Opinion
NOT TO BE PUBLISHED
Mendocino County Super. Ct. No. 061471401
Ruvolo, P. J.
I. Introduction
Appellant Geri Ann W., the mother of the dependent child, W.M. (W.), has appealed from the trial court’s order terminating her parental rights and selecting adoption as the permanent plan for the child. (Welf. & Inst. Code, § 366.26.) She claims 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). Based on new information about W.’s Indian ancestry that has been submitted by appellant during the pendency of this appeal, the matter must be remanded for the limited purpose of achieving ICWA compliance.
All subsequent undesignated statutory references are to the Welfare and Institutions Code.
II. Facts and Procedural History
Given the issues presented in this appeal, we will focus upon the facts related to compliance with the ICWA.
Seven-year-old W. was detained by the Mendocino County Department of Social Services (Department) on June 26, 2006, after appellant was arrested for child endangerment and reckless driving. On June 28, 2006, a dependency petition was filed on the ground that appellant had failed to protect W. (§ 300, subd. (b)). The petition alleged that appellant was unable to adequately care for W. because she had recklessly driven with W. in the vehicle while attempting to run over her boyfriend. The petition further alleged that appellant had made an “unsafe turn . . ., almost causing a head on collision and then rammed her vehicle into a handicap rail” while W. was present in the vehicle.
The detention hearing was held on June 29, 2006. Appellant was present and was represented by counsel. At the hearing the trial court asked appellant, “Do you have any Native American ancestry? Are you eligible for enrollment in any tribe going back to your parents?” Appellant replied: “I don’t know. I know a couple of my cousins do, my biological father’s side, but I don’t have a real strong relationship with my real father. I didn’t know him growing up very well. I don’t know a lot of the background.” The court then told appellant that her attorney “is going to go through with you those questions in detail and give you a form that he’s going to talk to you about.”
Approximately one month later, on July 21, 2006, appellant completed, signed and filed the “Parental Notification of Indian Status” (JV-130 form). She checked the box indicating, “I have no Indian ancestry as far as I know.” The JV-130 form admonished appellant to file an “updated form” with the court and notify her attorney and the social worker if she discovered “new information” regarding the W.’s Indian status.
Under California Rules of Court, rule 5.662(d)(3) (formerly rule 1439(d)(3)), the court must order the parents to complete the JV-130 form, which affords an opportunity for the parent to notify the court concerning any Indian heritage and provide other relevant information for further investigation. (See In re. J.N. (2006) 138 Cal.App.4th 450, 461.)
Throughout the ensuing proceedings in the juvenile court, appellant did not submit a modified JV-130 form nor did she ever notify the Department of any change of Indian status information. In all subsequent Department reports prepared for the various hearings, under the heading “INDIAN CHILD WELFARE ACT APPLICABILITY,” the social worker wrote, “The child is not of Native American Heritage, therefore, [the] Indian Child Welfare Act does not apply.” Appellant never refuted this assertion.
Throughout the reunification stage of W.’s dependency, appellant failed to make any substantive progress in participating in the many services offered by the Department to address the circumstances that originally brought W. to the juvenile court’s attention. On July 10, 2007, in anticipation of the then-scheduled 12-month review hearing, the Department prepared a formal report for the juvenile court recommending that reunification services for appellant be terminated, and that the case be set for hearing pursuant to section 366.26 concerning the possible termination of appellant’s parental rights.
At the contested 12-month review hearing held on August 1, 2007, W.’s counsel summed up the situation: “The mother hasn’t visited, she hasn’t complied with the case plan, she hasn’t shown the ability to comply with her case plan. . . . It’s a sad case, but this mother has a drug problem, she didn’t make use of the services, and I would ask the Court to terminate services.” Citing appellant’s “abysmal” performance in attempting to reunify with W., the court terminated reunification services and set a termination of parental rights hearing for November 15, 2007.
According to an adoption assessment prepared for the hearing, then eight-year-old W. had been residing in the home of his stepfather, appellant’s former husband, for approximately 10 months. The stepfather was very committed to W. and wished to adopt him. It was reported that W. was happy in the placement and was in favor of the proposed adoption.
Appellant was present at the section 366.26 hearing, which occurred on November 15, 2007. Her counsel advised the court that appellant was “in favor of the adoption. We think it’s a great thing for W.” At the conclusion of the hearing, the juvenile court terminated appellant’s parental rights and identified adoption as the permanent plan. This appeal followed.
III. Discussion
A. Compliance with the ICWA Notice Requirements in the Trial Court
Appellant argues that the juvenile court’s failure to comply with the ICWA’s notice requirements compels reversal of the judgment. She complains that when she suggested W. might have Indian heritage at the detention hearing, a duty arose on the part of the court and the Department to inquire and obtain information about his ancestors. She maintains that “[f]ailure to provide notice to the tribe or to the BIA [Bureau of Indian Affairs] if the identity of the tribe cannot be determined is ‘prejudicial error’ and requires reversal of the order terminating parental rights. [Citation.]”
