Opinion
H030430
6-12-2007
In re L. D., a Person Coming Under the Juvenile Court Law. MONTEREY COUNTY DEPARTMENT OF SOCIAL & EMPLOYMENT SERVICES, Plaintiff and Respondent, v. P. S., Defendant and Appellant.
NOT TO BE PUBLISHED
Appellant is the biological father of the child who is the subject of this dependency proceeding. He appeals from an order terminating his parental rights. (Welf. & Inst. Code, § 366.26.) He contends that he did not receive proper notice of the dependency and was thus foreclosed from participating in the proceedings, seeking to change his status as an alleged father, and pursuing a relative placement for the child. He further contends that there was not proper notice as required by the Indian Child Welfare Act (ICWA) (25 U.S.C. § 1901 et seq.). And he contends that he did not receive effective assistance of counsel.
The record does not contain any finding of paternity by the court, although the social worker reported that paternity tests indicated a 99.96% probability that appellant was the childs biological father.
All further unspecified statutory references are to the Welfare and Institutions Code.
We find that any failures to properly notice appellant were harmless beyond a reasonable doubt in the circumstances of this case. We further find that appellant has not established prejudicial ineffective assistance of counsel. We will remand this matter for the limited purpose of complying with the inquiry and notice requirements of the ICWA. If, after proper inquiry and notice to the tribes, the court finds that the ICWA does not apply, the order terminating parental rights shall be reinstated.
Appellant has also filed a petition for a writ of habeas corpus, alleging ineffective assistance of counsel, which we ordered considered with the appeal. We have denied the petition by separate order filed this date. (See Cal. Rules of Court, rule 8.264(b)(4).)
BACKGROUND
The child who is the subject of this dependency, L.D., was born in 1998. She is the oldest of three children of this mother. The mother and appellant were not married, although they lived together at times. Appellant had a criminal history, dating from before L.D.s birth, which including convictions for possession of drugs, attempted grand theft, domestic violence, and robbery. The mother also had a criminal history, including convictions for forgery, possession of drugs, and possession of drugs for sale.
On February 26, 2004, the Monterey County Sheriffs Department conducted a probation search of the mothers home and found drugs and paraphernalia for packaging drugs for sale. The mother was arrested for possession of drugs, possession for sale, and child endangerment. Appellant was already incarcerated on other charges. L.D. was at home at the time her mother was arrested, and she was placed with the paternal grandmother.
On March 8, 2004, social services investigated the whereabouts of the three children. Both the mother and appellant were incarcerated. By this time L.D. was living with the paternal aunt. The aunt was pursuing a guardianship for L.D. The youngest child was living with the paternal grandmother, who was pursuing a guardianship for her. The middle child, P., was staying with a neighbor, who was not able to continue caring for him. A dependency petition was filed on behalf of P. on March 11, 2004. In connection with P.s dependency, paternity testing was ordered and the results determined that appellant was not the biological father of P. Reunification services were ordered for the mother, but were terminated for appellant.
The mother remained incarcerated for approximately seven months, during which time L.D. was cared for by the paternal aunt. When the mother was released in October of 2004, she went to the home of the paternal aunt and took L.D. back into her care "with the assistance of law enforcement." However, the mother was unable to provide stable housing for herself and L.D., and was noncompliant with services that had been ordered for her. On November 23, 2004, L.D. appeared at school with head lice and a body rash. The mother picked her up but did not return her to school after that incident. The mother did not follow through with drug testing and did not respond to the social worker when there were openings available for her at residential treatment facilities.
On December 9, 2004, a section 300 petition was filed as to L.D., containing allegations under subdivisions (b) [Failure to Protect], (g) [No Provision for Support], and (j) [Abuse or Neglect of Sibling]. Appellant had been sentenced to a four-year prison term on December 8, 2004. He was identified as the "alleged father" and his address was listed as Delano State Prison, with a California Department of Corrections number.
Although the facility is located in Delano, California, its official name is North Kern State Prison.
L.D. was ordered detained on December 10, 2004. Appellant was not present at the hearing, and an attorney was appointed for him. Although the minute order from this hearing provides that notice was "given as required by law," it does not appear from the record that appellant was given notice. L.D. was placed in foster care with the N. family. No inquiry was made at this hearing as to either parents possible Indian heritage.
The jurisdiction and disposition hearing was held on March 11, 2005. The social workers report indicated that the ICWA did not apply. The report identified appellant as "an alleged father," noting that he was currently incarcerated at Delano State Prison, and that the mother had said he was or might be the father. The social worker wrote that appellant "has not made contact with the undersigned. His interest in and ability to care for [L.D.] are unknown." There was nothing in the record to indicate whether anyone at the agency had contacted appellant in prison. The report recommended no services be provided to appellant because he was "not a statutorily presumed father and not entitled to services," because "no court has declared him that he is the childs biological father and because the provision of services to him would not benefit the child."
L.D. was doing well in her foster home and the N. family were interested in adopting her if reunification was not successful. She stated that she wanted to return home to her mother but that she was doing "fine" in her foster home. The mother was in a residential treatment program. Visits between L.D., her mother, and her little brother P. went well for the most part. No relatives were under consideration for placement for L.D. The paternal grandmother, who was caring for the youngest child, had not requested visits with L.D. Nor had the paternal aunt, who had formerly cared for L.D. The mother did not want L.D. placed with these relatives.
At the jurisdiction and disposition hearing March 11, 2005, the court sustained the allegations in the petition and declared L.D. a dependent of the court. Family reunification services were ordered for the mother, but not for appellant, based on the social workers report finding that he was not a presumed father and that placement or visitation with him would be detrimental to the child. There is no indication in the record that either the report or notice of the jurisdiction and disposition hearing was sent to appellant in prison. Appellants attorney was present at the hearing on March 11, 2005. He also appeared specially for the mother, and submitted the matter on behalf of the mother. On behalf of appellant counsel told the court "if I get any communication with the father, Ill file those with the Court and give copies to Counsel."
On May 23, 2005, the agency filed an application for an order for paternity testing. The application stated that the mother had named appellant as L.D.s father. It stated further that appellant had informed the agency that he believed he was L.D.s father and that he had requested paternity testing. The application stated that appellants attorney was in agreement with the request. The court ordered the paternity testing.
