Opinion
D076295
12-04-2019
In re G.T., et al., Minors. R.N., et al., Petitioners and Respondents, v. A.T., Objector and Appellant.
Julie E. Braden, under appointment by the Court of Appeal for Objector and Appellant. Elena S. Min, under appointment by the Court of Appeal for Petitioners and Respondents.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. AN16329) APPEAL from judgments of the Superior Court of San Diego County, Robert P. Dahlquist, Judge. Affirmed. Julie E. Braden, under appointment by the Court of Appeal for Objector and Appellant. Elena S. Min, under appointment by the Court of Appeal for Petitioners and Respondents.
R.N. (Mother) and J.N. (Stepfather) filed a Family Code section 7822 petition requesting a judgment declaring the minor children, G.T. and A.C.T., free from the parental custody and control of A.T. (Father) based on Father's abandonment of the children. Following a contested hearing, the trial court granted the petition and entered separate judgments declaring G.T. and A.C.T. free from Father's parental custody and control and terminating his parental rights to the children. On appeal, Father contends there is insufficient evidence to support the trial court's findings that the notice requirements of the Indian Child Welfare Act (ICWA) (25 U.S.C. § 1901, et seq.) were satisfied and that ICWA did not apply to the children. We affirm the judgments.
All statutory references are to the Family Code unless otherwise specified.
To avoid any ambiguity, we refer to A.C.T. by using his middle initial and thereby distinguish him from Father (A.T.).
FACTUAL AND PROCEDURAL BACKGROUND
Because Father does not challenge the court's finding of abandonment, we focus our discussion on those facts that are relevant to the ICWA issues raised by him on appeal.
Mother and Father married in 2010. G.T. was born in 2011 and A.C.T. in 2013.
After Mother filed for divorce in 2014, a judgment was entered granting her petition for divorce and awarding her sole legal and physical custody of the children. Father was initially granted the right to supervised visitation with the children, but that right was subsequently terminated.
In 2017, Mother and Stepfather married. About six months later, they filed the instant section 7822 petition to declare G.T. and A.C.T. free from the parental custody and control of Father based on Father's abandonment of the children. The petition was filed as a companion case to a petition to approve Stepfather's adoption of the children.
On filing the section 7822 petition, Mother denied having any Indian ancestry and further stated that the children had no known Indian ancestry. After initially stating that he was unaware of any Indian ancestry, Father later claimed to have Cherokee ancestry and then filed an ICWA-030 form, stating that the children are members of, or may be eligible for membership in, the Cherokee, Chickasaw, Choctaw, and Seminole tribes. Father stated that his father and grandmother were members of, or eligible for membership in, the Seminole tribe. Based on this information, ICWA notices of the proceeding were subsequently mailed to: (1) the Bureau of Indian Affairs (BIA); (2) the United States Department of the Interior; (3) three federally-recognized Choctaw tribes; (4) three federally-recognized Cherokee tribes; (5) one federally-recognized Chickasaw tribe; and (6) two federally-recognized Seminole tribes. The two Seminole tribes given notice were the Seminole Tribe of Florida and the Seminole Nation of Oklahoma. All of the tribes that were given notice responded that the children were not members of, and not eligible for membership in, their tribes.
Before commencing the contested hearing on the section 7822 petition, the trial court addressed the issue of whether ICWA applied to the children. The court noted that Father had asserted possible Indian ancestry and that notices of the proceeding had been sent to a number of Indian tribes. The court stated: "[F]rom my review of the file, all of the responses that we've received indicate that according . . . to the tribes' records, they have no record of there being Native American ancestry [for the children]. [¶] So based on that, I'm inclined to make a finding that ICWA has been satisfied. [¶] But I would invite any input from counsel on that issue." Counsel for Father and counsel for Mother and Stepfather both replied that they had "[n]o objection." The children's counsel submitted on that issue. Father did not suggest any other tribes should have been given notice. The court then found that "at this time that ICWA has been satisfied and we can proceed at this time with our evidentiary hearing or trial."
