Opinion
NOT TO BE PUBLISHED
Super. Ct. Nos. JD222696 & JD222697
BLEASE, Acting P. J.
Eugene P. (appellant), the father of J.P. and M.P. (the minors), appeals from the juvenile court’s order terminating his reunification services. (Welf. & Inst. Code, § 395; further undesignated statutory references are to this code.) Appellant claims he did not receive adequate notice of the review hearing at which his services were terminated and that the juvenile court erred by terminating his services. He also contends that notice was insufficient under the Indian Child Welfare Act (ICWA). (25 U.S.C. § 1901 et seq.) Concluding none of these contentions are meritorious, we shall affirm.
FACTUAL AND PROCEDURAL BACKGROUND
In July 2005, the Sacramento County Department of Health and Human Services (the Department) filed dependency petitions concerning the 17-month-old minors and their four older siblings after the minors’ mother requested their removal because she was overwhelmed and could not provide proper care for them. It was also alleged that appellant, whose whereabouts initially were unknown, regularly beat the children with belts, hangers and other objects. The petition alleged that one of appellant’s beatings a few months earlier had resulted in a sibling sustaining “severe marks and bruising on his buttocks area.” According to the detention report, the family received family maintenance services following this incident, which were still being provided when the petitions were filed.
According to the minors’ mother, appellant and she were married in 2001 and he was the father of the minors and all but the oldest of the minors’ siblings. The juvenile court found appellant to be the presumed father of all of the children.
The detention report also contained information from the minors’ mother that the maternal grandfather had Cherokee heritage and the minors’ father had no Indian heritage. At the detention hearing, the juvenile court ordered ICWA notice to be sent to the Cherokee tribes, and the Department sent notice to the Bureau of Indian Affairs and the three federally recognized Cherokee tribes containing information about the mother, the maternal grandfather and the maternal great-grandmother. The jurisdictional hearing was continued to provide the tribes notice at least 10 days before the hearing. (See § 224.2, subd. (d).)
At the jurisdictional hearing, the juvenile court sustained the allegations in the petitions with amendments not relevant to the issues in this appeal. Appellant and the minors’ mother were ordered to comply with their case plans, which for appellant included a domestic violence program, counseling, parent education, and substance abuse services.
During the first six months of services, appellant participated in his case plan and visited the minors consistently. At the six-month review hearing in March 2006, the court placed the two oldest siblings in appellant’s custody, while the minors and the other two siblings remained in out-of-home placement.
According to the report for the 12-month review hearing, the mother had complied with her case plan, and the Department initially recommended that the minors and the two siblings still in foster placement be returned to her care. However, while a contested review hearing was pending, a report was received concerning the mother’s inadequate supervision of the minors during a visit. At the review hearing in August 2006, the juvenile court ordered the two siblings who remained in foster care to be returned to the mother but concluded that returning the minors to her care would create a substantial risk of detriment to them. The minors’ matters were continued for an 18-month review hearing.
The following month, appellant stopped attending counseling, informing the social worker that he felt additional sessions were unnecessary. He later told the social worker he could not reunify with the minors because he had a one-year lease and his residence was too small to accommodate them. Meanwhile, the minors’ mother was complying with services, and in her 18-month review report, the social worker sought an additional 60 days to assess whether the minors, who had been described as difficult to care for, could be returned to her custody.
Appellant was served with notice of the 18-month review hearing by certified mail approximately three weeks before the date scheduled for the hearing. In compliance with statutory requirements (see § 293), the notice contained information regarding appellant’s right to be present at the hearing, to present evidence, and to be represented by an attorney. The notice also stated that the social worker was not recommending any change “in orders, services, placement, custody, or status.”
Appellant was not present on the date set for the review hearing. The matter was continued for clarification regarding the recommended placement for the minors.
In an addendum report, the social worker concluded the minors should not be returned to the mother and recommended that services be terminated. Appellant’s attorney filed a pre-trial statement asserting that appellant objected to the social worker’s recommendation to terminate services.
Appellant was present at the next hearing, and the matters were set for a contested review hearing at the request of appellant and the mother. At the following hearing, the matters were continued by stipulation of the parties.
According to an addendum report in March 2007, appellant still had not engaged in further counseling, and although he had completed 12 of 13 anger management classes, he had become “verbally assaultive and threatening” with the social worker. He was unemployed and, on one occasion, did not have enough food in the home for the minors’ siblings to visit. On other occasions, he asked the mother to pick up the siblings early “because he did not want to deal with” the behavior of one of them. The two siblings in appellant’s care felt they received little attention from him since his girlfriend moved into the house and had expressed a desire to live with the mother.
