Opinion
NOT TO BE PUBLISHED
Appeals from a judgment of the Superior Court of Orange County No. DP010773, James Patrick Marion, Judge.
Rich Pfeiffer, under appointment by the Court of Appeal, for Defendant and Appellant Jacqueline E.
Niccol Kording, under appointment by the Court of Appeal, for Defendant and Appellant Kenneth E.
Benjamin P. de Mayo, County Counsel, Dana J. Stits and Jeannie Su, Deputy County Counsel, for Plaintiff and Respondent.
No appearance for the Minor.
OPINION
BEDSWORTH, ACTING P. J.
Jacqueline and Kenneth E. appeal from a judgment terminating their parental rights over six-year-old K.E. Kenneth argues the court erred in denying his request for a continuance and failing to comply with the Indian Child Welfare Act (ICWA). (See 25 U.S.C. § 1901 et seq.) Jacqueline neither joins these arguments nor raises any of her own. Rather, she requests that her parental rights be restored if Kenneth’s arguments have merit. We find the court justifiably denied Kenneth’s request for a continuance, but proper notice was not provided under the ICWA. Accordingly, we will reverse the judgment and remand the matter with directions for the trial court to ensure proper notice is given.
FACTS
Jacqueline is a long-time drug addict with a lengthy criminal record, and Kenneth is currently serving a life sentence in prison. By the time K. was born in 2002, Jacqueline had five other children who were, or had been, dependents of the juvenile court. Because of this, and because of Jacqueline’s drug problem, K. was declared a dependent of the Los Angeles Juvenile Court. However, Jacqueline absconded with K. for over a year, and it wasn’t until 2003 that the child was found and detained. She was discovered at the home of her paternal grandmother, Brenda B. Kenneth had dropped her off at Brenda’s home about a month earlier, which was the last time he had any contact with K.
In 2004, the case was transferred to Orange County. At that time, Kenneth’s whereabouts were unknown, and K. was in foster care. She was described as healthy and happy, but her foster mother was not interested in adopting her. Jacqueline was receiving services through the Orange County Social Services Agency (SSA), and in 2005, K. was placed in her care for a trial period. Things appeared to be going well, but just when the court was about to terminate dependency, Jacqueline’s drug problem resurfaced, and she allowed K. to be left alone with her boyfriend Gary J., a registered sex offender. In September 2006, Gary broke Jacqueline’s nose during a fight, and a short time later, K. was taken back into protective custody and placed in another foster home. The court denied reunification services and set a permanent placement hearing for June 26, 2007.
Kenneth, meanwhile, had just begun serving a prison sentence of 25 years to life. When informed of the proceedings, he initially waived his right to appear in court. However, he eventually personally appeared in the case, as explained below. Jacqueline told the social worker Kenneth was K.’s father, but she had previously reported otherwise. She also admitted to a long-time relationship with Gary. No father is listed on K.’s birth certificate.
For her part, K. was doing well in foster care. Diagnosed with Attention Deficit Disorder, she sometimes engaged in disruptive conduct in preschool. However, her classroom behavior improved over time, and she was generally well-behaved and happy in her foster home. A permanency planning assessment found it was likely she would be adopted, and several people showed interest in that regard. A maternal aunt and a paternal aunt both came forward, but neither of them panned out as viable adoptive parents. Then a maternal cousin said she wanted to adopt K., and social services began assessing her suitability. The foster mother said if K. was not adopted by one of her relatives, she would adopt her herself.
On June 26, 2007, the day the permanency hearing was scheduled to take place, Kenneth made his first appearance in the case since early on in the proceedings. The judge asked him if his name was O.K.E., Jr., and he said yes. But then his attorney interjected and said it was O.K.E., III. Kenneth agreed that was correct. He also asked the judge to order a paternity test because he was not sure if he was K.’s father. After ordering the test, the judge asked Kenneth if he had any American Indian Heritage. Kenneth said, “Yes. My father and my grandmother.” Asked what tribe, he said, “I don’t know. They say Blackfoot. My father says one thing. My grandmother — rest in peace — says another.” Thereupon, the court ordered SSA to inform the Bureau of Indian Affairs (BIA) and continued the hearing until July 11, 2007.
