Opinion
NOT TO BE PUBLISHED
APPEAL from orders of the Superior Courts of Stanislaus and Sacramento Counties.Stanislaus County Nos. 507257, 121247, Donald H. Shaver, Commissioner; Linda A. McFadden and Richard H. Gilmour, Judges.
Commissioner Shaver presided at the June 6, 2004, hearing; Judge McFadden presided at the September 28, 2006, hearing; and Judge Gilmour presided at the March 29, 2006, and June 1, 2006, hearings.
Roshni Mehta, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Senior Assistant Attorney General, J. Robert Jibson and Janine R. Busch, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
Levy, Acting P.J.
INTRODUCTION
A juvenile delinquency petition was filed in November 2005 alleging that A.M. (the minor) committed the crime of arson by setting fire to a field located across the street from the group home for emotionally disturbed youth where the minor lived. The fire burned about one acre of grassy field. (Welf. & Inst. Code, § 602; Pen. Code, § 451.)
Unless otherwise specified all statutory references are to the Welfare and Institutions Code.
When the delinquency petition was filed, the minor was the subject of dependency proceedings that were instituted in 2004 (the 2004 dependency proceeding).
The parties agree that the minor suffers from bipolar disorder and attention deficit hyperactivity disorder (ADHD). The minor’s competency was evaluated. After a contested competency hearing in March 2006, he was found competent to stand trial.
A status report dated September 26, 2006 stated that the minor also has been diagnosed with depressive disorder and borderline intellectual function.
After a contested jurisdictional hearing in June 2006, the court found the arson allegation to be true. The offense was declared to be a felony and a three-year maximum confinement time was set. The competency finding was reaffirmed.
In July 2006, the court determined that the minor’s interests were best served as a delinquent and it transferred the case from Sacramento County to Stanislaus County, where the minor now lived in a different group home.
In September 2006, the minor was declared a ward of the court pursuant to section 602 and he was placed on probation. He was ordered to remain a dependent pursuant to section 241.1, subdivision (e). It was ascertained that he could remain in his current placement despite his delinquency status. Later that month, the court suspended the minor’s dependent status pursuant to section 366.5 and ordered the probation department to assume lead duties in the case. Also, it found that the Indian Child Welfare Act (ICWA) did not apply.
The minor challenges the sufficiency of the evidence supporting the competency finding and the true finding on the arson allegation. Also, he argues the court infringed his equal protection right by permitting the prosecution’s psychological expert to consider his age as a relevant factor in assessing his competency. Finally, the minor argues that ICWA’s notice provisions were not satisfied in the 2004 dependency proceeding. None of these contentions are persuasive. We will affirm.
Solely to enhance readability, applicable facts will be set forth as part of our discussion of each issue.
I. The true finding on the arson allegation is supported by substantial evidence.
A. Facts
Jamie Walker supervised the group home where the minor lived when the fire occurred. On November 7, 2005, a staff member notified her that the minor and another boy left the house without permission and started a fire. She arrived at the home within 15 minutes. Fire fighters were still fighting the fire in the field across the street from the group home.
Walker spoke with each boy separately. The minor told her that he and the other boy found some books of matches in a shed. They both lit the matches and threw them into the field.
Steven Johnson is an arson investigator. He examined the field and found three partially burned matchbooks from Shakey’s Pizza Parlor in three locations. He determined the fire had three separate sources of origin. He concluded the fire was intentionally caused by books of matches being lit and thrown onto the ground in three different places. No suitcase or briefcase was found in the field.
Johnson spoke with the minor. The minor said that the other boy found the matchbooks inside a shed, lit them and started the fire. The minor ran away but the other boys stayed to watch the fire. When Johnson said, “I’ve got a witness saying that he also saw you having matches lit,” the minor replied, “I don’t even know how to light matches.” Johnson said, “Well, he … saw you have matches in your hand that were lit.” The minor responded that it was the other boy who threw lit matches onto the ground. He picked them up and tried to put the fire out. The minor also said that he tried to put the matches inside a suitcase so that they would not burn. The minor said that he stomped on the big fire and tried to put it out with the suitcase. The minor said that he did not set the fire; the other boy did. Johnson asked, “[O]kay, so you have a book of matches and you throw them in a suitcase that are still lit and it catches a field on fire, what is that?” The minor replied that it would be “really wrong.” Johnson asked the minor if he “felt responsible for the fire at all.” The minor replied, “yes.”
