notice and the agency did not provide the court with copies of the responses it reportedly received.
Father is correct that the agency should have served notice of the six-month status review hearing pursuant to section 224.2, subdivision (b) and documented its effort pursuant to section 224.2, subdivision (c). However, we disagree with his further claim that the juvenile court could not properly conclude that ICWA did not apply to the child.
Section 224.3, subdivision (e)(3) states in relevant part to this case:
“[i]f proper and adequate notice has been provided pursuant to Section 224.2, and neither a tribe nor the [BIA] has provided a determinative response within 60 days after receiving that notice, the court may determine that the [ICWA] does not apply to the proceedings....”
As discussed below, we conclude the juvenile court properly could find that ICWA did not apply pursuant to section 224.3, subdivision (e)(3).
In his opening brief, father neither disputes the contents of the notice served of the dependency proceedings and the January 2009 jurisdictional/dispositional hearing nor the evidence in the record that the three Cherokee tribes received such notice. He does contest whether the BIA ever received the notice because on the BIA’s return receipt card in the space provided for the date of delivery, there is a stamped date, which reads “DEC 18, 2007.” Given that the child was not born as of that date, father contends the BIA’s return receipt card is insufficient evidence that it received notice of the child’s dependency proceedings. Father neglects to mention, however, some important details, which fatally undermine his argument.
In his reply brief, father raises a new argument regarding the service to one of the tribes. However, he does not attempt to establish good cause for his failure to raise the issue in his opening brief. Because points raised for the first time in a reply brief will not be considered unless there is a good cause showing for failure to present them earlier (Monk v. Ehret (1923) 192 Cal. 186, 190), we will not address father’s new argument.
The BIA’s return receipt card, which the agency filed with the court on January 13, 2009, bears the article number “7008 1140 0000 2812 0150.” That is the same article number which appears on the agency’s certified mail receipt of the notice it mailed to the BIA in this case. Also, on another page of the appellate record, a postmark date of December 24, 2008, is visible on the agency’s certified mail receipt for its notice to the BIA. Therefore, a reasonable inference, which the juvenile court could have drawn, was that the “DEC 18, 2007” stamp date was incorrect but that the BIA had received notice by certified mail sometime between December 24, 2008, the date the certified mail receipt was postmarked, and January 13, 2009, the date the BIA’s return receipt card was filed with the court. Therefore, the juvenile court could properly find, for purposes of section 224.3, subdivision (e)(3), that proper and adequate ICWA notice of the jurisdictional/dispositional hearing had been provided pursuant to section 224.2.
In addition, neither a tribe nor the BIA provided a determinative response within 60 days after receiving notice of the proceedings and the jurisdictional/dispositional hearing. (§ 224.3, subd. (e)(3).) Father, however, argues otherwise. Because the agency did not provide the court with copies of the responses it reportedly received, father claims it cannot be said that neither a tribe nor the BIA provided a determinative response. Therefore, he concludes the juvenile court could not find, pursuant to section 224.3, subdivision (e)(3), that ICWA did not apply.
If father means a court cannot find “neither a tribe nor the BIA provided a determinative response” without reviewing the responses an agency reportedly received, he reads a requirement into section 224.3, subdivision (e)(3) that does not exist. He also fails to cite any authority rendering the court’s review a condition precedent for a finding under section 224.3, subdivision (e)(3) that ICWA does not apply.
It is undoubtedly a best practice for a court to review firsthand the responses an agency has received before making an ICWA determination under section 224.3, subdivision (e)(3). However, we are not persuaded that the law forbids a court from making such a determination if it has not reviewed the responses an agency has received. We also note that father’s counsel did not object to the agency’s apparent failure to include the responses reportedly received.
Just as a court could rely on an agency’s representation that it received no response to notice given, we conclude the court could likewise rely on its representation that it only received responses that ICWA did not apply, absent a timely objection under section 224.2, subdivision (c).
In any event, under the facts of this case, we conclude that any error was harmless. Far more than 60 days had elapsed since the Cherokee tribes and BIA received proper notice of the proceedings and the jurisdictional/dispositional hearing. Yet, in all that time, none of those tribes came forward to intervene or otherwise participate in these proceedings. Therefore, there is no cause to set aside the finding that ICWA did not apply here.
DISPOSITION
The order terminating parental rights is affirmed. Respondent’s motion to take judicial notice or additional evidence is denied.