Following the contested evidentiary hearing on the section 7822 petition, the court granted the petition and entered separate judgments declaring G.T. and A.C.T. free from Father's parental custody and control and terminating Father's parental rights to the children. Father timely filed a notice of appeal in which he now argues the Miccosukee Tribe of Indians of Florida should have been given notice.
DISCUSSION
I
ICWA Generally
ICWA provides that "[i]n any involuntary proceeding in a State court, 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 child's tribe" of the pending proceeding and their right to intervene. (25 U.S.C. § 1912(a); In re Isaiah W. (2016) 1 Cal.5th 1, 8.) ICWA defines an "Indian child" as "any unmarried person who is under eighteen and is either (a) a member of an Indian tribe or (b) is eligible for membership in an Indian tribe and is the biological child of a member of an Indian tribe." (25 U.S.C. § 1903(4).) It defines an "Indian child's tribe" as "(a) the Indian tribe in which an Indian child is a member or eligible for membership or (b), in the case of an Indian child who is a member of or eligible for membership in more than one tribe, the Indian tribe with which the Indian child has the more significant contacts." (25 U.S.C. § 1903(5).) Finally, ICWA defines an "Indian tribe" as "any Indian tribe, band, nation, or other organized group or community of Indians recognized as eligible for the services provided to Indians by the Secretary [of Interior] because of their status as Indians . . . ." (25 U.S.C. § 1903(8).)
California law similarly requires that notice of a proceeding that may result in termination of parental rights to a child be given to "[a]ll tribes of which the child may be a member or citizen, or eligible for membership or citizenship . . . ." (Welf. & Inst. Code, § 224.3, subd. (a)(3)(A); In re Damian C. (2009) 178 Cal.App.4th 192, 196-198.) The trial court therefore has an affirmative duty to inquire whether a child who is the subject of dependency (or parental right termination) proceedings is an Indian child. (In re Isaiah W., supra, 1 Cal.5th at p. 6.) The Family Code provides that in any proceeding that may result in the termination of parental rights to, or adoptive placement of, an Indian child, notice of the proceeding "shall be sent to the minor's parent or legal guardian, Indian custodian, if any, and the Indian child's tribe." (§§ 170, subd. (c), 180, subd. (b)(1).) Specifically, that notice "shall be sent to all tribes of which the child may be a member or eligible for membership until the court makes a determination as to which tribe is the Indian child's tribe . . . ." (§ 180, subd. (b)(3).)
If proper and adequate ICWA notice has not been given, any finding by the court that ICWA is inapplicable is not conclusive and does not relieve the court of its continuing duty under Welfare and Institutions Code section 224.3, subdivision (a), to inquire into a child's Indian status. (In re Isaiah W., supra, 1 Cal.5th at p. 11.) "Only after proper and adequate notice has been given and neither a tribe nor the BIA has provided a determinative response within 60 days does [Welfare and Institutions Code] section 224.3[, subdivision](e)(3) authorize the court to determine the ICWA does not apply." (Ibid.)
