Opinion
E043803
4-18-2008
In re NICHOLAS C., a Person Coming Under the Juvenile Court Law. DEPARTMENT OF PUBLIC SOCIAL SERVICES, Plaintiff and Respondent, v. MARYANN C., Defendant and Appellant.
Suzanne F. Evans, 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. Konrad S. Lee, under appointment by the Court of Appeal, for Minor.
NOT TO BE PUBLISHED
In a prior appeal in this case, we conditionally reversed the order terminating MaryAnn C.s (mothers) parental rights concerning her son, Nicholas C. We directed the trial court to make certain findings required by the Indian Child Welfare Act (25 U.S.C. § 1901 et seq.) (ICWA). Following remand, the court found that the Department of Public Social Services (the Department) had given the notice required by ICWA and reinstated the order terminating parental rights.
In this appeal, mother argues that the finding is not supported by substantial evidence. We disagree and affirm the order terminating parental rights.
I. FACTUAL AND PROCEDURAL BACKGROUND
Initially, we set forth the portion of our prior opinion relevant to the issues in this appeal. Then we describe the relevant facts that developed after remand.
A. Our Prior Opinion
In our prior opinion, we summarized the facts and procedural background regarding the ICWA issues as follows:
"The Department attempted to give ICWA notice twice in this case—once in March 2004 and again in September 2005. The March 2004 attempt, however, was plainly inadequate. The Department does not argue otherwise. Instead, it relies on the September 2005 attempt, which it argues constituted at least substantial compliance.
"According to the mother, she had Mohawk ancestry. The only federally recognized Mohawk tribe is the Saint Regis Mohawk Tribe. (Indian Entities Recognized and Eligible to Receive Services from the United States Bureau of Indian Affairs, 70 Fed.Reg. 71194-01 (Nov. 25, 2005); Indian Entities Recognized and Eligible to Receive Services from the United States Bureau of Indian Affairs, 68 Fed.Reg. 68180-01 (Dec. 5, 2003); <http://www.childsworld.ca.gov/Res/pdf/alphatribe.pdf>, as of Nov. 28, 2006.) In addition, a copy of the notice had to be sent to the Bureau of Indian Affairs (BIA). (25 C.F.R. § 23.11(a), (c)(12).)
"On September 2, 2005, the Department sent Judicial Council form JV-135 by certified mail, return receipt requested, to the Saint Regis Mohawk Tribe and the BIA (among other entities). The JV-135 forms themselves are not in the record, except for the very last page, which consists solely of a `Certificate of Mailing. (Capitalization altered.) A return receipt from the BIA is in the record.
"The notices sent on September 2, however, did not include a copy of the petition, as required. (See Cal. Rules of Court, rule 1439(f)(1).) Accordingly, on September 20, 2005, the Department sent form JV-135 again, this time with a copy of the petition, by certified mail, return receipt requested, to the Saint Regis Mohawk Tribe and the BIA (among other entities). Neither the JV-135 forms nor the copies of the petition are in the record. A return receipt from the BIA is in the record.
"On September 29, 2005, the Saint Regis Mohawk Tribe responded: `The St. Regis Mohawk Tribe received a Copy of your Notice concerning the matter of Nicholas [C.] The Tribal Clerks Office has researched the names of the biological parents as well as other listed relatives of the child contained in the Notice. Based on the information provided, the Tribal Clerks Office was unable to find any link of tribal affiliation. Therefore, Nicholas [C.] is not enrolled or eligible for enrollment with the St. Regis Mohawk Tribe. (Emphasis omitted.)
"On November 30, 2005, at the jurisdictional/dispositional hearing on the [Welfare and Institutions Code] section 387 petition, the juvenile court found that the ICWA did not apply. On February 2, 2006, at the [Welfare and Institutions Code] section 366.26 hearing, it found once again that the ICWA did not apply."
In light of these facts, we held that there was "insufficient evidence of substantial compliance with the notice requirements of the ICWA and related federal and state law." We explained: "Here, the sole relevant tribe responded that it had no interest in the proceedings. Its response, however, was expressly `[b]ased on the information provided in the notice. Because the JV-135 forms are not in the record, we cannot tell what that information was. We know only that, according to the tribes response, it included `the names of the biological parents as well as other . . . relatives of the child . . . . We do not know which relatives names were included, whether they were spelled correctly, or whether other necessary information (such as both the married and maiden names of females) was included. (See 25 C.F.R. § 23.11(d)(3).) We cannot rely on the presumption that an official duty has been regularly performed (Evid. Code, § 664), because we already know that the social worker failed to perform his official duty to file a copy of the notices. (In re Karla C. [2003] 113 Cal.App.4th [166,] 178.)"