The social workers report for the six-month hearing on August 12, 2005 did not mention that paternity testing had been ordered. It simply repeated information contained in the previous report, concluding that appellant was not a presumed father. L.D.s foster parents, the N. family, had to relocate to Missouri due to an unexpected family emergency, and L.D. had been placed with another family, which was a temporary placement. The N. family were still interested in providing a permanent adoptive home for L.D. in Missouri. P. had been returned to the mothers physical custody, and she and P. were living in a residential treatment facility. L.D. visited with them regularly. L.D. said she loved her mother and wanted to return home, and the social worker reported a bond between them. The agency recommended visitation for L.D. with the paternal grandmother and paternal aunt, but neither one had requested visitation and no visitation was arranged for them.
The record indicates that notice of the August 12, 2005 hearing was served on appellant at Delano State Prison by certified mail. Appellant did not appear at the hearing, but his attorney was present. The agency informed the court that the paternity testing ordered on May 23, 2005 had not been completed. Although the agency already had appellants DNA from the previous year, when he had been tested in the course of P.s dependency, L.D. had not yet been tested. The agency further informed the court that if appellant were found to be the biological father, the Indian Child Welfare Act might apply, since appellant had indicated, apparently in the previous dependency for P., that he had Apache blood. The court changed the statement in the social workers report, that "[t]he Indian Child Welfare Act does not apply" to "[t]he Indian Child Welfare Act MAY not apply." However, the court did not order that any ICWA notices be sent. All attorneys submitted the matter on behalf of their clients. The court ordered a further six months of services for the mother.
On December 12, 2005, the court approved a travel request by the agency to allow L.D. to travel to Missouri to spend several weeks during the Christmas holidays with her former foster family. The N. family had kept in touch with L.D. and with the agency, and were still interested in adopting L.D. The mother supported the relationship with the N. family and approved of the agencys travel request. Appellant was notified by certified mail of these travel plans. His address was now listed at Pelican Bay State Prison.
On December 15, 2005, the agency sent ICWA notices to Apache and Yaqui tribes by registered mail. Apparently the mother had reported that she had Yaqui ancestry, from her fathers side of the family, and that appellant had Apache ancestry from his fathers family. Although 11 tribes were listed to receive notice, the record contains registered mail receipts from only 10. There is no record that the Tonto Apache Tribe was sent notice. Copies of the ICWA notice were also sent to appellant at Pelican Bay State Prison. Appellant was referred to by the agency in this notice as the "presumed father of the child."
On January 24, 2006, the agency noticed all parties, including appellant, that at the 12-month hearing scheduled for February 10, 2006, it would recommend termination of reunification services for the mother and the setting of a hearing pursuant to section 366.26 to terminate parental rights and determine a permanent plan for L.D.
The social workers report for the 12-month hearing, dated January 27, 2006, stated that responses had been received from seven tribes stating that L.D. was not eligible for enrollment. Four other tribes were listed has not having responded. The report referred to appellant as an alleged father, finding, as the previous reports had found, that none of the circumstances existed under which he could be found a presumed father. The report noted that paternity testing had been requested, and that appellant was in compliance. The social worker reported that the mother had been asked to leave her residential treatment facility due to a rules violation. Reunification services for the mother had been terminated in P.s dependency. L.D. had been placed with her third foster family. She still visited regularly with her mother and enjoyed the visits. However, the agency reported that the mother was unable to provide a safe and stable home for her child. If services were terminated for the mother, L.D. could be placed with the N. family in Missouri under an Interstate Compact for the Placement of Children agreement. The N. family had maintained contact with L.D., including weekly phone calls, and they were willing to provide both L.D. and her half-brother P. with a permanent adoptive home.
On February 10, 2006, the 12-month hearing was continued because the mother had been recently incarcerated. Appellants attorney asked that appellant be transported from Pelican Bay for the hearing. The court indicated that Pelican Bay was too far away to transport appellant for every hearing. At the continued hearing on February 17, 2006, reunification services for the mother were terminated and the matter was set for a section 366.26 hearing on June 9, 2006. Appellant was not present, nor was his attorney. The childs attorney announced that he would "stand in" for appellants attorney, but nothing further was said on behalf of appellant. Counsel for the agency stated that appellants attorney had submitted the matter on appellants behalf at the previous hearing, but the record does not reflect this. Furthermore, the record does not indicate that appellant was notified of any rights he might have to file a writ petition challenging the order setting the section 366.26 hearing.
On March 10, 2006, notice of the section 366.26 hearing on June 9, 2006, was sent to appellant at Pelican Bay. Notice of this hearing was also sent to the tribes that had not yet responded to the ICWA notice, and to the Tonto Apache Tribe.
On April 7, 2006, the court approved a request by the agency for L.D. to travel to Missouri to be with the N. family. The home study for the N. family was complete, and it was expected that the interstate compact placement would be approved by the end of the month. On May 12, 2006, the court approved a request for L.D. to travel by car with the N. family from Missouri to Monterey County to attend family functions. L.D.s half-brother P., who was also placed with the N. family, would be traveling with them.
The mothers parental rights had been terminated as to P. on February 2, 2006.
The report for the section 366.26 hearing, filed May 10, 2006, indicated that paternity tests received on February 14, 2006, showed that appellant was the biological father of L.D., by a 99.96% probability. L.D. had not had any contact with appellant for several years and rarely spoke of him, but when she did speak of him, she remembered him positively. Because of this, the social worker believed that some sort of continued contact between L.D. and appellant "would be in her best interest." L.D. was reported to be excited and eager about her adoption by the N. family, with whom she had a strong and loving bond, although she had "some ambivalence because of her love for her birth mother."
As to notice under the Indian Child Welfare Act, the report stated that notices had been sent to a total of 11 tribes. All of the tribes except one had responded stating that the child was not enrolled. One tribe, the Fort Sill Apache Tribe, had not responded and the report stated that another certified letter was sent to this tribe on May 10, 2006. No copy of this letter appears in the record.
