Opinion
NOT TO BE PUBLISHED.
APPEAL from the Superior Court of Riverside County No. SWJ000915, Kenneth Fernandez, Temporary Judge. (Pursuant to Cal. Const., art. VI, § 21.)
Nicole Williams, under appointment by the Court of Appeal, for Defendant and Appellant.
Joe S. Rank, County Counsel, and Anna M. Deckert, Deputy County Counsel, for Plaintiff and Respondent.
Michael D. Randall, under appointment by the Court of Appeal, for Minor.
OPINION
RICHLI Acting P.J.
Todd H. (Father) appeals from the juvenile court’s order terminating his parental rights to his 13-year-old daughter,. Jessica, pursuant to Welfare and Institutions Code section 366.26. Father’s sole contention on appeal is that there is insufficient evidence that the notice requirements for complying with the provisions of the Indian Child Welfare Act (ICWA) (25 U.S.C. § 1901 et seq.) were satisfied, and therefore the court erred in finding that ICWA did not apply.
All future statutory references are to the Welfare and Institutions Code unless otherwise stated.
ICWA requires that notice of a state court juvenile dependency proceeding be provided to any Native American tribe with which the child may be affiliated, or to the Bureau of Indian Affairs (BIA) if the tribe is not known. Federal guidelines, the California Rules of Court, and California case law require that any notice provided be filed with the juvenile court.
In the present case, proper notices were given but were not filed with the court. Notwithstanding that fact, the juvenile court found ICWA did not apply to the case and terminated Father’s parental rights.
We conclude that (1) the juvenile court should have required filing of the notices before finding ICWA did not apply; (2) the failure to file the notices could be, and was, cured by the filing of the notices after this appeal was filed; (3) the notices substantially satisfied ICWA requirements; and (4) therefore, the court’s error was harmless.
I
FACTUAL AND PROCEDURAL BACKGROUND
This case originally began in September 2002 when the Riverside County Department of Public Social Services (DPSS) removed Jessica from Father’s care based upon allegations of sexual molestation and ultimately placed her with her mother on family maintenance. Father was ordered not to have contact with Jessica unless it was supervised. Mother successfully reunified with Jessica, and the dependency was terminated in May 2004.
In December 2004, DPSS learned that Father was living in the same home with Jessica and her mother and that Mother did not believe the prior sexual abuse had taken place. Another dependency action was therefore initiated, and Jessica was taken into protective custody.
Mother reported that there was no Indian ancestry, and DPSS reported that ICWA did not apply. However, Father appeared at the detention hearing and disclosed that he had Sioux Indian heritage in his family. Based upon that representation, the court ordered DPSS to send notice in compliance with ICWA.
Eventually, the court found the allegations in the amended petition true, and Jessica was returned to Mother on family maintenance. The court authorized DPSS to provide referrals to Father.
After Father continued to have unsupervised visits with Jessica and violated a permanent restraining order that was issued against him, DPSS filed a section 387 petition, requesting that Jessica be placed in foster care.
At the detention hearing, DPSS requested the court find that notice had been provided pursuant to ICWA. However, the court declined to make the finding and specifically ordered DPSS to provide notice to the Sioux tribes and the BIA.
On December 23, 2005, and January 3, 2006, DPSS sent notice of the proceedings to the BIA and the Sioux Indian tribes located in Minnesota, respectively. DPSS identified that a copy of the notice had been attached to the January 19, 2006, jurisdictional/dispositional report as attachment “A.” However, attachment “A” only included the last pages of the two 6-page noticing documents.
At the January 19, 2006, jurisdictional/dispositional hearing on the section 387 petition, upon a request that the juvenile court make a finding regarding ICWA noticing, the court stated, “Yes. As to the jurisdictional/dispositional hearing, the Court now is in receipt of the JV 135 accompanied by the return receipts, and that’s as to the Sioux tribes listed in the proof of service as well as the [BIA]. That was separately attached to the report. [¶] The Court will find that statutory notice has been given as required by law to the tribes.”
