Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of San Bernardino County. Ct.Nos. J202573, J202574 & J208884 Jerry Walker, Temporary Judge. (Pursuant to Cal. Const., art. VI, § 21.) Reversed with directions.
Robert McLaughlin, under appointment by the Court of Appeal, for Defendant and Appellant Mother.
Linda Rehm, under appointment by the Court of Appeal, for Defendant and Appellant Father.
Ruth E. Stringer, County Counsel, and Jacqueline Carey-Wilson, Deputy County Counsel, for Plaintiff and Respondent.
Sharon S. Rollo, under appointment by the Court of Appeal, for Minor.
OPINION
Gaut J.
In consolidated appeals, mother and father (Parents) appeal the juvenile court’s order terminating their parental rights to Benjamin (born in 2003), Shannon (born in 2004), and Cornell (born in 2006), under Welfare and Institutions Code section 366.26. Mother also appeals the order terminating reunification services as to Cornell under section 361.5, subdivision (b)(13).
Unless otherwise noted, all statutory references are to the Welfare and Institutions Code.
Mother contends there was insufficient evidence supporting termination of her reunification services as to Cornell. Mother and father both contend the juvenile court erred in terminating their parental rights since the parental relationship exception (§ 366.26, subd. (c)(1)(A)) applied. Father argues in his appeal, and mother joins, that there was insufficient evidence establishing compliance with the Indian Child Welfare Act (ICWA) (25 U.S.C. § 1901 et seq.) notice requirements.
We reject Parents’ contentions with the exception that there is insufficient evidence in the record of ICWA notice compliance. Therefore this case must be remanded to the trial court for compliance with ICWA notice requirements as to all three children.
1. Factual and Procedural Background
We incorporate in this opinion the factual and procedural background, up through the birth of Cornell, as stated in our previous decision on mother’s petition for extraordinary writ, case No. E041350.
When law enforcement officers discovered drugs in the family home on May 15, 2005, a sheriff’s deputy reportedly advised Parents that their children should be out of the home because it would probably be raided again. Parents then placed Benjamin and Shannon in the home of a friend, Yvonne.
Social workers made an unannounced visit to Yvonne’s home on June 27, 2005. Yvonne reported that neither parent had expressed interest in seeing Shannon, and that Benjamin had been going back and forth from her home to Parents’ home. Yvonne also stated that Parents had not shown any interest in having the children back, and that they had signed a paper stating that they left the children under her care and custody. Although mother was collecting AFDC (Aid to Families with Dependent Children) and food stamps for the children, Yvonne said she was receiving minimal financial assistance from mother for the children. Yvonne stated that she intended to file for guardianship of the children.
During a visit by a public health nurse a few days later, a deputy sheriff arrived with a warrant to arrest Yvonne on a charge of driving under the influence of a controlled substance and failure to appear in court. The children were then taken into protective custody.
A juvenile dependency petition was filed on July 1, 2005. Mother denied the allegations in the petition, denied any current drug use, and denied that her home had been raided for drugs.
Parents met with the social worker on June 30, 2005. Father denied any current drug use, but stated he had used drugs in the past and had gone through a drug program. He stated that his older children had been taken into protective custody in Riverside County a few years before.
The social worker asked both parents to drug test after the meeting and they agreed. Father said that he would be positive for marijuana because he smoked it two days before. Parents arrived one hour late for the test and both tested positive for methamphetamine. A second drug test was ordered by the court at the July 5, 2005, detention hearing, and both parents again tested positive for methamphetamine.
On July 5, 2005, the social worker interviewed the sheriff’s deputy about the raid on Parents’ house. He stated that he went to Parents’ home to locate a hit and run suspect, and that during the investigation he found methamphetamine and believed that Parents were selling it. He found numerous syringes lying around the house, as well as scales, and the drug was found inside the baby’s diapers. Parents were not arrested at that time.
Neither parent was currently employed and the social worker stated that neither parent seemed to be upset that their children had been taken into protective custody.
Father has a criminal history involving drug use, as well as domestic violence. Mother’s criminal history was not as extensive as father’s, but the social worker opined that her present drug use seemed to impair her ability to provide a safe and stable environment for her children.
As a result of mediation, the court made the requisite jurisdictional findings and family reunification services were ordered. A six-month review hearing was set for February 9, 2006.
Both parents enrolled in the Panorama Ranch Outpatient Program for substance abuse treatment on August 24, 2005, but were terminated for failing to show up for a group meeting. During September 2005, mother submitted a cold urine sample, which was considered positive. A week later, she tested negative and 11 days after that she tested positive for methamphetamine.
