Opinion
A101327.
10-23-2003
In re ASHLEY R. et al., Persons Coming Under the Juvenile Court Law. CONTRA COSTA COUNTY SOCIAL SERVICE DEPARTMENT, Plaintiff and Respondent, v. RALPH R., Defendant and Appellant.
Defendant Ralph R. appeals from an order terminating his parental rights with respect to his two children. This is the second appeal in this case from an order terminating Ralphs parental rights. In the first appeal, brought by the childrens mother, this court reversed the termination order, finding that the juvenile court had failed to secure compliance with the Indian Child Welfare Act (ICWA or the Act), 25 United States Code section 1901 et seq. In this appeal, Ralph contends that on remand the juvenile court again failed to follow the necessary procedures for securing compliance with ICWA. We disagree and affirm.
Factual and Procedural History
Ralph does not challenge the order terminating his parental rights on any ground other than the courts asserted failure to secure compliance with ICWA. Accordingly, we restrict our recitation of the factual and procedural background to the facts relating to ICWA compliance.
On June 26, 2002, this court issued its opinion in In re Ashley R. (A096383) [nonpub. opn.], holding that the juvenile courts failure to secure compliance with ICWA required reversal of the order terminating Ralphs parental rights. At that time, the Contra Costa Social Service Department (the department) acknowledged that although the June 1999 jurisdictional and dispositional reports plainly indicated that the mother had claimed that the two minors had Native American blood, its social workers had failed to take any of the steps required under ICWA to determine whether the Act applied to the children. (In re Ashley R ., supra, A096383, p. 4.) Upon remand, the trial court set a hearing for August 20, 2002, to ensure ICWA compliance consistent with our decision.
At the August 20 hearing, the department submitted an unfiled memorandum to the court summarizing its efforts to obtain information regarding the childrens possible Indian heritage, and its efforts to provide notice to the relevant tribes. The memorandum stated that the mother provided the department with her grandfathers name, phone number and address, and that he in turn identified the relevant tribe to be a branch of the Cherokee tribe. He also told the social worker that his family had never lived on a reservation, attended Indian schools, or received services from the tribe. The social worker reported that based on this information, she sent by certified mail inquiries regarding the girls membership in the tribes and notices of the upcoming hearing to three federally recognized branches of the Cherokee Tribe and the Bureau of Indian Affairs (the BIA).
The forms sent were dated July 22, 2002, and were entitled "Request for Confirmation of Childs Status" and "Notice of Involuntary Child Custody Proceeding Involving an Indian Child." Each notice indicated a hearing date of August 20, 2002. Copies of the forms, as well as the original certified mail receipts and return mail receipts signed by representatives for two of the tribes and the BIA were admitted into evidence at the August 20, 2002 hearing. The return receipts show that the forms were received between July 24 and July 26, 2002. The Eastern Band of Cherokee Indians, from whom there is not a signed return mail receipt, sent a letter to the department dated July 31, 2002, indicating that the girls were not registered or eligible for registration as members of their tribe. The United Keetowah Band of Cherokee Indians in Okalahoma sent a similar response to the department postmarked August 7, 2002. Copies of these letters were also admitted into evidence at the hearing.
After reviewing the documents and the memorandum, the court found that notice to the tribes and the BIA had been given in compliance with ICWA. At the next hearing on October 22, 2002, the court reinstated its prior order terminating Ralphs parental rights. Ralph filed a timely notice of appeal.
Discussion
Title 25 United States Code section 1912(a) provides in relevant part: "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 childs tribe, by registered mail with return receipt requested, of the pending proceedings and of their right of intervention." In In re Marinna J. (2001) 90 Cal.App.4th 731, 739-740, footnote 4, the court set out the necessary steps for ensuring compliance with ICWA: "To satisfy the notice provisions of the Act and to provide a proper record for the juvenile court and appellate courts, [a social service agency] should follow a two-step procedure. First, it should identify any possible tribal affiliations and send proper notice to those entities, return receipt requested. ([Cal. Rules of Court, rule] 1439(f).) Second, [the agency] should provide to the juvenile court a copy of the notice sent and the return receipt, as well as any correspondence received from the Indian entity relevant to the minors status." This two-step procedure was emphasized in two recent cases. (In re H. A. (2002) 103 Cal.App.4th 1206, 1214-1215; In re Jennifer A., (2002) 103 Cal.App.4th 692, 702-703.)
Ralph contends in his opening brief that the trial judge failed to follow the second step in Marianna J. because he did not receive into evidence copies of the notices sent to the tribe or copies of the certified mail receipts. As set forth above, however, such evidence was received and considered by the court at the time of the hearing. This evidence was not contained in the appellate record as designated by Ralph, but was supplied by the department in its motion to augment the record submitted after the opening brief had been filed. Ralph has not filed a reply brief or challenged the departments showing. We see nothing on the face of the notices or the mail receipts that undermines their support for the courts finding. Accordingly, we conclude that the court satisfied its ICWA obligations and affirm the order terminating Ralphs parental rights.
Disposition
The order terminating parental rights is affirmed.
We concur: McGuiness, P. J., and Corrigan, J.