Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
Mendocino County Super. Ct. SCUK-JVSQ-97-11283-01
STEIN, ACTING P.J.
Arthur K. (Father) petitions to review an order of the Mendocino County Superior Court, Juvenile Division, which set a hearing under Welfare and Institutions Code section 366.26 to change the permanent plan of his son, B. K. (born July 1993), from one of long-term foster care to one of adoption. Father contends that error below in complying with the requirements of the Indian Child Welfare Act (ICWA) requires that we vacate the challenged order. We disagree and deny Father’s petition on the merits.
Further statutory references are to the Welfare and Institutions Code unless otherwise indicated. References to rules are to the California Rules of Court.
25 U.S.C. § 1901 et seq.
Section 366.26, subdivision (l)(1)(A), bars review on appeal if the aggrieved party has not made a timely writ challenge to an order setting a hearing for selection and implementation of a permanent plan. The statute also encourages the appellate court to determine all such writ petitions on their merits, as we do here. (§ 366.26, subd. (l)(4)(B).)
Background
The Department detained B. K. and six siblings in emergency foster care in October 1997, following the arrest and incarceration of Father and Donna K. (Mother) on charges of welfare fraud. The family was itinerant and had only recently come into Mendocino County. At the detention hearing on October 27, the juvenile court appointed separate counsel for Father and Mother, who had been transferred to the Imperial County jail shortly after their arrest and were not present.
The initial petition under section 300 alleged simply that Father and Mother were unable to care for the minors because of their arrest and incarceration. The Department afterwards filed a series of amended petitions as additional grounds for the juvenile court’s jurisdiction came to light. Ultimately the Department alleged that Father and Mother had subjected the detained minors to severe physical and emotional abuse. They had further failed to protect the minors from physical and sexual abuse by older siblings, and their parenting ability had been compromised by extensive criminal activity, domestic violence, substance abuse, and Father’s serious and chronic mental illness. The juvenile court sustained all these allegations at the continued jurisdictional hearing in August 1998. By that time Father and Mother had finished serving their time for welfare fraud in the Imperial County jail and had then been transferred to a correctional facility in New York State, where they were awaiting trial for their murder of a young woman in 1984. Hence, while they were represented by counsel at the jurisdictional hearing, neither was present.
The subsequent dispositional orders, issued in November and December 1998, granted reunification services for Mother only. Father’s services were denied under section 361.5, subdivision (e)(1), after the juvenile court determined that providing services to Father, as an incarcerated parent, would be detrimental to the minors. Again, the parents were not present but were represented by counsel.
By the time of the six-month status review hearing in April 1999, some 18 months had elapsed since the minors had first been removed from their parents’ physical custody, and the court found no substantial probability that Mother, who was still incarcerated in New York State, would reunify with them within the maximum time allowed for services. (See §§ 361.5, subd. (a)(3); 366.21, subds. (f), (g)(1).) Accordingly, the juvenile court terminated Mother’s reunification services and set the matter for a hearing under section 366.26. Again, the parents were represented by their appointed counsel. Although the minute order fails to state that the parents were not present themselves, we may safely assume they were not, because the parents’ writ packets were afterwards mailed to their respective addresses in New York, and would have been distributed at the hearing had the parents been present. (See Rule 5.585(e).)
In July 1999, we denied Mother’s petition challenging the April 1999 order. (Donna K. v. Superior Court (July 27, 1999, A087071 [nonpub. opn.]). At the conclusion of the ensuing section 366.26 hearing in September 1999, the juvenile court initially selected a permanent plan of adoption for B. K., without terminating parental rights. However, B. K. began to exhibit behavioral problems that rendered the adoption plan inappropriate. The court accordingly changed his permanent plan to one of long-term foster care at the conclusion of the first post-permanency review hearing, held in February 2000.
B. K. had been one of the most abused of the minors. His behavioral problems were symptomatic of posttraumatic stress disorder, with which he had been diagnosed as early as December 1997.