Shortly after the last positive test, mother enrolled herself in an inpatient substance abuse program at Panorama Ranch. She was discharged from Panorama Ranch on January 9, 2006, having completed the program. Mother also completed a parenting class and a domestic violence/anger management class during this time. Mother tested clean during the three months she was at the ranch.
Mother was scheduled to be admitted into the Panorama Ranch Sober Living Home upon her discharge from the inpatient program, but instead chose to live with father at a friend’s home in the Twentynine Palms area. Both the social worker and the counselor at Panorama Ranch were concerned that mother was too passive and dependent on father. Mother was pregnant again.
After being terminated from the Panorama Ranch Outpatient Program, father enrolled in two other programs. He was terminated from one on November 29, 2005, for failing to follow the rules and he tested positive for drugs on December 8. Father continued to deny drug use.
At the six-month review hearing on February 9, 2006, the juvenile court observed that mother had made a bad decision not to go into the sober living home and returning to live with father who had been “booted out” of rehabilitation programs. The court warned her that she was placing the possibility of reuniting with her children at “very high risk.” It stated, “[t]here is no more time to test dirty, to miss meetings, [or] come up with excuses why you can’t participate in your case plan. This is the last six months.” The court continued family reunification services for six months.
In February or March 2006, Parents moved from Twentynine Palms to San Bernardino to live with father’s grandmother and brother. The social worker reported that the brother was known to have a criminal history and drug involvement. Parents failed to contact the Department of Children’s Services (DCS) to arrange for visits with their children during this time. At the end of March or early April, the social worker lost track of Parents who, according to the father’s brother, had moved. The social worker did not hear from Parents until early May 2006, when mother called to arrange a visit with the children, whom she had not seen since March. Mother reported that she and father had moved back to Twentynine Palms and were living at a motel. Mother stated that she intended to leave father, but could not do so because of financial reasons.
On May 23, 2006, mother gave birth to a baby boy, named Cornell. Both she and her child tested negative for drugs.
On June 15, 2006, the DCS took Cornell into protective custody when father was arrested for outstanding warrants, possession of stolen property, and possession and sale of methamphetamine found in the motel rooms where they were staying. The sheriff’s deputy reported to the social worker that he submitted felony charges for both parents for child endangerment. It appears that criminal charges were filed against father only. The officer reported that mother had admitted that she had used methamphetamine three weeks before. Mother had a negative drug test that day. However, Cornell began having “tremors” and exhibited other signs that indicated he was born as a drug exposed baby. Mother had tested positive for methamphetamine at least twice during her first month of pregnancy.
Cornell was removed from mother also because there was a pending juvenile dependency case involving Shannon and Benjamin, and because Parents had failed to participate fully in reunification services and complete their reunification plans.
The DCS filed a petition for juvenile dependency as to Cornell on June 19, 2006, (case No. E042554), and ordered him detained and placed in foster care.
After father was released from custody on July 28, 2006, he enrolled in an outpatient recovery program and worked in construction.
Cornell’s Jurisdiction/Disposition Hearing
In the DCS’s jurisdiction/disposition report for Cornell and at the contested jurisdiction hearing, the social worker recommended denying reunification services for Parents, and setting a section 366.26 hearing (.26 hearing) due to Parents’ history of substance abuse, inability to establish a stable home, and failure to complete services as to Shannon and Benjamin.
The juvenile court concluded at Cornell’s jurisdiction/disposition hearing on August 10, 2006, that mother had a “chronic drug history” and had resisted treatment. The court denied mother reunification services for Cornell and set a .26 hearing. Parents were not present at the jurisdiction/disposition hearing.
Benjamin and Shannon’s 12-Month Status Review Hearing
At Shannon and Benjamin’s 12-month status review hearing on September 15, 2006, mother blamed the social worker for advising her and father to move to San Bernardino, a move that resulted in termination from their drug programs due to nonattendance. She also explained that she did not visit the children from February to May because she was in San Bernardino and had no transportation to Yucca Valley, where the children were located.
Mother denied that she was living with father; she testified that they occupied separate motel rooms. She claimed that she was not aware of the presence of drugs in the room she occupied prior to their discovery by law enforcement. Mother also denied telling the deputy sheriff that father was selling methamphetamine from his room and further denied admitting that she had used methamphetamine three weeks earlier.
The juvenile court concluded that, although mother had made some progress in completing her plan, she had not benefited from the services and that there was not a substantial probability that the children could be safely returned to her within 18 months of removal. “Mother had completed parenting education, completed the inpatient treatment program, and was encouraged to go to sober living and continue her outpatient treatment, and was making good progress. But I have a specific recollection . . . that I told [mother] that if you continued [to be] with [father], who was doing absolutely nothing, your children would not be able to be return[ed] to you, because I have to be able to return the children to two parents, if they’re together, when I can safely trust each parent, separately as well as combined; that parents both together could take care of the children. Yet on June 15th, of 2006, there was an arrest.”
