Opinion
NOT TO BE PUBLISHED.
APPEAL from the Superior Court of Riverside County Super. Ct. No. INJ017536.. Christopher J. Sheldon, Judge,
Brent Riggs, 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.
Sharon S. Rollo, under appointment by the Court of Appeal, for Minor.
McKINSTER Acting P. J.
Defendant and appellant Mary Lou F. (mother) is the natural mother of A.P., T.F. and S.F. The instant appeal concerns only the order terminating parental rights as to S.F. Mother contends that she did not receive proper notice of the selection and implementation hearing as to S.F., and that plaintiff and respondent Riverside County Department of Public Social Services (DPSS) had failed to comply with the provisions of the Indian Child Welfare Act (ICWA). We affirm.
FACTS AND PROCEDURAL HISTORY
In November 2005, DPSS filed a dependency petition as to A.P., who was 14 years old, and as to then-infant T.F. A.P. had lived with her maternal grandparents for approximately 13 years; the grandparents had completed court documents to adopt A.P.
T.F. tested positive for methamphetamine at birth.
The ICWA did not initially apply to the A.P. and T.F. dependencies. Mother stated that she “thought she might” be of Indian descent, but neither mother nor her children were registered with any tribe. The social worker investigated further. The maternal grandmother stated that she was not of Indian descent. Based upon this further report, the social worker determined that the ICWA did not apply.
Mother did not attend the detention hearing in November 2005, nor the jurisdictional and dispositional hearing. The juvenile court denied reunification services as to A.P. and set a selection and implementation hearing. The court did order reunification services as to T.F.
Mother made no contact with either child during the first six-month period. DPSS was unable to locate mother; it requested and obtained permission to give notice to mother by publication of the selection and implementation hearing as to A.P. and the six-month review hearing as to T.F.
Mother did not attend A.P.’s selection and implementation hearing, on July 5, 2006. The court found that A.P. was likely to be adopted and terminated mother’s parental rights. On the same date, the court also held a review hearing as to T.F. Mother was absent from that hearing as well. The court terminated reunification services as to T.F. and set a selection and implementation hearing.
Mother did not visit T.F. during the period between the initial placement and the selection and implementation hearing. DPSS again published notice of the selection and implementation hearing. Before the actual hearing, however, mother’s whereabouts were discovered: She was in a hospital and had just given birth to another child, S.F., who had also tested positive for methamphetamine.
A dependency proceeding was initiated for the new baby. At the time S.F. was detained, January 5, 2007, the social worker interviewed mother in the hospital. Mother claimed that she might be a member of the Cherokee, Chikasaw or Apache tribes. This was different from the information mother had provided in T.F.’s proceedings. At that time, mother had originally suggested she might have Indian heritage, but upon inquiry the maternal grandmother had denied any Indian heritage. Several days later, on January 10, 2007, mother again said that she may be a member of the Cherokee tribe. S.F.’s father also claimed some connection to the Cherokee tribe. He had not, however, claimed any Indian ancestry in T.F.’s proceedings.
The social worker completed notices to the Bureau of Indian Affairs (BIA) and three different Cherokee tribes. DPSS also later sent further notices. Two of the Cherokee tribes responded, stating that S.F. was not eligible for enrollment as a member of the tribe.
Mother did not appear at S.F.’s detention hearing. Mother also did not appear at T.F.’s selection and implementation hearings in January and March 2007. She did not attend S.F.’s jurisdictional and dispositional hearing in January 2007. In February 2007, the juvenile court determined that no reunification services would be provided to mother based on the previous severance of her parental rights to A.P. The court set a selection and implementation hearing as to S.F. for July 5, 2007. DPSS published notice of the hearing. In the meantime, the court terminated mother’s parental rights to T.F. in March 2007.
As of June 2007, before the scheduled selection and implementation hearing, mother had not visited any of the children. Mother did not appear at the selection and implementation hearing; the court found that S.F. was likely to be adopted and terminated mother’s parental rights.
Mother now appeals. She argues that she did not receive adequate notice of the selection and implementation hearing as to S.F.: DPSS improperly failed to send additional notice to the maternal grandparents in violation of Welfare and Institutions Code section 294. DPSS failed to use due diligence in attempting to locate and serve mother. Mother argues that this failure was so egregious as to constitute structural error depriving the juvenile court of jurisdiction over her. Mother also contends that DPSS failed to give proper notices to Indian tribes under the ICWA.