B. There is substantial evidence that he acted with the required mental state.
“‘The standard of proof in juvenile proceedings involving criminal acts is the same as the standard in adult criminal trials. [Citation.]’ [Citation.] In considering the sufficiency of the evidence in a juvenile proceeding, the appellate court ‘must review the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidence--such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. We must presume in support of the judgment the existence of every fact the trier of fact could reasonably deduce from the evidence [citation] and we must make all reasonable inferences that support the finding of the juvenile court. [Citation.]’ [Citations.]” (In re Babak S. (1993) 18 Cal.App.4th 1077, 1088-1089.)
Determinations about credibility of witnesses and the weight to be given their testimony are vested in the finder of fact. (People v. Galindo (1991) 229 Cal.App.3d 1529, 1537.) In the absence of physical impossibility or inherent improbability, the testimony of a single witness, if believed by the trier of fact, is sufficient to support a disputed fact. (Evid. Code, § 411; People v. Allen (1985) 165 Cal.App.3d 616, 623.) The test is not whether there is a substantial conflict in the evidence, but whether the record contains substantial evidence supporting the judgment. (In re Gustavo M. (1989) 214 Cal.App.3d 1485, 1497.)
“As relevant here, the proscribed acts within the statutory definition of arson are to (1) set fire to; (2) burn; or (3) cause to be burned, any structure, forest land, or property.” (People v. Atkins (2001) 25 Cal.4th 76, 86 (Atkins).) Arson is a general intent crime. The mens rea required to commit the crime of arson is “… a general intent to willfully commit the act of setting on fire under such circumstances that the direct, natural, and highly probable consequences would be the burning of the relevant structure or property. [Citations.]” (Id. at p. 89.) The term willfully only requires that the illegal act occurred intentionally, without regard to motive. It does not imply an evil intent. (Id. at p. 85.) In the context of arson, maliciously means “‘a wish to vex, defraud, annoy, or injure another person, or an intent to do a wrongful act ….’” (Ibid.)
Appellant contends the record lacks proof that he acted willfully or with malice because he “lit the match for the act itself, lighting the match.” We are not convinced. Walker testified that the minor admitted to lighting matches and throwing the lit matches into the field. As previously stated, the testimony of a single witness, if believed by the trier of fact, is sufficient to support a disputed fact. (Evid. Code, § 411; People v. Allen, supra, 165 Cal.App.3d at p. 623.) Also, there were three different points of origin for the fire. This demonstrates that lit matches where thrown onto the ground more than once in different areas of the field. Finally, the minor told Johnson that it would be “really wrong” to throw lit matches into a suitcase and catch a field on fire and said that he felt responsible for the fire. The court was not required to accept the minor’s self-serving denial to Johnson that he personally did not ignite any matches. The minor’s story that that he tried to put out matches that the other boy lit by tossing them into a suitcase is palpably incredible. Having examined the entirety of the record, we conclude it contains substantial evidence that the minor possessed the mental state required to commit the crime of arson.
II. The trial court did not err when it found the minor competent.
A. Facts
i. The doctors’ reports
On December 5, 2005, the juvenile court ordered the minor’s competency to be evaluated. Dr. Frank Weber was appointed by the court and Dr. Lisa Perrine was retained by the defense. Both of them evaluated the minor, who was then 13 years old, and prepared a written report.
