Opinion
NOT TO BE PUBLISHED
APPEAL from orders of the Superior Court of Stanislaus County. Nos. 515370, 515371, 515372, Ann Q. Ameral, Judge.
Linda J. Conrad, under appointment by the Court of Appeal, for Defendant and Appellant.
John P. Doering, County Counsel, and Carrie M. Stephens, Deputy County Counsel, for Plaintiff and Respondent.
OPINION
Before Levy, Acting P.J., Cornell, J., and Poochigian, J.
Jessica T. (mother) appeals from 2010 orders terminating parental rights (Welf. & Inst. Code, § 366.26) to her three children, six-year-old Serena, four-year-old Michelle and three-year-old Andrew. The children were eligible for membership in the Cherokee Nation (tribe) based on their paternal heritage, but the tribe had not acted on enrollment applications for the children as of the termination hearing. The juvenile court, nevertheless, conducted the underlying dependency proceedings, both procedurally and substantively, as though the Indian Child Welfare Act (25 U.S.C. § 1901 et seq.; ICWA) did apply.
All statutory references are to the Welfare and Institutions Code unless otherwise indicated.
Mother contends respondent Stanislaus County Community Services Agency (agency) failed to ensure the children would be enrolled with the tribe and there was no substantial evidence they could be enrolled after termination. She also argues her children had a beneficial relationship with her so that the juvenile court should not have terminated her rights. On review, we disagree with mother’s claims and affirm.
PROCEDURAL AND FACTUAL HISTORY
Mother’s history of substance abuse interfered with her ability to provide adequate care and supervision for the children. The whereabouts of Michael D. (father), the man identified as the presumed father of mother’s daughters and alleged father of mother’s son, were unknown. He, too, had a history of substance abuse. Consequently, the agency detained the children and initiated the underlying dependency proceedings in November 2008.
Within a matter of days, the agency located father, who was only willing to answer questions over the telephone. He reported he had signed paternity declarations when mother gave birth to their daughters, but did not do the same when mother gave birth to her son. Uncertain if the boy was his child, father added he had not lived with the mother prior to the boy’s birth and never met him.
Father also reported he had Cherokee ancestry, and his mother had an enrollment card. He provided the paternal grandmother’s name, but he did not know her current whereabouts, date of birth or birth place. He also stated he did not know his father’s name and had never known him. Mother thought she, too, might have Cherokee ancestry, but did not provide the identity of her alleged Indian ancestor(s).
The agency served ICWA notice of the proceedings. Attached to the notice were copies of the children’s birth certificates. According to those copies, father’s name appeared only on the girls’ birth certificates. No name was listed in the space provided for the boy’s father.
The Tribe’s Letter
The tribe responded by letter dated December 1, 2008, that the children could be traced in tribal records to the paternal grandmother. According to the tribe’s letter, that paternal relationship made the children “eligible for enrollment and affiliation with the tribe by having direct lineage to an enrolled member.” A membership application was enclosed that could be completed and signed by the party having custody, or their representative, who should submit a copy of the custody order with the application. Complete instructions purportedly accompanied the application. A contact telephone number for any questions was also provided.
The letter added that the tribe was “not empowered to intervene in this matter unless the children or eligible parent(s) apply and receive membership.” It closed with this statement:
“This letter is also to make you aware of our position and to remind you that if actions are taken by you or the family prior to the completion of your court involvement that makes this child/children eligible for membership it could effect [sic] placement priorities, procedures and levels of evidence required by the court and service providers.”
Consequently, the agency’s social worker reported to the juvenile court that ICWA did or might apply. The social worker was also in the process of contacting an expert who could provide testimony required under ICWA at upcoming hearings.
In considering whether to involuntarily place an Indian child in foster care or to terminate the rights of an Indian child’s parent, the juvenile court must have the testimony of a qualified expert witness regarding whether continued custody of the child by the parent is likely to result in serious emotional or physical damage to the child. (§ 224.6, subd. (b); 25 U.S.C. § 1912 (e) & (f).)
Meanwhile, complicating the paternity issue was the fact that mother had been married to another man and their marriage was intact at the time of each child’s birth. Mother, however, reported her husband could not be the children’s biological parent.