On June 9, 2006, at the scheduled section 366.26 hearing, appellant was present, having been transported from Pelican Bay. He requested a contested hearing. The contested hearing was held on July 14, 2006. At the hearing on that date, appellant spoke to the court. He said he was unaware until January of 2006, when the social worker made telephone contact with him, that L.D. had been taken out of his sisters home and placed in foster care. He said he had never received any of the reports. He explained that his sister, L.D.s aunt, who had cared for L.D. for seven months while the mother was incarcerated, wanted to have L.D. placed with her. L.D.s aunt had been informed of the hearing and apparently had obtained counsel, but she was unable to attend due to work commitments, and her attorney did not appear. Appellant told the court he would be released in a years time and he asked the court to place his child with a family member so that she could know her family and he could have a chance to be there for her. If the court did not place her with a family member he asked that she be placed with a family of Hispanic ethnicity so that she could be raised in a family of her own culture.
Counsel for the agency informed the court that L.D.s aunt had been considered for placement when it appeared reunification was going to fail, but the agency wanted to place L.D. and her half-brother P. together and the aunt was not willing to take both children. Although appellant contended that his sister had changed her mind on this and was now willing to take both children, the aunt had not communicated this change of mind to the social worker.
The court found by clear and convincing evidence that L.D. was adoptable and terminated the parental rights of the mother and appellant. The court made no findings regarding ICWA applicability, either in the written order from the section 366.26 hearing or on the record of the hearing.
DISCUSSION
Appellant argues that the agency failed to provide him adequate notice from the beginning of these proceedings and that such error was prejudicial, warranting reversal of the jurisdiction order and all subsequent orders. He next argues that the agency failed to provide adequate ICWA notice. Finally, he contends that his appointed attorney did not represent him competently and that the errors were prejudicial. He raises this same claim in a related habeas corpus petition, which we will consider together with this appeal, and dispose of by separate order. (Cal. Rules of Court, rule 8.264(b)(4).)
Notice
Appellant contends that he did not receive timely notice of the dependency proceeding for L.D. and that the jurisdictional, dispositional and all subsequent orders must therefore be reversed. Respondent argues that he has forfeited this claim by appearing in the proceedings and not objecting to lack of notice. (In re B.G. (1974) 11 Cal.3d 679; In re Gilberto M. (1992) 6 Cal.App.4th 1194, 1198.) However, the first time appellant appeared, at the section 366.26 hearing, he did object to the previous lack of notice. Therefore, these claims are not forfeited.
Appellants rights in these proceedings depend on the nature of his status as a father. "Dependency law recognizes three types of fathers: presumed, alleged and biological." (In re T.R. (2005) 132 Cal.App.4th 1202, 1208.) "An alleged father is a man who may be the father of the child but who has not established biological paternity or presumed father status. [Citations.] A biological father is one whose paternity of the child has been established, but who has not established that he qualifies as the childs presumed father. [Citation.] A presumed father is one who meets one or more specified criteria listed in [Family Code] section 7611." (Ibid.) These criteria are intended to distinguish between fathers who have entered into some familial relationship with the mother and child and those who have not. (Ibid.; In re Sabrina H. (1990) 217 Cal.App.3d 702, 708.) They include the mans marriage or attempted marriage to the mother, being named on the birth certificate, or receiving the child into his home and openly holding the child out as his natural child. (Fam. Code, § 7611.) A presumed father denotes a father who "promptly comes forward and demonstrates a full commitment to his parental responsibilities—emotional, financial, and otherwise." (Adoption of Kelsey S. (1992) 1 Cal.4th 816, 849.)
"A fathers status is significant in dependency cases because it determines the extent to which the father may participate in the proceedings and the rights to which he is entitled. [Citation.] `Presumed father status ranks highest. [Citation.] Presumed father status entitles the father to appointed counsel, custody (absent a finding of detriment), and a reunification plan. [Citation.]" (In re T.R., supra, 132 Cal.App.4th at p. 1209.) 215.) A biological father may be provided reunification services, if the court determines that this would benefit the child. (§ 361.5, subd. (a).) A father who is only an alleged father is not entitled to appointed counsel or to reunification services. (In re Paul H. (2003) 111 Cal.App.4th 753, 760.) For an alleged father, due process requires only that he be given notice and an opportunity to appear, assert a position and attempt to change his paternity status. (Ibid.) Several statutes and court rules provide for notice.
When a child is taken into protective custody and a section 300 petition is filed, the social worker must serve notice of the initial hearing and a copy of the petition on certain identified parties, including alleged fathers, "as soon as possible after the filing of the petition." (§ 290.1, subd. (c).) Section 290.2 provides that upon the filing of the petition, the clerk of the juvenile court must serve notice and a copy of the petition on those "persons required to be noticed as soon as possible." (§ 290.2, subd. (c)(1).) If the child is detained, and the person required to be noticed is not present at the initial hearing, notice of the proceedings must be by personal service or by certified mail, return receipt requested. (§ 291, subd. (e)(1).) Following the initial hearing on the petition, the clerk of the court is to serve notice of the jurisdictional and/or dispositional hearing on certain enumerated parties, including "the father or fathers, presumed and alleged." (§ 291, subd. (a)(2).) Although an alleged father is not entitled to notices of review hearings, unless he is receiving services, he is entitled to notice of the section 366.26 selection and implementation hearing. (§§ 293, subd. (a)(2); 294, subd. (a)(2).)
Section 316.2, subdivision (a) requires the court to inquire as to the identity of all presumed or alleged fathers, at the detention hearing or "as soon thereafter as practicable." Section 316.2, subdivision (b) provides that "each alleged father shall be provided notice at his last and usual place of abode by certified mail return receipt requested alleging that he is or could be the father of the child. The notice shall state that the child is the subject of proceedings under Section 300 and that the proceedings could result in the termination of parental rights and adoption of the child. Judicial Council form Paternity-Waiver of Rights (JV-505) shall be included with the notice."
California Rules of Court, rule 5.635(g), which implements section 316.2, provides: "If, after inquiry by the court or through other information obtained by the county welfare department or probation department, one or more men are identified as alleged fathers of a child for whom a petition under section 300, 601, or 602 has been filed, the clerk must provide to each named alleged father, at the last known address, by certified mail, return receipt requested, a copy of the petition, notice of the next scheduled hearing, and Judicial Council form Statement Regarding Parentage [Juvenile] (form JV-505) . . . ."