Dr. Weber conducted a structured clinical interview, administered the Test of Nonverbal Intelligence and the Wide Range Achievement Test. He unsuccessfully attempted to administer the Millon Adolescent Clinical Interview. He interviewed the minor’s social worker and reviewed 18 juvenile court filings from 2004 and 2005. He also reviewed documents reflecting the minor’s intake by the social services system in October 2003 and his stay in various group homes. Dr. Weber contacted the minor’s mother, but she did not respond to his request for an interview.
On the day of his interview with Dr. Weber, the minor had just been released from a brief stay at a psychiatric hospital and may not have taken his psychotropic medications. After examining the minor, Dr. Weber concluded that he suffers from bipolar disorder and ADHD, combined type. He has marked mood instability, and pervasive difficulties in concentration, attention and impulsivity.
A child care worker testified that prior to the minor’s release from the hospital, he was taking “Seroquan [sic]” and Concerta. On the minor’s release date, he was given a written prescription for Seroquel and Lithobid. Dr. Perrine reported that the minor is currently prescribed Lithium, Seroquel and Clonidine.
Dr. Weber’s report states that “[the minor] was oriented to person, place, and year, month, date, and day.” He was active, moving about the office and touching various objects. “His level of consciousness was not impaired. His remote, recent, and immediate memory did not appear to be impaired and he was able to provide adequate detail regarding his background history, and the circumstances which lead to this evaluation.” Dr. Weber concluded that the minor’s “thought processes were tangential and he had difficulty staying on topic.” However, “[t]here was no evidence of perceptual or communication disorder. He denied auditory or visual hallucinations, and there was no evidence of thought disorder, paranoia, intrusive thoughts, delusions, perceptual disorders, or obsessive thinking.” Dr. Weber found that appellant’s intelligent quotient falls between 83 and 99. Also, he functions in the average range for reading and spelling and extremely low range in arithmetic. The minor is in the eighth grade; he has been in special education since he was very young. The minor said that his grades are usually A’s and B’s. However, records show he received three incompletes and four D’s. His teachers described his behavior as disruptive and said he had difficulty staying focused.
Dr. Weber concluded that the minor was competent to stand trial. The minor understood the nature of the juvenile proceedings and the roles of the judge, prosecutor and defense counsel. He understood the possible consequences if the petition was sustained and understood what being placed on probation means. He possessed the ability to cooperate and assist his attorney. If given frequent breaks, the minor had the ability to control his behavior during courtroom proceedings.
Dr. Perrine interviewed the minor and administered the Atascadero State Hospital Competency Assessment, which is designed for adults. She modified it for the minor because he is an adolescent. Also, she administered the Millon Adolescent Clinical Inventory, Rorschach Inkblot Method, and portions of the Wechsler Intelligence Scale for Children. She conducted telephone interviews with a child care worker and the group home facility supervisor. She reviewed a 2005 social study report, three documents related to the offense and Dr. Weber’s report.
Dr. Perrine reported that the supervisor told her that the minor actively tried to please adult authority figures and was easily redirected when he misbehaved but “[h]e does not ‘have a firm grasp on reality’, is ‘easily manipulated by other kids’, and reportedly intrudes into other people’s personal space.” The supervisor “… found him ‘genuinely unable to think things through.’” The minor’s child care worker thought that if the minor was frustrated, he might act out in the courtroom or with his attorney during trial preparation.
Dr. Perrine wrote that the minor seemed much younger behaviorally than his chronological age. He was constantly moving during the three-hour evaluation. He was easily distracted and needed frequent reminders and redirection. He had difficulty making decisions. His “[s]peech was clear, coherent, logical in form, and often rapid and excessive in amount. He was alert and fully oriented. Thought processes were repeatedly tangential but he responded to redirection to stay on the task at hand.” The minor’s “[t]hought content was within normal limits and there was no evidence of current hallucinations, delusions, or loose associations to suggest the presence of a formal thought disorder. Intellectual functioning appeared to be average.” The minor’s impulsivity negatively impacted his ability to think logically and coherently, adequately process information in his environment and reach thoughtful decisions. He did not understand that he could help his attorney. Dr. Perrine concluded that the minor’s abilities in this area are probably at the level of a nine- to 10-year-old child. “Even when [he] is able to focus and attend, his ability to make rational decisions based on sound data will be limited.” Furthermore, the minor’s “ability to behave appropriately in court and while working with his attorney is questionable, particularly if the information presented challenges or confronts him.”