Jurisdictional/Dispositional Hearing
In January 2009, the juvenile court conducted a combined jurisdictional and dispositional hearing. Notably, father did not attend this or any other hearing throughout the proceedings. At the hearing, the juvenile court exercised its dependency jurisdiction over the children, as well as adjudged them juvenile dependents, removed them from parental custody, and ordered services for mother and father. The juvenile court also made substantive findings under ICWA to warrant the children’s removal. The court also ordered Indian cultural heritage services for the children.
The court granted father services as to the girls, but denied services as to the boy due to father’s alleged status.
Part of the evidence before the juvenile court was a declaration of Marilee Mai, an Indian expert witness. In particular, Mai reported on the father’s disinterest in the children. Without his cooperation, it would be a challenge for the agency to enroll the children in the tribe. Nevertheless, she encouraged the agency to rise to the challenge for the children’s sake and seek out father in order to gather the information necessary for the enrollment paperwork. She stated the cultural connection through enrollment was vital, specifically for the tribe and the children.
According to the agency’s evidence, neither father nor mother had been in contact with the agency since the day following the children’s detention hearing. Mother also failed to show up for a scheduled visit with the children. That continued to be the case in the first months of reunification. Mother either did not show up or was repeatedly late. She resumed regular visitation briefly in the spring of 2009.
The agency’s court services social worker sent letters to father, but he did not respond or make any attempt to contact the agency. Another social worker had telephone contact with father in early March 2009. This turned out to be father’s last apparent contact with the social worker. After that, father’s whereabouts were unknown and the social worker had found no family members of father’s to contact.
At the six-month review stage, the agency recommended continued reunification efforts despite mother’s limited participation in services and father’s total lack of participation. The children’s counsel disagreed with the recommendation and requested a contested hearing. The court also questioned the recommendation, as well as mentioned there were ICWA issues to consider at the six-month review. Specifically, the court stated the children were not yet enrolled in the tribe. Meanwhile, mother, as well as father, was absent.
Order Terminating Services and Setting Section 366.26 Hearing
At a later June 2009 hearing, the juvenile court terminated reunification services in light of both parents’ failure to regularly participate in services or make substantive progress. By that time, the children had been placed with an ICWA foster parent. Because mother’s visitation had been very sporadic, the court also reduced her visits to once a month. Mother last visited the children in early May 2009.
The court concluded the hearing by setting a section 366.26 hearing to select and implement a permanent plan for the children. It noted, in passing, that the agency needed time to locate father and serve him notice. The court ordered notice of mother’s writ remedy by mail, as she was again absent for the hearing. Mother did not pursue writ relief in this court.
Permanency Planning
As of December 2009, Don Lilley, the supervising social worker, recommended the children remain in the ICWA foster home temporarily with a permanent plan of long-term foster care. Their ICWA foster home was not a concurrent home, i.e., one interested in becoming the children’s permanent placement. Given that the children were all adoptable, an ICWA social worker with the Indigenous Nations Agency (INA) was working to find a suitable adoptive family. Lilley also reported mother made no attempt to contact the children between her last visit in early May and early November. In early November, mother left a phone message and a return phone number for the social worker; she requested a visit with the children. However, the number was no longer in service when Lilley called.
The agency’s inability to locate and serve mother, father, and mother’s husband with notice of the permanency planning hearing led to its repeated continuance. In early November 2009, the agency mailed the children’s enrollment forms to the tribe. Meanwhile, and despite due diligence, the agency was unable to locate father. The juvenile court consequently found good cause in December 2009 for service of notice to father by publication. It also continued the permanency planning hearing to March 2010.
The agency served the tribe with notice of the March 2010 permanency planning hearing. In its first amended report prepared for the March 2010 hearing, the agency recommended termination of parental rights and adoption as the permanent plan.
Regarding the children’s enrollment with the tribe, social worker Lilley reported he was “awaiting the arrival of the [father’s] state certified birth certificate, which appears to be the last document required to complete the children[’s] enrollment in the [tribe].” Meanwhile, according to the INA social worker, the children had to be placed in a Cherokee Nation adoptive home in order to protect the children’s ICWA rights. Although it had been difficult to find such a home, the INA social worker was still searching. Lilley also reported that mother still had not visited the children since May 2009, although she had called again in February 2010 and requested a visit.