We gave the following directions to the Department and the court following remand: "As soon as reasonably practicable, the Department shall file a motion for findings with respect to (1) whether it has complied substantially with the notice requirements of the ICWA and related law, and (2) whether Nicholas is an Indian child. (See Cal. Rules of Court, rule 1439(g).) The Department may choose to introduce new evidence concerning the notice it has already given, and/or it may choose to give a new notice, and to wait for any new responses, before it files the motion. [¶] If the juvenile court finds that Nicholas is not an Indian child, it shall reinstate the original order terminating parental rights. If the juvenile court finds that Nicholas is an Indian child, it shall set a new [Welfare and Institutions Code] section 366.26 hearing, and it shall conduct all further proceedings in compliance with the ICWA and related law."
B. Facts and Proceedings Following Remand
Following remand, the Department sent a Judicial Council form JV-135, a copy of the dependency petition, and other documents by certified mail, return receipt requested, to the Saint Regis Mohawk Tribe (the tribe) and the BIA. The social worker included on the JV-135 form Nicholas C.s name, birth date, place of birth, and the fact that he is reported to be eligible for membership in the "Mohawk" tribe. Mothers, Nicholas C.s fathers, and the maternal grandmothers names, addresses, and birth dates are also included on the form. The social worker reported that the parents were "unable to provide any further" information, and that additional information regarding the maternal grandmother is "unknown." The social worker did not include information about other relatives.
The tribe responded to the notice by letter stating: "The St. Regis Mohawk Tribe received a copy of your Notice concerning the matter of Nicholas [C.] The Tribal Clerks office has researched the names of the biological parents, as well as other listed relatives of the child contained in the Notice. Based on the information provided, the Tribal Clerks Office was unable to find any link of tribal affiliation. Therefore, Nicholas [C.] is not enrolled or eligible for enrollment with the St. Regis Mohawk Tribe. The St. Regis Mohawk Tribe requires no further notice regarding this matter. [¶] Thank you for your compliance with the Indian Child Welfare Act of 1978." (Bolding omitted.)
A copy of the documents sent to the tribe and the BIA, the signed return receipts for the documents, and the tribes response, were submitted to the trial court in May 2007, and are included in the record for this appeal.
A hearing to address the status of the ICWA notice was held on May 31, 2007. Mother and the maternal grandmother were present. Mothers counsel asserted that the ICWA notice was defective. He stated that he "spoke with the maternal grandmother [who said] that she provided a lot more information than is included in this notice. They [sic] actual names of people who are in the tribe are not the names that are included on this. . . . [¶] She said that she—its the maternal great[-]grandmother who is the tribal member, and that name is not included and she said that she gave—."
DPSSs counsel responded by stating that "we would request that information be given to us and we would renotice any tribes then."
The court then said, "I dont know that we [sic] just going to continue on that. I mean you cant come in and say notice is defective, end of the story. I need more than just somebody telling me that." Mothers counsel then offered to call mother as a witness. The court responded, "No, not a hearing." When mothers counsel then requested a hearing, the court said: "Well go to second call. I dont know that anybody looked into that. You guys figure it out. If you need a future date, you can have it. [¶] . . . [¶] Getting to be ridiculous."
Before the case was called the second time that morning, mother and the maternal grandmother left the courthouse. According to mothers attorney, mother told the attorney she would give him "the information regarding her relatives." Mothers counsel requested that the matter be continued "for a few days."
Counsel for the Department then stated: "Just reviewing the notice, it would appear that some of our notices are not as complete as they should be. We are concerned about that information that [mothers counsel] has." The court ordered the matter continued for two weeks. The court then made the following concluding comments: "I guess we can have a hearing on the propriety of the notice. Then you can tell me why it was okay . . . . I dont think the Department is required, especially at this late date, to be searching down individuals. I mean that should have been provided months ago. If the tribes have been notified, cant find out whos related to who, I mean this is just getting to be drug out for no good purpose, just for the sake of continuing it. [¶] So see you on the 13th, someone can tell me why I should not go forward with this when notice has been provided."
At the June 13, 2007, hearing, mother and the maternal grandmother were present. The Departments counsel began by reminding the court that the hearing regarding the ICWA notice had been continued "to see if the parties present in the gallery, on the maternal side, provided any further information." He then reported, "We dont have any information for the court," and requested that the court find that "the case is not ICWA eligible."