The court expressly stated that it did not believe mother on several key points. “I do not find credible mother’s statement today that she didn’t realize that [father] was selling methamphetamine. [¶] I do find the officer’s report to the statement made at the time more credible; that [mother] both understood and knew [father] was using, selling, and trading methamphetamine. I do not believe they were living separately in two apartments. I don’t believe that you had no idea what was going on in the other apartment.”
Although the court thought that it was possible that mother herself was not actively using drugs, it observed that she “chose to continue to lead a lifestyle that included drugs, that included criminal activity,” and to continue a relationship with a person who did absolutely nothing when threatened with the loss of his children.
The court, therefore, as to Shannon and Benjamin, terminated reunification services and set a .26 hearing.
Benjamin and Shannon’s Petition for Writ Relief
On October 27, 2006, mother filed a petition for extraordinary writ (case No. E042554), challenging the juvenile court’s order on September 15, 2006, terminating her reunification services as to Benjamin and Shannon, and setting a .26 hearing. Mother argued that the trial court abused its discretion in finding that she failed to participate fully in court-ordered treatment and there was not a substantial probability Shannon and Benjamin would be returned to her within the statutory 18-month time frame. Mother claimed she had substantially complied with her case plan.
On December 21, 2006, this court denied mother’s writ petition, concluding that the juvenile court’s findings were amply supported by the evidence.
Shannon, Benjamin, and Cornell’s .26 Hearing
The DCS recommended in its .26 hearing reports that the three children be placed for adoption together and that the .26 hearing for the three children be continued several months in order to allow the DCS to find an adoption home in which the three children could be placed together. The relative who had requested to adopt the children was unable to obtain a larger residence and therefore was unable to adopt the three children. The social worker stated in the report that the children were confused as to who their parents were, and Benjamin and Shannon did not want to visit with Parents.
The DCS recommended in the adoption assessment report filed on January 5, 2007, termination of parental rights for the three children.
At the .26 hearing on February 15, 2007, counsel for the DCS informed the court that the three children were going to be placed together in an adoptive home within the following week or two. Parents were not present at the hearing. Parents’ attorneys objected to termination of parental rights but did not present any affirmative evidence. Mother’s attorney requested a lesser permanent plan of legal guardianship and argued mother had visited the children consistently. The court found the three children adoptable and terminated Parents’ parental rights.
2. Terminating Reunification Services as to Cornell
On appeal, mother challenges the juvenile court’s order on August 10, 2006, terminating reunification services and setting a .26 hearing as to Cornell.
A. Failure to File for Writ Relief
Mother acknowledges that normally appellate review of a setting order is not available to a parent unless she has complied with the conditions of section 366.26, subdivision (l), including filing a timely petition for extraordinary writ review. She also concedes she cannot satisfy any of these conditions because she never filed a petition for extraordinary writ review as to Cornell. Nevertheless, she maintains there is good cause to excuse her noncompliance with the statute and we therefore should review the merits of her claim challenging the August 10th order. We agree.
Even though mother did not file a writ petition challenging the setting order, she did not waive her objection because she was not present at the hearing (although her attorney was present) and the court did not send to her last known address the requisite notice of her right to seek writ relief under former California Rules of Court, rule 38.1 (now rule 8.452). (In re Cathina W. (1998) 68 Cal.App.4th 716, 719-724.) The court clerk attempted to send notice to mother but it was returned, marked “not deliverable as addressed.” A month earlier, mother had filed with the court a notice of change of address but the court failed to send notice to the new address.
Due to the juvenile court’s failure to provide mother with proper notice of her right to challenge by extraordinary writ the order terminating reunification services and setting a .26 hearing regarding Cornell, mother can challenge the order on appeal, and we shall consider the issue on the merits. (In re Cathina W., supra, 68 Cal.App.4th at pp. 719-724.)
B. Sufficiency of Evidence Supporting Termination of Reunification Services
Mother argues there was insufficient evidence supporting termination of reunification services as to Cornell based on the trial court’s finding that she had a history of chronic drug abuse and resisted court-ordered drug treatment.