At the fifth post-permanency review hearing in March 2002, Father was not only represented by counsel but made an appearance by telephone. He made two subsequent telephone appearances, in September 2002 and April 2003, at the sixth and seventh post-permanency review hearings, respectively. Father himself addressed the court at two of these hearings, and the record indicates that his counsel raised at least two issues on Father’s behalf during these hearings: Father sought permission to contact the minors through screened letters and objected to the court’s authorization of psychotropic medication for B. K.
In an order filed in May 2003, the juvenile court denied further telephone appearances by either parent at future post-permanency review hearings. Both parents, however, continued to be represented by counsel at post-permanency review hearings, at least until July 2006. At that time the court granted a request by the Mendocino County Public Defender’s office to be relieved as counsel for Father. Father thus had no representation at the ensuing 15th, 16th, and 17th post-permanency review hearings held respectively in November 2006, May 2007, and October 2007.
It appears that Mother, too, was no longer represented by counsel at the 16th and 17th post-permanency hearings.
Since the juvenile court’s selection of B. K.’s permanent plan in February 2000, he has remained in long-term foster care—a period of almost eight years. Since March 2002, his behavioral problems required his placement in therapeutic group homes to provide him with a “higher level of care.” These problems have only recently begun to improve. In March 2005, however, he suffered the onset of a debilitating disease, a form of ataxia that disturbed his ability to walk and affected his speech. This condition has compelled him to use a wheelchair at school and a walker in his group home.
The Department placed B. K. with a new foster caregiver in February 2007—Jim F. Jim has provided B. K. with “a wonderful bedroom, furnished to suit his special needs,” has involved B. K. “actively . . . in family activities,” and has arranged for a reassessment of B. K.’s medical condition at Stanford Medical Center. Jim sought the placement with an ultimate goal of adoption. The Department’s report for the 17th post-permanency review hearing stated that B. K. was “happily adjusted” in his new placement with Jim, that his performance in school was improving, and that he had made it “clear that he wanted to be adopted” by Jim. The Department accordingly requested that the juvenile court set the matter—as to B. K.—for a section 366.26 hearing, to change his permanent plan from one of long-term foster to a plan of adoption by his current foster care provider. His CASA worker of over six years strongly endorsed the Department’s recommendation, stating it was “nothing short of a miracle” for B. K.
Court Appointed Special Advocate. (See rule 5.655.)
At the 17th post-permanency review hearing, on October 16, 2007, the juvenile court adopted the Department’s recommendation and scheduled a section 366.26 hearing as to B. K. Father, now incarcerated at the Central New York Psychiatric Center, mailed a notice of intent to challenge that order. As he was no longer represented by counsel, his notice requested appointment of new trial counsel. Following that appointment, this petition followed, on January 11, 2008. (§ 366.26, subd. (l); rule 8.450.)
We received the Department’s opposition briefing on January 28, 2008. Due to the extensive record covering over 10 years of proceedings, we found it necessary to stay the section 366.26 hearing set for February 5, 2008.
Discussion
Father essentially contends the Department and juvenile court failed throughout this proceeding to fulfill their ongoing duty to inquire as to whether B. K. might be an Indian child for purposes of ICWA. More specifically he complains that the record does not affirmatively show that the Department actually questioned the parents concerning their possible Indian ancestry, nor does it provide any other detailed factual basis for the Department’s conclusive statements that ICWA was not applicable. He also claims the court never questioned the parents about their possible Indian ancestry on those occasions when they did make an appearance, and it never expressly considered nor made findings expressly applicable to ICWA.
Father’s objections boil down to a claim that the record does not contain substantial evidence showing that the duty of inquiry was satisfied in this case. In assessing that claim we review factual findings in the light most favorable to the court’s order. (In re Rebecca R. (2006) 143 Cal.App.4th 1426, 1430 (Rebecca R.).) While the social worker and the trial court have a duty to inquire into the child’s Indian ancestry, as the Court of Appeal stated in Rebecca R.: “The knowledge of any Indian connection is a matter wholly within the appealing parent’s knowledge and disclosure is a matter entirely within the parent’s present control. The ICWA is not a ‘get out of jail free’ card dealt to parents of non-Indian children, allowing them to avoid a termination order by withholding secret knowledge, keeping an extra ace up their sleeves. Parents cannot spring the matter for the first time on appeal without at least showing their hands. Parents unable to reunify with their children have already caused the children serious harm; the rules do not permit them to cause additional unwarranted delay and hardship, without any showing whatsoever that the interests protected by the ICWA are implicated in any way.” (Id. at p. 1431.)
