Opinion
NOT TO BE PUBLISHED
APPEAL from judgments of the Superior Court of San Diego County No. J508554C-E Michael Imhoff, Commissioner.
O'ROURKE, J.
Susan M. appeals from judgments terminating parental rights to her three youngest children. She contends the court erred when it determined the Indian Child Welfare Act (25 U.S.C. § 1901 et seq.; ICWA), did not apply. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Susan M. is the mother of five children. The three youngest, Shawn F., Isabel W., and Hailey G. (collectively, children), are the subjects of these proceedings.
Susan has a long history of methamphetamine use. In November 2004 the San Diego County Health and Human Services Agency (Agency) initiated dependency proceedings after Hailey tested positive for amphetamine and methamphetamine. In March 2005 the children were placed in the care of a maternal aunt who was the legal guardian of their older half-siblings.
In December 2004 Susan informed the social worker that she believed her father (the children's grandfather) may have Cherokee Indian heritage. Susan provided his date of birth and birthplace in Indiana. The Agency sent notice to all the Cherokee tribes.
On January 24, 2005, the Agency filed letters from Cherokee Center for Family Services, Cherokee Nation and the Bureau of Indian Affairs (BIA) with the court. Cherokee Center for Family Services stated that based on the information received from the Agency, neither Shawn nor Isabel were registered or eligible to register as a member of the Eastern Band of Cherokee Indians. The Cherokee Nation did not consider any of Susan's children to be Indian children as defined by ICWA. The BIA's letter advised the Agency it did not have sufficient information to substantiate membership in any federally recognized tribe, attached a list of Cherokee tribes and stated that its letter did not determine whether children were Indian children as defined by ICWA.
On January 26, 2005, the court found that ICWA did not apply.
In March 2005 the Agency asked the court to accept into evidence notices sent to the Eastern Band of Cherokee Indians, Cherokee Nation of Oklahoma, United Keetoowah Band of Cherokee, the BIA and certified mail receipts. The notices filed by the Agency listed only Shawn's name and demographic information, and misstated the birthplace of the children's grandfather. In July the Agency filed letters from the United Keetoowah Band of Cherokee Indians stating the three children were not eligible for enrollment.
Susan was periodically incarcerated during the dependency proceedings and did not reunify with the children. In its report prepared for the Welfare and Institutions Code section 366.26 hearing, the Agency reported ICWA did not apply. On April 18, 2008, the court found that it was in the best interests of the children to be freed for adoption by their relative caregivers and terminated parental rights.
Unless otherwise indicated, further statutory references are to the Welfare and Institutions Code.
DISCUSSION
A
Susan's sole contention on appeal is that the court erred when it found that ICWA did not apply. She argues the notices sent to the tribes pertained only to Shawn, contained incorrect information about grandfather's birthplace and the court's ICWA finding was made before the notices were entered into evidence.
The Agency acknowledges the record does not contain all the ICWA notices sent to the tribes and BIA in December 2004. It seeks to augment the record on appeal with a certified copy of a report filed with the juvenile court on August 21, 2008. (Cal. Rules of Court, rules 8.155(a)(1)(A) & (a)(2), 8.340(c), 8.408(e)(2).)
Susan opposes the Agency's motion to augment the appellate record. She contends the Agency is not asking this court to augment the record; rather, it is inviting this court to assume the role of trier of fact, contravening In re Zeth S. (2003) 31 Cal.4th 396, 405, see also In re Nikki R. (2003) 106 Cal.App.4th 844, 855.
We deny the Agency's motion to augment the appellate record with information that has not been admitted into evidence and reviewed by the trial court. (In re Zeth S., supra, 31 Cal.4th at pp. 405, 407.)
B
ICWA protects the interests of Indian children and tribes by establishing certain minimum federal standards for dependency cases, including notice requirements. (In re Kahlen W. (1991) 233 Cal.App.3d 1414, 1421; In re Jullian B. (2000) 82 Cal.App.4th 1337, 1344; 25 U.S.C. § 1912(a).) An Indian child is defined as any unmarried person who is under age 18 and is either: (1) a member of an Indian tribe, or (2) eligible for membership in an Indian tribe and the biological child of a member of an Indian tribe. (25 U.S.C. § 1903(4); § 224.1, subd. (a).)
When a court "knows or has reason to know that an Indian child is involved" in a dependency proceeding, a duty arises under federal and state law to give the Indian child's tribe notice of the pending proceedings and its right to intervene. (25 U.S.C. § 1912(a); §§ 224.3, subd. (d), 290.1, subd. (f); 290.2, subd. (e), 291, subd. (g), 292, subd. (f), 293, subd. (g), 294, subd. (i), 295, subd. (g), 297, subd. (d); In re Aaliyah G. (2003) 109 Cal.App.4th 939, 941.) Alternatively, if there is insufficient reason to believe a child is an Indian child, the duty to provide notice does not arise. (In re O.K. (2003) 106 Cal.App.4th 152, 157; In re Aaron R. (2005) 130 Cal.App.4th 697, 707.)
C
The record shows Susan informed the social worker the children's grandfather may have Cherokee Indian heritage. Susan did not allege he was a member of a tribe, nor did she claim membership in an Indian tribe. (See 25 U.S.C. § 1903(4); § 224.1, subd. (a).) The social worker interviewed the parents and contacted the BIA and the Cherokee tribes for information regarding the children's membership status or eligibility. (§ 224.3, subd. (c).) While the Agency did not fulfill its obligation to timely file with the court all notice forms it sent to the tribes, the record shows the Agency promptly filed the response letters from the tribes and BIA. These responses permit the reasonable inference the Agency sent notice to the tribes and BIA and the notices pertained to all three children.
The Agency's inquiry produced no information a family member ever lived on a reservation, attended an Indian school, participated in Indian ceremonies, or received tribal benefits or services that were available to Indians from tribes or the federal government. (§ 224.3, subd. (c).) The record does not suggest the children were members of an Indian tribe, or that they were eligible for membership in an Indian tribe and were the biological children of a member of an Indian tribe. (25 U.S.C. § 1903(4); §§ 224.1, subd. (a), 224.2, subd. (a).) On this record, the misstated birthplace of the children's grandfather is immaterial. Susan does not show on appeal the court knew or had reason to know the children were Indian children. (25 U.S.C. § 1903.)
Where, as here, the record does not contain any evidence a child is an Indian child, reversing the judgment terminating parental rights for the sole purpose of sending notice to the tribe would serve only to delay permanency for the child. Reversal is not required. (In re Rebecca R. (2006) 143 Cal.App.4th 1426, 1431 [parents of non-Indian children should not be permitted to cause additional unwarranted delay and hardship without any showing ICWA interests are implicated].)
DISPOSITION
The judgments are affirmed.
WE CONCUR: McCONNELL, P. J., McDONALD, J.