Normally, whenever the court removes a child from parental custody, the court must order the DCS to provide reunification services. (§ 361.5, subd. (a); In re Maria S. (2000) 82 Cal.App.4th 1032, 1038.) But under section 361.5, subdivision (b)(13), the juvenile court may deny reunification services if it finds by clear and convincing evidence “[t]hat the parent or guardian of the child has a history of extensive, abusive, and chronic use of drugs or alcohol and has resisted prior court-ordered treatment for this problem during a three-year period immediately prior to the filing of the petition that brought that child to the court’s attention, or has failed or refused to comply with a program of drug or alcohol treatment described in the case plan required by Section 358.1 on at least two prior occasions, even though the programs identified were available and accessible.” (§ 361.5, subd. (b)(13).)
“In enacting section 361.5, subdivision (b), the Legislature determined that, in certain situations, ‘attempts to facilitate reunification do not serve and protect the child’s interest.’ [Citation.] Situations listed in that subdivision constitute circumstances in which the Legislature has recognized that ‘it may be fruitless to provide reunification services . . . .’ [Citation.]” (Karen S. v. Superior Court (1999) 69 Cal.App.4th 1006, 1010.)
We review the juvenile court’s finding under the substantial evidence test, “which requires us to determine whether there is reasonable, credible evidence of solid value such that a reasonable trier of fact could make the findings challenged.” (In re Brian M. (2000) 82 Cal.App.4th 1398, 1401.) In applying the substantial evidence test, we construe all reasonable inferences in favor of the juvenile court’s finding. (Francisco G. v. Superior Court (2001) 91 Cal.App.4th 586, 600; see also In re Mark L. (2001) 94 Cal.App.4th 573, 580-581; In re Julie M. (1999) 69 Cal.App.4th 41, 46.)
In the instant case there was substantial evidence supporting both prongs of section 361.5, subdivision (b). As to the first prong, there was ample evidence that mother had a history of extensive and chronic drug abuse, as well as evidence that during the three-year period immediately before the DCS filed Cornell’s juvenile dependency petition on June 19, 2006, mother resisted prior court-ordered treatment, either actively or passively, through dropping out of rehabilitation programs and continuing to abuse drugs while participating in treatment. (Karen S. v. Superior Court, supra, 69 Cal.App.4th at p. 1010.)
Shannon and Benjamin were removed from Parents’ custody because of Parents’ drug abuse and possession of drugs in their home. At the time of denial of reunification services as to Cornell, mother had completed an inpatient drug abuse treatment program five months earlier but there was evidence she relapsed three weeks before Cornell was removed and was living with father who was arrested for drug possession and sales. Also, before completing the inpatient rehabilitation program, mother had tested positive for drugs several times and twice failed to complete the Panorama Ranch Outpatient substance abuse treatment program. She also failed to participate in the Panorama Ranch Sober Living Home inpatient program after completing the inpatient program, and resumed living with father in an environment conducive to relapsing due to those around her having a history of abusing drugs, particularly father.
Mother claims she did not live at the Panorama Ranch Sober Living Home because she could not afford it. Nevertheless, rather than choosing an environment free from exposure to drugs, mother chose to live with father despite the DCS’s warnings that mother risked losing her children. This led to mother relapsing, according to her admission to an officer in June 2006, at the time of father’s arrest.
Mother now claims she knew nothing about the drugs, did not admit to using drugs three weeks before the raid, and was living in a separate motel room from father (even though the lease for the two rooms was in both mother and father’s names). The trial court found mother’s attestations were not credible, and we are required to give deference to the trial court’s factual findings. Despite mother’s testimony attempting to refute evidence supporting the juvenile court’s findings, there was sufficient evidence supporting denial of reunification services as to Cornell based on the first prong of section 361.5, subdivision (b)(13).
As to the second prong, there is also ample evidence establishing that mother “has failed or refused to comply with a program of drug or alcohol treatment described in the case plan required by Section 358.1 on at least two prior occasions, even though the programs identified were available and accessible.” (§ 361.5, subd. (b)(13).) Mother failed or refused to comply with the Panorama Ranch Outpatient Program for substance abuse treatment, after enrolling on August 24, 2005, by failing to show up for a group meeting. As a consequence, she was dropped from the program
After a second referral to the outpatient program, mother again failed to comply with the Panorama Ranch outpatient drug treatment program (1) on September 8, 2005, when mother’s drug tested was deemed positive because her urine sample was cold; (2) on September 26, 2005, when mother tested positive for methamphetamine; and (3) on September 29, 2005, when she was not tested because she admitted she had used methamphetamines. The drug treatment agency concluded that mother had a “low level of involvement with Panorama Ranch Outpatient Program.”
Although mother subsequently completed the Panorama Ranch Inpatient Program, on January 9, 2006, she refused to participate in the Panorama Ranch Sober Living Home inpatient program and returned to her previous lifestyle of living with father in an environment conducive to abusing drugs.