That day the parties stipulated to continue the matter to allow for proper ICWA notice to be completed. The social worker also interviewed Kenneth about his Indian heritage, and he said he possibly had some “Blackfeet ancestry.” The social worker then called Jacqueline, who said she did have Indian heritage. She referred the social worker to her mother for information about her family, but despite making several attempts, the social worker was unable to reach her.
Along with three other tribes, the Blackfeet Indian tribe is part of what is known as the “Blackfoot Confederacy.” (See http://www.blackfeetnation.com.)
The social worker then sent notice of the proceedings to the Blackfeet tribe and the BIA. The notices list Kenneth’s name as “[O.] Kenneth [E.] II” and do not include his date of birth. Nor do they include any address or birth information regarding K.’s paternal grandparents. This information is also missing for her maternal grandparents and the great-grandparents, whose names are listed as “unknown.” The notices were received on July 23 and 24, 2007.
Two weeks later, on August 8, court convened for the permanent placement hearing. Kenneth sought a continuance until the results of the paternity test were known, which was expected to be in a couple of weeks. He told the court that if he was found to be K.’s father, he would want his family to be considered for placement. SSA opposed a continuance, as did K.’s attorney. They said that even if Kenneth’s parental rights were terminated, his family would still be considered for placement if he was determined to be K.’s father and she was in need of care. They pointed out, though, that K. was currently doing well in her foster home, and her maternal cousin was being assessed as a prospective adoptive parent. The court denied the continuance request, finding further delay would not be in K.’s best interests. It also stated that termination of Kenneth’s parental rights would not preclude his family from being considered for placement if he was found to be K.’s father. After that, the court found notice “was given to the BIA and all appropriate tribes in accordance with the ICWA.” The parties then submitted on the reports, and the court terminated Kenneth and Jacqueline’s parental rights and freed K. for adoption.
I
Kenneth claims the court erred in denying his request for a continuance. The point is not well taken.
The juvenile court may grant a continuance only if the moving party shows good cause and it is in the minor’s best interest. (Welf. & Inst. Code, § 352, subd. (a); In re Ninfa S. (1998) 62 Cal.App.4th 808, 810-811.) In deciding whether to grant a continuance, the court must give substantial weight to a minor’s need for a stable environment and a prompt resolution of his or her custody status. (Ibid.) Because prolonged temporary placements may be detrimental to a child, continuances are disfavored, and an order denying a continuance will not be disturbed absent an abuse of discretion. (In re Elijah V. (2005) 127 Cal.App.4th 576, 585; Jeff M. v. Superior Court (1997) 56 Cal.App.4th 1238, 1242.)
Unless noted otherwise, all further statutory references are to the Welfare and Institutions Code.
Kenneth claims this is a rare instance where the court’s denial of a continuance constituted an abuse of discretion. While acknowledging K.’s interest in a permanent placement, he contends the court’s failure to continue the permanency hearing until the results of the paternity test were known “potentially” cost K. her rights to Indian heritage and the “possibility” of placement with one of his relatives.
Surely, the test results could affect K.’s rights to Indian heritage. But that does not mean K.’s Indian rights were jeopardized when the court refused to continue the permanency hearing. Those rights, to the extent they may exist, inure to K. and her tribe. (See In re Nikki R. (2003) 106 Cal.App.4th 844, 848.) And, they can be asserted at any time. (Ibid.) Therefore, with respect to the Indian heritage issue, it is immaterial that the court denied Kenneth’s request for continuance and severed his parental rights.