Dr. Perrine concluded the minor was not competent to stand trial. He demonstrated a generally adequate understanding of court procedures and the charges against him. Yet, his ability to adequately work with his attorney was seriously impaired because of his overlapping mental disorders and he was not able to adequately assist his attorney due to his deficits in interpersonal coping skills, impulsivity, and impaired decision-making abilities. There is no evidence in the minor’s history or test data that he can appropriately manage his behavior. Therefore, his behavior in the courtroom would be highly unpredictable.
ii. The competency hearing
A contested competency hearing was held. Dr. Weber testified on March 21, 2006; Dr. Perrine testified on March 24, 2006. The court heard counsels’ arguments and ruled on March 29, 2006. Dr. Weber and Perrine both testified in a manner consistent with their reports.
Dr. Weber’s report was submitted prior to the hearing; Dr. Perrine’s report was submitted during the competency hearing. The court considered both reports.
During Dr. Weber’s testimony, he commented that the minor sat in his chair, was attentive and maintained eye contact. When Dr. Weber made this observation, the proceedings had lasted for approximately an hour and 40 minutes. During cross-examination, Dr. Weber testified that he thought the minor had an age appropriate understanding of the judge’s role in a hearing. Defense counsel asked, “Do you think that competence is on a sliding scale, depending upon a person’s age?” Dr. Weber replied, “I really think age is something to take into account.” Defense counsel asked, “Do you believe that competence is relative to the individual’s age?” Dr. Weber replied, “I think that’s a factor, but not the main factor.” Defense counsel continued, “Do you believe that there is a standard of competence that has nothing [to] do with a person’s age, that there is a minimum understanding and ability a person must have, regardless of age?” Dr. Weber answered, “Yes.” Later, Dr. Weber testified that he believes it is necessary to take into account a juvenile’s age when assessing his or her understanding of the legal process and legal rights.
During Dr. Perrine’s testimony, she stated that she was distracted by the minor because he was playing with something and moving back and forth. Defense counsel said that she might have to call herself as a witness and ask the court to relieve her because “of what information I have experienced sitting here next to [the minor] for the last two hours.” The court asked, “What have you experienced?” Defense counsel replied that the minor had repeatedly pulled her sleeve, asked her how much this was going to last, asked for a recess, played with cards, squirmed, moaned, groaned and sighed. The court responded, “Okay. I’m sitting right here staring at him. Okay. He has been distracted, playing with his cards. [¶] When the doctor said that he distracted her, he had leaned back looking at the clock. That’s what he was doing. He was seeing what time it was. [¶] Otherwise he’s been behaving himself as well as any 13 year old can do.”
Dr. Perrine’s testified that she frequently motivated the minor during her interview by telling him that the evaluation was for his attorney and that it would help him. She also testified that the minor told her that he knew he would be expected to tell the attorney everything he knows and remembers and that he did not expect any difficulty answering the attorney’s questions. Dr. Perrine acknowledged that it was common for children not to have a good concept of time or appreciation of the long-term consequences of their actions. The minor provided her with details about his parents’ drug use and family medical history, school enrollment and prior detentions.
After Dr. Perrine’s testimony was completed, the judge asked the minor if he wanted to be present during the attorneys’ arguments on next court day. The minor responded affirmatively.
On March 26th, the minor submitted points and authorities arguing that in determining juvenile competency the court must use the test contained in James H. v. Superior Court (1978) 77 Cal.Ap.3d 169 (James H.) and that application of a lower competence standard for juveniles infringes their equal protection rights.