Here, at the beginning of this dependency proceeding in December of 2004, appellant was identified on the section 300 petition, filed December 9, 2004, as the alleged father, and his address was listed as Delano State Prison, with only a CDC number. Although the minute order for the initial detention hearing indicates that notice was given "as required by law," it does not appear from the record that any notice was sent to appellant as required by sections 290.1, 290.2, 291, and 316.2.
Notice, including a proof of service, is to be included in the normal record for a juvenile appeal. (Cal. Rules of Court, rule 8.404(a), rule 5.502(19).)
The social worker wrote in the report for the jurisdiction and disposition hearing that appellant and L.D.s mother were never married, that appellant did not adopt L.D., and that he "never received the child into his home and held the child out as his natural child and none of the other circumstances exists here under which [appellant] would be a presumed father." It is unclear whether this information was obtained from the mother or from the record of the previous dependency of P. There is no indication that appellant was contacted by the agency. The social worker recommended that no reunification services be provided to appellant because he was not a presumed father.
The record does not show that notice of the jurisdiction and disposition hearing on March 11, 2005 was sent to appellant. However, it does show that notice was sent to appellant for the six-month review hearing, set for August 12, 2005. This was sent by certified mail to him at Delano State Prison. Moreover, several months prior to this hearing, it appears that appellant may have been in touch with the agency, because the agency filed an ex parte application for an order for paternity testing on May 23, 2005. The application stated that appellant "has informed the Department that he believes he is the father of the child and has requested paternity testing."
The record indicates appellant was served, but no return receipt is in the record.
Following the six-month hearing, the record shows that the father was sent notices of a modification petition by certified mail on December 5, 2005, copies of notices sent to the tribes by registered mail on December 15, 2005, and notice of the 12-month review hearing, sent by certified mail on January 24, 2006. All of these notices were sent to appellant at Pelican Bay State Prison. Appellant requested to be transported from Pelican Bay for the 12-month review hearing, but the court denied the request because it was too far. He was transported for the section 366.26 hearings on June 9 and July 14, 2006.
From this record, it appears that appellant was not given proper notice of the commencement of this dependency proceeding and of the jurisdiction and disposition hearing, and was not asked to fill out a JV-505 form regarding his paternity at the start of the proceedings, as required by sections 290.1, 290.2, 291 and 316.2. The failure to give notice and inquire as to his paternity status in accordance with these statutes was error. Appellant argues that this was "fatal error" requiring that the jurisdiction order and all subsequent orders be vacated. (In re B.G., supra, 11 Cal.3d at pp. 688-689; In re Claudia S. (2005) 131 Cal.App.4th 236, 247.) We disagree. The lack of strict compliance with the notice statutes does not render subsequent proceedings void in the absence of prejudice. We must consider whether such error was harmless beyond a reasonable doubt. (In re Angela C. (2002) 99 Cal.App.4th 389, 393-395; In re Daniel S. (2004) 115 Cal.App.4th 1109, 1114; Chapman v. California (1967) 386 U.S. 18, 24.)
As noted above, due process for an alleged father requires only that he be noticed so that he has the opportunity to appear and assert a position or attempt to change his paternity status. (In re Paul H., supra, 111 Cal.App.4th at p. 760.) Here, the record shows that the court appointed an attorney for appellant at the detention hearing and that notice of all proceedings was provided to his attorney. Furthermore, the record reflects that appellant had actual notice of the proceedings, in that he asserted his status as the biological father of L.D. at some time in May of 2005, approximately six months after the proceedings commenced. He contends that if he had been given notice earlier, he could have asserted his biological father status sooner, or could have appeared and asserted that he should be found to be L.D.s presumed father. These arguments are unavailing. Appellant received a four-year prison sentence the day before the petition was filed in L.D.s dependency. Therefore, even if he had appeared and could have established that he was the presumed father, he would have been incarcerated throughout the entire statutory reunification time, and could not have benefited from reunification services. For the same reason, a finding earlier in the proceedings that he was L.D.s biological father could not have made a difference in this case.
Appellant argues that if he had been properly noticed and given the opportunity to participate, he could have supported a relative placement for L.D., which is a preferred placement under the dependency statutes. (§ 361.3.) The suggested placement was with appellants sister, where L.D. was placed prior to the dependency during a period of time when the mother was incarcerated. However, the record shows that the mother adamantly opposed placement of L.D. with appellants sister. L.D. herself was also opposed to this placement. She refused to go home from school with her aunt after her mother had resumed her care, and she later told her foster mother "please dont make me go back to [the aunts] . . . ." Although the paternal aunt had cared for L.D. for a period of approximately seven months prior to the dependency, and had at that time commenced a proceeding to become her guardian, the aunt did not contact the agency or request visitation with L.D. once the dependency proceeding had begun.
When it appeared that reunification was not going to be possible, the agency considered the aunt for placement and contacted her. However, the agency wanted to keep L.D. and her half-brother P. together. The aunt was not interested in taking both L.D. and P., who was not appellants biological child. Although appellant contends that the aunt later changed her mind, she did not inform the agency of this. And although it appeared she had counsel and was aware of the section 366.26 hearing, neither she nor her attorney appeared at the hearing.
Furthermore, although a relative placement is a preferred placement under the statutory scheme, there is no guarantee that the child will be placed with a relative instead of another placement. Under section 361.3, the social worker must consider various enumerated factors in evaluating a relative placement. (§ 361.3, subd. (a).) "The best interests of the child" is the first factor to be considered. (§ 361.3, subd. (a)(1); In re Stephanie M. (1994) 7 Cal.4th 295, 321.) The second listed factor is "[t]he wishes of the parent, the relative, and child, if appropriate." (§ 361.3, subd. (a)(2).) Another consideration is "placement of siblings and half-siblings in the same home." (§ 361.3, subd. (a)(4).) None of these factors supported placement of L.D. with the paternal aunt in this case. The record showed that both the mother and L.D. were strongly opposed to this placement. L.D. refused to go home with her aunt. She was happy in her foster placement and was bonded with them. And they were willing to adopt both her and her half-brother, whereas the aunt was not. Thus the record does not support appellants contention that a relative placement would have resulted if he had been able to participate in the proceedings.
