Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of Riverside County. No. RIJ115728, Matthew C. Perantoni, Temporary Judge. (Pursuant to Cal. Const., art. VI, § 21.)
Pamela Rae Tripp, under appointment by the Court of Appeal, for Defendant and Appellant T.C.
William D. Caldwell, under appointment by the Court of Appeal, for Defendant and Appellant S.J.
Pamela J. Walls, County Counsel, and Anna M. Deckert, Deputy County Counsel, for Plaintiff and Respondent.
OPINION
McKinster J.
In this appeal T.C. and S.J., defendants and appellants (hereafter father and mother, respectively), appeal from the trial court’s order under Welfare and Institutions Code section 366.26 terminating their parental rights to their son, T.C. Mother also appeals the trial court’s order terminating her parental rights to her older son, J.C., who is not the child of father. In her appeal, mother contends Riverside County Department of Public Social Services, plaintiff and respondent (hereafter DPSS), failed to give proper notice under the Indian Child Welfare Act (ICWA) (25 U.S.C.A. § 1901 et seq.). Father also challenges the adequacy of the ICWA notice DPSS gave regarding T.C. In addition, father contends he was not given proper notice under Welfare and Institutions Code section 366.26 that he could only challenge the trial court’s order setting the selection and implementation hearing by filing an extraordinary writ petition. Because the writ advisement purportedly was improper father contends he can challenge the trial court’s order terminating his reunification services.
All further statutory references are to the Welfare and Institutions Code unless indicated otherwise.
We conclude the issues raised by mother and father are meritless. Therefore, we will affirm the orders terminating their parental rights with respect to J.C. and T.C.
FACTUAL AND PROCEDURAL BACKGROUND
DPSS filed a section 300 petition with respect to then-20-month-old J.C. on January 3, 2008, after mother was arrested on January 1 when a deputy county sheriff went to mother’s home in response to a call that mother had provided alcohol to a 15-year-old child. When the deputy arrived, mother was holding J.C. and stumbling around, having difficulty keeping her balance. Mother admitted that she had been drinking. Because there was no responsible adult in the home, the deputy took J.C. into protective custody. At the detention hearing the trial court found, among other things, that the ICWA might apply because mother claimed to have Indian ancestry, although she did not know the name of the tribe. DPSS gave notice under the ICWA to various tribes, including the Choctaw and Cherokee, and to the Secretary of the Interior and the California Bureau of Indian Affairs. All responses stated J.C. was not an Indian child.
Mother gave birth to T.C. on November 15, 2008, and DPSS filed a section 300 petition with respect to him on December 1, 2008, in which it alleged that T.C. was at risk because mother had unresolved issues in J.C.’s case, and father had a criminal history that includes spousal abuse. On the issue of T.C.’s Indian ancestry, mother completed the Parental Notification of Indian Status form (also known as the ICWA-020) in which she checked the box that states, “I have no Indian ancestry as far as I know.” Father indicated that he had Blackfeet ancestry through his mother and grandmother, but could only provide their names. DPSS requested a continuance to obtain more information about father’s Indian ancestry. Father was unable to provide any additional information and DPSS gave notice to the appropriate tribes and government agencies. At the combined jurisdiction and disposition hearing on February 26, 2009, the trial court, among other things removed T.C. from his parents’ custody, ordered reunification services, and authorized visitation for both parents.
Because mother was progressing in her reunification plan with J.C., at the 12-month review hearing in that case the trial court ordered six additional months of reunification services for mother. In anticipation of mother’s reunification with J.C., DPSS placed the child with his maternal grandmother, with whom mother also lived. T.C. remained in foster care, but the plan was that he too would be placed with J.C. in the maternal grandmother’s home.
Mother’s progress toward reunification deteriorated over the next six months. By the time of the 18-month review hearing in J.C.’s case, mother no longer lived in her mother’s home with J.C. Mother did not attend the contested 18-month review hearing in August 2009. At the conclusion of that hearing the trial court terminated mother’s reunification services and set the section 366.26 hearing.
In T.C.’s case, the trial court followed the recommendation of DPSS and terminated reunification services for both mother and father at the six-month review hearing on December 10, 2009. Father was not present at that hearing because in May 2009 he was sent to state prison in Susanville. The trial court also found, among other things, “good notice pursuant to the [ICWA]” and the ICWA does not apply to T.C. J.C.’s paternal grandfather was approved as a prospective adoptive family for both J.C. and T.C., and both boys eventually were placed with him for adoption.
Additional facts, pertinent to the issues raised on appeal, will be recounted below.
DISCUSSION
1.
MOTHER’S CLAIM ON APPEAL
As noted previously, mother challenges the trial court’s finding in J.C.’s case at the combined jurisdiction and disposition hearing on March 17, 2009, that notice pursuant to the ICWA had been given. Mother contends the ICWA notice was defective because it did not include the date and place of birth of her grandmother, Brenda C. Instead, the ICWA notices said that both details were “unknown.” Mother contends that because DPSS had Brenda C.’s address and telephone number the social worker had a duty to contact her to obtain the pertinent information.