This evidence was sufficient to establish the second prong of section 361.5, subdivision (b)(13). Substantial evidence thus supported the court’s order denying reunification services and setting a .26 hearing as to Cornell under 361.5, subdivision (b)(13).
3. Parental Beneficial Relationship Exception
Parents contend there was substantial evidence establishing that the parental beneficial relationship exception (benefit exception) to adoption applies.
With the exception of the period of March through May 2006, mother regularly visited the children (Cornell was not born until May 2006). Father also, for the most part, regularly visited the children, except during March through May 2006, and when he was incarcerated in June and July 2006. Mother claims she was unable to visit the children from March through May 2006, because of a lack of transportation from her home in San Bernardino to the DCS office in Yucca Valley, where the visits took place. Even assuming Parents regularly visited their children, Parents failed to establish that the benefit the children would gain from continuing their relationship with Parents outweighed the benefit they would receive from being adopted.
Father failed to rehabilitate, and mother failed to resist associating with those having a history of drug abuse, leading to relapsing and living in an environment unsuitable for raising the children.
Despite Parents’ visits with their children, at the time of termination of Parents’ parental rights, Parents had not lived with Shannon or Benjamin for over a year and a half. Benjamin was almost two years old when he was removed from Parents’ care in June 2005, Shannon was not quite one year old. Cornell was removed from Parents in June 2006, when he was only a month old. The children spent a relatively short period of their lives living with Parents.
Visitation after the children’s removal from Parents consisted primarily of supervised weekly one-hour visits, and during one three-month span, visits ceased, with the exception of two visits by mother. Also father did not visit the children while incarcerated. The social worker reported in the .26 hearing report filed on December 27, 2006, that “The children are confused between their parents and current foster parents as they are too young to realize who their real parents are. It appears that children Shannon and Benjamin do not want to visit with their parents because they distance themselves and want to leave the visitation room. . . . This continues to be a problem and, in the undersigned’s opinion, is detrimental to the children. They are currently attached to their foster parents and want to return to them as soon as they enter the visiting room. The Department is requesting to have visits reduced to one time a month.”
Father argues that at the time of termination of parental rights, the DCS had not located an adoptive family for the children and therefore the children were not bonded to any potential adoptive parents. In fact, counsel for the DCS informed the court an adoptive home for the children had been found and they would be moving in within a couple weeks. Even though the children had not yet lived in the home, this does not refute the fact that the children were adoptable or that the benefits of adoption outweighed any benefits the children might receive in maintaining their relationships with Parents, particularly in light of Parents’ history of drug abuse; Parents’ failure to provide the children with a stable, suitable home environment; the risk of Parents abusing drugs or possessing drugs in their home; and evidence that the children were not strongly bonded to Parents due to being removed at a relatively young age.
Since Parents failed to establish the beneficial relationship exception, the trial court did not err in terminating Parents’ parental rights.
4. ICWA Notice
Father contends this court must reverse the order terminating parental rights because of insufficient evidence of ICWA notice compliance. The DCS augmented the record on appeal by providing evidence of compliance with ICWA notice requirements. The DCS contends that by doing so, this court should find ICWA notice compliance. Counsel for the children states in the minors’ letter brief filed in this appeal that since there has been no judicial determination as to the adequacy of the documents DCS filed on appeal, this matter should be remanded for the limited purpose of ensuring compliance with ICWA.
A. Applicable ICWA Notice Law
In enacting ICWA in 1978, Congress intended “to protect Indian children and their tribes from the erosion of tribal ties and cultural heritage and to preserve future Indian generations. (25 U.S.C. § 1902; In re Desiree F. (2000) 83 Cal.App.4th 460, 469.) Because ‘“the tribe has an interest in the child which is distinct from but on a parity with the interest of the parents”’ [citation], a tribe has the right to intervene in a state court dependency proceeding at any time (25 U.S.C. § 1911(c)). This significant right, however, is meaningless unless the tribe is notified of the proceedings. [Citation.] ‘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.]” (In re Nikki R. (2003) 106 Cal.App.4th 844, 848 (Nikki).)
ICWA’s notice provision states that, “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 child’s 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 proceedings 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 notice is not provided under ICWA, an Indian child, parent, or the tribe “may petition any court of competent jurisdiction to invalidate such action . . . .” (25 U.S.C. § 1914.)
Because the determination of a child’s Indian status is up to the tribe, “the juvenile court needs only a suggestion of Indian ancestry to trigger the notice requirement. [Citations.] Both the court and the county welfare department have an affirmative duty to inquire whether a dependent child is or may be an Indian child. (Cal. Rules of Court, rule 1439(d).)” (Nikki, supra, 106 Cal.App.4th at p. 848.)