"Notice to the . . . Indian child's tribe is required by ICWA in state court proceedings seeking . . . termination of parental rights 'where the court knows or has reason to know that an Indian child is involved.' [Citation.]" (In re Elizabeth M. (2018) 19 Cal.App.5th 768, 784.) A "reason to know" under ICWA includes circumstances where a person who has an interest in the child provides information suggesting the child is a member of a tribe or eligible for membership in a tribe or one or more of the child's biological parents, grandparents, or great-grandparents are or were members of a tribe. (Ibid.) When a petitioner knows or has reason to know that an Indian child is involved, it must "make further inquiry regarding the possible Indian status of the child, and to do so as soon as practicable, by . . . contacting . . . any . . . person [who] reasonably can be expected to have information regarding the child's membership status or eligibility." (Welf. & Inst. Code, § 224.3, subd. (c).) Notices sent to the BIA and Indian tribes must contain enough information to be meaningful. (In re Karla C. (2002) 113 Cal.App.4th 166, 175.) Notices must include the following information, if known: (1) the name, birthplace, and birth date of the Indian child; (2) the name of the tribe in which the Indian child is enrolled or may be eligible for enrollment; (3) the names and addresses of the child's parents, grandparents, great-grandparents, and other identifying information; and (4) a copy of the dependency petition. (Ibid.) The petitioner must file with the court the ICWA notice, return receipts, and responses received from the BIA and tribes. (Id. at pp. 175, 178-179.) A failure to comply with the ICWA notice requirements requires conditional reversal of the court's finding that ICWA does not apply and remand to the court for such compliance. (In re O.C. (2016) 5 Cal.App.5th 1173, 1189.)
"A determination by an Indian tribe that a child is or is not a member of, or eligible for membership in, that tribe . . . shall be conclusive." (Welf. & Inst. Code, § 224.2, subd. (h).) "If the court makes a finding that proper and adequate further inquiry and due diligence as required in this section have been conducted and there is no reason to know whether the child is an Indian child, the court may make a finding that the federal Indian Child Welfare Act [ICWA] . . . does not apply to the proceedings, subject to reversal based on sufficiency of the evidence. . . ." (Welf. & Inst. Code, § 224.2, subd. (i)(2), italics added.) Alternatively stated, "[w]e review the trial court's findings [regarding compliance with ICWA's notice requirements] for substantial evidence." (In re Charlotte V. (2016) 6 Cal.App.5th 51, 57.)
II
Substantial Evidence to Support Court's ICWA Finding's
Father contends there is insufficient evidence to support the trial court's findings that ICWA's notice requirements were satisfied and that ICWA did not apply to the children. In particular, he argues that in addition to the notices given to, inter alia, the two Seminole tribes, notice should have been given to the Miccosukee Tribe of Indians of Florida which he asserts has Seminole membership.
A
As Father concedes, on appeal, we review the trial court's findings regarding compliance with ICWA's notice requirements for substantial evidence to support those findings. (Welf. & Inst. Code, § 224.2, subd. (i)(2); In re Charlotte V., supra, 6 Cal.App.5th at p. 57; In re Christian P. (2012) 208 Cal.App.4th 437, 451; In re E.W. (2009) 170 Cal.App.4th 396, 404.) "When an appellate court reviews a sufficiency of the evidence challenge, we may look only at whether there is any evidence, contradicted or uncontradicted, which would support the trier of fact's conclusion. We must resolve all conflicts in favor of the court's determination, and indulge all legitimate inferences to uphold the court's order. Additionally, we may not substitute our deductions for those of the trier of fact. [Citations.]" (In re John V. (1992) 5 Cal.App.4th 1201, 1212.) Alternatively stated, we review the entire record in the light most favorable to the judgment or finding to determine whether the record contains substantial evidence (i.e., evidence that is reasonable, credible, and of solid value) from which a reasonable trier of fact could make that judgment or finding. (People v. Albillar (2010) 51 Cal.4th 47, 60.) "Mere support for a contrary conclusion is not enough to defeat the finding [citation], nor is the existence of evidence from which a different trier of fact might find otherwise in an exercise of discretion [citation]." (In re H.E. (2008) 169 Cal.App.4th 710, 724.) The appellant who challenges the court's judgment or findings has the burden to show that substantial evidence does not support the court's judgment or findings. (In re L.Y.L. (2002) 101 Cal.App.4th 942, 947.)