ICWA provides that in dependency proceedings “where the court knows or has reason to know that an Indian child is involved, the party seeking the . . . termination of parental rights . . . shall notify . . . the Indian child’s tribe . . . of the pending proceedings and of their right of intervention.” (25 U.S.C. § 1912, subd. (a), italics added.) From the inception of this proceeding in October 1997 through December 2004, former Rule 1439 set out the duty of inquiry to be satisfied. It provided that both the juvenile court and the social services agency “have an affirmative duty to inquire whether a child for whom a petition under section 300 is to be, or has been, filed, is or may be an Indian child.” (Former rule 1439(d) (January 1, 1997, through December 31, 2004).) During this same period, former rule 1439 provided additionally that “[t]he circumstances that may provide probable cause for the court to believe the child is an Indian child include, but are not limited to, the following: [¶] (A) A party, including the child, an Indian tribe, an Indian organization, an officer of the court, or a public or private agency, informs the court or the welfare agency or provides information suggesting that the child is an Indian child; [¶] (B) The residence of the child, the child’s parents, or an Indian custodian is in a predominantly Indian community.” (Former Rule 1439(d)(2) (January 1, 1997, through December 31, 2004).) Finally, this former rule, during the period between October 1997 and August 1998—when the Department filed its original and amended petitions under section 300—required the social services agency to check a specified box on the then-used Judicial Council form JV-100, whenever it did have reason to believe that the minor might be an Indian child. (Former Rule 1438(d)(1) (January 1, 1997, through December 31, 1999).) This box stated that the “[c]hild may come under the provisions of [ICWA].”
An amendment effective between 1999 and 2004 modified this affirmative duty slightly, to require the agency to check identified boxes to indicate that it had reason to know the minor might a member of or eligible for membership in a federally recognized tribe or reason to believe the minor might be of Indian ancestry. (Former rule 1439(d)(1) (January 1, 1999, through December 31, 2004).)
The Department never checked the foregoing box in any of its petitions. Moreover, in its jurisdictional and depositional reports, prepared respectively in January, October, and November 1998, the Department stated expressly that “[t]he minors are not of Native American heritage and [ICWA] does not apply.” The Department provided both parents with copies of these reports. Probation reports attached to the jurisdictional report stated that Father’s ethnicity was “Bl[ac]k,” while Mother’s was “Cau[casian].”
The Department’s subsequent reports did not always mention ICWA. When they did, however, they consistently reported either that ICWA did not apply (the first section 366.26 hearing and the third post-permanency hearing) or that the minors had no “Native American heritage” and hence ICWA did not apply. Both parents received copies of all such reports. Attachments to the post-permanency review hearing reports, usually medical treatment or education reports, consistently described the ethnicity of B. K. and his siblings, if at all, as being African American, Caucasian, or both. In one such report a mental health evaluator stated that B. K. reported his ethnicity to be “part African-American and part Caucasian.” Finally, in an ex parte letter that Father sent to the court in September 2003, Father himself suggests he is African American but with antecedents that included “white people.”
We conclude the record provides substantial support that the Department satisfied its duty of inquiry. Its initial jurisdictional and dispositional reports affirmatively stated that the minors had no “Native American heritage.” We may presume the Department duly performed the proper scope of its inquiry, required under former rule 1439 at that time, before making this affirmative statement. (Evid. Code, § 664.) Moreover, viewing the record in the light most favorable to the judgment, it is reasonable to infer that such a statement resulted after due inquiry, and there is nothing in the record to indicate the contrary. (Cf. In re S. B. (2005) 130 Cal.App.4th 1148, 1160-1161; In re Aaliyah G. (2003) 109 Cal.App.4th 939, 942-943 (Aaliyah G.).) There are no discrepancies in the record to undermine either that presumption or that inference. (Cf. Rebecca R., supra, 143 Cal.App.4th at pp. 1429-1430.)
