In re David L.

Filed 8/28/08 In re David L. CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE

Appeal from a judgment of the Superior Court of Orange County, Caryl Lee, Judge. Reversed and remanded with directions.

Jamie A. Moran, under appointment by the Court of Appeal, for Defendant and Appellant.

Benjamin P. de Mayo, County Counsel, and Karen L. Christensen, Deputy County Counsel, for Plaintiff and Respondent.

* * *

Dorian L., father of David L., appeals from the termination of his parental rights. He claims the Orange County Social Services Agency (SSA) failed to give him proper notice of the hearing pursuant to Welfare and Institutions Code section 366.26,^[1]thus depriving him of due process. He also claims the juvenile court had insufficient evidence on which to base its finding that the Indian Child Welfare Act (25 U.S.C.A.,  1901 et seq.) (ICWA) did not apply. While we find the father was not deprived of due process, we agree the ICWA finding was not based on sufficient evidence. Accordingly, we reverse and remand for the limited purpose of ICWA compliance.

FACTS

David was detained in December 2005 after he was born with opiates in his system. The mother admitted to the use of heroin during her pregnancy, the most recent use being a few days before delivery. The father had a lengthy criminal and substance abuse history, including use right before Davids birth. David was placed in the home of his maternal grandmother, Serena H.

At the detention hearing, the father filled out a form indicating he might have Indian ancestry. The juvenile court deferred ICWA findings until SSA could investigate and notice the appropriate tribes. The ICWA social worker interviewed the paternal grandmother, who said there was Sioux ancestry in the paternal grandfathers family, but he was in the hospital and unavailable for interview. The social worker called and left messages for the paternal great-aunt. The available family and tribal information was placed on the Notice of Involuntary Child Custody Proceedings for an Indian Child form (JV-135).^[2] On December 28, 2005, the social worker sent notice to the Bureau of Indian Affairs (BIA) and more than 15 tribal entities. On January 12, 2006, SSA reported it had filed all return receipts received up to the hearing date with the juvenile court.

On February 7, 2006, SSA filed green receipt cards or response letters from nine tribal entities, none of which identified David as an Indian child. On March 8, 2006, SSA filed response letters from four more tribal entities, none of which identified David as an Indian child. SSA filed one more response letter, also not identifying David as an Indian child, on April 12, 2006, the date of the jurisdiction and disposition hearing.

Although the actual notice sent to the tribal entities and the BIA (presumably, the JV-135 form) was not filed with the court, and no receipts or responses from the BIA and three tribal entities had yet been filed, the parties submitted a proposed order that [n]otice of hearing was given to the BIA and all applicable tribes . . . in accordance with ICWA. The court made an ICWA order consistent with . . . the proposed orders and findings. The court declared David a dependent and removed him from the custody of his parents. SSA then asked the court to find that ICWA did not apply to the case. We sent out all appropriate notice[s] and necessary time has elapsed pursuant to Rules of Court to allow us to make that finding. The court made the requested finding.

The fathers reunification services were terminated at the 18-month review hearing in July 2007, and the court set a permanent plan selection hearing for November 8, 2007. The father was not present at the hearing. Los Angeles County Sheriffs records indicated he was incarcerated at the Pitchess Detention Center in Castaic. However, his parole agent told the social worker the father was at the Los Angeles County Jail. A copy of the minute order was sent to the father at Twin Towers, 450 Bauchet St., Los Angeles, CA 90012.

On July 16, 2007, SSA sent the father notice of the November hearing; he was identified by booking number 9819694, and his address was listed as a post office box in the terminal annex. On July 25, the juvenile court received the envelope addressed to the father at the Twin Towers with the notation Return to sender[;] attempted not known. On July 31, SSA sent another notice of the November hearing to the father at the State Prison in Lancaster, identifying him with the California Department of Corrections number V41575. On August 20, the juvenile court found, pursuant to the stipulation of the parties, that notice had been given as required by law.

SSA filed a report for the November hearing on October 31, 2007; the report was signed by the social worker on October 26. The fathers address was still listed as the Pitchess Detention Center, although the body of the report stated he was currently incarcerated in Lancaster, California. The father did not appear at the hearing, and his counsel submitted on the SSAs recommendations, which included a finding that notice had been given as required by law. The fathers counsel declined the courts invitation to be heard. The court found David adoptable and terminated parental rights.

DISCUSSION

The father contends the judgment must be reversed because SSA failed to give him proper notice of the November hearing, thus denying him due process rights to notice and the opportunity to be heard. He claims SSA did not make a good faith effort to send him notice to a valid current address. We disagree.

