In re Joseph R.

Filed 3/18/08 In re Joseph R. CA2/6

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION SIX

Ruben R., Sr. (father) appeals from the order of the juvenile court, pursuant to Welfare & Institutions Code section 366.26,[1] terminating his parental rights to Joseph R. (born in October 2004) and to twins Destiny R. and Ruben R., Jr. (born in September 2005). He contends the court erred because it did not insure that respondent, Santa Barbara County Child Welfare Services, had complied with the Indian Child Welfare Act (ICWA) (25 U.S.C.A.  1091, et seq.) and because it did not require respondent to give biological relatives of the children preferential consideration in determining their foster care and adoptive placement. We affirm.

Facts

The children were taken into protective custody in November 2006, when their mother brought them with her to a domestic violence shelter in Lompoc. The children were filthy and starved for attention. They reportedly cried for eight hours straight. The twins, who were then only 15 months old, had what appeared to be scabbed over cigarette burns on their arms and feet. Although the mother was disoriented and appeared unable to care for the children, she was able to explain to the police officers that the burn marks were accidental, having been caused by oil splattering as their father cooked chicken. Given the size and perfectly round shape of the wounds, officers concluded this statement was false.

Within a few days of mother's appearance at the shelter, both biological parents were incarcerated. Father had been convicted in 1994 of voluntary manslaughter. He was sentenced to 17 years, 8 months in prison and released on parole in early 2004. That same year, father was convicted of grand theft. He was released from prison in August 2006. Father was again arrested on October 29, 2006, for a parole violation, possession of controlled substances and corporal injury to a spouse or cohabitant. In November 2006, he pleaded no contest to the corporal injury charge. He was later sentenced to a four year term in state prison which he is currently serving.

Mother was arrested for violating her probation on a forgery conviction. She admitted the violation and was sentenced to two years, eight months in prison. Simultaneously, mother pleaded no contest to two felony counts of willful harm or injury to a child. (Pen. Code,  273a.) She was sentenced to, and is now serving, a term of five years, four months in prison.

At the detention hearing on November 17, 2006, father signed a form indicating that he was a member or might be eligible for membership in the Shoshone Tribe in Wyoming, and that the children might also be eligible for membership in that tribe. On December 5, 2006, Respondent mailed notice of these proceedings to 20 Shoshone tribes. The notice listed the names, birthdates and addresses of the children and both biological parents, but did not provide information concerning the grandparents or other relatives through whom tribal membership might be established. Some tribes responded that the children were not eligible for membership; others did not respond at all. In March 2007, the trial court found that the ICWA did not apply because more than 60 days had elapsed since the notice was sent and none of the tribes had declared the children members or eligible for membership. (Cal. Rules of Court, rule 5.664, subd. (f)(6).)[2]

At the jurisdictional and dispositional hearing on January 11, 2007, the trial court found that reunification services "need not be provided" to either parent and ordered that a section 366.26 hearing to terminate parental rights be held. Father did not file a petition for extraordinary writ review of those findings. The trial court entered its order terminating father's parental rights on May 10, 2007.

After the order terminating parental rights was entered, and after father filed his opening brief on appeal, respondent obtained additional information pertaining to the children's possible Indian heritage. On November 1, 2007, respondent sent another notice of the proceedings to the Eastern Shoshone Tribe, Wind River Reservation in Ft. Washakie, Wyoming. This notice contained detailed information concerning the children's biological, paternal grandmother and great-grandmother, both of whom claimed membership in that tribe. The tribe responded on December 19, 2007, that the children are not enrolled members of the tribe and are not eligible for enrollment because they do not "meet the blood degree requirement of 1/4 total degree of Indian blood . . . ." At a subsequent hearing, the trial court found that the ICWA did not apply. It continued its prior orders concerning the placement of the children.

Discussion

ICWA Notice

Father contends the trial court erred because it failed to ensure compliance with the ICWA before terminating his parental rights. He contends the notice initially sent to Shoshone tribes was inadequate because it did not provide information concerning the paternal grandmother and great grandmother, both of whom are members of the Eastern Shoshone tribe. We conclude that any error in the trial court's findings concerning compliance with the ICWA has already been cured and, accordingly, remand for the purpose of providing proper notice to the tribe is unnecessary.

We note that the Eastern Shoshone tribe determined the children were not eligible for membership only after respondent provided the tribe with additional information concerning their ancestry. The tribe's decision came after the trial court entered its order terminating father's parental rights. Documents reflecting the additional information provided by respondent to the tribe, and the tribe's decision are before this court on respondent's motion to augment the record on appeal. (Cal. Rules of Court, rule 8.155.) Father does not oppose the motion.