This prompted a petition by the children’s counsel to suspend visitation. The court made such an order in February 2010, but only as to the oldest of the children based on her therapist’s assessment. Mother later appealed that order, but, as there was no arguable issue raised, this court dismissed her appeal. In May 2010, the court rescinded its order suspending visits between the oldest child and mother.
Attached to the agency’s report was a February 2010 declaration from Mai, the Indian expert witness. She offered her opinion that the agency had engaged in active efforts to prevent the breakup of the Indian family and that, beyond a reasonable doubt, custody of the children by either parent would likely result in serious emotional or physical damage to the children.
A party seeking termination of parental rights of an Indian child must provide evidence that there were active efforts to provide remedial services and rehabilitative programs designed to prevent the breakup of the Indian family and those efforts were unsuccessful. (§ 361.7, subd. (a).) This is in addition to the requirement for qualified expert witness testimony that custody of the Indian child by the parent is likely to result in serious emotional or physical damage to the children. (§ 224.6, subd. (b).)
Mai’s declaration also addressed the effort to enroll the children with the tribe. In preparing for her report, she contacted Christopher Ex of the tribe’s ICWA department. Ex had signed the tribe’s December 2008 letter. He stated he was awaiting one state-certified birth certificate before he could forward the children’s enrollment material to the tribe’s enrollment department.
In March 2010, the court found good cause to continue the permanency planning hearing again to a May date and also hold a paternity hearing as to the boy in April. The court further authorized an “ICPC in the State of Oklahoma to analyze the paternal grandmother’s house for placement and possibly adoption.”
ICPC is an acronym for the Interstate Compact on the Placement of Children.
The paternal grandmother apparently contacted the agency seeking placement. She had been living in Oklahoma since before these proceedings commenced. She previously lived in California, during which time she attempted to help care for the children.
At the April paternity hearing, mother was absent, having been incarcerated and not transported to court. Her attorney made an offer of proof, which other counsel and the court accepted, that mother would testify that father was the biological father of mother’s son and mother did not believe there was any other possible father for the child. The juvenile court expressly found father was the boy’s biological father.
In May 2010, the juvenile court continued the permanency planning hearing yet again, this time to an August date, due to a witness’s unavailability. It was the understanding of all the attorneys at the May hearing that the tribe was requiring state-certified birth certificates, apparently for all three children for enrollment purposes. The state-certified birth certificates purportedly had been ordered six weeks earlier and would take three to six months to receive.
The court also authorized placement of the children with the paternal grandmother, provided placement was approved “through ICPC.” Her home study had been positive.
The agency received a placement approval in writing from Oklahoma in late July. In turn, the children were placed with the paternal grandmother in early August. She wholeheartedly wished to adopt the children.
Prior to the August hearing, the agency filed proofs of service upon the tribe for the continued hearing and recommendation for parental rights termination. However, as of the start of the August hearing, the children had not been enrolled in the tribe.
August 2010 Permanency Planning Hearing
Because the children were not enrolled, there was no enrolled parent, and the tribe had not filed a motion to intervene, the agency’s attorney suggested at the outset of the hearing that ICWA did not apply. The attorney relied on a decision out of this court, In re Jose C. (2007) 155 Cal.App.4th 844 (Jose C.). That being said, the attorney added, the agency had complied with the requirements of ICWA and had Lilley, the agency’s social worker, and Mai, the Indian expert, available to testify.
In part, the agency’s attorney apparently believed Jose C., supra, required a tribe to intervene for ICWA to apply. That was not our holding.
During Lilley’s testimony, mother’s counsel asked what efforts he had made since October 2009 to complete the enrollment process for the children. The agency’s attorney objected to the question on relevancy grounds. This led to a lengthy discussion between the attorneys and the court about whether ICWA applied in this case based on Jose C., whether enrollment needed to occur before termination of parental rights, and the impact of the delay in permanency planning upon the children.