On April 6, 2006, the social worker noted in the delivered log service that she was directed to provide further notice to the Indian tribes before the section 366.26 hearing. Evidently the social worker believed that the juvenile court had not yet made the ICWA finding. Accordingly, the social worker continued to provide notice to the relevant Indian tribes of the continued selection and implementation hearings.
This notice did not include another copy of the petition or the JV-135 form.
On May 7, 2006, DPSS completed “additional noticing” as to the Sioux Tribes located in Minnesota. DPPS reported that “[a]ll responded that Jessica . . . is not listed on any of their enrollment and is not eligible for services through any of the tribes. The [ICWA] does not apply.”
Apparently there is no reporter’s transcript of the March 6, 2006, proceedings.
At the January 8, 2007, section 366.26 hearing, DPSS’s counsel stated, “Your Honor, for the record, I would note that back on November 6, 2006, when this matter was originally continued, the Court found that notice had been proper and ordered further statutory notice dispensed with. I have provided proof of mailed notice for the Court’s consideration.” The court responded, “Yes. I do have proof of mailed notice that was submitted to the Court, and that will be ordered filed.” At the conclusion of the hearing, the juvenile court found that proper noticing was given “as prescribed by law” and terminated parental rights.
II
DISCUSSION
Father contends there is insufficient evidence in the record that DPSS had complied with the notice requirements of ICWA. DPSS asserts that, in light of the augmented reporter’s transcript on appeal of the January 19, 2006, hearing, “it is clear that any omission of the JV-135 and return receipts from the Clerk’s Transcript was a clerical error which has been remedied by Respondent’s Motion to Augment.” DPSS therefore argues that there was sufficient evidence for the juvenile court to make a finding that DPSS had complied with ICWA noticing requirements.
On August 13, 2007, DPSS filed a motion to augment the record on appeal to include: (1) the reporter’s transcript of the January 19, 2006, hearing; (2) pages 1 though 6 of form JV-135 mailed to the BIA; (3) pages 1 through 6 of form JV-135 mailed to the Sioux Indian tribes in Minnesota, and the respective return receipts; (4) a letter from the Lower Sioux Indian Community dated February 8, 2006; (5) a letter from Shakopee Mdewakanton Sioux Community dated February 15, 2006; and (6) a letter from Upper Sioux Community dated January 10, 2006.
On August 20, 2007, Father filed an opposition to DPSS’s request to augment the record on appeal, contending the various ICWA-related documents are inappropriate for this court’s consideration and constituted impermissible postjudgment evidence. Father also asserted that the documents were not before the juvenile court when it issued the challenged order and thus do not constitute substantial evidence in support of the court’s findings.
Father did not object to the January 19, 2006, reporter’s transcript.
We granted DPSS’s motion to essentially take additional evidence. (See Code Civ. Proc., § 909; Cal. Rules of Court, rule 8.252; see generally Eisenberg, et al., Cal. Practice Guide: Civil Appeals and Writs (The Rutter Group 2006) ¶ 5:168 et seq., pp. 5-56 to 5-64.) That action is proper where “exceptional circumstances” justify the appellate court’s review of matters outside the trial court record. (Vons Companies, Inc. v. Seabest Foods, Inc. (1996) 14 Cal.4th 434, 444, fn. 3.)