Cases cited by appellant in support of his claim that reversal is required here are inapposite. In In re Claudia S., supra, 131 Cal.App.4th 236, the court conducted jurisdiction, disposition and review hearings, and then terminated reunification services, without any notice to the children or the parents, all of whom were out of the country, and without appointing any counsel for any of the parties. On appeal the court reversed all orders following the detention hearing, finding that the agency had not used due diligence in locating the family and that "pursuing these proceedings in the absence of the entire family failed to serve the best interests of these children . . . ." (Id. at p. 251.) In In re B.G., supra, 11 Cal.3d 679 the probation department in a section 600 proceeding made no effort to notice the mother, who was out of the country. The case before us is not a case like these, where there was a total absence of notice. Here, the mother and the child were properly before the court, and appellant, who was an alleged father, was appointed an attorney at the initial hearing. Although he was incarcerated during the entire proceedings, the record indicates that he was sent notice of the six-month review hearing and may have had actual notice of the proceedings earlier than that, when he requested paternity testing, that he was sent notice of all subsequent review hearings and the section 366.26 hearing, and that he appeared at the section 366.26 hearing.
In sum, even if appellant had been properly noticed earlier in these proceedings, had been able to argue for a change in his status as an alleged father and had supported a placement for L.D. with his sister, based on the record before us we conclude beyond a reasonable doubt that any failure in notice was not prejudicial.
ICWA Inquiry and Notice
Appellant argues that the 12-month review order terminating reunification services and the order terminating parental rights at the section 366.26 hearing must be reversed because the agency failed to provide adequate notice under the ICWA.
First, respondent contends that the failure to raise this issue prior to the termination of parental rights prevents appellant from raising it for the first time on appeal. This is contrary to established law. "Where the notice requirements of the Act were violated and the parents did not raise that claim in a timely fashion, the waiver doctrine cannot be invoked to bar consideration of the notice error on appeal." (In re Marinna J. (2001) 90 Cal.App.4th 731, 739.) This rule is "consistent with the protections afforded in the Act to the interests of Indian tribes." (Ibid.) "[G]iven the courts continuing duty throughout the dependency proceedings to ensure the requisite notice is given [citation], and the protections the ICWA affords Indian children and tribes, the parents inaction does not constitute a waiver or otherwise preclude appellate review." (Dwayne P. v. Superior Court (2002) 103 Cal.App.4th 247, 253; see also In re Nikki R. (2003) 106 Cal.App.4th 844, 849.) We therefore proceed to the merits of appellants claim.
Both the court and the social services agency have "an affirmative and continuing duty to inquire" whether a child for whom a section 300 petition is to be, or has been, filed is or may be an "Indian child." (Cal. Rules of Court, former rule 1439(d); new rule 5.664(d); In re Nikki R., supra, 106 Cal.App.4th at p. 848.) An Indian child, within the meaning of the ICWA, is a child who is either a member of an Indian tribe, or is eligible for membership and is the biological child of a member. (25 U.S.C. § 1903(4); rule 5.664(a)(1).) Where a state court "knows or has reason to know" that an Indian child may be involved in a section 300 proceeding, statutorily prescribed notice must be given to any tribe with which the child is possibly affiliated. (25 U.S.C. 1912(a); In re Samuel P. (2002) 99 Cal.App.4th 1259, 1264; rule 5.664(e).)
The California Rules of Court were reorganized and renumbered effective January 1, 2007. The former rule governing ICWA notice, which was in effect during these proceedings, was rule 1439. The words "and continuing" in the rule quoted above were added to the rule effective January 1, 2005. Where the rule has simply been renumbered and not modified, we will use the new rule number, rule 5.664, to prevent confusion on remand. All further unspecified references to rules are to the California Rules of Court.
In order to facilitate the process of determining whether the child is or could be an Indian child, the rules provide (as of January 1, 2005) that the parent "must be ordered to complete from JV-130, Parental Notification of Indian Status," when the parent first appears in a dependency case if the child is at risk of being placed in foster care. (Rule 5.664(d)(3).) If the agencys inquiries reveal that the child is or might be an Indian child, the agency must notify the relevant tribe or tribes of the pending proceedings and the right to intervene. (Rule 5.664(f).) "The federal statute and the cases applying it require that there be actual notice to the tribe both as to the proceedings and as to the right to intervene. [Citation.] This serves two purposes: `(1) it enables the tribe to investigate and determine whether the minor is an Indian child; and (2) it advises the tribe of the pending proceedings and its right to intervene or assume tribal jurisdiction. [Citation.]" (In re Samuel P. supra, 99 Cal.App.4th at p. 1265.)
At the time of the commencement of this dependency in December of 2004, rule 1439 (now rule 5.664(f)) provided that if, "at any time after the filing of the petition the court knows or has reason to know that the child is or may be an Indian child," notice must be sent, with a copy of the petition, by registered or certified mail "to all tribes of which the child may be a member or may be eligible for membership." (Former rule 1439(f)(1), (3); now rule 5.664(f)(1), (3).) A "suggestion" that the child is an Indian child is all that is necessary to trigger the notice requirement. (In re Nikki R., supra, 106 Cal.App.4th at p. 848.) After January 1, 2005, the rule included the requirement that notice be provided on Form JV-135, Notice of Involuntary Child Custody Proceedings for an Indian Child. (Rule 5.664(f)(1).) This form, which combines notice of the proceedings with information about the childs ancestry, replaced forms SOC 819 and SOC 820. Notice must be sent for every hearing whenever there is reason to believe that the child may be an Indian child, until there is a determination that the ICWA does not apply. (Rule 5.664(f)(5).)
Notice is a key component of the ICWA, because it is the only means of ensuring that the Indian tribe will have the opportunity to assert its statutory rights. (In re Samuel P., supra, 99 Cal.App.4th at p. 1265.) "The failure to comply with the notice requirements of the ICWA constitutes prejudicial error unless the tribe has participated in or indicated no interest in the proceedings." (Ibid.)