In the process, Lilley responded to an inquiry by the court and testified the agency had just received the state-certified birth records and had forwarded them. The court observed it seemed getting a state-certified birth record was much more difficult than getting one from where a child was born.
The agency’s attorney then made a representation as an officer of the court that she spoke with the tribe and was assured termination of parental rights before the children were enrolled was not going to affect their ability to be enrolled.
Because an attorney’s unsworn statements are not evidence (In re Zeth S. (2003) 31 Cal.4th 396, 413, fn. 11), we have not relied on the factual representations made by the attorneys in considering mother’s appellate argument. We include their statements here to accurately describe what transpired.
Mother’s counsel conceded one of the holdups was that father’s name was not on the boy’s birth certificate. She added that was why the order regarding the boy’s paternity was sought in order to establish his lineage.
As an officer of the court, mother’s counsel represented she spoke with a Nicole Allison who said there were affidavits that needed to be signed by mother and father to establish that the boy was father’s biological child. The court questioned why the tribe could not accept a certified copy of the court’s minute order on paternity. Mother’s counsel claimed to have asked Allison about that and that Allison said she had to talk to the BIA compliance officer to see if that would be acceptable. Mother’s counsel did not know if Lilley had something to say. The court permitted Lilley to “say what he knows about this.”
It is unclear from the attorney’s remarks who Allison was. Mother’s attorney described her as a person “we had in this court before.”
Lilley, still on the witness stand, proceeded to testify he talked to Ex from the tribe.
“[H]e and I have gone around three times trying to get the right birth certificates. He finally sent me.... [¶ ] … [¶ ] [a]ffidavits... for the father to sign who I’ve been out twice now. He’s refused each time. His mother tried to call him. He couldn’t have any of it. When I spoke to Christopher Ex, he said they had to be signed or -- I can’t remember exactly how he put it -- but what I understood from what he said was, is that if the grandmother adopted the children, she could then enroll him as an adopted child if the father never signed.”
In her appellate argument, mother claims Lilley’s statements were not testimony because they occurred during the discussion between the attorneys and the court. Mother ignores the fact that Lilley remained under oath and on the stand when he responded to the court’s invitation.
Mother’s counsel then asked “did that prevent [the girls] from being enrolled because their state certified birth certificate[s] listed [father?]” Lilley answered, “Right.” Mother’s counsel volunteered that was “the same information I got too, that [the boy] is the holdup here, because his name isn’t on [the boy’s] birth certificate.” She, again, alluded to speaking with “Ms. Allison” who was “waiting for that in order to intervene.”
The court permitted mother’s attorney to continue her questioning of Lilley. Lilley reiterated he received affidavits from the tribe for father to sign, but father was unwilling to cooperate. The social worker also reviewed the state-certified birth certificates for all three children and father’s name was not listed on the boy’s birth certificate. Lilley had not as yet sent the tribe a copy of the paternity minute order. He could not recall doing anything else to “get the process of enrollment completed” since his efforts to obtain father’s signature on the affidavits.
Lilley also testified his active efforts since the termination of services had been “to register them.” Strikingly, mother’s attorney responded “No” and then appeared to struggle in forming her objection to his testimony or her next question. She eventually asked how the social worker addressed active efforts in his recommended findings and orders currently before the court. This led to a further objection by the agency’s attorney. The court suggested the mother’s counsel could make this inquiry of the Indian expert and sustained the objection. When she eventually cross-examined Mai, the Indian expert witness, mother’s counsel did not inquire about active efforts.
Lilley went on to testify that he had made all the efforts he could to find an ICWA home for the children. He had been focused since the termination of services on getting the children placed with a relative or in an Indian home in compliance with ICWA.
On the issue of visitation, Lilley testified he believed mother had four visits with the children since mid-May 2010 when the court rescinded its February order suspending mother’s visits with her oldest child. Mother’s previous visit had been in May or June of 2009.
Mai testified she held the same opinions and made the same recommendations, as stated in her February report, which was before the court.
The court then heard testimony from a number of mother’s relatives and friends, as well as mother, who testified regarding her positive relationship with the children. Mother also offered explanations for her lack of visits with the children. In part, she testified she was in jail for approximately three months in 2010, and, prior to that, she tried diligently to have visits, but was unable to receive them. She apparently blamed social worker Lilley.