In T.C.’s case mother filed a declaration in which she stated she did not have Indian ancestry. As a result of that declaration, DPSS did not have any basis upon which to conduct an ICWA inquiry with respect to T.C.’s Indian ancestry through mother. Mother has failed to demonstrate otherwise in this appeal. Therefore, to the extent mother purports to challenge the ICWA finding in T.C.’s case, we must reject that challenge. We separately discuss father’s ICWA claim.
“‘The ICWA provides that “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.” (25 U.S.C. § 1912(a).) If the tribe is unknown, the notice must be given to the Bureau of Indian Affairs [BIA] as the agent for the Secretary of the Interior. ([25 U.S.C. § 1912(a)]; 25 C.F.R. § 23.11 (2003); In re Edward H. (2002) 100 Cal.App.4th 1, 4.) “No foster care placement or termination of parental rights proceeding shall be held until at least ten days after receipt of notice by the... tribe [or] the [BIA].” (25 U.S.C. § 1912(a).)’ [Citations.]” (In re Mary G. (2007) 151 Cal.App.4th 184, 209 (Mary G.); see also §§ 224.2, subds. (a) & (b), 224.3, subd. (a).)
The notice requirement serves two purposes. “First, it enables the tribe or BIA to investigate and determine whether the minor is an ‘Indian child.’ AN INDIAN CHILD MUST BE EITHER: (1) a member of an Indian tribe or (2) eligible for membership in an Indian tribe and the biological child of a member of an Indian tribe. [Citations.] Secondly, it advises the tribe or BIA of the proceedings and the tribe’s right to exercise its jurisdiction in the matter or at least intervene in the proceedings. [Citations.]” (In re Pedro N. (1995) 35 Cal.App.4th 183, 186-187, fn. omitted.) “‘Notice under the ICWA must, of course, contain enough information to constitute meaningful notice. The Guidelines for State Courts; Indian Child Custody Proceedings [citation]..., which are designed to implement the ICWA, require that the notice include, among other things, the name of the Indian child; his or her tribal affiliation; a copy of the dependency petition; the petitioner’s name and address of the petitioner’s attorney; and a statement of the right of the tribe to intervene in the proceeding.’ [Citation.] ‘Additionally, by federal regulation an ICWA notice must include, if known, (1) the name, birthplace, and birth date of the Indian child; (2) the name of the tribe in which the Indian child is enrolled or may be eligible for enrollment; (3) names and addresses of the child’s parents, grandparents, great-grandparents and other identifying information; and (4) a copy of the dependency petition. [Citations.] “[T]o establish tribal identity, it is necessary to provide as much information as is known on the Indian child’s direct lineal ancestors.”’ [Citation.]” (Mary G., supra, 151 Cal.App.4th at p. 209, italics omitted.)
Mother cites section 224.3, subdivision (c) to support her assertion that DPSS did not fulfill its duty to investigate mother’s Indian ancestry. That section provides, “If the court, social worker, or probation officer knows or has reason to know that an Indian child is involved, the social worker or probation officer is required to make further inquiry regarding the possible Indian status of the child, and to do so as soon as practicable, by interviewing the parents, Indian custodian, and extended family members to gather the information required in paragraph (5) of subdivision (a) of section 224.2, contacting the Bureau of Indian Affairs and the State Department of Social Services for assistance in identifying the names and contact information of the tribes in which the child may be a member or eligible for membership in and contacting the tribes and any other person that reasonably can be expected to have information regarding the child’s membership status or eligibility.”
DPSS contends if error occurred it was harmless because mother later disavowed Indian ancestry as evidenced by the ICWA-020 mother filed in T.C.’s case. Although the notices sent in J.C.’s case may have been inadequate because DPSS did not contact extended family members to obtain information (see § 224.3(c)), we agree with DPSS that absent a showing by mother that J.C. actually is an Indian child the defect is harmless given mother’s subsequent disavowal of Indian ancestry. (See In re Rebecca R. (2006) 143 Cal.App.4th 1426, 1430 [Fourth Dist., Div. Two] [limited remand for further ICWA inquiry unnecessary absent showing by parent that if asked parent would have claimed Indian ancestry].) Accordingly, we must reject mother’s claim of error in this appeal.
2.
FATHER’S CLAIMS ON APPEAL
We first address father’s claim that he was not properly advised that a petition for writ of mandate is the only method by which to challenge an order setting a selection and implementation hearing under section 366.26. Specifically, father contends that he was not properly served with the writ advisement.
Mother joins in the issues father raises on appeal. The only issue mother has standing to join is father’s challenge to the adequacy of the ICWA notices regarding T.C.
Father was not present at the six-month review hearing at which the trial court terminated reunification services and set the section 366.26 hearing for T.C., although he was represented by counsel. Under these circumstances the clerk of the trial court is required to send notice to father of the extraordinary writ petition requirement within one day after the review hearing. (§ 366.26, subd. (l)(3)(A); Cal. Rules of Court, rule 5.590(b)(2).)