Appellant assigns numerous errors here. Appellant contends that there was no effort by the social services agency to inquire of the mother at the detention hearing in December of 2004 whether there was Indian ancestry in the family. (Rule 5.664(d).) The mother was apparently aware that the father had Apache ancestry through his father, and that she herself had Yaqui ancestry through her father. No Form JV-130 appears in the record, either from the mother or appellant. (Rule 5.664(d)(3).) Despite information in the previous dependency that there could be Indian ancestry in the family, the social worker did not check either of the boxes indicating possible Indian ancestry in the initial section 300 petition. In the report for jurisdiction and disposition, the social worker wrote that ICWA "does not apply." The court did not make any inquiry at detention or at any subsequent hearings as to childs possible Indian ancestry. (Rule 5.664(d).) When the agency reported at the six-month hearing on August 12, 2005, that appellant, who had requested a paternity test, could have Apache heritage, the court changed the notation on the prepared order that ICWA "does not apply" to "MAY not apply." However, the court did not order that any notices be sent. (Rule 5.664(f).) And there is no indication in the record that any inquiry was made of appellant when he first appeared in this matter. (Rule 5.664(d)(3).)
It appears from the record that the information about appellants Apache heritage may have been obtained from the previous dependency for P.
The agency endeavored to comply with ICWA notice requirements for the first time just prior to the 12-month hearing. However, although there were 11 tribes identified as those in which the child could be eligible for membership, the record shows that notice was sent to only 10 tribes. The Tonto Apache Tribe was not sent the initial notice. Furthermore, the notice that was sent to the other tribes was sent on outdated Form SOC 820, rather than on Form JV-135, which is mandatory under rule 5.664(f)(1). The notice gave an incorrect date for the 12-month hearing. It did not include easily available information about the parents, such as their middle names and places of birth. It did not include any information, other than the name, as to appellants father, who assertedly had the Apache affiliation. And it erroneously stated that it was "unknown" whether appellant had acknowledged paternity.
We note that an unwed alleged father who has not acknowledged paternity is not a "parent" within the meaning of the ICWA. (25 U.S.C. 1903; rule 5.664(a)(4).) Here, appellant had acknowledged paternity prior to the notices being sent, and he had asked for paternity testing.
The Tonto Apache Tribe was sent notice of section 366.26 hearing, but the record does not show that this tribe had ever been served with Form JV-135 or any other similar form that included information about the childs ancestry, from which the tribe could determine whether the child was eligible for membership. Finally, the court in this case never made a finding, either at the 12-month review hearing or at the section 366.26 hearing terminating parental rights, as to whether the ICWA did or did not apply.
Appellant argues that these errors require reversal of both the order terminating parental rights and the previous order terminating reunification services at the 12-month review. Respondent acknowledges that there were defects in the ICWA notice, but contends that there was substantial compliance with notice requirements in this case. As the court observed in In re Jonathan D. (2001) 92 Cal.App.4th 105, 110, "appellate courts in California have recognized that technical compliance with the Acts notice requirements may not be required where there has been substantial compliance . . . ." (See also In re Antoinette (2002) 104 Cal.App.4th 1401.) Not all deficiencies in notice are prejudicial error. (In re Junious M. (1983) 144 Cal.App.3d 786, 794, fn. 8.) On the other hand, this court has repeatedly recognized the importance of strict compliance with ICWA notice requirements. (In re Samuel P., supra, 99 Cal.App.4th at p. 1267.) "Since the failure to give proper notice of a dependency proceeding to a tribe with which the dependent child may be affiliated forecloses participation by the tribe, notice requirements are strictly construed." (Ibid.) Courts that do not ensure compliance "face the strong likelihood of reversal on appeal to this court." (In re H.A., supra, 103 Cal.App.4th at p. 1214.) At the very least, as respondent concedes here, the relevant tribes must be given actual notice of the dependency proceedings, the opportunity to intervene, and information reasonably necessary to determine the childs Indian status.
California courts have adopted the federal rules as guidelines for what should be included in proper notice under the ICWA. (In re Karla C. (2003) 113 Cal.App.4th 166, 175.) "The notice must include the name, birthdate, and birthplace of the Indian child; his or her tribal affiliation; a copy of the dependency petition; the petitioners name; a statement of the right of the tribe to intervene in the proceeding; and information about the Indian childs 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, current and former addresses, tribal enrollment numbers, and/or other identifying information." (In re S.M. (2004) 118 Cal.App.4th 1108, 1116; 25 C.F.R. § 23.11(a), (d).) "Notice is meaningless if no information or insufficient information is presented to the tribe." (Ibid.)
In this case, we find that the inquiry and notice process did not substantially comply with ICWA requirements. First, although it was apparently known by the mother that appellant claimed Apache heritage, the record does not show that any inquiry was made of appellant as to his Indian ancestry. The record contains no informational JV-130 form for either parent. No inquiry was made on the record when appellant appeared in these proceedings. And the social workers reports do not refer to any inquiry made of appellant. The social worker wrote that it was the mother who provided the information that appellant was Apache, possibly through his fathers side of the family. As we have noted, rule 5.664(d) imposes on both the court and the social services agency "an affirmative and continuing duty to inquire" as to whether a child may be an Indian child within the meaning of the ICWA. (Rule 5.664(d); In re Nikki R., supra, 106 Cal.App.4th at p. 848; In re Glorianna K. (2005) 125 Cal.App.4th 1443, 1449.) Inquiry regarding Indian heritage is a key part of the ICWAs notice provisions because it is the sole means of obtaining information that could trigger the notice requirement and provide a meaningful opportunity for the tribes to determine the childs status. It is possible in this case that the only information appellant could have provided was that he had Apache blood through his father. But the record does not reflect that he was ever asked for any further information about his heritage. As in In re J.N. (2006) 138 Cal.App.4th 450, 461, we refuse to "speculate about what [appellants] response to any inquiry would be." We will therefore remand for compliance with the inquiry duty. If, after further inquiry, appellant does have further information regarding his Indian ancestry, it should be included in the ICWA notice to all of the appropriate tribes.