On rebuttal, Lilley testified he did not recall receiving the numerous calls from mother that she claimed to have made for visits.
During closing argument, mother’s counsel asked the court not to terminate parental rights because the children had a close relationship with mother and would suffer harm if rights were terminated. Mother’s counsel also asked the court to consider whether the exceptions under section 366.26 for Indian children applied, including the possibility of a tribal customary adoption without termination. Counsel acknowledged, however, there was no evidence about that.
Mother’s counsel also expressed concern that it had taken so long to enroll the children when the children could benefit from enrollment. The court questioned whether anyone could place the blame with the agency when there were major obstacles. Mother’s counsel responded she did not understand why the girls could not be enrolled when the problem had to do with father’s name not appearing on the boy’s birth certificate.
Following closing arguments, the juvenile court took the matter under submission to review the file and the law regarding ICWA. The court subsequently ruled in favor of termination. Although it found that ICWA did not apply, the court could still make the findings required as if ICWA did apply. Having made those findings, as well as finding the children were likely to be adopted, the juvenile court terminated parental rights. In passing, the court rejected mother’s claim that termination would be detrimental to the children.
DISCUSSION
I. Efforts to Secure the Children’s Tribal Enrollment
Mother charges the agency with delay in completing and returning the tribal enrollment applications and obtaining state-certified birth certificates. As a consequence, she contends there was insufficient evidence to support a finding that the agency used active efforts to secure tribal membership for the children (Cal. Rules of Court, rule 5.484(c)); and no substantial evidence that the children could be enrolled after termination. Mother goes on to argue this was reversible error because the agency’s purported delay prevented the children’s enrollment in the tribe, the tribe’s intervention in the dependency proceedings, and the court’s selection of a tribal customary adoption without termination of parental rights as the children’s permanent plan (§ 366.26, subd. (b)(2)).
California Rules of Court, rule 5.484(c) adds an active efforts requirement that “[e]fforts to provide services must include pursuit of any steps necessary to secure tribal membership for a child if the child is eligible for membership in a given tribe, as well as attempts to use the available resources of extended family members, the tribe, tribal and other Indian social service agencies, and individual Indian caregivers.”
Mother’s argument raises several legal questions, including, but not limited to, whether she has forfeited her argument by her failure to raise it earlier and whether the rule of court she relies on is inconsistent with ICWA, as well as our state’s incorporation of ICWA into our dependency statutory scheme and the statutory definition of an “Indian child.” (Cal. Const., art. VI, § 6, subd. (d); Welf. & Inst. Code, § 265; In re C.B. (2010) 190 Cal.App.4th 102, 135.) Nowhere in ICWA, or our dependency statutory scheme, is there an express or implied requirement that an agency must secure tribal membership for a child who is eligible for membership. This court made a similar observation in Jose C., supra, 155 Cal.App.4th at page 849 and footnote 2, an opinion that preceded the adoption of California Rules of Court, rule 5.484 (c)(2).
However, assuming arguendo mother’s argument is timely, any analysis we might offer regarding the rule of court or any other legal issue raised by mother’s claim of prejudicial error would be dicta. (In re S.B. (2009) 46 Cal.4th 529, 535.) This is because mother’s factual premise 'that the agency unreasonably delayed its efforts to enroll the children in the tribe' is meritless.
To support her claim of delay, mother relies on an exceptionally narrow reading of the appellate record. She cites the tribe’s December 2008 letter, the agency’s transmission of the enrollment applications 11 months later, and the delay in acquiring state-certified birth certificates. She claims, in essence, the record is otherwise silent, dismissing in the process the balance of the record, most notably anything having to do with father’s role in this case and the issue of paternity. We do not subscribe to mother’s approach.
It is no wonder that it took the agency months to submit enrollment applications on the children’s behalf to the tribe. The time it took, however, was reasonable under the circumstances.
First, the agency lacked the authority, required by the tribe, to complete a membership application until mid-January 2009 when the juvenile court removed the children from parental custody and gave the agency custody. Second, the tribe premised the children’s eligibility on their paternal grandmother’s tribal membership so that father’s cooperation was important to the enrollment process. Without it, as the Indian expert witness observed, enrollment would be a challenge.