After argument on March 29th, the court stated that James H. sets forth the applicable standard. In a lengthy ruling, it found the minor competent to stand trial. It acknowledged that he suffered from emotional and mental deficits. Nonetheless, “the weight of the evidence shows that the minor does understand the nature of the proceedings, he is capable of and has the ability to act and assist his counsel.” The court found that “… Dr. Weber’s explanations, conclusions and ultimate opinion of [the minor’s] emotional and cognitive problems is the more realistic and convincing.”
The minor filed a writ petition in the Third District Court of Appeal challenging the court’s competency ruling; it was denied.
2. The applicable competency standard is established.
“It is well established that the criminal trial of an incompetent defendant violates the due process clause of the state and federal Constitutions. [Citation.] Like an adult defendant, a minor has a right to a competency hearing in juvenile delinquency proceedings. [Citation.]” (In re Ricky S. (2008) 166 Cal.App.4th 232, 234.) The same standard is applied in adult and juvenile criminal proceedings. (Ibid.) California Rules of Court rule 5.645(d) sets forth the procedure to be followed if the court finds that there is reason to doubt a child’s competency. In relevant part, it provides: “If the court finds that the child is capable of understanding the proceedings and of cooperating with the attorney, the court must proceed with the case.” (Cal. Rules of Court, rule 5.645(d)(3).) This competency standard is consistent with the constitutional test of competency set forth in Dusky v. United States (1960) 362 U.S. 402 (Dusky) and this rule was adopted to conform to the holding in James H, supra, 77 Cal.App.3d 169. (Timothy J. v. Superior Court (2007) 150 Cal.App.4th 847, 857-858 (Timothy J.); Tyrone B. v. Superior Court (2008) 164 Cal.App.4th 227, 230-231 (Tyrone B.).)
A defendant is presumed to be competent. Incompetency must be demonstrated by a preponderance of the evidence. “On appeal a finding of competency to stand trial ‘cannot be disturbed if there is any substantial and credible evidence in the record to support the finding.’ [Citation.]” (People v. Hightower (1996) 41 Cal.App.4th 1108, 1111 (Hightower).)
2. Consideration of the minor’s age as a factor in assessing his competence was proper and did not infringe his equal protection right.
The minor argues that consideration of his age as a factor in assessing his competency violates his state and federal constitutional equal protection rights and that Dr. Weber applied a lower competency standard because of his age. We disagree.
The record demonstrates that Dr. Weber did not apply a different competency standard based on the minor’s age. Dr. Weber testified that there is a minimum standard of competence that is applicable regardless of a person’s age. The minor was not treated in a different way because of his age. The trial court acknowledged that the applicable competency standard is contained in James H. The legally proper competency standard was applied by Dr. Weber and the trial court.
Dr. Weber’s reliance on the minor’s age as one factor among many others was legally permissible and factually reasonable. There is no statutory or decisional law prohibiting one from considering a juvenile’s age as a factor when assessing whether he or she is competent. On the contrary, age-related developmental immaturity can support a finding of incompetence. Proof that the juvenile suffers from a mental order or developmental disorder is not required. (Tyrone B., supra, 164 Cal.App.4th at p. 231; Timothy J., supra, 150 Cal.App.4th at p. 852.)
In Timothy J., the appellate court concluded that a juvenile’s youth might result in a cognitive inability to understand the proceedings or to assist his or her attorney in preparing a defense. The court relied on expert testimony and published literature indicating “that there is a relationship between age and competency to stand trial and that an adolescent’s cognitive, psychological, social, and moral development has a significant biological basis.” (Timothy J., supra, 150 Cal.App.4th at p. 860.) Many factors affect a minor’s competency to stand trial. (Id. at p. 861, fn. 13.) Yet, the research indicates that “‘the younger the juvenile defendant, the less likely he or she will be to manifest the type of cognitive understanding sufficient to satisfy the requirements of the Dusky standard.’ [Citations.]” (Id. at p. 861.) It explained:
“Certainly no one would dispute that a three-year-old child would be incompetent to stand trial because of his or her cognitive inability to understand the proceedings or to assist his or her attorney in preparing a defense. Thus, for purposes of determining competency to stand trial, we see no significant difference between an incompetent adult who functions mentally at the level of a 10 or 11 year old due to a developmental disability and that of a normal 11 year old whose mental development and capacity are likewise not equal to that of a normal adult.” (Timothy J., supra, 150 Cal.App.4th at p. 861.)