Mothers counsel stated that mother "says the [maternal] grandmother has the ICWA information. Again, I would just object for the record to notice as being insufficient, the social worker not notifying the people that she had information about." No additional evidence was offered.
The court found that ICWA notice was properly given and reinstated the order terminating parental rights.
II. ANALYSIS
Mother contends that the courts finding regarding the adequacy of the ICWA notice is not supported by substantial evidence. In particular, she argues that the notice should have included information about the maternal great-grandmother, who is allegedly affiliated with an Indian tribe, and additional information about the maternal grandmother. We reject the argument.
Under ICWA, "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 childs tribe, by registered mail with return receipt requested, of the pending proceedings and of their right of intervention." (25 U.S.C.A. § 1912(a).) A primary purpose of giving the notice required by ICWA is to enable the tribe to determine whether the minor is an Indian child. (In re S.M. (2004) 118 Cal.App.4th 1108, 1115.)
When, as here, notice to an Indian tribe is required under ICWA, the notice must provide as much information as is known about the childs direct lineal ancestors. (In re Karla C. (2003) 113 Cal.App.4th 166, 175; 25 C.F.R. § 23.11(b).) In particular, Welfare and Institutions Code section 224.2 provides that the notice include, in addition to certain documents and other information: "(A) The name, birthdate, and birthplace of the Indian child, if known[;] [¶] (B) The name of the Indian tribe in which the child is a member or may be eligible for membership, if known[; and] [¶] (C) All names known of the Indian childs biological parents, grandparents, and great-grandparents, or Indian custodians, including maiden, married and former names or aliases, as well as their current and former addresses, birthdates, places of birth and death, tribal enrollment numbers, and any other identifying information, if known." (Welf. & Inst. Code, § 224.2, subd. (a)(5), italics added.) Federal regulations implementing ICWA require substantially identical information, "if known." (See 25 C.F.R. § 23.11(d); see also In re Karla C., supra, 113 Cal.App.4th at p. 175.)
The phrase, "if known," in both the California statute and the federal regulation expresses the obvious: the notice need not include information that is not known to the social worker. Here, the social worker represented that the parents were unable to provide further identifying information and that additional information regarding the maternal grandmother and other relatives was unknown. We have not been referred to any evidence in the record indicating that the social worker had pertinent information that was omitted from the ICWA notice. Although mothers counsel vaguely asserted that the maternal grandmother "provided a lot more information than is included in [the] notice," his unsworn statements are not evidence. (In re Zeth S. (2003) 31 Cal.4th 396, 414, fn. 6.)
Of course, the "if known" qualification does not permit a social worker to hide his or her proverbial head in the sand: The social worker has a duty to inquire about and obtain, if possible, the information called for in Welfare and Institutions Code section 224.2 and the parallel federal regulation. (In re S.M., supra, 118 Cal.App.4th at p. 1116; In re C.D. (2003) 110 Cal.App.4th 214, 225.) Mother asserts that this duty was not fulfilled because she and the maternal grandmother were "available" to the social worker and that the Department and the court ignored her attorneys complaint that the notice was inadequate. We disagree.
While mother and the maternal grandmother were in the courtroom on May 31, 2007, mothers attorney stated that the maternal great-grandmother "is the tribal member"; yet her name is not included in the notice. In response, counsel for the Department specifically and unambiguously requested the information and indicated that the Department would send a new notice if the information is provided. The request constitutes an inquiry to obtain the information alluded to by mothers counsel.
The requested information was never provided. After the request was made, the court put the matter over for a second call so that the parties could "figure it out." When the case was called again, mother and the maternal grandmother were gone. According to mothers counsel, mother would get the information to him. Although mothers counsel said he would need "a few days," the court gave him two weeks to obtain the information and deliver it to the Department. In light of the representations by mothers counsel, it would have been unreasonable for the Departments counsel or a social worker to contact mother or the maternal grandmother directly; the clear implication of mothers counsels statements was that he would get the information and deliver it to the Departments counsel.
When the matter was called two weeks later, the Departments counsel drew the courts attention to the fact that mother and the maternal grandmother were in the courtroom, and the case had been "put over . . . to see if the parties present in the gallery, on the maternal side, provided any further information." The attorney then indicated that the requested information had not been provided. Although mothers counsel stated that "the [maternal] grandmother has the ICWA information," neither the maternal grandmother nor anyone else actually stepped forward to provide the information to the Department. In short, the Departments unambiguous request for the alleged information went unanswered. Under these circumstances, the court could reasonably conclude that the Department had fulfilled its duty of inquiry and that the notice to the tribe was adequate.