We are also concerned that the Tonto Apache Tribe did not receive adequate notice. Respondent points out that notice was sent to this tribe regarding the section 366.26 hearing, and that the tribe eventually responded. However, the notice that was sent was simply notice of a hearing and did not include any information whatsoever regarding the childs parents or grandparents. "A tribes mere `"awareness" of a dependency proceeding involving a possible Indian child is not considered sufficient notice under the ICWA." (In re Samuel P., supra, 99 Cal.App.4th at p. 1266.) Although the Tonto Apache Tribe responded, stating that L.D. was not an Indian child "based on the information that you have provided," the notice did not provide even the minimal information regarding appellants birth date and place of birth, and his fathers name, birth date and place of birth. (See 25 C.F.R. § 23.11(a), (d); In re S.M., supra, 118 Cal.App.4th at p. 1116.) Where the notice fails to include information on the person who is alleged to be the source of Indian heritage, the notice is inadequate because "the tribes could not conduct a meaningful search with the information provided." (In re S.M., supra, 118 Cal.App.4th at p. 1116.)
Finally, we are concerned that the juvenile court in this case made no finding regarding whether the ICWA did or did not apply. "While the petitioning agency may have the duty to provide ICWA notice, it is the role of the juvenile court, not the agency, to determine whether the ICWA notice is proper." (In re Nikki R., supra, 106 Cal.App.4th at p. 852.) "It is up to the juvenile court to review the information concerning the notice given, the timing of the notice, and the response of the tribe, so that it may make a determination as to the applicability of the ICWA and thereafter comply with all of its provisions, if applicable." (In re Jennifer A. (2002) 103 Cal.App.4th 692, 705; see also In re Nikki R., supra, 106 Cal.App.4th at p. 852 [It is a trial court function to receive and evaluate the evidence of the agencys efforts to notice the tribes, and to determine if they comply with the ICWA.].) It is inappropriate for this court to determine in the first instance whether the ICWA does or does not apply.
Because of the failures and errors in the inquiry and notice requirements of the ICWA, this matter must be remanded for the limited purpose of achieving ICWA compliance. (In re Glorianna K, supra, 125 Cal.App.4th at p. 1451; Nicole K. v. Superior Court (2007) 146 Cal.App.4th 779; Dwayne P. v. Superior Court, supra, 103 Cal.App.4th at p. 254 ["When proper notice is not given under the ICWA, the courts order is voidable. (25 U.S.C. § 1914.)"].) A limited remand is appropriate where the requirements of ICWA notice have not been met, and it is consistent with the best interests of the child. (In re Francisco W. (2006) 139 Cal.App.4th 695, 704-706.) Appellant argues that the orders from both the 12-month review hearing and the section 366.26 hearing must be reversed. Since this appeal is from the order terminating parental rights, an appellant generally may not challenge the previous referral order unless a timely petition for extraordinary writ review was filed and summarily denied. (§ 366.26, subd. (l).) However, appellant was not present at the referral hearing, and was not informed of his right to writ review of the 12-month review order setting the section 366.26 hearing. (§ 366.26, subd. (l)(3)(A).) In such a case, there is an exception to the rule that an appeal from termination of parental rights cannot include claims of error at the referral hearing. (In re Cathina W. (1998) 68 Cal.App.4th 716; In re Rashad B. (1999) 76 Cal.App.4th 442; In re Harmony B. (2005) 125 Cal.App.4th 831.)
We will therefore reverse both orders, and direct that respondent inquire of appellant as to his Indian heritage, and have appellant complete Form JV-130. If appellant has no further information other than the name of his father and possible tribal affiliation, this information is to be included in notice sent to the Tonto Apache Tribe on Form JV-135. If appellant has additional information regarding his asserted Apache heritage, notice must be sent, including the additional information, to all relevant Apache tribes on Form JV-135. Respondent is directed to file proof of receipt of such notice by the tribe or tribes, along with a copy of the notice and any responses. When the tribe or tribes have responded, or the requisite time has elapsed, the juvenile court is to review the notices and responses and make a finding as to whether the ICWA requirements were complied with. If any tribe determines that L.D. is an Indian child, within the meaning of the ICWA, the court shall conduct further proceedings in accordance with the ICWA. Otherwise, if the court determines that the ICWA does not apply, the order terminating reunification services and the order terminating parental rights shall be immediately reinstated.
As a last point, we feel compelled to observe that we are always reluctant to issue orders that delay a permanent plan for the child. However, both state and federal law require compliance with specific inquiry and notice procedures in order to satisfy the ICWA. (§§ 224.2, 293; Rule 5.664(d), (f); 25 U.S.C. § 1912(a).) Failure to inquire and to give notice in compliance with these rules defeats the purpose of the ICWA because it prevents tribes that may have a lawful interest in the proceedings from asserting their rights. Proper notice is "absolutely critical" under the ICWA. (In re Marinna J., supra, 90 Cal.App.4th at p. 738.) Thus, as we and other courts have held, orders made in juvenile court where there has not been proper notice cannot stand. (In re Samuel P., supra, 99 Cal.App.4th at p. 1267; Nicole K. v. Superior Court, supra, 146 Cal.App.4th at p. 785; Dwayne P. v. Superior Court, supra, 103 Cal.App.4th 247.) In sum, although further delay may affect the interests of the child in stability and finality, we must ensure that federal and state law are followed when orders are made in dependency cases. In this case, we cannot find that the agency substantially complied with ICWA notice requirements where the record shows that no inquiry was made of one parent as to Indian ancestry, where one tribe did not receive any information regarding the lineage that could connect the child to Indian ancestry, and where the record does not show that the court ever made a finding regarding the applicability of the ICWA.
Ineffective Assistance of Counsel
It is now well established that indigent parents, whose children are the subject of dependency proceedings and may be placed out of the home, have a statutory, and in some cases a due process, right to appointed counsel. (§ 317, subd. (b); rule 5.534(h)(1)(B); In re Kristin H. (1996) 46 Cal.App.4th 1635, 1659 (Kristin H.).) A parent who has a right to appointed counsel is entitled to competent counsel; otherwise "`it will be a hollow right. [Citations.]" (Kristin H., supra, 46 Cal.App.4th at p. 1659.) California law expressly provides that "[a]ll parties who are represented by counsel at dependency proceedings shall be entitled to competent counsel." (§ 317.5, subd. (a).)