We find Timothy J. to be well-reasoned and persuasive. Therefore, we conclude that consideration of the minor’s age as a factor in assessing his competency was proper and did not infringe his state or federal constitutional equal protection rights.
4. The competency finding is supported by substantial evidence.
The minor also argues the court incorrectly attributed his behavior during the court proceedings to his age rather than his mental disorders and that the record is replete with evidence that he was unable to assist his attorney. We are not convinced.
First, we have explained that consideration of the minor’s age as a factor is not improper. Regardless whether the minor’s courtroom behavior resulted from his age or his mental defects or a combination of both, the determinative question is whether the minor is presently able to assist counsel. Dr. Perrine opined that the minor could not assist counsel and defense counsel pointed to the minor’s courtroom behavior as direct evidence supporting this opinion. The trial court observed the minor during the proceedings. It noted defense counsel’s comments concerning the minor’s behavior for the record but found the minor’s behavior to be within normal limits for a 13 year old. The minor’s nontestimonial behavior during the proceedings is relevant to a competency determination and the trial court correctly took note of defense counsel’s comments. (People v. Prince (1988) 203 Cal.App.3d 848, 855-856.) However, the trial court was not required to accept Dr. Perrine or defense counsel’s characterization of the minor’s courtroom behavior. Furthermore, when assessing capacity, the applicable test is capacity to cooperate, not actual cooperation. (Hightower, supra, 41 Cal.App.4th at p. 1112.)
The credibility and weight of expert testimony is a matter for the fact finder to resolve. (People v. Flores (2006) 144 Cal.App.4th 625, 632.) Dr. Weber testified that the minor is capable of understanding the proceedings and of cooperating with his attorney. The court found that Dr. Weber’s explanations, conclusions and ultimate opinion to be more realistic and convincing than Dr. Perrine’s testimony. Essentially, the minor is asking this court to independently decide the credibility of experts, reweigh the evidence and resolve evidentiary conflicts. This would be improper. (People v. Pace (1994) 27 Cal.App.4th 795, 798.) “We are not free to reweigh or reinterpret the evidence.” (People v. Mercer (1999) 70 Cal.App.4th 463, 466-467.) Dr. Weber’s report and his testimony constitute substantial evidence supporting the court’s ruling and we discern no basis to overturn the competency finding.
III. The minor’s challenge to ICWA compliance is meritless.
1. Facts
A detention report was prepared in connection with the 2004 dependency proceeding. It stated that the minor’s mother reported that she may have Native American ancestry but she does not know which tribe. The detention report also noted that “No further relative information has been provided.” The minor’s mother provided her birth date and the state in which she was born, father’s birth date and a copy of the minor’s birth certificate. The minor’s father died when the minor was a baby. The Bureau of Indian Affairs (BIA) was noticed. The BIA responded, “… there is insufficient information to determine that the minor is enrolled or eligible for enrollment in a tribe.” At a combined jurisdictional and dispositional hearing held on June 6, 2004, the social services representative asked the court to make a finding that the ICWA does not apply. Mother was present and represented by counsel at this hearing. Minor was represented by counsel but was not personally present. Mother’s counsel and the minor’s counsel both stated that they did not have any objections to such a finding. The court found that ICWA did not apply.
In connection with the current delinquency proceeding, the minor told the person who prepared the juvenile intake report that his family did not have any known Native American heritage. The probation officer’s report stated that “[t]he minor and mother report the minor has no Native American Ancestry.” The juvenile court determined that the ICWA does not apply.