As for the placement issue, Kenneth correctly notes that the statutory preference for relative placement no longer applies once parental rights are terminated. (See § 361.3; Cesar V. v. Superior Court (2001) 91 Cal.App.4th 1023, 1034.) However, there is nothing preventing SSA from considering relative placement in this event. (See Seiser & Kumli, Cal. Juvenile Courts Practice and Procedure (2008 ed.), § 2.127[3], p. 2-287 [arguing in favor of this practice].) Thus, in deciding whether to grant a continuance, the trial court was entitled to consider SSA’s representation that the paternal relatives would be considered for placement if, following the termination of parental rights, Kenneth was found to be K.’s father and she was in need of placement. This representation is not the equivalent of an express statutory preference, but it is a reasonable consideration in judging the trial court’s actions. We cannot fault the court for considering SSA’s representation in assessing K.’s placement needs. At the time of the permanency hearing, though, K. was doing well in foster care, and a maternal cousin was being assessed as a prospective adoptive parent. Therefore, the placement issue was not an immediate concern.
We hasten to add that Kenneth has never identified a single relative of his who may be interested in adopting K. That makes the argument for continuing the permanency hearing in order to preserve paternal placement seem a bit fanciful. Suffice it to say, K.’s interest in a permanent placement trumped the speculative possibility of paternal placement under the circumstances presented in this case. Therefore, the trial court did not err in denying Kenneth’s request to continue the permanent placement hearing. No abuse of discretion has been shown.
II
Kenneth also claims reversal is required because the court and SSA failed to comply with the ICWA. Particularly, he argues: 1) There was inadequate inquiry into K.’s Indian heritage; 2) the court’s findings regarding the ICWA were premature; and 3) proper notice was not given to all interested parties. While the first two arguments are unmeritorious, we agree with Kenneth that proper notice was not provided under the ICWA. Accordingly, we will reverse on that basis and remand for proper notice to be given.
As a preliminary matter, respondent contends Kenneth waived his ICWA claims because he failed to raise them in the trial court. However, “[t]he generally accepted rule in dependency cases is that the forfeiture doctrine does not bar consideration of ICWA notice issues on appeal. [Citation.] ‘““The notice requirements serve the interests of the Indian tribes ‘irrespective of the positions of the parents’ and cannot be waived by the parent.” [Citation.] A parent in a dependency proceeding is permitted to raise ICWA notice issues not only in the juvenile court, but also on appeal even where . . . no mention was made of the issue in the juvenile court.’ [Citation.]” (In re Alice M. (2008) 161 Cal.App.4th 1189, 1195; accord, In re Nikki R., supra, 106 Cal.App.4th at p. 849.) Therefore, Kenneth’s failure to raise any ICWA objections in the trial court does not preclude him from doing so in this appeal.
Due to Kenneth’s failure to establish biological or presumed father status, respondent also questions whether he has standing to appeal on the basis of the ICWA. But Kenneth did request a paternity test at his first court appearance, and, as explained above, he also asked that the permanency hearing be continued until the results of that test were known. We must also keep in mind that the ICWA was enacted “to protect Indian children and their tribes from the erosion of tribal ties and cultural heritage and to preserve future Indian generations. [Citation.]” (In re Nikki R., supra, 106 Cal.App.4th at p. 848, italics added.) In light of these considerations, we will address the ICWA issues presented in this appeal.
Kenneth first argues there was inadequate inquiry made into K.’s possible Indian heritage. He points out that under section 224.3, both the court and SSA have “an affirmative and continuing duty to inquire whether a child for whom a [dependency] petition . . . has been[] filed is or may be an Indian child in all dependency proceedings . . . .” (§ 224.3, subd. (a).) In addition, if the court or SSA “knows or has reason to know that an Indian child is involved, the social worker . . . is required to make further inquiry regarding the possible Indian status of the child, and to do so as soon as practicable, by interviewing the parents . . . and extended family members . . . and contacting . . . any other person that reasonably can be expected to have information regarding the child’s membership status or eligibility.” (Id., at subd. (c).)
Section 224.3 is one of a number of statutes our Legislature has enacted to facilitate implementation of the ICWA. (See §§ 224 et seq.)