Appellant was present at the next hearing in March 2007, and the matters were continued. Numerous other continuances ensued, with notices sent to appellant following his nonappearances.
In May 2007, supplemental and subsequent petitions were filed concerning the siblings in appellant’s care, alleging appellant had smoked marijuana in the presence of the siblings and hit one of them multiple times with his fists.
Appellant did not appear at the contested review hearing in June 2007 concerning the minors, for which he had been sent notice. It was noted that, at a previous hearing, the siblings who previously were in appellant’s care had been placed with the mother and all parties were in agreement with the placement. The most recent petitions concerning these siblings had been set for a jurisdictional hearing. When asked whether the siblings’ matters would be contested, appellant’s attorney responded: “I believe that my client has disengaged.” The juvenile court set the minors’ matters for a contested hearing on the same date as the siblings’ jurisdictional hearing but at a different time.
Notice was not sent to appellant of the continuance in the minors’ matters until after the next hearing, and appellant was not present at the hearing. His attorney requested a continuance because she had not had contact with appellant. The juvenile court denied the request. The court found that appellant had failed to make substantive progress in court-ordered services and adopted the recommended findings and orders “for termination of [appellant’s] services only at this point . . . .” The court continued the matters for a bonding assessment regarding the mother and to obtain the results of a “wrap meeting” that would determine “what services may flow into the [mother’s] household.”
Appellant was present at the next hearing and “request[ed] a continuance to further investigate the conflict in the recommendations regarding providing services to [him].”
DISCUSSION
I
Appellant maintains the order terminating his reunification services must be reversed because he did not receive notice of the hearing. He claims that, despite his attorney’s failure to raise the issue of notice in the juvenile court, it should not be deemed forfeited because it “involves an ‘important legal issue . . . .’” We conclude the issue has been forfeited.
“In dependency litigation, nonjurisdictional issues must be the subject of objection or appropriate motions in the juvenile court; otherwise those arguments have been waived and may not be raised for the first time on appeal.” (In re Christopher B. (1996) 43 Cal.App.4th 551, 558.) This rule extends to constitutional claims. (Cf. Hale v. Morgan (1978) 22 Cal.3d 388, 394.)
In general, “[i]t is unfair to the trial court and the adverse party to give appellate consideration to an alleged procedural defect which could have been presented to, and may well have been cured by, the trial court.” (Steve J. v. Superior Court (1995) 35 Cal.App.4th 798, 810-811.) Therefore, “the appellate court’s discretion to excuse forfeiture should be exercised rarely and only in cases presenting an important legal issue.” (In re S. B. (2004) 32 Cal.4th 1287, 1293.) “Although an appellate court’s discretion to consider forfeited claims extends to dependency cases [citations], the discretion must be exercised with special care in such matters[,]” because such “proceedings involve the well-being of children . . . .” (Ibid.)
Appellant does little to explain in what way his claim involves an “‘important legal issue.’” This is not a situation where a parent did not receive any notice of a review hearing or was misled as to what would occur at the hearing. To the contrary, appellant received notice of the review hearing in compliance with the statutory requirements (see § 293) and was present in court after the social worker recommended termination of his services, when his attorney requested the matters be set for a contested review hearing.
Although not necessary to our resolution of this issue, we disagree with appellant that notice must comply with all statutory requirements each time a review hearing is continued. (Cf. In re Phillip F. (2000) 78 Cal.App.4th 250, 258-259 [notice of continued section 366.26 hearing need not comply with all statutory requirements if original notice complied with statute and parent receives actual notice of new date].)
The 18-month review hearing was continued a number of times, yet appellant failed to attend numerous hearings for which he received notice. When the hearing finally went forward, appellant was represented by counsel, who sought a continuance but did not object to the lack of notice. Appellant appeared at a subsequent hearing, yet there is no indication in the record before us that he sought to set aside the juvenile court’s findings and orders based on any shortcomings in the notice he received for the hearing.
Under these circumstances, we decline to exercise our discretion to consider appellant’s notice claim when he failed to raise any objection based thereon in the juvenile court. We conclude that appellant’s failure to object to the adequacy of notice in juvenile court renders the issue forfeited for purposes of appeal. (Cf. In re Gilberto M. (1992) 6 Cal.App.4th 1194, 1198, 1200.)
II
Appellant claims the juvenile court had insufficient evidence to terminate his services. Again, we disagree.
At the 18-month review hearing, “[t]he court shall order the return of the child to the physical custody of his or her parent or legal guardian unless the court finds, by a preponderance of the evidence, that the return of the child to his or her parent or legal guardian would create a substantial risk of detriment to the safety, protection, or physical or emotional well-being of the child.” (§ 366.22, subd. (a).) “[F]ailure of the parent or legal guardian to participate regularly and make substantive progress in court-ordered treatment programs shall be prima facie evidence that return would be detrimental.” (§ 366.22, subd. (a).) “If the child is not returned to a parent or legal guardian, the court shall specify the factual basis for its conclusion that return would be detrimental.” (§ 366.22, subd. (a).)