2. The minor’s challenge to ICWA compliance was forfeited and he did not demonstrate error or prejudice.
The minor argues that notice forms sent to the BIA in connection with the 2004 dependency proceeding were deficient because they did not include information about the minor’s maternal grandparents or the city of mother’s birth. The minor argues that if the notice forms had contained the missing information then “it is possible that the BIA would find [the minor] to be an Indian child.” We reject this argument for numerous reasons.
First, the contention was forfeited because the minor did not object to the adequacy of the contents of the notice in the 2004 dependency proceeding, which is now final, or in the juvenile court during the current delinquency proceeding. In In re Pedro N. (1995) 35 Cal.App.4th 183, this court held that a parent is foreclosed from raising ICWA notice issues for the first time once the court’s ruling is final. (Id. at p. 185.) More recently, In re S.B (2005) 130 Cal.App.4th 1148 concluded, “There is no state rule of court … restricting waiver of the notice provisions, which are the source of the duty of inquiry.” (Id. at p. 1160.)
Here, counsel for the minor and counsel for his mother both stated in the 2004 dependency proceeding that they did not have any objection to the finding that the ICWA does not apply and neither attorney contested the sufficiency of the notice provided to the BIA. The jurisdictional and dispositional ruling in the 2004 dependency proceeding is now final. In the current delinquency proceeding, both the minor and his mother reported that they did not have any known Native American heritage. Minor’s counsel in the delinquency proceeding did not challenge the adequacy of the notice provided to the BIA in the 2004 dependency proceeding or object to the juvenile court’s finding that ICWA did not apply. The minor cannot raise this point for the first time in this appeal. (In re Pedro N., supra, 35 Cal.App.4th at p. 185; In re S.B., supra, 130 Cal.App.4th at p. 160.)
We recognize that some other appellate court rulings disagreed with our decision in In re Pedro N. on the theory that it was inconsistent with the protections ICWA affords to the interests of Native American tribes. On this point, we differ. We have not foreclosed a tribe’s rights under ICWA on account of a parental or juvenile waiver. The fact that the minor is foreclosed from complaining about the sufficiency of the notice provided to the BIA does not prevent the minor, his mother, or anyone else from directly contacting a Native American tribe regarding possible tribal membership.
Second, the minor’s contention that the court had an affirmative duty to interview his maternal grandmother and maternal aunt to obtain further information lacks merit. The court and its agents do not have any obligation to make inquiries of persons who are not parties to the proceeding. The initial inquiry need only be made to the parents. (In re S.B., supra, 130 Cal.App.4th at p. 1161 [social worker not required to ask maternal grandmother about possible Native American heritage].)
Legislation expanding the inquiry duty to extended relatives was enacted after the jurisdictional hearing was held. (§ 224.3, subd. (c); see also Cal. Rules of Court, rule 5.481). “The new statute did not become effective until January 2007. Nothing in the statute suggests that it should operate retroactively and there is no basis for doing so. [Citation.]” (In re William K. (2008) 161 Cal.App.4th 1, 12.) Therefore, this new legislation is not applicable in this case.
Finally, the minor failed to meet his burden of affirmatively showing error and prejudice because his argument is entirely speculative. (Denham v. Superior Court (1970) 2 Cal.3d 557, 564.) The minor simply assumes that his mother or grandmother possessed the information missing from the 2004 notice forms. This is insufficient. There is no proof in the appellate record that mother possesses any additional relevant information. The minor and his mother both reported in the current delinquency proceeding that the minor did not have any Native American heritage. The minor assumes that mother’s change in position on this factual question must somehow be related to the 2004 finding that ICWA did not apply. There is no proof in the record supporting this assumption. It is just as likely that mother independently determined that she did not have any Native American heritage and her belief in 2004 that she might have such heritage was erroneous. Since mother and the minor currently deny having any known Native American heritage and there is no proof that mother possesses any additional information, the minor cannot establish prejudice.
For all of these reasons, we reject the minor’s challenge to ICWA compliance.
DISPOSITION
The orders are affirmed.
WE CONCUR: Hill, J., Kane, J.