As a preliminary matter, respondent contends that appellant waived her ICWA claims because she failed to raise them in the trial court. Respondent points out that appellant was aware of the issue of W.’sIndian ancestry and was at all times represented by counsel, but nevertheless she raises, for the first time on appeal, her contentions that the ICWA notice requirements were violated. Respondent claims that appellant either waived or is estopped from asserting the failure to provide notice pursuant to the ICWA as grounds for reversal of the judgment.
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.] ‘. . .“[T]he notice requirements serve the interests of the Indian tribes ‘irrespective of the position 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. (2003) 106 Cal.App.4th 844, 849 .) Therefore, appellant’s failure to raise any ICWA objections in the trial court does not preclude her from doing so in this appeal.
In light of these considerations, we will address the ICWA issues presented in this appeal. The notice 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. [Citations.]” (In re Robert A. (2007) 147 Cal.App.4th 982, 988; see also In re Santos Y. (2001) 92 Cal.App.4th 1274, 1300.)
“Pursuant to California Rules of Court, rule 1439(d), the court and the 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., supra, 138 Cal.App.4th at p. 461, italics omitted; 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.)
All subsequent undesignated references to rules are to the California Rules of Court. Rule 1439 has been renumbered, and is now rule 5.481.
The courts of this state have declared this notice requirement to be a “key component” of the ICWA. The purposes of the ICWA cannot be fulfilled unless proper notice is given to either the identified Indian tribe or the BIA. (In re C.D. (2003) 110 Cal.App.4th 214, 224.) Notice, as prescribed by the ICWA, ensures that “the tribe will be afforded the opportunity to assert its rights under the Act irrespective of the position of the parents, Indian custodian or state agencies.” (In re Kahlen (1991) 233 Cal.App.3d 1414, 1421.) Because the failure to give proper notice forecloses participation by interested Indian tribes, ICWA notice requirements are strictly construed and strict compliance is required. (In re Desiree F. (2000) 83 Cal.App.4th 460, 474-475.) 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. (2001) 90 Cal.App.4th 731, 735.)
We agree with appellant that once she stated at the detention hearing that she believed a “couple of my cousins” from her biological father’s side had Native American ancestry, the juvenile court’s duty of inquiry was triggered. (In re Jennifer A. (2002) 103 Cal.App.4th 692, 702-703.) The court properly responded by directing appellant to consult with her attorney, who was “going to go through with you those questions in detail and give you a form that he’s going to talk to you about.” If appellant had information about the child’s Indian ancestry, her counsel, as an officer of the court, would likely bring that information to the court’s attention. (In re S.B. (2005) 130 Cal.App.4th 1148, 1160.) We conclude that the court satisfied its duty to undertake an inquiry into any possible tribal affiliations of the child. (In re Aaliyah G., supra, 109 Cal.App.4th at p. 942.)
The remaining issue is whether any further inquiry or notice was required once the JV-130 form signed by appellant specified, “I have no Indian ancestry as far as I know.” While appellant’s initial assertion that she may have Native American heritage through her biological father was speculative and inconclusive, her subsequent statement in the form was explicit. Rather than mark the box that indicated she did or even may have Indian ancestry, appellant positively informed the court that she had no knowledge of any Indian ancestry in her family. The court had previously directed appellant to consult with her attorney before completing the form, and we have no reason to believe she failed to adhere to the court’s advice. She appeared with counsel throughout these proceedings and never updated the JV-130 form or advised the court of any new information on W.’s Indian status. Nor did she 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 appellant’s prior, 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 W.’s Indian status. (In re Aaron R. (2005) 130 Cal.App.4th 697, 707-708; In re Aaliyah G., supra, 109 Cal.App.4th at p. 942.) “[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 at p. 1413.) Once appellant submitted her JV-130 form in which she denied Indian ancestry, the court had no reason to know that W. might be an Indian child within the meaning of the ICWA, and thus there was 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.)
B. Consideration of Postjudgment Evidence
While this appeal was pending, we received two separate requests from appellant to expand the appellate record in this case. In April 2008, appellant filed a motion requesting us to consider her counsel’s declaration regarding information that had been discovered about W.’s Indian ancestry which was not in evidence before the juvenile court when it made the order challenged here. Shortly thereafter, in June 2008, appellant filed another motion in this court, which she entitled “Second Motion and Declaration to Take New Evidence.” Appellant’s motion contained declarations from appellate and trial counsel, declarations from appellant and her mother, and a document prepared by W.’s paternal great-grandmother showing names, dates, and other information regarding W.’s Cherokee Indian ancestors.