When ICWA notice is deficient, the juvenile court’s order is voidable. (25 U.S.C. § 1914, Dwayne P. v. Superior Court (2002) 103 Cal.App.4th 247, 260.)
B. Procedural Background
The record before the juvenile court contains inadequate evidence of ICWA notice compliance. At the detention hearing for Shannon and Benjamin on July 5, 2006, the court asked Parents if they had any Indian heritage. Mother said she did not, as far as she knew. The court asked her father (maternal grandfather), who was present, and he said, “A little bit. Not much. About a quarter,” through his mother and father. He did not name any particular tribe and the juvenile court did not ask him for such information. Father said he also had Indian heritage through his father. Father believed the tribe was Cherokee. The court ordered Parents to complete a form concerning their Indian heritage so that the appropriate tribes could be noticed of the juvenile dependency proceedings.
On July 5, 2005, mother and father each filed a form JV-130, entitled “Parental Notification of Indian Status.” Father stated he might have Indian ancestry. Mother checked the box stating: “I have no Indian ancestry as far as I know.”
The clerk’s transcript contains a copy of a signed domestic return receipt, acknowledging delivery of an unspecified document sent from the Department of Public Social Services, to the BIA in Sacramento, California, on July 13, 2005. The receipt states at the bottom, the name of the social worker assigned to the instant case and the children’s last name.
The jurisdiction/disposition report filed on July 21, 2005, concerning Shannon and Benjamin, states: “The Indian Child Welfare Act does not apply.” The report further states, “The Indian Child Welfare Act does not apply[.] [M]aternal grandfather stated to the Court, during the Detention Hearing, that his family may have Indian ancestry. The undersigned has notified the BIA with the families [sic] information and is waiting for the results of their investigation.”
At the pretrial settlement conference on August 12, 2005, concerning Shannon and Benjamin, the court found that ICWA notice had been given as required and that the children might come under ICWA.
About a year later, the social worker stated in the detention report for Cornell, dated June 20, 2006, that ICWA did not apply. At the detention hearing on June 20, 2006, mother stated she had no Indian heritage. Father was not present at the hearing. Mother filed a JV-130 form stating she had no Indian ancestry as far as she knew. Father did not file a JV-130 in Cornell’s case.
At the jurisdiction/disposition hearing for Cornell on August 10, 2006, the court made no specific findings on the record concerning ICWA notice compliance or applicability. The minute order for the hearing, however, states that ICWA did not apply. Neither mother nor father were present at the hearing.
C. Analysis
The record in the lower court shows that there was insufficient evidence before the juvenile court establishing compliance with ICWA notice as to Shannon and Benjamin’s case, as well as Cornell’s case. Recognizing this after father filed his appellate brief on June 15, 2007, raising the issue, the DCS filed with the lower court on July 27, 2007, newly discovered evidence of ICWA notice compliance. At about the same time, the DCS also moved to augment the record on appeal by submitting the new evidence of ICWA notice compliance. This court granted the request to augment.
The new evidence consisted of a DCS social worker’s declaration, dated July 26, 2007, stating the declarant found on July 17, 2007, inside the Benjamin case file, an envelope addressed to the DCS, with a return address from the BIA in Riverside, postmarked July 28, 2005. Inside the envelope, the declarant found the following documents, copies of which were attached to the declaration: (1) a two-page ICWA notice letter DCS sent to the BIA in Sacramento on July 11, 2005; (2) a JV-form 135 for mother; (3) a JV-form 135 for father; (4) a form entitled “Request For Tribal Membership Information and Tribal Position” for mother; (5) a form entitled “Request For Tribal Membership Information and Tribal Position” for father; and (6) an 11-page detention report dated July 5, 2005.
We note the JV-135 forms were filled out and signed by a DCS social worker on July 11, 2005. The JV-135 forms state as to father, “Tribe, band, and location: Unknown,” whereas father had previously told the court he believed he had Cherokee ancestry. There are no names for the paternal grandparents or great-grandparents, nor any information concerning them. The place of birth of the maternal grandfather and his address is not provided. Shannon and Benjamin’s place of birth is also not provided. No information is provided as to the maternal grandmother.
Other than the domestic return receipt from the BIA office in Sacramento and the envelope from the BIA in Riverside, to the DCS, there is no evidence that the BIA or any tribe received or responded to ICWA notice. Also, the domestic return receipt does not indicate what was sent or received. Furthermore, the letter contained in the envelope is addressed to the Sacramento BIA office, whereas the envelope is from the Riverside BIA office and bears a Riverside postmark dated July 28, 2005.
