Opinion
D071615
05-31-2017
In re NOAH G., a Person Coming Under the Juvenile Court Law. SAN DIEGO COUNTY HEALTH AND HUMAN SERVICES AGENCY, Plaintiff and Respondent, v. N.G., Defendant and Appellant.
Amy Z. Tobin, under appointment by the Court of Appeal, for Defendant and Appellant. Thomas E. Montgomery, County Counsel, John E. Philips, Chief Deputy County Counsel, and Jeffrey Bitticks, CWLS, Senior Deputy County Counsel, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. J517455C) APPEAL from an order of the Superior Court of San Diego County, Kenneth J. Medel, Judge. Affirmed. Amy Z. Tobin, under appointment by the Court of Appeal, for Defendant and Appellant. Thomas E. Montgomery, County Counsel, John E. Philips, Chief Deputy County Counsel, and Jeffrey Bitticks, CWLS, Senior Deputy County Counsel, for Plaintiff and Respondent.
N.G. appeals the juvenile court's order terminating her parental rights to her son, Noah G., under Welfare and Institutions Code section 366.26. She contends the juvenile court and the San Diego County Health and Human Services Agency (the Agency) failed to conduct an appropriate inquiry as required by the Indian Child Welfare Act (25 U.S.C. § 1901 et seq. (ICWA)) to determine if Noah's biological father has Native American heritage. N.G. asks this court to conditionally reverse the order and remand the case back to the juvenile court to conduct that inquiry. We affirm the order.
Undesignated statutory references are to the Welfare and Institutions Code.
FACTUAL AND PROCEDURAL BACKGROUND
In 2015, the Agency filed a petition under section 300, subdivision (b), alleging that one-week-old Noah was at substantial risk of serious physical harm in the care of N.G. because (1) Noah tested positive for methamphetamine, (2) N.G. admitted drug use during her pregnancy, and (3) N.G. had a lengthy history of substance abuse. At the time the petition was filed, N.G. denied Native American heritage and reported to social workers that she did not know who Noah's father was. In advance of the detention hearing, N.G. identified two potential fathers on a paternity questionnaire, Angel P. and Christopher V.
N.G.'s three older children were also brought into the dependency system as a result of her drug abuse. The two oldest are in guardianships with paternal relatives and the youngest, six-year-old Isaac, was adopted in 2012.
At the time of the detention hearing, Noah remained in intensive care at the hospital where he was born. The juvenile court ordered that upon release from the hospital, Noah be detained at Polinsky Children's Center or a licensed foster home. The court also added Angel and Christopher to the petition as alleged fathers. Thereafter, Noah was placed in the home of the adoptive parents of his half-brother Issac.
In its report for the jurisdiction and disposition hearing the following month, the Agency reported that it had made contact with Angel and that he wanted a paternity test. The social worker scheduled an appointment to meet with Angel, but he did not show up or call to reschedule. Christopher had a paternity test and was ruled out as a potential father and subsequently dismissed from the proceeding. At the jurisdiction and disposition hearing, the court made a true finding on the petition, removed Noah from N.G.'s care, and adopted the Agency's recommendation to provide N.G. with reunification services. The court also found, without prejudice, that ICWA did not apply in the case and that the Agency was diligent in its efforts to locate Angel.
Before the six-month review hearing, N.G., who has a long criminal history, was arrested on charges of drug possession, receiving stolen property, and felony weapon possession. At the time of the hearing she was incarcerated and awaiting trial. In advance of the contested six-month review hearing, the family's social worker reported that it had not sent notice of the proceeding to Angel because he had not provided his address and the Agency's parent search clerk had been unable to locate him. At the review hearing, the court terminated N.G.'s reunification services, continued Noah's placement with his foster family, and set the section 366.26 permanency planning hearing.
After the review hearing, the Agency located Angel and sent him a letter explaining the proceedings and notifying him of his right to counsel. Angel requested appointment of counsel and the juvenile court set a special hearing to address the request. Angel, however, did not show up for the hearing. Thereafter, N.G. requested a trial on the Agency's recommendation for the section 366.26 hearing that her parental rights be terminated. In the interim, Angel appeared in court, was appointed counsel and a paternity test was ordered. The paternity test showed that Angel could not be ruled out as Noah's father and the juvenile court granted Angel's request for status as Noah's biological father. In an addendum report before the contested section 366.26 hearing, the Agency outlined Angel's extensive criminal background and some details of an additional ongoing dependency proceeding involving another biological son. The detention report for that proceeding indicated that Angel was the perpetrator of domestic violence and was a regular abuser of methamphetamine. The Agency recommended that no reunification services be provided to Angel in Noah's case.