In assailing the inquiry efforts in this case, Kenneth argues social services should have contacted K.’s paternal grandparents about possible Indian heritage because, as he puts it, K. was originally “detained at their home.” However, the record shows K. was picked up from her paternal grandmother, Brenda. There is no mention of her paternal grandfather — who allegedly had Indian blood — in connection with the detention. And Brenda told the social worker she was going to be moving to Texas. Kenneth confirmed the move in a subsequent court hearing, but he told the court he did not know Brenda’s address or how to reach her. In fact, there is no information about Brenda’s whereabouts in the record. It is hard to fault the social worker for failing to make ICWA inquiry of the paternal grandparents under these circumstances.
As it turns out, it appears SSA was eventually able to get a hold of Brenda after this appeal was filed. In its brief, respondent states “Brenda now asserts possible Cherokee heritage, and SSA is preparing new notices that take this and any other new information gathered into account.” Kenneth sees this as proof that SSA’s initial inquiry efforts were inadequate, but based on the record before us, we cannot conclude that was the case. Although SSA has a continuing duty to inquire into the Indian heritage issue, and such inquiry may lead to new developments on the issue, our review is limited to the four corners of the appellate record. (In re Albert G. (2003) 113 Cal.App.4th 132, 134, fn. 2.) We will not entertain any new evidence at this stage of the proceedings. (See In re Robert A. (2007) 147 Cal.App.4th 982, 990 [in reviewing ICWA compliance “an appellate court reviews the correctness of a record that was before the trial court at the time it made its ruling.”].)
As part of its attack on SSA’s inquiry efforts, Kenneth also complains his social worker never asked him about his Indian heritage while he was in prison or provided him with a notice form so he could inform the agency about his ancestry. However, Kenneth showed no interest in the case when he was first informed of it in prison. And once he did decide to show up in court, the judge promptly asked him if he had any Indian heritage. Then, the social worker personally interviewed him on the subject. All told, this amounted to sufficient inquiry of Kenneth to satisfy section 224.3. We are satisfied on the record provided that adequate inquiry was made into K.’s possible Indian heritage.
Kenneth also contends the court’s ICWA findings were premature. He relies on section 224.3, which requires the court to wait 60 days after notice is received before it “may determine [ICWA] does not apply to the proceedings.” (§ 224.3, subd. (e)(3).) However, that provision is inapt here because the trial court never determined that ICWA does not apply. It did find that ICWA notice was proper, but it did not decide whether or not the Act applied to K.
In this situation, the governing statute is 25 U.S.C. § 1912(a), which provides that no proceeding involving the termination of parental rights shall be held until at least 10 days after notice is received. (Accord, Cal. Rules of Court, rule 5.482(a)(1).) Since the permanency hearing in this case did not take place until some two weeks after the BIA and the Blackfeet tribe received notice of the proceedings, the hearing was not untimely.
Lastly, we take up the issue of notice. Respondent concedes the ICWA notices it sent out “were not perfect” and contained a “few minor errors.” Nevertheless, it argues there was substantial compliance with the ICWA notice requirements and the few deficiencies that did occur were harmless. We cannot agree.
“One of the purposes of giving notice to the tribe is to enable it to determine whether the minor is an Indian child. [Citation.] Notice is meaningless if no information or insufficient information is presented to the tribe to make that determination. [Citation.]” (In re Louis S. (2004) 117 Cal.App.4th 622, 630.) The notice must contain, inter alia, all known information about the child’s parents, grandparents and great-grandparents, including maiden, married and former names or aliases, as well as birthdates, places of birth and death, and current and former addresses. (25 C.F.R. § 23.11(a), (d) & (e); § 224.2, subd. (a)(5); In re Mary G. (2007) 151 Cal.App.4th 184, 209.) “The burden is on the Agency to obtain all possible information about the minor’s potential Indian background and provide that information to the relevant tribe . . . . [Citation.]” (In re Louis S., supra, 117 Cal.App.4th at p. 630.) In order to allow the tribe to make an informed decision about whether to intervene in the proceedings, it is particularly important that it be provided with information about the child’s ancestors who are alleged to be of Indian heritage. (Id. at p. 631.)