However, father was no help. Other than his claim of Cherokee heritage and his mother’s name, he provided no information. In addition, father was thoroughly disinterested in the children and their dependency. He never visited the children or appeared in court. Between the children’s detention in November 2008, and the agency’s submission of the applications in November 2009, father had only two contacts, both telephonic, with the agency, once the day following the children’s detention and once in March 2009. Meanwhile, the agency sent letters to father, but he did not respond. As of June 2009, the social worker had found none of father’s family members to contact. Even mother absented herself during this period in 2009. By the summer of 2009, father’s whereabouts were unknown and remained so until sometime in 2010.
As for any delay in the agency’s acquisition of state-certified birth certificates, mother’s argument is a red herring. It was undisputed in the juvenile court that securing state-certified birth certificates took a lot of time. Also, social worker Lilley and Ex, with the tribe’s ICWA department, had “gone around three times trying to get the right birth certificates.” As of February 2010, they were awaiting only one state-certified birth certificate before the enrollment applications could be reviewed by the tribe’s enrollment committee. According to the record, that state-certified birth certificate was for father. Later still, the tribe required three additional state-certified birth certificates, apparently for the children.
The need to determine the boy’s paternity also arose as an issue for the tribe. This was apparently because father’s name did not appear on the boy’s birth certificate and father had refused to sign a declaration of paternity when the child was born because father questioned whether the child was his. The agency took steps starting in March 2010 to obtain the juvenile court’s order that father was the boy’s biological father. However, the tribe apparently wanted the father to sign an affidavit declaring his paternity, something which father subsequently and repeatedly refused to do.
Mother questions, as she did in her closing argument to the juvenile court, whether or why this prevented the tribe from at least enrolling the girls. However, it did according to the testimony of Lilley. Indeed, mother’s trial counsel acknowledged at the August 2010 hearing that was her information as well. She conceded the holdup was due to the boy’s birth certificate. In any event, once the tribe had received all the state-certified birth certificates, the tribe still did not enroll the children, apparently because father’s name did not appear on the boy’s birth certificate.
To the extent mother further argues there was no substantial evidence the children could be enrolled after termination, she fails to cite any authority that the juvenile court could not terminate parental rights absent such evidence. She also ignores the evidence. One, according to the INA social worker, an Indian adoptive placement would protect the children’s IWCA rights. Two, if the grandmother, who was a member of the tribe, adopted the children, she could enroll the boy as an adopted child. The reasonable inference to be drawn from the evidence regarding the grandmother was that the tribe’s enrollment committee could then also consider the applications for the girls.
II. Termination Would Not Be Detrimental
Mother also argues the court should not have terminated her parental rights because the children had a beneficial parental-child relationship with her such that termination would be detrimental. Section 366.26, subdivision (c)(1)(B)(i) authorizes a juvenile court to find termination would be detrimental if a parent maintained regular visitation and contact with the child and the child would benefit from continuing the relationship.
The problem for mother is that she did not maintain regular visitation and contact with the children over the course of their dependency. She failed to appear or was repeatedly late for multiple scheduled visits following the children’s detention and during the first months of reunification services. She briefly resumed visitation in the spring of 2009, but then stopped visiting altogether between early May 2009 and sometime in 2010. While mother offered excuses for her lack of contact at the hearing in August 2010, her testimony did not undo her failure to maintain regular visitation and contact with the children, and, at best, introduced conflicting evidence. However, for a parent to prevail on a claim that termination would be detrimental, the proof offered must be uncontradicted and unimpeached so that the juvenile court could exercise its discretion in one way, compelling a finding in favor of the parent as a matter of law. (Roesch v. De Mota (1944) 24 Cal.2d 563, 570-571; In re I.W. (2009) 180 Cal.App.4th 1517, 1528.) That was not the case here. Having failed to establish that she maintained regular visitation and contact with the children, mother could not be entitled to a finding that termination would be detrimental to the children.
DISPOSITION
The orders terminating parental rights are affirmed.