Appellant first contends the record is not clear as to “the evidence upon which the court based its finding that [he] had failed to comply with the case plan and that [the minors] could not be returned to him within six months.” Initially, we note that, although the juvenile court found there was not a substantial probability the minors could be returned to appellant within six months, no such finding is required at an 18-month review hearing. (Compare § 366.21, subd. (g)(1) [12-month review hearing] with § 366.22, subd. (a) [18-month review hearing].)
And contrary to appellant’s claim that “[t]he record contains nothing concerning the basis of the court’s findings,” the court stated it was adopting the findings and orders recommended by the social worker as to him. Appellant complains that the recommended findings were not attached to the minute order from the hearing. However, as the recommended findings are in the record and were expressly incorporated by the court into its order, this does not present a problem.
Appellant acknowledges that the juvenile court “may have been adopting the findings and orders of the social worker” attached to her addendum report, but suggests this was inadequate because the “findings and orders apply to the mother as well as [appellant]” and the court made orders that differed from the recommendations as to the mother and siblings. But the court adopted the recommended findings and orders only with regard to the termination of appellant’s reunification services. Appellant advances no authority as to why this might have been improper. In any event, if appellant believed there was any infirmity in the court’s adoption of the social worker’s recommendations, he was required to raise an objection at the review hearing. (In re S. B., supra, 32 Cal.4th at p. 1293.)
Appellant next argues that there was insufficient evidence he failed to comply with his case plan. The court made an oral finding at the review hearing that appellant had failed to make substantive progress in court-ordered treatment, a finding that was amply supported by the record. One of the bases for dependency jurisdiction was appellant’s physical abuse of his children. Despite participating in services to address anger issues, appellant physically abused one of the siblings who had been placed with him shortly before the minors’ 18-month review hearing. And despite receiving services focused on substance abuse, appellant smoked marijuana in the presence of the siblings in his care. Moreover, he was not always able to deal with the behavior of the minors’ siblings, and the record provides no basis to believe he would fare any better with the minors, who also exhibited challenging behavior.
Furthermore, appellant had informed the social worker that he would not be able to reunify with the minors, and he had absented himself from many of the hearings preceding the review hearing in question. Even his own attorney described him as having “disengaged.” In sum, the evidence overwhelmingly supports the juvenile court’s conclusion that appellant had not made substantive progress from court-ordered services and was not in a position to reunify with the minors. As this finding provides prima facie evidence that return of the minors would create a substantial risk of detriment to them (§ 366.22, subd. (a)), substantial evidence supports the court’s finding in this regard.
Finally, appellant claims the court abused its discretion by terminating his services while continuing the mother’s review hearing to obtain a bonding assessment. He relies on In re Alanna A. (2005) 135 Cal.App.4th 555, 566, which held that “when reunification efforts continue for one parent after the 12-month review hearing, a court has the discretion to offer services to the nonreunifying parent . . . .” Alanna A. also noted the court may exercise its discretion against offering further services when circumstances support the conclusion that this “would be an unwise use of governmental resources.” (Ibid.)
Here, the review hearing at issue was an 18-month review, by which time the parents had exhausted the maximum period allowed for reunification services and then some. The court continued the matter as to the mother, not to offer her additional services, but to assess her bond with the minors and determine what services might “flow into the household,” presumably if the minors were returned to her care. Although the mother may have received additional services during this period, the matters were not continued for that purpose. Appellant’s circumstances are distinguishable on this basis alone.
Additionally, the fact that the minors’ siblings had recently been removed from appellant’s care and he had failed to attend several of the hearings pertaining to the minors’ 18-month review support the conclusion “that further reunification efforts [with appellant] would be futile.” (In re Alanna A., supra, 135 Cal.App.4th at p. 566.) We detect no abuse of discretion by the juvenile court in so concluding.
Appellant maintains there is no authority for continuing an 18-month hearing as to one parent when the reunification services of the other parent have been terminated. To the contrary, section 352 permits the juvenile court to continue “any hearing,” and numerous cases have recognized that even an 18-month review hearing may be continued under appropriate circumstances. (See, e.g., Mark N. v. Superior Court (1998) 60 Cal.App.4th 996, 1016-1017; In re Elizabeth R. (1995) 35 Cal.App.4th 1774, 1797-1799; In re Dino E. (1992) 6 Cal.App.4th 1768, 1778-1780.) Here, the basis for the continuance applied only to the mother. The juvenile court was not required to forestall its determination as to appellant under such circumstances.