Father claims the advisement in this case is inadequate because his address is handwritten on the proof of service, and the proof of service bears a stamp that shows it was filed on December 10, 2009, but the proof of service shows it was signed on December 17, 2009. According to father the proof of service could not have been filed on December 10, 2009, because the clerk did not complete the certificate of mailing until a week later, as evidenced by the signature date of December 17, 2009. That purported discrepancy, combined with the fact that his name and address are handwritten rather than typed on the proof of service, “calls into question the validity” of the advisement notice, in father’s view.
Father did not claim in the trial court that he did not receive the writ advisement, nor does he make that claim on appeal. Instead, he would have us assume some unspecified impropriety occurred because the certificate of mailing was not dated and signed by the clerk until a week after the document was filed with the court. However, in addition to the “filed” date of December 10, 2009, the notice of advisement of rights, which includes the certificate of mailing, bears a date stamp of December 17, 2009. From this second date we must conclude the document was resubmitted, presumably after it was signed on December 17, 2009.
Nor will we assume something untoward occurred because father’s address is handwritten on the proof of service, beneath the crossed-out typed address of mother’s attorney. Absent a showing by father that he did not receive the notice of advisement, we will not presume error. Because father has not demonstrated error, we must reject his claim and therefore will conclude father received the writ advisement. Father did not file a writ petition and therefore he may not challenge the orders made at the hearing setting the selection and implementation hearing.
Father also challenges the ICWA notices regarding T.C. According to the social worker’s jurisdiction and disposition report, father disclosed that he had Blackfeet Indian ancestry on his mother’s side and provided the names of his mother and grandmother, but he could not provide their current addresses or their respective dates of birth. Father “indicated he would contact the family members to obtain the information requested.” As a result of father’s Indian ancestry claim, DPSS requested a continuance of the combined jurisdiction and disposition hearing in order to provide notice to the tribes and the Bureau of Indian Affairs. In an addendum report, the social worker stated that she contacted father to obtain additional information about his mother and grandmother in order to give notice to the pertinent Indian tribes. Father told the social worker he would call back with the information. When father called the social worker later that same day, he “indicated that he was unable to contact the family.”
DPSS sent ICWA notices regarding T.C. that identified father’s mother by name. The notice included her birth date, place of birth and tribal affiliation. Her current address was listed as “Chicago, Illinois.” The ICWA notice also included the name of father’s grandmother, her tribal affiliation and her date of birth, but her place of birth was listed as “unknown.” Her current address was listed as “Riverside County, California.”
Father contends that DPSS did not conduct an adequate inquiry into T.C.’s Indian ancestry because it did not determine father’s grandmother’s place of birth or the current addresses of his mother and grandmother, the people through whom he and thus T.C. claimed Indian ancestry. In raising this argument, father acknowledges that he had been unable to contact his family members to obtain the additional information. Father does not claim that he provided contact information to DPSS which the social worker then failed to follow up on. Instead, he asserts that DPSS could have located his mother and grandmother through its own resources. Father also assumes that DPSS relied entirely on him and therefore did nothing to independently obtain the necessary information. We will not engage in such assumptions.
DPSS included in the pertinent ICWA notices as much information as was known to it and to father about his Indian ancestry. In doing so, DPSS complied with the requirements of the ICWA. Father does not claim otherwise. Nor does he cite any authority to support his claim that DPSS has an affirmative duty to track down his relatives in order to interview them about purported Indian ancestry. Instead father cites Mary G., supra, for the purported proposition that, “Without dates of birth, place of birth and a complete address, the ICWA notices were deficient.” Mary G. does not support that assertion. Mary G. stands for the proposition that the trial court’s finding that the ICWA does not apply is not supported by the evidence when the record (1) does not include responses from each of the tribes to which DPSS sent ICWA notices and (2) affirmatively demonstrates that notice to one of the tribes that did not respond was sent to the wrong address. (Mary G., supra, 151 Cal.App.4th at pp. 210-211.)
In this case father acknowledges that DPSS sent the ICWA notices to the pertinent tribes and agencies and obtained responses from those tribes and agencies based on the information father provided. Those ICWA notices included all the information known to father and to DPSS about father’s Indian ancestors. DPSS was not required to investigate further, father’s contrary claim notwithstanding.
Father also purports to challenge the adequacy of the notices sent regarding T.C.’s mother. Those ICWA notices were sent regarding J.C., who is not father’s child. Mother did not claim Indian ancestry with respect to T.C., as indicated in the form ICWA-020, in which mother checked the box next to the statement, “I have no Indian ancestry as far as I know.” Because father has no standing to raise the issue with respect to J.C., and mother did not claim Indian ancestry with respect to T.C., we will not address this assertion.
DISPOSITION
The orders terminating parental rights are affirmed.
We concur: Hollenhorst Acting P.J., King J.