The juvenile court, at the time of jurisdictional and dispositional hearings, had no obligation to make express findings regarding ICWA’s applicability, and may be deemed to have found implicitly that it did not apply. (See In re Levi U. (2000) 78 Cal.App.4th 191, 199.) After that it had no duty to inquire further, in the absence of any information indicating that the minors might have Indian ancestry. In Aaliya G., the juvenile dependency petition was marked “No” to show that Aaliya did not have Indian heritage. All subsequent reports stated that ICWA did not apply. (Aaliya G., supra, 109 Cal.App.4th at p. 942.) Nor was there any indication in the record that Aaliya had Indian heritage. (Ibid.) On appeal, her father contended that the “mere marking of a box” and the department’s “subsequent statements in its reports of ICWA’s inapplicability were insufficient to show that any affirmative duty that rule 1439(d) imposes was discharged.” (Ibid.) The Court of Appeal disagreed: “Checking the ‘No’ box suggests that an inquiry as to Aaliyah’s heritage was made. There is no indication to the contrary. The court had no obligation to make a further or additional inquiry absent any information or suggestion that the child might have Indian heritage.” (Ibid.) The heightened degree of inquiry applicable to the Department and the court in this case began only with amendments to former rule 1439 that became effective January 1, 2005. (Cf. Rebecca R., supra, 143 Cal.App.4th at p. 1429; see now rule 5.481(a).) By 2005 the issue of ICWA’s applicability was effectively settled. Father and Mother never made a physical appearance before the court. As we have noted, they were in prison out of state by the time of the jurisdictional hearing and hence were no longer entitled to make such an appearance. (See Pen. Code, § 2625; In re Gary U. (1982) 136 Cal.App.3d 494, 497-499.) By 2005 they were no longer appearing even by telephone. The court had by that time completed its 10th semi-annual post-permanency review, and during the preceding seven years there had been not a shred of evidence before it to suggest that the minors might have Indian ancestry. To the contrary, all the information before the court indicated the minors have African American and Caucasian ancestry and nothing more. Both Father and Mother were represented by counsel throughout, until long after January 2005. Each had received copies of numerous reports stating that their children had no “Native American heritage.” While Father made a point of raising other issues during the period that he made telephone appearances, neither he nor Mother ever objected, either at those appearances or through counsel, to the accuracy of these statements, and neither ever offered information suggesting they might have Indian ancestry.
Father’s counsel suggests that both parents did appear, twice, on December 16, 1997, and January 7, 1998. The minute orders are unclear on this point, however, just as the subsequent minute order for the six-month status review hearing was similarly unclear. Moreover, as with the six-month hearing, other documents in the record do not support the conclusion that Mother and Father were present on either date. At the hearing on January 7, 1998, their counsel noted they were incarcerated in Imperial County. Moreover, the only removal orders in place at that time called only for Mother’s presence at the originally set jurisdictional hearing, on December 18, 1997. The matters heard on December 16, 1997, and on January 7, 1998, were merely a continuance motion and a conference to reset the jurisdictional hearing.
We conclude the Department and the juvenile court did not fail to satisfy their duty of inquiry under ICWA under the circumstances of this case.
Disposition
The stay order issued by this court on January 31, 2008, is hereby dissolved, and the petition for extraordinary writ is denied on the merits. (See Cal. Const., art. VI, § 14; Kowis v. Howard (1992) 3 Cal.4th 888, 894; Bay Development, Ltd. v. Superior Court (1990) 50 Cal.3d 1012, 1024.) The decision is final in this court immediately. (Rule 8.264(b)(3).)
We concur: SWAGER, J., MARGULIES, J.