ANALYSIS
I. The Notice Contention Is Unmeritorious
Mother contends that DPSS failed to comply with the notice requirements of Welfare and Institutions Code section 294, resulting in a lack of personal jurisdiction and a denial of due process. Specifically, mother complains that DPSS failed to exercise due diligence in searching for her, and did not provide the maternal grandparents with notice of S.F.’s selection and implementation hearing. The contention fails for several reasons.
First, the contention is waived by the failure to object below. Mother did not appear at the selection and implementation hearing, but she was there represented by counsel. Counsel raised no objection to proceeding with the hearing, and none regarding any deficiencies in notice. The failure to object precludes raising the issue on appeal. (In re Lorenzo C. (1997) 54 Cal.App.4th 1330, 1338.) “Typically, constitutional issues not raised in earlier civil proceedings are waived on appeal.” (Bettencourt v. City and County of San Francisco (2007) 146 Cal.App.4th 1090, 1101, citing Hale v. Morgan (1978) 22 Cal.3d 388, 394.) This rule applies to juvenile dependency cases; even constitutional claims relating to notice can be forfeited by failure to raise the issue. (In re Wilford J. (2005) 131 Cal.App.4th 742, 754.)
Concerning notice to the maternal grandparents, DPSS concedes that it should have served the grandparents with notice of the hearing and that it failed to do so. DPSS urges, however, that the error was harmless under the circumstances of the case. We agree.
Mother’s reliance on In re Steven H. (2001) 86 Cal.App.4th 1023 is misplaced. The court there held that “the grandparent notification provision . . . is intended, at least in part, as an attempt to get notice to the missing parent.” (Id. at p. 1033.) The error in failing to give notice to the grandparents in that case was not harmless because the parent, a teenage mother who was herself a dependent of the juvenile court, had an ongoing relationship with her own mother. (Ibid.) Notice to the grandparents could have been a sufficient way to provide notice to the mother. Even though the grandmother did not know the mother’s whereabouts at the moment, that “did not necessarily mean she did not actually have the means to get in touch with her” (ibid) where there had been ongoing telephone contact.
The appropriate standard of error is the Chapman standard (Chapman v. California (1967) 386 U.S. 18, 24 [87 S.Ct. 824, 828, 17 L.Ed.2d 705]), harmless beyond a reasonable doubt. (In re Angela C. (2002) 99 Cal.App.4th 389, 393-395.)
Here, the record does not demonstrate any realistic likelihood that notice to the grandparents would have increased the chance of getting notice to mother. In November 2005, when the dependencies for A.P. and T.F. began, A.P. had been living with the maternal grandparents for 13 of her 14 years. Mother did not visit A.P. She only occasionally showed up if she needed food or money. The grandmother reported that she had not seen mother in approximately eight months. There was no indication that the grandparents had any means of contacting mother.
In May 2006, the grandparents reported that mother and father were living in Thousand Palms, but there was no contact because mother and father continued to use drugs and “do their own thing.”
To the extent mother relies on the social worker’s report that mother had come from Iowa to visit the grandparents, near the time of S.F.’s birth, that reliance is misplaced. The social worker was reporting what mother said when the social worker interviewed mother in the hospital, on January 5, 2007. Mother also made a number of other statements that day, however, which were later determined to be false. Among other things, mother gave a different birth date for herself, which initially prevented the social worker investigating the hospital referral from discovering the earlier dependencies of A.P. and T.F. The father described a different purpose for the trip to California: to recover belongings which had been in storage. The maternal grandfather, as of January 2007, reported that he had not spoken to mother in over six months.
There was no evidence of any ongoing relationship of mother with the maternal grandparents, or that the grandparents had any sufficient way of informing mother of the selection and implementation hearing in S.F.’s case.
Further, “[t]he primary issue in a [Welfare and Institutions Code] section 366.26 hearing is whether the dependent child is likely to be adopted.” (In re Angela C., supra, 99 Cal.App.4th 389, 395.) Here, there was no dispute about the adoptability of the child. The notice error was therefore harmless beyond a reasonable doubt as to the finding of adoptability.