Section 294 provides that SSA shall give notice of the hearing held pursuant to section 366.26 to all presumed and alleged fathers by Certified mail, return receipt requested, to the parents last known mailing address. . . . ( 294, subd. (f)(2). The father faults SSA for failing to send the notice to the Pitchess Detention Center in Castaic, arguing this was the address on SSAs report. But he does not claim the notice would have reached him there. In fact, the father does not deny actual notice. Rather, he claims there is nothing in the record to show the notice was reasonably calculated to reach him. This, he argues, coupled with his failure to appear, adds up to a violation of due process.

Although SSA stated in its report that the father was incarcerated in Lancaster, the father complains the record does not contain a basis for this statement. We are entitled to presume that SSA made the statement about Lancaster, and subsequently sent the notice there, because it had received reliable information about the fathers incarceration. (See Evid. Code,  664 [presumption that official duty has been regularly performed].) Furthermore, the fathers counsel stipulated that notice to the father was sufficient, and she appeared and represented him at the November hearing. Due process is a flexible concept which depends upon the circumstances and a balancing of various factors. (In re Jeanette V. (1998) 68 Cal.4th 811, 817.) We see no violation of due process here.

The father contends the juvenile court had insufficient information on which to base its finding that ICWA did not apply to Davids case. Because SSA failed to file the notices it sent to the tribal entities and the BIA, we agree.

ICWA requires SSA to give notice of juvenile dependency proceedings to any Indian tribe with which the child may be affiliated and to the BIA if the tribe is not known. (25 U.S.C.  1912(a).) Proof of the notice, including copies of notices sent and all return receipts and responses received, shall be filed with the court . . . . ( 224.2, subd. (c); see also Cal. Rules of Court, rule 8.482(b).) The filing requirement is an essential component of the ICWA notice process because it allows the juvenile court to review the notices and determine whether they complied with the ICWA . . . and gave the [BIA] or the tribe all known relevant information and a meaningful opportunity to determine whether the dependent child is an Indian child within the meaning of the ICWA. (In re Karla C. (2003) 113 Cal.App.4th 166, 178.)

SSA acknowledges that it failed to file all the required ICWA documentation with the juvenile court. It seeks to cure that failure by a request to take judicial notice, and presumably to augment the record on appeal, with copies of the receipts and responses it received but failed to file. This court and others have found such a procedure appropriate in dependency cases to avoid delay and allow a determination of harmless error, if possible. (See, e.g., In re S.M. (2004) 118 Cal.App.4th 1108, 1117; In re Louis S. (2004) 117 Cal.App.4th 622, 630; Alicia B. v. Superior Court (2004) 116 Cal.App.4th 856, 867; In re Antoinette S. (2002) 104 Cal.App.4th 1401, 1413.)

There were two motions to add ICWA information to the record in this appeal. The first, by the fathers counsel, asked to augment the record with the JV-135 form completed by SSA and sent to the tribal entities and with the return receipts. We granted the motion, but the clerk of the superior court informed us that the JV-135 form was not in the juvenile court file and that all available receipts and responses from tribal entities had already been included in the clerks transcript. The second motion is a request for judicial notice by SSA, which we decided to consider in conjunction with the merits of this appeal. In that motion, SSA submits copies of green card receipts from the BIA, the Oglala Sioux Tribe, the Prairie Island Indian Community, and the Spirit Lake Sioux Tribe; and response letters from the Prairie Island Indian Community and the Spirit Lake Sioux Tribe. These documents were received by SSA in December 2005 and January 2006, before the juvenile court made its ICWA finding. They were not filed with the juvenile court, however, until April 2008.

We will take judicial notice of the documents and augment the record with them. This does not implicate the issue of postjudgment evidence because the documents existed before the entry of the order from which the appeal is taken. (See In re Zeth S. (2003) 31 Cal.4th 396; Alicia B. v. Superior Court, supra, 116 Cal.App.4th at pp. 866-867.) Furthermore, denying the motion would be counterproductive to the states strong interest in the expeditiousness and finality of juvenile court dependency proceedings. [Citation.] (Id. at p. 867.)

Unfortunately, the record so augmented does not satisfy the requirements of ICWA because it does not include the actual notice sent to the tribal entities. This means the juvenile court was deprived of the opportunity to determine whether SSA was in compliance with ICWA. It is a trial court function to receive evidence of SSAs notice efforts and to determine if they measure up to ICWA standards. (In re Nikki R. (2003) 106 Cal.App.4th 844, 852.) Without the notice before it, the juvenile court erred when it found ICWA did not apply in this proceeding.

DISPOSITION

The judgment terminating parental rights is reversed. The juvenile court is directed to ensure that proper notice under ICWA is given. If, after proper inquiry and notice, a tribe claims that David is an Indian child, the juvenile court shall proceed in accordance with ICWA. If no tribe makes such a claim, the juvenile court shall reinstate the judgment.

SILLS, P. J.

WE CONCUR:

OLEARY, J.

ARONSON, J.

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^[1] All statutory references are to the Welfare and Institutions Code.

^[2] Form JV-135 was revised and renumbered as ICWA-030 as of January 1, 2008.