Accordingly, we reject appellant’s claims regarding the sufficiency of the evidence to terminate his reunification services.
III
Appellant’s final contention is that the ICWA notice was inadequate. This claim, too, is without merit.
The ICWA was enacted “to promote the stability and security of Indian tribes and families by establishing minimum standards for removal of Indian children from their families and placement of such children ‘in foster or adoptive homes which will reflect the unique values of Indian culture . . . .’” (In re Levi U. (2000) 78 Cal.App.4th 191, 195; 25 U.S.C. § 1902; Mississippi Choctaw Indian Band v. Holyfield (1989) 490 U.S. 30 [104 L.Ed.2d 29].)
Among the ICWA’s procedural safeguards is its provision for notice, which states in 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 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).)
The Indian status of a child need not be certain or conclusive to trigger the ICWA’s notice requirements. (In re Desiree F. (2000) 83 Cal.App.4th 460, 471.) Errors in providing ICWA notice are subject to review under a harmless error analysis. (In re Alexis H. (2005) 132 Cal.App.4th 11, 16.)
Appellant’s first complaint is that the ICWA notice was not provided for any hearing other than the jurisdictional hearing. But ICWA notice is required only until such time as it is determined that the ICWA does not apply. (§ 224.2, subd. (b).) “If proper and adequate notice has been provided pursuant to Section 224.2, and neither a tribe nor the Bureau of Indian Affairs has provided a determinative response within 60 days after receiving that notice, the court may determine that the [ICWA] [citation] does not apply to the proceedings . . . .” (§ 224.3, subd. (e)(3).)
In the present matters, notice was received by all of the tribes by August 1, 2005. The jurisdictional hearing occurred on August 17, 2005. The next hearing occurred in January 2006 -- more than 60 days after receipt by the tribes of notice pursuant to ICWA. Responses were received from only one of the Cherokee tribes and the Bureau of Indian Affairs, neither of which indicated the minors were Indian children. As more than 60 days had transpired without any responses indicating the minors were Indian children, it was appropriate to conclude that the ICWA did not apply. Consequently, further notice was not required.
Appellant also complains that the ICWA notices failed to contain any information about family members other than those who had been identified as having Indian heritage. It is true that the ICWA notice must contain information about the Indian child’s biological relatives, including parents, grandparents and great grandparents. (25 C.F.R. § 23.11; § 224.2, subd. (a)(5)(C).) However, as there was no evidence that any other relative had Indian heritage, such information could not have led to a determination that the minors were Indian children. Applying a harmless error analysis, we must conclude that no prejudice resulted from the omission of this information.
Appellant next argues there is no evidence that the social worker met her duty to make inquiry regarding the minors’ possible Indian heritage. To the contrary, an ICWA paralegal with the Department filed a declaration stating that she had interviewed the mother regarding her Indian heritage and that the ICWA notices contained all of the information made available by the minors’ family. We conclude this is sufficient.
Finally, appellant asserts the record is silent as to whether any inquiry was made of him regarding his Indian heritage. It is true that the record before us is silent in this respect. However, the reporter’s transcript from the detention hearing, at which the court first addressed the applicability of the ICWA, has not been made part of the record on appeal. It is the appellant’s responsibility to provide a record that is adequate for appellate review of his claims (see Ballard v. Uribe (1986) 41 Cal.3d 564, 574); as he has failed to do so, we are unable to fully evaluate this claim.
Furthermore, the mother informed the Department that appellant did not have any Indian heritage, and appellant does not assert anything to the contrary on appeal. We agree with other appellate courts that, in the absence of any evidence or an assertion on appeal that inquiry would have produced information triggering a duty to provide ICWA notice, a claim that there has been inadequate ICWA inquiry of a parent “amounts to nothing more than trifling with the courts.” (In re Rebecca R. (2006) 143 Cal.App.4th 1426, 1431; In re N.E. (2008) 160 Cal.App.4th 766, 770; In re H.B. (2008) 161 Cal.App.4th 115, 119; but see In re J.N. (2006) 138 Cal.App.4th 450, 461 .) “Parents cannot spring the matter [of alleged inadequate ICWA inquiry] for the first time on appeal without at least showing their hands. Parents unable to reunify with their children have already caused the children serious harm; the rules do not permit them to cause additional unwarranted delay and hardship, without any showing whatsoever that the interests protected by the ICWA are implicated in any way.” (In re Rebecca R., supra, 143 Cal.App.4th at p. 1431.) Under such circumstances, we decline to find that appellant has suffered any prejudice.
DISPOSITION
The juvenile court’s orders are affirmed.
We concur: NICHOLSON , J., BUTZ , J.