Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of Riverside County No. RIJ108061, Gary Vincent, Temporary Judge. Pursuant to Cal. Const., art. VI, § 21.
Julie E. Braden, under appointment by the Court of Appeal, for Defendant and Appellant L.R.
Rich Pfeiffer, under appointment by the Court of Appeal, for Defendant and Appellant C.H.
Joe S. Rank, County Counsel, and Sophia H. Choi, Deputy County Counsel, for Plaintiff and Respondent.
Neil R. Trop, under appointment by the Court of Appeal, for Minors.
OPINION
Gaut Acting P.J.
1. Introduction
Mother and father separately appeal for a judgment terminating their parental rights. Mother also appeals from the denial of her Welfare and Institutions Code section 388 petition. The parents raise issues involving sufficiency of evidence and notice under the Indian Child Welfare Act (ICWA), 25 United States Code section 1901 et seq.
The notice provisions of ICWA are now incorporated into California law at Welfare and Institutions Code section 224 through 224.6, inclusive, and California Rules of Court, rule 5.480 et seq. All other statutory references are to the Welfare and Institutions Code.
The Department of Public Social Services (Department) asserts there was sufficient evidence supporting the dependency court’s judgment and order. The Department concedes there was error in the ICWA notice and seeks a limited reversal.
Except for the errors in the ICWA notice, we affirm the judgment with directions to comply with ICWA.
2. Factual and Procedural Background
The Department filed an original dependency petition in February 2006 involving all five of mother’s children. The subject of this appeal are the two youngest, Fr.R. and Fa.R., twins born in January 2006. The other three children, Al.M., G.M., and An.M., are the children of mother and D.M.
Their birthdays are August 1998, December 1999, and December 2003.
A sixth child, Ad.R., was born in 2007.
The petition alleged failure to protect, demonstrated particularly by mother’s methamphetamine use. Mother had tested positive for methamphetamine in February 2006 and failed to participate in a substance abuse program. Father had a criminal history and was on parole. D.M. was also on parole. Mother had previously received dependency services between May 2004 and September 2005.
The detention report included the information that mother had tested positive for PCP the day before the twins were born. On January 13, 2006, the Department deemed the mother’s home to be adequate and the older children to be cared for appropriately. The Department decided the children could stay in the home if mother enrolled in a substance abuse program. On February 2, mother tested positive for methamphetamine. She denied any drug use. Mother agreed to enroll immediately in a drug program. Instead, mother stopped attending and she and father moved to a motel with the children. Mother eventually brought the children to a Department office.
At the detention hearing on February 22, 2006, the court ordered the twins placed with father subject to various conditions. Father and mother both declared they had no known Indian ancestry.
The jurisdiction/disposition report, dated March 16, 2006, described mother’s criminal history of burglary, shoplifting, theft, and other offenses between 1985 and 2005. Father also had multiple criminal offenses between 1987 and 2005. He was on parole for theft and domestic violence offenses. D.M. also was on parole and possessed an extensive criminal record between 1985 and 2004. Other facts were that mother admitted using drugs since she was 18 years old. Mother and father had known each other only briefly when she became pregnant. After the Department evaluated father’s home for placement of the twins, it determined it was not adequate. Father had behaved aggressively toward the foster mother.
She was born in February 1972.
Mother and father were arrested on April 7, 2006, for drug possession. Father was incarcerated and a second superseding original dependency petition was filed on April 14, 2006.
In May 2006, the Department reported that mother was enrolled in a substance abuse program and performing well. The Department recommended the twins be placed with mother and mother and receive family maintenance services. Father was incarcerated until July 2006.
At the jurisdictional hearing on May 15, the court found the section 300 allegations true by a preponderance of the evidence. The court found that the twins came within section 300, subdivisions (b) and (g), and they were placed with mother. The court held the children did not come within the provisions of ICWA.
Mother completed a drug treatment program in July. In October 2006, she was not attending an after-care program and she had not been tested for drugs. The court ordered her to submit to a hair follicle test. Father had been released from prison in July but he had not tried to participate in Department services.
On October 25, 2006, the twins were removed again because mother had tested positive for methamphetamine and father refused to comply with a court order for drug testing. The parents’ relatives had tried to conceal the twins’ whereabouts from the social worker. Mother had relapsed and father refused to participate in services.
On January 9, 2007, the court upheld the dependency petition. All five children were found to come within section 300 and continued as dependent children of the court.