It also appears from the envelope postmark that although notice may have been sent around July 11, 2005, according to the DCS letter to the BIA in Sacramento, the BIA in Riverside did not receive notice until July 19, 2005, which was not at least 10 days before the July 26, 2005 hearing, as required under 25 United States Code section 1912(a). (In re Jennifer A. (2002) 103 Cal.App.4th 692, 704 (Jennifer); Cal. Rules of Court, rule 5.664(f); 25 U.S.C. § 1911.) We recognize it is possible the BIA in Sacramento received the letter on July 13, 2005, assuming the domestic return receipt concerned receipt of the ICWA notice letter, and then forwarded the letter to the BIA Riverside office. This is speculation, however, on this court’s part and concerns a factual matter better suited for the trial court.
Even if we were to consider the untimely produced evidence of ICWA notice submitted for the first time on appeal, such evidence is insufficient for this court to find ICWA notice compliance. The instant case is analogous to Nikki, supra, 106 Cal.App.4th 844, in which the court held there was insufficient evidence of compliance with ICWA notice requirements. In Nikki, the juvenile court record was devoid of any evidence that the Social Services Agency (SSA) attempted to elicit information about the child’s Indian heritage. The SSA submitted evidence for the first time on appeal of ICWA notice but the evidence indicated the notices to the BIA and Cherokee Nation omitted critical information. The Nikki court noted: “Where there is reason to believe a dependent child may be an Indian child, defective ICWA notice is ‘usually prejudicial’ [citation], resulting in reversal and remand to the juvenile court so proper notice can be given. [Citations.] Here, however, the issue is complicated by SSA’s attempts to convince us that proper notice was given, even though it is not reflected in the record.” (Nikki, supra, at p. 850.)
The DCS in the instant case also attempts to convince this court that proper ICWA notice was given, even though it is not reflected in the lower court record. In this case, as in Nikki, on appeal the DCS was permitted to augment the record by filing new evidence of compliance with ICWA notice requirements. (Nikki, supra, 106 Cal.App.4th at p. 850.) The court in Nikki noted that the court in In re Samuel P. (2002) 99 Cal.App.4th 1259 (Samuel), “was unimpressed with the agency’s additional evidence provided on appeal showing that the notices were sent and the return receipts received. ‘Since these documents were not provided to the juvenile court, the court did not have a sufficient record from which to make a determination whether there had been compliance with the notice provisions of the ICWA, or whether further inquiry was needed.’ (In re Samuel P., supra, 99 Cal.App.4th at pp. 1266-1267.)” (Nikki, supra, at p. 851.)
The Nikki court admonished the SSA for failing to file ICWA notice evidence with the juvenile court: “SSA’s apparent practice of holding onto the evidence of its notice efforts and revealing it only when an issue arises on appeal is unacceptable. ‘Making the appellate court the trier of fact is not the solution.’ (In re Jennifer A., supra, 103 Cal.App.4th at p. 703.)” (Nikki, supra, 106 Cal.App.4th at p. 853.) In the instant case the DCS apparently held onto the evidence of its notice efforts, revealing it only when father raised the issue on appeal.
We do not assume the DCS’s failure to file the evidence sooner was intentional.
The Nikki court added that “Samuel P. highlights a critical point: While the petitioning agency may have the duty to provide ICWA notice, it is the role of the juvenile court, not the agency, to determine whether the ICWA notice is proper.” (Nikki, supra, 106 Cal.App.4th at p. 852.) The court in Nikki noted the court in Jennifer reached that same conclusion under similar circumstances. (Ibid.; Jennifer, supra, 103 Cal.App.4that pp. 705-706, 709; see also In re Marinna J. (2001) 90 Cal.App.4th 731, 739.)
In Jennifer, supra, 103 Cal.App.4th 692, the court rejected the SSA’s attempt to establish ICWA notice compliance by submitting to the Court of Appeal copies of the notices the SSA had sent to and letters it had received from the BIA and tribes. The court in Jennifer stated that “[I]t is up to the juvenile court to review the information concerning the notice given, the timing of the notice, and the response of the tribe, so that it may make a determination as to the applicability of the ICWA, and thereafter comply with all of its provisions, if applicable. . . . [Fn. 5] . . . The point of the matter is the [juvenile] court must decide, one way or the other, whether the ICWA applies, so it can proceed in compliance therewith when appropriate.” (Jennifer, supra, at pp. 705-706 & fn. 5; see also Nikki, supra, 106 Cal.App.4that p. 852.) In Jennifer, the court remanded the case to the juvenile court for a determination as to ICWA notice compliance. (Jennifer, supra, at p. 709.)