In granting DPSS’s motion, we are fully cognizant of the California Supreme Court decision in In re Zeth S. (2003) 31 Cal.4th 396 (Zeth S.). Zeth S. instructs that appellate courts generally may not consider “postjudgment evidence of changed circumstances in an appeal of an order terminating parental rights” and use “such evidence to reverse juvenile court judgments . . . .” (Id. at p. 413.) Thus, absent extraordinary circumstances, Zeth S. prohibits the admission of appellate evidence (1) to show changed circumstances and (2) to reverse the juvenile court. Granting DPSS’s request does not run afoul of either prong of Zeth S. First, the evidence is not postjudgment evidence of changed circumstances. Strictly speaking, of course, it is not “postjudgment” evidence at all. The notices and proof of their mailing existed at the time of the order, though they were not presented to the juvenile court. Nor is the evidence offered to show changed circumstances. Instead, it is offered as further proof of the circumstances regarding notice that existed at the time of the order. Second, the proponent of the evidence is not seeking reversal of the juvenile court’s order. Rather, DPSS seeks to provide further proof of compliance with ICWA, in support of its bid for affirmation. Under these circumstances, we are in compliance with both prongs of Zeth S. in considering the additional appellate evidence proffered by DPSS. Doing so in this case promotes the state’s “strong interest in the expeditiousness and finality of juvenile dependency proceedings” by enabling us to affirm the juvenile court’s order. (Id. at p. 412; see also, e.g., In re Louis S. (2004) 117 Cal.App.4th 622, 630, fn. 4.)
Having granted DPSS’s motion, we will consider the documents proffered by DPSS and whether the expanded appellate record shows the notices DPSS sent in this case complied with ICWA.
The information that is to be contained in ICWA notices is described in the Code of Federal Regulations. An agency must provide as much information as is known on the Indian child’s direct lineal ancestors including, but not limited to, specified information. (25 C.F.R. § 23.11(b).) As relevant here, the information includes “[a]ll names known, and current and former addresses of the Indian child’s biological mother, biological father, maternal and paternal grandparents and great[-] grandparents or Indian custodians, including maiden, married and former names or aliases; birthdates; places of birth and death; tribal enrollment numbers, and/or other identifying information.” (25 C.F.R. § 23.11(d)(3).)
As stated, DPSS in this case gave notice to the Sioux tribes in Minnesota and the BIA using Judicial Council form JV-135, adopted for mandatory use effective January 1, 2005. That form contains spaces for insertion of all of the information specified in the federal regulation. DPSS inserted the minor’s name, birth date, and place of birth; DPSS’s identity and address; the date and location of the jurisdictional/dispositional hearing; Father’s names, address, and birth date; Father’s claim of Sioux ancestry; Mother’s name, address, and birth date and place; the names the minor’s paternal grandparents; the name of the minor’s great-grandmother; the tribe, band, and location; and answers to some additional questions.
There is no indication in the record that any of this information was inaccurate. Although the social worker designated some of the requested information as “unknown,” an agency is only required to provide the specified information that is known. (25 C.F.R. § 23.11(b), (d)(3).) Therefore, where a parent “has not shown that any relevant known information was excluded on the forms,” the forms comply with ICWA, and the agency’s failure timely to file them with the juvenile court is harmless error. (Alicia B. v. Superior Court (2004) 116 Cal.App.4th 856, 867.)
Here, the record showed that after the social worker was directed by the juvenile court to give notice to the relevant Sioux tribes, the social worker notified the Sioux tribes located in Minnesota of information sufficient to identify and contact Father.
In his reply brief, Father claims that reversal is still warranted because there was insufficient information to indicate that DPSS had thoroughly investigated the paternal ancestry. Specifically, he claims that because he informed the court that he was adopted and found out “from his biological mother” there was Sioux heritage in the family, the social worker should have attempted to speak with the biological mother herself or locate the adoption records or Father’s birth certificate to obtain further information relevant for noticing purposes, i.e., the paternal great-grandmother’s name.
The paternal great-grandmother’s name that is listed on the notice is the same as the name listed for the paternal grandmother. No other biographical information is provided in the notice except for a box indicating that the paternal great-grandmother was possibly born in Minnesota.
DPSS must inquire as to possible Indian ancestry and act on any information it receives. (In re Levi U. (2000) 78 Cal.App.4th 191, 199.) There is no duty to conduct an extensive independent investigation for information. (Id. at pp. 198-199.) In the instant case, there is no evidence that DPSS failed to include any ancestor information that Father did or could provide. Further, contrary to Father’s claim, there is no evidence to indicate that Father was indeed in contact with his biological mother. Given the lack of information regarding tribal heritage, DPSS carried out its statutory duty in the instant case.