In July 2007, the Department reported that mother had been arrested in February 2007 for petty theft and for giving false information to a police officer and was sentenced to one year four months. Mother had relapsed and tested positive for methamphetamine. Father was still not participating in services. The twins had become attached to their foster family.
In August 2007, father was arrested for receiving stolen property. The court terminated reunification services and ordered a permanent plan of adoption for Fr.R. and Fa.R.
In November 2007, while she was on parole, mother got into a fight while using drugs or alcohol. Mother was injured on her face and head. She had given birth to another baby, Ad.R. Ad.R. was also made a dependent child by the court.
In December 2007 and January 2008, the Department recommended a legal guardianship for the older children and an adoption assessment for the twins who were still placed in a foster home. The foster parents were willing to be considered for adoption. Father was still incarcerated.
In January 2008, the Department performed an adoption assessment for the twins, recommending the prospective adoptive parents as a stable family and committed to adopting the twins.
In February 2008, the court ordered the Department to evaluate the maternal aunt, L.N., for placement.
On February 15, 2008, mother filed a JV-180, request to change a court order, asking the court to change its order of August 29, 2007, terminating family reunification services. Mother claimed that the changed circumstances were that she was no longer incarcerated, she was complying with parole, and she had enrolled in drug treatment and parenting programs. She also had custody of Ad.R.
The Department opposed mother’s request. The Department was not considering the maternal aunt for placement of the twins because they had been placed with their foster family since October 2006. L.N. had placement of the three older siblings and was living in a two-bedroom apartment with those children and her own son. There was no room for the twins. Meanwhile, mother had made only minimal progress on her case plan since November 2007. She had been absent from drug treatment six times. She was unemployed and living with her parents. She had continued her relationship with father. The parents had not been able to visit successfully with the twins who cried and sought comfort from their foster parents. Father was still refusing to cooperate in unifying with the twins.
On April 14 and May 7, 2008, father filed a request to change a court order, identifying as changed circumstances that he was participating in reunification services involving Ad.R. The court summarily denied the request both times.
Then, on May 13, 2008, father filed a declaration claiming possible Cherokee ancestry through his maternal grandfather, “Davis.” The court ordered the Department to give ICWA notice.
The Department interviewed father who said his great-grandmother may have been “part of the Cherokee Nation of Oklahoma.” The Department prepared and mailed a Notice of Child Custody Proceeding for Indian Child for both Fr.R. and Fa.R. The notices were sent to the Cherokee tribes in Oklahoma and North Carolina, the Secretary of the Interior, and the Bureau of Indian Affairs. The notices did not include any information about the parents’ parents, grandparents, or great-grandparents. The Cherokee nation of Oklahoma responded that the twins were not Indian children.
On June 10, 2008, the court denied mother’s change request and terminated parental rights as to the twins. The trial court found ICWA was not an issue. Parents appeal.
3. Mother’s Appeal
a. Section 388 Petition
Mother contends the trial court abused its discretion when it denied her section 388 petition based on changed circumstances. As summarized in In re Kimberly F. (1997) 56 Cal.App.4th 519, 532, the relevant factors are: “(1) the seriousness of the problem which led to the dependency, and the reason for any continuation of that problem; (2) the strength of relative bonds between the dependent children to both parent and caretakers; and (3) the degree to which the problem may be easily removed or ameliorated, and the degree to which it actually has been. While this list is not meant to be exhaustive, it does provide a reasoned and principled basis on which to evaluate a section 388 motion.”
In reviewing the record and applying the Kimberly F. factors, we do not find an abuse of discretion in denying mother’s petition. The twins were first detained in February 2006. They have been in foster care since October 2006. Reunification services were terminated in August 2007 because of mother’s continuing lapses. By February 2008, mother had regained custody of her sixth child, the infant Ad.R., but mother was continuing to have trouble complying with her drug program. Her substance abuse problems were unresolved and of longstanding. In March 2008, she was still unemployed and living with her parents. She was unwisely choosing to be involved with father. Very significantly, mother had no relationship with the twins. They did not recognize the parents or interact comfortably with them. The prognosis was unlikely for mother’s recovery and improvement to a degree that would allow her to be a responsible parent to the twins or, ultimately, to Ad.R.
Additionally, we grant the Department’s request for judicial notice of the court minute order dated September 18, 2008, in which the dependency court detained Ad.R. as to mother.
b. Sufficiency of Evidence
Mother adopts a scattershot approach regarding the sufficiency of the evidence, primarily by challenging the preparation and content of the Department’s reports.