The notices here identified Kenneth as “[O.] Kenneth [E.] II.” Although he initially told the court his name was O. Kenneth E., Jr., it was clarified — on the record at that time — that his name is O. Kenneth E., III. By itself, this discrepancy certainly would not be enough to warrant a reversal, but the notices are also missing Kenneth’s place of birth and his and Jacqueline’s former addresses. And although the record shows Kenneth and Jacqueline have each gone by different names in the past, none of their aliases are listed in the notices.
To make matters worse, no information is provided about K.’s maternal grandparents or her great-grandparents, not even their names. This is troubling because Kenneth alleged his father and his grandmother may have Indian heritage. And while he identified Blackfoot as their possible tribe, he also told the court his “father says one thing” and his “grandmother says another,” indicating there may be more than one tribe in his ancestry. Jacqueline also alleged Indian heritage, referring the social worker to her mother for information about the family. It’s all well and good that the social worker tried to reach her, but having failed to do so, the social worker should have included her name on the notice forms.
Respondent tries to sidestep these failings by pointing out the notices state that all known information has been provided. Relying on the statutory presumption that an official duty has been regularly performed (Evid. Code, § 664), respondent asks us to presume that SSA included all the information it had when it prepared the notices. But the notices also state that SSA has spoken to the parents regarding possible Indian ancestry. It is inconceivable that SSA did not get such basic information as the names of Jacqueline’s parents in making its ICWA inquiry with Jacqueline. After all, in alleging Indian ancestry, Jacqueline identified her mother as the person who would be able to assist the social worker with information about the family. Moreover, other information that was required to be included in notices, such as the parents’ aliases and former addresses, plainly appears in the record. Yet, this information is not contained in the notices. Under these circumstances we cannot simply presume SSA included all known information in the notice forms.
Nor can we say there was substantial compliance with the notice requirements or the notice deficiencies were harmless. “‘Notice is a key component of the congressional goal to protect and preserve Indian tribes and Indian families. Notice ensures the tribe will be afforded the opportunity to assert its rights under [ICWA] irrespective of the position of the parents . . . .’ [Citation.]” (In re Samuel P. (2002) 99 Cal.App.4th 1259, 1265.) “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 at p. 989.) As the notice deficiencies in this case were both numerous and material, reversal is required. (In re S.M. (2004) 118 Cal.App.4th 1108, 1116-1117 [termination order reversed where notice failed to include identifying information about the child’s mother, grandparents and great-grandparents]; In re Louis S., supra, 117 Cal.App.4th at p. 631 [same where notice contained misspelled and incomplete names]; In re Samuel P., supra, 99 Cal.App.4th at p. 1267 [“the failure to provide proper notice is prejudicial error requiring reversal and remand”].)
Respondent urges us to the limit the reversal to Kenneth only because Jacqueline “makes no [independent] claim of error” and her basis for reinstating her parental rights is “purely collateral.” However, she did file an appeal asking that her parental rights be restored, and a court cannot terminate “the rights of only one parent unless that parent is the only surviving parent.” (Cal. Rules of Court, rule 5.705.) Accordingly, both Kenneth’s and Jacqueline’s parental rights must be reinstated. (See In re Eileen A. (2000) 84 Cal.App.4th 1248, 1263; In re DeJohn B. (2000) 84 Cal.App.4th 100, 110; compare Los Angeles County Dept. of Children & Fam. Services v. Superior Court (2000) 83 Cal.App.4th 947, 949 [nonappealing mother not entitled to reinstatement of parental rights where father successfully challenged termination order on his own behalf].)
DISPOSITION
The judgment terminating Kenneth’s and Jacqueline’s parental rights is reversed. The juvenile court is directed to ensure that proper notice is given under the ICWA. If, after proper notice, the court finds K. is an Indian child, the court shall proceed in conformity with the ICWA. However, if no tribe intervenes, the court shall reinstate the original judgment.
WE CONCUR: MOORE, J., IKOLA, J.