Mother asserts on appeal that it is "unreasonable and unbelievable to suggest that [the maternal grandmother] did not know her mothers name, birth date and place of birth, her tribal affiliation, and the date and place of her death if that had occurred." The issue, however, is not whether the maternal grandmother knew such information; rather, the issues are: (1) whether the social workers knew of the information, and (2) if they did not know, whether they made a sufficient inquiry to obtain the information. As set forth above, the ICWA notice indicated that all known information was included, and no contrary evidence was submitted. Relative to the second issue, when the Departments counsel was informed at the May 31, 2007, hearing that such information existed, he promptly requested the information from mothers counsel—the only person who asserted the existence of such information—so that the Department could send a new notice to the tribe. Although mothers counsel said that the information would be provided and the court allowed ample time to obtain the information, it was never provided.
Mother further asserts that the court and the Department "ignored appellant[s] complaint that the notice was inadequate." We disagree. Upon being informed by mothers counsel that information about the maternal great-grandmother existed, the Departments counsel immediately and directly requested the missing information and indicated that the Department would resend the notice with the new information. In light of the exchange between the attorneys, the court first put the matter over for a second call so that counsel could "figure it out." It then granted mothers request for a continuance of the hearing to allow time to obtain the information. The failure to inform the Department of information about the maternal great-grandmother is not due to any lack of diligence by either the Department or the court.
Mother also contends that the statement by the Department that the notice was "not as complete as [it] should be," is an admission of its inadequacy. However, read in the context of the entire proceeding and in a light favorable to the courts ruling, the statement appears to have been made based upon the assumption that information about the maternal great-grandmother existed and would be made available. That is, the notice was inadequate because, and to the extent that, information about the maternal great-grandmother is both obtainable and omitted. We do not view the statement as an admission that the notice was inadequate if, as it turned out, the omitted information was never provided.
Mother further argues that the court refused to allow mothers attorney to call mother as a witness "because it was not going to give a hearing." Mother refers us to the courts statement, "No, not a hearing," which was made in response to mothers counsels request to call mother to testify at the May 31, 2007, hearing. Viewed in isolation, this language could be read, as mother reads it, to mean that the court would not allow testimony from mother or a hearing on the matter. However, we do not believe the court was prohibiting testimony or refusing to permit a further hearing. At the time the statement was made, counsel for the Department had already indicated that it would renotice the tribe with the new information. Rather than take testimony at that time, the court then put the matter over for a second call to allow counsel to meet and resolve the matter informally. Although there is no evidence in the record of other matters on the courts calendar that morning, the act of putting the matter over for a second call indicates that the court had other cases that required its attention. Rather than denying mother an opportunity to testify, the court may have anticipated that the information could be exchanged between counsel outside the courtroom while the court attended to other matters. However, this simple solution did not occur because mother and the maternal grandmother did not turn over the information; they could only tell mothers counsel that they would get it for him. When the case was called again that morning, mother and the maternal grandmother were gone. Although they were present for the hearing two weeks later, mothers counsel did not attempt to call either of them to testify and there is nothing to suggest that the court would have precluded such testimony. Under these circumstances, we conclude that mother was not deprived of a hearing or an opportunity to testify.
Moreover, if it was error to preclude the testimony on May 31, 2007, before mother left the courtroom, the error was harmless. When the case was called the second time, mothers counsel represented that mother told him before she left that she would get the missing information to him. Implied in this representation is that mother did not have the information at that time. Therefore, calling her to testify would not have been productive.
Finally, mother points to statements made by the court during the hearings to show that the court misunderstood the responsibility it and the Department had under ICWA. In particular, mother finds fault with the courts statements that the matter was "[g]etting to be ridiculous" and was being dragged out "for no good purpose." These and other comments by the court indicate some frustration over what it could have reasonably perceived to be gamesmanship by mother. Mother objected to the ICWA notice because it purportedly did not include information that she or the maternal grandmother possessed; yet, despite a clear request for that information, neither mother, maternal grandmother, or mothers counsel ever produced it. In essence, mother (or maternal grandmother) allegedly held an essential piece to completing the ICWA puzzle, refused to turn it over to the Department, then complained that the Department did not complete the puzzle. Under such circumstances, the court could rationally describe the situation as "ridiculous."
We find no error in the proceedings following remand and conclude that there is substantial evidence to support the courts ICWA findings.
III. DISPOSITION
The orders appealed from are affirmed.
We concur:
Hollenhorst, Acting P.J.
Richli, J. --------------- Notes: Counsel for Nicholas C. filed a letter brief joining in the Departments brief and urging that the orders appealed from be affirmed.