In In re Malinda S. (1990) 51 Cal.3d 368, 377-379, the California Supreme Court upheld the admissibility of a social worker’s reports if the preparer is subject to cross-examination as was true in this instance. Because the reports are prepared by a disinterested party, they are presumed to be trustworthy and reliable.
In the present case, contrary to mother’s assertion, the April 1, 2008, Addendum Report was not required to have the social worker’s logs attached. Those documents were attached to the March 10, 2008, Status Review Report. Nor was it an error for the Department to file with the court on April 1, 2008, a letter dated March 26, 2008, about father’s negative drug tests.
The social worker’s reports on the foster family were adequate. The preliminary adoption assessment prepared in February 2008 gave a detailed description of the suitability of the prospective adoptive family as parents for the twins. Some comments by the social worker, which she made a year earlier about the foster home having the odor of urine and about Fa.R.’s diaper rash, were hardly significant and did not demonstrate lack of objectivity by the social worker.
Additionally, the social worker had sound reasons for not recommending placement of the twins with the maternal aunt, who had custody of the three older siblings. L.N. did not contact the Department until September 2007, nearly a year after the twins’ placement with the foster family. L.N. did not have the means or resources to provide for all three children.
We also reject mother’s contention that the pagination of the clerk’s transcript suggested some deficiencies in the record at the time the court made its orders. There is no support for mother’s speculation that the social worker omitted facts favorable to the parents. The parents and their lawyers had more than two months to prepare for the hearing conducted on June 10, 2008, and based on the final Department report of April 1, 2008.
We conclude sufficient evidence supported the dependency court’s findings and orders.
4. Father’s Appeal
Father adopts mother’s arguments on appeal and also argues there are numerous deficiencies in the ICWA notice. The Department concedes ICWA notice did not include any information about father’s relatives, even his parents. But any ICWA error was harmless as to mother because she made no claim of Indian ancestry or heritage.
Congress enacted ICWA “to protect the best interests of Indian children and to promote the stability and security of Indian tribes and families by the establishment of minimum Federal standards for the removal of Indian children from their families and the placement of such children in foster or adoptive homes which will reflect the unique values of Indian culture, . . .” (25 U.S.C. § 1902.) Under ICWA, an Indian child is “any unmarried person, who is under age eighteen and is either (a) a member of an Indian tribe or (b) is eligible for membership in an Indian tribe and is the biological child of a member of an Indian tribe[.]” (25 U.S.C. § 1903(4); § 224.1, subd. (a).)
“[T]he tribe determines whether the child is an Indian child and its determination is conclusive.” (In re Karla C. (2003) 113 Cal.App.4th 166, 174; § 224.3, subd. (e)(1).) Any affected tribe has the right to intervene at any time in state dependency proceedings. But “‘. . . the tribe’s right to assert jurisdiction over the proceeding or to intervene in it is meaningless if the tribe has no notice that the action is pending.’” (Dwayne P. v. Superior Court (2002) 103 Cal.App.4th 247, 253.) For this reason, “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 proceeding 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).) Both the juvenile court and the Department have an affirmative duty to inquire whether a dependent child is or may be an Indian child. (§ 224.3; Cal. Rules of Court, rule 5.481(a).) The notice requirement is triggered when there is any suggestion that a child has Indian ancestry. (In re Nikki R. (2003) 106 Cal.App.4th 844, 848; Dwayne P. v. Superior Court, supra, at p. 255.) When the notice contains insufficient information, it is effectively meaningless. (In re D.T. (2003) 113 Cal.App.4th 1449, 1455.)
As discussed above, father initially, in February 2006, executed a JV-130 Parental Notification of Indian Status, disclaiming any Indian ancestry. He repeated his disclaimer in March 2006. More than two years later, in May 2008, father asserted a claim of Indian ancestry, either through a maternal grandfather, “Davis,” or a great-grandmother as part of the Oklahoma Cherokees. Admittedly, the ICWA notice was deficient in that it did not include any information about father’s relatives. At minimum, the Department should have been able to supply some information about father’s parents, the paternal grandparents. Notice that failed to identify any of father’s relatives caused prejudicial error. (In re Desiree F. (2000) 83 Cal.App.4th 460, 472.) This error may have been compounded by other deficiencies in the proofs of service.
5. Disposition
We affirm the orders of the juvenile court but direct the juvenile court to order the Department to comply with ICWA notice requirements. Upon remand, the Department is directed to give notice in conformity with ICWA before proceeding further. (In re Francisco W. (2006) 139 Cal.App.4th 695, 710-711.)
We concur: King J., Miller J.