The general rule is that "an appeal reviews the correctness of a judgment as of the time of its rendition, upon a record of matters which were before the trial court for its consideration." (In re James V. (1979) 90 Cal.App.3d 300, 304, italics added.) In In re Zeth S. (2003) 31 Cal.4th 396, at page 405, the California Supreme Court stated:
"This rule reflects an 'essential distinction between the trial and the appellate court . . . that it is the province of the trial court to decide questions of fact and of the appellate court to decide questions of law. . . .' [Citation.] The rule promotes the orderly settling of factual questions and disputes in the trial court, provides a meaningful record for review, and serves to avoid prolonged delays on appeal."In that case, the court considered the question of whether "a reviewing court [may] look to postjudgment evidence that is outside the record on appeal and was never considered by the trial court . . . to reverse the trial court's judgment . . . ." (In re Zeth S., supra, at p. 407.) In the context of an appeal challenging a juvenile court order terminating parental rights, the court concluded that the appellate court could not consider postjudgment evidence of changed circumstances to reverse the juvenile court's judgment because that would violate the general rules of appellate procedure. (Id. at p. 413.) Accordingly, the Supreme Court rejected the Court of Appeal's consideration of new evidence on appeal. (Ibid.; see also Alicia B. v. Superior Court (2004) 116 Cal.App.4th 856, 866 [noting that In re Zeth S. "was concerned that the Court of Appeal had taken what was essentially a substantial evidence issue and used new evidence to revisit the 'mother-child' relationship"].)
Long before In re Zeth S., courts recognized: "As a general rule, documents and facts not before the trial court cannot be included as a part of the record on appeal. [Citations.] Thus, we must disregard [matters not included in the record on appeal], which are beyond the scope of our review. [Citation.]" (Foster v. Civil Service Com. (1983) 142 Cal.App.3d 444, 449.) "Likewise disregarded are statements in briefs based on matter improperly included in the record on appeal." (Pulver v. Avco Financial Services (1986) 182 Cal.App.3d 622, 632; see also Citizens Opposing a Dangerous Environment v. County of Kern (2014) 228 Cal.App.4th 360, 366, fn. 8 ["In their respective briefs, the parties cite material that cannot be found in [the record on appeal]. 'Factual matters that are not part of the appellate record will not be considered on appeal and such matters should not be referred to in the briefs.' [Citation.]."].) In Christ v. Schwartz (2016) 2 Cal.App.5th 440, 450, at footnote 5, the court stated: "For the first time on appeal, [appellant] cited various publications to support her contention [on appeal]. . . . However, publications that are not a part of the trial record cannot be considered on appeal." Furthermore, "[s]tatements of fact not supported by references to the record may be disregarded as a violation of rule 8.204(a)(1)(C) of the California Rules of Court." (Princess Cruise Lines, Ltd. v. Superior Court (2009) 179 Cal.App.4th 36, 45.)
California Rules of Court, rule 8.204(a)(1)(C), provides that an appellate brief must "[s]upport any reference to a matter in the record by a citation to the volume and page number of the record where the matter appears. . . ."
B
Father argues that because notice of the section 7822 proceeding was not given to the Miccosukee Tribe of Indians of Florida, there is insufficient evidence to support the trial court's findings that ICWA's notice requirements were satisfied and that ICWA did not apply to the children. However, in support of his argument, his opening brief simply cites two websites that were not included in the evidence considered by the trial court or otherwise included in the record. In particular, in support of his argument that the Miccosukee Tribe of Indians of Florida is a Semonile tribe that should have received notice of the proceeding under ICWA, Father cites the following websites: (1) "https://tribe.miccosukee.com/" and (2) "https://www.federalregister.gov/documents/2016/01/29/2016/2016-01769/indian-entities-recognized-and-eligible-to-receive-services-from-the-united-states-bureau-of-indian [sic]."