“Once the court finds the likelihood of adoption, termination of parental rights is the preferred permanent plan absent proof that termination would be detrimental to the child’s best interests. [Citations.] The court may find such detriment when a parent establishes that he or she has maintained regular visitation and contact with the minor and the minor would benefit from continuing the relationship. [Citations.]” (In re Angela C., supra, 99 Cal.App.4th 389, 396.) Mother could make no such showing here, as she had never made any effort to visit any of the children. Again, the notice error was harmless beyond a reasonable doubt.
As to the due diligence search for mother, she complains that DPSS should have continued sending mail to a homeless shelter where mother had previously stayed, and to Iowa. DPSS’s last contact with the shelter facility, however, indicated that mother had left there in January 2007. There is no indication in the record that mother returned there. DPSS interviewed mother while she was hospitalized after S.F.’s birth. Mother informed the social worker that she and father had “recently” moved to Iowa, and had returned to California to retrieve their belongings. They intended to go back to Iowa and petition for custody of T.F. There is no indication, however, that once the new baby was detained, the parents ever returned to Iowa. Mother’s notice of appeal, filed in August 2007, indicated that she was still living in California. Mother did not appear at S.F.’s review hearing in August 2007, however.
The record indicates that DPSS did conduct more than one search for mother. The juvenile court had before it the declarations of search, and mother’s attorney raised no objection to that evidence when the court granted orders to serve mother by publication. The finding of due diligence was sufficient, and was supported by the evidence.
None of the issues with respect to notice is meritorious, and no reversal is required on that ground.
II. The ICWA Claim Is Unmeritorious
Mother contends that the juvenile court failed to ensure that proper notice was given to Indian tribes under the ICWA. Mother complains of incompleteness of information provided in the forms, and the failure to give notice to the Chickasaw and Apache tribes.
The trial court’s finding that ICWA notice was adequate is reviewed for substantial evidence. (In re E.H. (2006) 141 Cal.App.4th 1330, 1333.)
In 2005, mother indicated that she might have some Indian ancestry, but mentioned no specific tribe. Upon further inquiry of the maternal grandmother, the maternal grandmother denied any Indian ancestry. On the basis of that investigation, it was determined in A.P.’s and T.F.’s dependency cases that ICWA did not apply.
When S.F. was detained in January 2007, the social worker again inquired about the child’s Indian ancestry. On January 5, mother said she might be Cherokee, Chickasaw or Apache. Father claimed possible Cherokee affiliation. Five days later in a second interview, mother stated only that she might be a member of a Cherokee tribe. The parents’ written Parental Notification of Indian Status forms did not indicate any Indian tribes.
DPSS sent notices to three Cherokee tribes and to the BIA before S.F.’s detention hearing. Mother complains that these notices “contained erroneous information about [S.F.’s] paternal ancestry and nothing about his maternal grandfather.” DPSS sent a further notice in February 2007, however, superseding the January notices. In addition, the maternal grandmother had already previously denied that mother had any Indian ancestry. As to the Chickasaw and Apache tribes, mother’s later statement on January 10, 2007, claimed only possible Cherokee heritage. The social worker could reasonably and properly regard this as a clarification of mother’s claimed possible heritage, and an abandonment of any claim of Chickasaw or Apache ancestry.
To the extent mother now urges that she meant to claim Indian heritage through the maternal grandfather and not the maternal grandmother, she raises that wrinkle for the first time on appeal. We decline to consider such matters, which lie outside the record on appeal. (In re Zeth S. (2003) 31 Cal.4th 396, 405.) In any case, as noted, the grandmother had denied any Indian heritage upon the earlier inquiry; there is no reason, but pure speculation, to suppose that she would have suppressed her husband’s Indian heritage.
The notices constituted substantial compliance with the requirements of the ICWA; indeed, two of the tribes affirmatively responded indicating that S.F. was not an Indian child.
On this record, there is no reasonable probability that the child would have been found to be an Indian child absent the errors. (People v. Watson (1956) 46 Cal.2d 818, 836.) Any error in the notices was harmless. (In re Antoinette S. (2002) 104 Cal.App.4th 1401, 1411-1413.)
DISPOSITION
The order terminating mother’s parental rights to S.F. is affirmed.
We concur: RICHLI J., KING J.