Although we originally denied appellant’s motion to take additional evidence, upon our own motion to reconsider, the second motion was granted by order dated July 29, 2008. (See Code Civ. Proc., § 909; rule 8.252; see generally Eisenberg et al., Cal. Practice Guide: Civil Appeals and Writs (The Rutter Group 2007) ¶ 5:168, p. 5-55.) That action is proper where “exceptional circumstances” justify the appellate court’s review of matters outside the trial court record. (Vons Companies, Inc. v. Seabest Foods, Inc. (1996) 14 Cal.4th 434, 444, fn. 3.)
In granting appellant’s motion, we are fully cognizant of the California Supreme Court’s decision in In re Zeth S. (2003) 31 Cal.4th 396 (Zeth).) In Zeth, appellate counsel sought to have the appellate court consider postjudgment information in the form of counsel’s unsworn statement in a letter brief that the parent was currently interacting with the child and had assumed a parental role and that the relative caretaker had felt pressured by the social services agency to agree to adopt and would rather be a legal guardian. (Id. at pp. 403-404.) The Zeth court refused to consider this new evidence, instructing, “consideration of postjudgment evidence of changed circumstances in an appeal of an order terminating parental rights, and the liberal use of such evidence to reverse juvenile court judgments and remand cases for new hearings, would violate both the generally applicable rules of appellate procedure, and the express provisions of section 366.26 which strictly circumscribe the timing and scope of review of termination orders, for the very purpose of expediting the proceedings and promoting the finality of the juvenile court’s orders and judgment.” (Zeth, supra, 31 Cal.4th at p. 413, fn. omitted.)
Here, we do not engage in the postjudgment reweighing of the best interests of the child criticized in Zeth. Instead, we conclude that the extraordinary circumstances presented here make consideration of postjudgment evidence appropriate. (Accord, In re A.B. (2008) 164 Cal.App.4th 832; In re Christopher I. (2003) 106 Cal.App.4th 533; In re Antoinette S. (2002) 104 Cal.App.4th 1401 [cases relying on additional evidence of ICWA notice presented for the first time on appeal].) As respondent appears to concede, even though appellant has submitted W.’s ancestral information at the eleventh hour in these proceedings, appellant’s identification of particular ancestors with tribal affiliation is sufficient to trigger the notice requirements under the ICWA. When a parent indicates he or she may have Indian heritage, “ ‘it is preferable to err on the side of giving notice and examining thoroughly whether the juvenile is an Indian child. [Citation.]’ [Citation.]” (Dwayne P. v. Superior Court (2002) 103 Cal.App.4th 247, 257.) Ignoring such information threatens to disrupt the child’s permanent placement because “[t]here is nothing either in the ICWA or the case law interpreting it which enables anyone to waive the tribe’s right to notice and right to intervene in child custody matters. [Citations.]” (In re Desiree F., supra, 83 Cal.App.4th at p. 471.) Even after parental rights are terminated, any interested tribe has the right to intervene and the right to object to those court orders taken in violation of the ICWA notice requirements. (Id. at pp. 474-475.)
We note that even though the Department opposed appellant’s motion to consider new evidence on appeal, it has given us indication that it has begun the steps necessary to give proper notice under the ICWA. The Department wrote, “[n]ow that Appellant has revealed her Indian status, it is the juvenile court and the social worker’s duty to notice the identified tribes. [Citations.] . . . [I]f a tribe claims Wade is an Indian child, that tribe may intervene and ask on it own behalf that any prior actions be invalidated. [Citation.]”
Apart from the ICWA-related contention, appellant does not challenge the order terminating her parental rights. (§ 366.26.) Therefore, as a consequence of the failure to give the statutorily required notice, the order terminating parental rights must be conditionally reversed. (In re Brooke C. (2005) 127 Cal.App.4th 377, 385; In re Jonathon S. (2005) 129 Cal.App.4th 334, 342 [sole order subject to reversal for failure to give ICWA notice is order terminating parental rights].) A limited reversal “is legally authorized, consistent with the best interests of children, and in keeping with fundamental principles of appellate practice.” (In re Francisco (2006) 139 Cal.App.4th 695, 704.) Therefore, we must remand the matter to the juvenile court for the limited purpose of allowing the Department to provide the requisite notice under the ICWA. If it is ultimately determined on remand that no tribe indicates that W. is an Indian child as described in the ICWA, “the matter ordinarily should end at that point, allowing the child to achieve stability and permanency in the least protracted fashion the law permits.” (Id. at p. 708.)
IV. Disposition
The order of the juvenile court terminating appellant’s parental rights is conditionally reversed and the matter is remanded to the juvenile court with directions to order the Department to provide proper notice of the proceedings under the ICWA to each of the relevant tribes or to the BIA. If, after receiving sufficient notice, no tribe indicates that the child falls within the meaning of ICWA, then the juvenile court shall reinstate the order terminating parental rights.
We concur: Reardon, J., Sepulveda, J.