By citing websites that were not included in the trial record, Father violates the general rule of appellate review that bars him from referring to matters outside the trial record when challenging a finding for lack of substantial evidence to support it. (In re Zeth S., supra, 31 Cal.4th at pp. 405, 407, 413; Alicia B. v. Superior Court, supra, 116 Cal.App.4th at p. 866; In re James V., supra, 90 Cal.App.3d at p. 304.) "[P]ublications that are not a part of the trial record cannot be considered on appeal." (Christ v. Schwartz, supra, 2 Cal.App.5th at p. 450, fn. 5.) Furthermore, factual matters that are not part of the record cannot be considered on appeal and should not be referred to in the parties' briefs. (Citizens Opposing a Dangerous Environment v. County of Kern, supra, 228 Cal.App.4th at p. 366, fn. 8.) "At this point, [Father] must take the record as [he] finds it." (In re Charlotte V., supra, 6 Cal.App.5th at p. 58.) Accordingly, we disregard Father's citations to the two websites because they are not part of the record and are beyond the scope of our review. (Foster v. Civil Service Com., supra, 142 Cal.App.3d at p. 449; Pulver v. Avco Financial Services, supra, 182 Cal.App.3d at p. 632.)
Based on the same reasoning, we likewise disregard Father's citations in his reply brief to the following websites and other publications that were not included in the trial record: "www.aaanativearts.com/ustribes-a-z/us-tribes-q-s;" "miccosukeeseminolenation.com;" "www.floridamemory.com/onlineclassroom/seminoles/timeline/;" "Mahon, John K.; Brent R. Weisman (1996) 'Florida's Seminole and Miccosukee Peoples;' " "Gannon, Michael (Ed.). The New History of Florida . . . University Press of Florida;" and "Hardy, Heather & Janine Scancarelli. (2005). Native Languages of the Southeastern United States, Lincoln, NE: University of Nebraska Press . . . ."
Based on our review of the record in this case, we conclude there is substantial evidence to support the court's findings that ICWA's notice requirements were satisfied and that ICWA did not apply to the children. In applying the substantial evidence standard of review, we examine the entire trial record in the light most favorable to the finding to determine whether the record contains substantial evidence from which a reasonable trier of fact could make that finding. (People v. Albillar, supra, 51 Cal.4th at p. 60.) Because Father does not dispute there is substantial evidence to support findings that Cherokee, Chickasaw, and Choctaw tribes were properly given notice of this proceeding, we focus solely on the question of whether there is substantial evidence to support a finding that Seminole tribes were properly given notice of the proceeding.
Here, the record shows that Father claimed he may have Seminole ancestry. As a result, two Seminole tribes (i.e., the Seminole Tribe of Florida and the Seminole Nation of Oklahoma) were given notice of the proceeding. Father does not argue that the notices given to those tribes were inadequate. Rather, for the first time on appeal, he argues only that another tribe should also have been given notice (i.e., the Miccosukee Tribe of Indians of Florida). However, there is nothing in the record showing that the Miccosukee Tribe of Indians of Florida is a Seminole tribe or that it should otherwise have been given notice of the proceeding under ICWA. Absent any such evidence, Father has not carried his burden on appeal to show there is insufficient evidence to support the court's finding that ICWA's notice requirements were satisfied and ICWA did not apply to the children. (In re L.Y.L., supra, 101 Cal.App.4th at p. 947 [appellant has burden on appeal to show there is insufficient evidence to support trial court's finding].) To the extent Father cites evidence or inferences therefrom that would have supported contrary findings by the court, he misconstrues and/or misapplies the substantial evidence standard of review. (In re H.E., supra, 169 Cal.App.4th at p. 724.)
Had these websites and/or publications been brought to the trial court's attention, the court may have required notice under ICWA to have been given to the Miccosukee Tribe of Indians of Florida. However, because those websites and publications were not submitted to the trial court or included in the record, we cannot conclude there is insufficient evidence in the trial record to support the court's findings that ICWA's notice requirements were satisfied and ICWA did not apply to the children.
DISPOSITION
The judgments are affirmed.
/s/_________
HALLER, J. WE CONCUR: /s/_________
BENKE, Acting P. J. /s/_________
O'ROURKE, J.