Father does not suggest how further information could have made a difference in determining the child’s status as Indian child. Neither the tribes nor the BIA requested any additional information. Despite the perceived inadequacies in the forms, we find that the notice provided in the circumstances of this case was sufficient. Here the information given to DPSS by Father regarding possible Indian heritage was minimal. Accordingly, considering the vague nature of the available information regarding tribal heritage and the negative responses from the tribes, we find no error requiring reversal.
Father’s reliance on In re S.M. (2004) 118 Cal.App.4th 1108 is misplaced. In that case, the Court of Appeal held that the trial court erred in determining that the notice provisions of ICWA had been satisfied. There, the notices failed to include any information about the relative “with alleged Indian heritage,” even though such information was readily available to the social worker. Because the notices contained no information about that relative, the tribes were unable to conduct a meaningful search. Moreover, the social worker failed to respond to a request from the tribe for additional information about the child’s family members so as to verify the child’s Indian heritage. (Id. at pp. 1114, 1116.) In the present case, there is no question that the information provided to the social worker by Father was in turn given to both the relevant tribes and the BIA, after which no request for additional information was received. In addition, contrary to Father’s suggestion, there is no evidence to show that further information concerning the paternal grandmother or paternal great-grandmother was “indisputably available.”
In any event, Father has failed to show that the lack of information in the notice resulted in any prejudicial error. As required under ICWA, DPSS gave notice to the BIA of the pending dependency proceedings and its right to intervene. (25 U.S.C. § 1912(a).) While DPSS did not achieve technical compliance with the additional requirements in the federal rules (see In re C.D. (2003) 110 Cal.App.4th 214, 225-226), this is a case where substantial compliance was sufficient (see In re Christopher I. (2003) 106 Cal.App.4th 533, 566). Father has not shown that the paternal grandmother or great-grandmother’s information was critical to determining whether the child in this case was an Indian child.
In In re Antoinette S. (2002) 104 Cal.App.4th 1401, the court found the agency “clearly violated” Title 25 United States Code section 1912(a) by sending ICWA notices only one day before the section 366.26 hearing. (Antoinette S., at p. 1408.) However, the court found the error was harmless. It noted that the parties who received the notices had replied, after the father’s parental rights were terminated, that they could not determine the minor’s Native American status. Moreover, the agency had no more information it could have provided. (Id. at pp. 1412-1413.)
Here, DPSS’s noncompliance consisted of not timely filing the notices with the juvenile court and omitting the paternal great-grandmother’s information. Neither error caused any outcome that would not have occurred absent the error. Even if DPSS had strictly complied, the responses of the relevant tribes would have been the same, and Father’s parental rights would have been terminated. The court’s error in not ensuring strict compliance does not warrant reversal.
The Lower Sioux Indian Community located in Minnesota sent a letter dated February 8, 2006, to DPSS, which stated: “After checking our Tribal records with the information provided by you. [Sic] It was determined that this family does not appear on our enrollment list nor would they be eligible for enrollment with the Lower Sioux Mdewakanton Tribe of Minnesota. Our tribe would have no jurisdiction in this matter.”
III
DISPOSITION
The judgment is affirmed.
We concur: KING J. MILLER J.
The Shakopee Mdewakanton Sioux Community responded on February 15, 2006, stating in relevant part: “This is to acknowledge receipt of the ICWA notice for the above-referenced individual. The Shakopee Mdewakanton Sioux (Dakota) Community’s records reflect that the above-referenced individual is not an enrolled member of the SMSC and, based upon information provided to the Community, is not eligible for enrollment.”
Likewise, the Upper Sioux Community found that according to its records and membership rolls, minor was not eligible for membership in its tribe “as no blood relationships; lineal, direct or collateral exists . . . .”