In Jennifer, the court stated that even if it considered the evidence of ICWA notice submitted on appeal, remand was required because the evidence showed that the tribes and BIA did not receive notice at least 10 days before the hearing, as required under 25 United States Code section 1912(a). (Jennifer, supra, 103 Cal.App.4th at p. 704; Cal. Rules of Court, rule 5.664(f).) Also, the notice form stated the birthplaces of mother and father were unknown and only a state was identified for the child’s birthplace. The Jennifer court concluded this indicated the SSA made little effort to provide the tribe with sufficient information. (Jennifer, supra, at p. 705.)
Such is also the case here. The JV-135 forms did not contain basic information, even as to the maternal grandfather, who was present at the detention hearing for Shannon and Benjamin. This indicates the DCS made little effort to provide the BIA and tribes with sufficient information. (Jennifer, supra, 103 Cal.App.4that p. 705.) In addition, the evidence does not establish the tribes and BIA received notice at least 10 days before the hearing.
The court in Nikki, acknowledged that in In re Christopher I. (2003) 106 Cal.App.4th 533 (Christopher), and In re Antoinette S. (2002) 104 Cal.App.4th 1401 (Antoinette), the court relied on additional evidence of ICWA notice presented for the first time on appeal and concluded the error was harmless. Nikki concluded, however, that these two cases were distinguishable because they involved extraordinary circumstances. (Nikki, supra, 106 Cal.App.4that p. 853.) Likewise, in the instant case these cases are distinguishable.
In Christopher, supra, 106 Cal.App.4th 533, the child was a medically-fragile infant who was on life support after sustaining injuries inflicted by his father. The court in Christopher concluded: “The extraordinary circumstances of this case justify augmentation of the record at this time in the interests of justice. . . . In our view, the interests of justice require that we augment the record in this case because remand of this matter would be futile and would not be in Christopher’s best interests. To decline to augment the record in this case would only serve to prolong Christopher’s suffering. . . . [¶] . . . [¶] This result would be absurd and would not serve the purposes of ICWA.” (Christopher, supra, at pp. 563, 565, italics in original.) The Christopher court thus found the augmented record was sufficient for it to determine that either no ICWA notice error existed or any error was harmless. (Id. at p. 567.) Such extraordinary circumstances do not exist in the instant case.
The circumstances in Antoinette, supra, 104 Cal.App.4th 1401are less extreme. In Antoinette, the father surfaced two weeks before the .26 hearing and told the social worker he believed his deceased maternal grandparents had Native American ancestry. The BIA and Stated Department of Social Services were notified. The BIA received the notice only one day before the .26 hearing, in violation of ICWA, which requires at least 10 days’ notice. Both agencies responded they were unable to identify Indian ancestry without a tribal affiliation. (Antoinette, supra, at pp. 1405, 1412-1413.)
On appeal, the Antoinette court found that because technically proper notice had been given, the SSA satisfied its inquiry obligation and any error was harmless: “The purpose of giving notice is not ritual adherence to the statute but to make it possible for Indian parents, custodians, and tribes to exercise their right of intervention guaranteed by the ICWA. [Citation.] [¶] [N]o tribe could possibly have been identified with the information father provided. And unlike in Jennifer A., SSA satisfied its inquiry obligation in this case. Given this scenario, SSA’s failure to provide information the BIA could not utilize is harmless error.” (Antoinette, supra, 104 Cal.App.4th p. 1414, fn. 4.)
The instant case is distinguishable from Antoinette because, even considering the evidence submitted for the first time on appeal, the DCS did not satisfy its inquiry obligation in this case. The JV-135 forms lack basic family information, and omit any reference to the possibility father had Cherokee ancestry and mother had ancestry to an unidentified tribe. There is no evidence notice was sent to any Cherokee tribes and there is no evidence of any response from the BIA or any tribe, other than possibly the return receipt and an envelope. Furthermore, as to Cornell’s case, the record indicates there was no ICWA notice compliance. Father was not even requested to fill out a form JV-130 or JV-135. Under such circumstances, this case must be remanded to the juvenile court for ICWA notice compliance.
5. Disposition
The orders terminating mother and father’s parental rights to Shannon, Benjamin, and Cornell are reversed and the matter is remanded to the juvenile court with directions to conduct further proceedings to ensure compliance with ICWA notice requirements. If the children are determined to be Indian children, a new section 366.26 hearing shall be conducted in accordance with ICWA and all pertinent state and federal laws and rules. If once ICWA notice is found to be sufficient, the children are determined not to be Indian children, all previous findings and orders shall be reinstated, subject to the juvenile court’s consideration of any circumstances that may have arisen during this appeal that may affect the outcome. (Nikki, supra, 106 Cal.App.4that p. 846.)
We concur:
Hollenhorst Acting P. J.Miller J.