Before the section 366.26 hearing, N.G. filed a petition under section 388 explaining she had been released from jail and requesting reinstatement of reunification services. Angel also filed a section 388 petition seeking reunification services. At the hearing on the section 388 petitions and the Agency's recommendation that N.G.'s parental rights be terminated under section 366.26, the juvenile court denied both 388 petitions, terminated parental rights and ordered a permanent plan of adoption for Noah, whose foster family desired to adopt him.
DISCUSSION
As noted, the only issue advanced by N.G. on appeal is whether a limited remand is required to provide Angel the opportunity to assert any Native American heritage. Angel himself has not challenged the order terminating parental rights. In response, the Agency concedes that it and the juvenile court failed to fulfill their obligation under ICWA to inquire into Angel's background. The Agency contends, however, the error was harmless because Angel represented in his other son's dependency proceeding that he does not have Native American heritage.
A
"The purpose of ICWA is to ' "protect the best interests of Indian children and to promote the stability and security of Indian tribes and families." ' [Citations.] 'ICWA presumes it is in the best interests of the child to retain tribal ties and cultural heritage and in the interest of the tribe to preserve its future generations, a most important resource.' [Citation.] For purposes of ICWA, an 'Indian child' is a child who is either a member of an Indian tribe or 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).) [¶] . . . [¶] When a court 'knows or has reason to know that an Indian child is involved' in a juvenile dependency proceeding, the court must give the child's tribe notice of the pending proceedings and its right to intervene." (In re H.B. (2008) 161 Cal.App.4th 115, 120.)
Although ICWA "does not expressly impose any duty to inquire as to American Indian ancestry," California law is settled that the juvenile court and the Agency are obligated to make such inquiry. Under section 224.3 and California Rules of Court, rules 5.480 and 5.481, subd. (a), when a parent first appears in a dependency case, the court must order the parents to complete a Parental Notification of Indian Status form (ICWA-020). If the court fails to inquire about a parent's status, reversal is appropriate to correct that error. (In re J.N. (2006) 138 Cal.App.4th 450, 460-462.) Reversal, however, is not necessary if the error is harmless. (In re H.B., supra, 161 Cal.App.4th at pp. 121-122.)
B
To demonstrate the error here is harmless, the Agency has filed a motion to augment the record to include an ex parte application filed in the juvenile court, after N.G. filed her opening brief in this court, to address the failure to inquire into Angel's Native American heritage. The ex parte application contains documentation from Angel's other son's concurrent dependency proceeding showing: (1) Angel represented to the social worker in that case that he did not have Native American heritage, (2) Angel completed a Parentage Notification of Indian Status form (ICWA-020) on September 7, 2016, indicating he did not have Native American heritage, and (3) two minute orders in that case finding ICWA does not apply. N.G. did not oppose the motion to augment the record. She has also failed to file a reply brief responding to the Agency's assertion that the error is harmless.
The Agency's motion to augment is granted. (See In re Salvador M. (2005) 133 Cal.App.4th 1415, 1421 [augmentation of record to include evidence that prospective adoptive parents home study was successfully completed after appeal taken from the permanency planning hearing was appropriate to respond to challenge that sibling exception to adoption was applicable because there was a chance prospective adoptive parents would not be approved to adopt]; see also In re Josiah Z. (2005) 36 Cal.4th 664, 676 ["appellate courts routinely consider limited postjudgment evidence in the context of [dismissal] motions"].) In light of Angel's representation in a concurrent dependency case that he does not have Native American heritage, we conclude the failure to inquire into Angel's background was harmless error. (In re H.B., supra, 161 Cal.App.4th at pp. 121-122.)
The Agency filed the motion to augment past the deadline set forth in California Rules of Court, rule 8.416, subd. (d)(2). Because the ex parte application that is the subject of the unopposed motion was filed in the juvenile court after that deadline, which is 15 days after the date appellant's opening brief is filed, we conclude the Agency has shown good cause for relief. --------
DISPOSITION
The order is affirmed.
/s/_________
BENKE, Acting P. J. WE CONCUR: /s/_________
HALLER, J. /s/_________
AARON, J.