In Kristin H., supra, 46 Cal.App.4th 1635, we found that this statutory right to counsel "must include the right to seek review of claims of incompetence of counsel." (Id. at p. 1662.) An appellant raising such a claim must meet a heavy burden of showing both that "counsel failed to act in a manner to be expected of reasonably competent attorneys practicing in the field of juvenile dependency law" and also that "the claimed error was prejudicial." (Id. at pp. 1667-1668.) The test for prejudice is whether "it is `reasonably probable" that a more favorable result would have occurred in the absence of counsels failures. (Ibid.; People v. Fosselman (1983) 33 Cal.3d 572, 584; People v. Watson (1956) 46 Cal.2d 818, 836.)
Although appellant was an alleged father at the start of these proceedings, and thus was not entitled to appointed counsel, the court appointed counsel for him at the detention hearing and he was eventually determined to be the biological father by a 99.96% probability. Under section 317.5, "[a]ll parties who are represented by counsel at dependency proceedings shall be entitled to competent counsel." On similar facts, the court in In re O.S. (2002) 102 Cal.App.4th 1402 found that an alleged father could raise a claim of ineffective assistance of counsel. We therefore turn to the merits of appellants claim.
Appellant argues that his counsel was ineffective in that he did not object to appellants lack of notice of the detention hearing and subsequent hearings, that he did not consult with appellant and actively pursue a change in his status to presumed father status or biological father status, that he did not insist on an inquiry about appellants Indian heritage, and that he did not pursue a relative placement for L.D. with appellants sister.
Even if we were to find that counsels performance in these respects fell below acceptable standards for attorneys practicing in the field of dependency law, we conclude that appellant has not established the second part of the test, namely that it is reasonably probable a more favorable result would have occurred had counsel acted competently. As we found in the first portion of this opinion, the failure to provide notice to appellant in the early stages of this dependency was harmless under the more stringent "beyond a reasonable doubt" standard. (In re Angela C., supra, 99 Cal.App.4th at p. 394.) As we explained in that section, even if appellant had been able to establish presumed father status, or if he had established earlier that he was the biological father, he was incarcerated throughout the entire proceedings and would not have been able to take advantage of reunification services. Furthermore, the court made a finding that visitation with appellant would be detrimental. This finding is supported by evidence that appellant was going to be incarcerated throughout the reunification period, and was housed in two different facilities that were both in distant counties. The fact that he did not receive any services was not the fault of his attorney.
In regard to his claim that his attorney did not pursue a relative placement with the aunt, as we found above this placement was considered and rejected by the agency in this case. The relative did not want to take both L.D. and her half-brother and the agency wanted to place them together and had a suitable family willing to take both children. Furthermore, both the mother and L.D. were adamant that L.D. not be placed with appellants relative, and the social worker is required to consider their wishes when determining placement. (§ 361.3.)
Finally, we have considered the claims that appellant was not asked about his Indian heritage and that proper notice was not sent under the ICWA, and we will be remanding the matter so that the agency can comply with the ICWA requirements. Thus the consequences of any deficiencies of counsel in this regard will be addressed.
In sum, there is not a reasonable probability that the result of these proceedings would have been more favorable to appellant in the absence of counsels alleged failings. Appellant has therefore not been able to establish that any deficiency in his representation resulted in prejudice. (See In re Dennis H. (2001) 88 Cal.App.4th 94, 98.)
Appellant urges us to follow In re O.S., supra, 102 Cal.App.4th 1402, where the court found merit in an alleged fathers claims of ineffective assistance of counsel. In that case the court wrote that "[i]n the dependency arena, a reasonably competent attorney knows that notice to an alleged father is critical because it enables him the opportunity to appear and assert a position, which includes establishing his paternal status. (§ 316.2, subd. (b).)" (In re O.S., supra, 102 Cal.App.4th at p. 1408.) The court further found that a mans status as a presumed or biological father "is critical to whether he retains his rights to his child." Thus "[a]n attorney handling a dependency matter should be aware of such issues and take appropriate steps to establish the mans paternal status if possible." (Id. at p. 1410.) The court found that counsel had failed to act with the competence expected of an attorney practicing in the dependency field by failing to make any effort to ensure that the alleged father in that case was located and given notice so that he could attempt to establish his status as a biological or presumed father. The court found further that the alleged father in In re O.S. had established prejudice on a record showing that if he had known about the proceedings earlier he could have appeared and established his biological status or presumed father status and that there was a reasonable probability the court would have provided him services. A court may not terminate the parental rights of an alleged father "who promptly comes forward and demonstrates a full commitment to his parental responsibilities absent a showing of his unfitness as a parent." (Id. at p. 1411.)
Our case is distinguishable from In re O.S. Unlike the alleged father in O.S., appellant was in state prison throughout the entire dependency and was thus not in a position to pursue reunification. He could not have come forward promptly to demonstrate a full commitment to his parental responsibilities because he was incarcerated. Thus counsels failure to ensure he got notice and attempt to establish him as a presumed father could not have made a difference in the outcome of his case.
DISPOSITION
The February 17, 2006 order terminating reunification services and the July 14, 2006 order terminating parental rights are reversed and the matter is remanded to the juvenile court for the limited purpose of complying with inquiry and notice requirements of the ICWA. The juvenile court is directed to inquire of appellant as to whether the child L.D. is or could be an Indian child and to order the completion of Form JV-130. If appellant has no further information other than the name of his father and possible tribal affiliation, this information is to be included in notice sent to the Tonto Apache Tribe on Form JV-135. If appellant has additional information regarding his asserted Apache heritage, notice must be sent, including the additional information, to all relevant Apache tribes on Form JV-135. Respondent is directed to file proof of receipt of such notice by the tribe or tribes, along with a copy of the notice and any responses. When the tribe or tribes have responded, or the requisite time has elapsed, the juvenile court is to review the notices and responses and make a finding as to whether the notice was adequate and whether the ICWA applies. If any tribe determines that L.D. is an Indian child, within the meaning of the ICWA, the court shall conduct further proceedings in accordance with the ICWA. Otherwise, if the court determines that the ICWA does not apply, the order terminating reunification services and the order terminating parental rights shall be immediately reinstated.
We concur:
McADAMS, J.
DUFFY, J.