We grant respondent's motion to augment the record because it is unopposed and because the augmented record discloses that respondent provided complete identifying information to the tribe, that the tribe made a final decision that the children are not members, and that both the notice and the tribe's response have been reviewed and relied on by the trial court. This case is thus distinguishable from, for example, In re Glorianna K. (2005) 125 Cal.App.4th 1443, where the court declined to take additional evidence because the proffered documents were incomplete and the tribes' responses were equivocal. (See also, Alicia B. v. Superior Court (2004) 116 Cal.App.4th 856, 866-867.)

We nevertheless urge respondent not to rely on such late notices as a substitute for early and complete compliance with the ICWA's notice provisions. Obviously, the better practice is for respondent to provide the tribes, at the earliest opportunity, with complete information concerning the background of a possible Indian child. (See, e.g., In re Francisco W. (2006) 139 Cal.App.4th 695, 702-703; In re Louis S. (2004) 117 Cal.App.4th 622, 631.) Here, however, the information respondent belatedly provided to the Eastern Shoshone allowed the tribe to determine conclusively that the children are not eligible for tribal membership. (In re Francisco W., supra, 139 Cal.App.4th at p. 702.) The purpose of notice under the ICWA has been served and the trial court's finding that the ICWA does not apply was correct. Any error in the trial court's earlier finding was harmless. (In re Alexis H. (2005) 132 Cal.App.4th 11, 15-16; In re Brooke C. (2005) 127 Cal.App.4th 377, 384-385.)

Family Preference

Father next contends that the trial court erred because it did not give preferential consideration to biological relatives in determining where the children would be placed. Respondent maintains that father lacks standing to raise this issue on appeal because his parental rights have been terminated and he no longer has an interest in the placement of the children. Respondent further contends the order was correct because none of the biological relatives sought placement. We conclude that father lacks standing to raise this issue. But even if father has standing, the order was not an abuse of discretion.

In January 2007, the juvenile court determined that father need not be provided reunification services and ordered a section 366.26 hearing. Father did not seek writ review of that order. As a consequence, the order concerning reunification services and setting the section 366.26 is final. Because father has no legal right to reunify with the children, his legal rights are not affected by orders concerning their placement. He lacks standing to raise this issue on appeal. (In re Jacob E. (2004) 121 Cal.App.4th 909, 924; Cesar V. v. Superior Court (2001) 91 Cal.App.4th 1023, 1034-1035; In re Casey D. (1999) 70 Cal.App.4th 38, 53-54.)

Even if father retains standing, the order at issue was not an abuse of discretion. (Alicia B. v. Superior Court (2004) 116 Cal.App.4th 856, 863.) Section 361.3 provides that relatives who request placement of a dependent child are given preferential consideration. This statutory preference "does not create an evidentiary presumption in favor of a relative, but merely places the relative at the head of the line when the court is determining which placement is in the child's best interests." (In re Sarah S. (1996) 43 Cal.App.4th 274, 286.)

Here, there were no biological relatives who requested placement of the children and who were suitable for placement. Their maternal great grandmother said she would "love" to have the children, but could not take them because she is a caretaker for her developmentally disabled adult son who is a registered sex offender. Other relatives "expressed interest in placement, but they failed to follow through with the paperwork, as they never set it to the [social] worker."

The trial court was required to consider whether a relative placement was in the best interests of the children. ( 361.3, subd. (a)(1).) Because none of the eligible relatives completed the paperwork necessary to establish the suitability of their homes as a placement for the children, the trial court properly decided to place them in a prospective adoptive home outside the family. (In re Alicia B., supra, 116 Cal.App.4th at p. 864.) There was no abuse of discretion.

Conclusion

The judgment (order terminating parental rights pursuant to section 366.26) is affirmed.

NOT TO BE PUBLISHED.

YEGAN, J.

We concur:

GILBERT, P.J.

PERREN, J.

Arthur A.Garcia, Judge

Superior Court County of Santa Barbara

______________________________

Catherine C. Czar, under appointment by the Court of Appeal, for Appellant.

Stephen Shane Stark, County Clerk, County of Santa Barbara, Toni Lorien, Deputy, for Respondent.

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[1] All statutory references are to the Welfare & Institutions Code unless otherwise stated.

[2] Rule 5.664 was repealed effective January 1, 2008. The newly enacted rule, California Rule of Court, rule 5.482, subdivision (d)(1), continues the 60-day time period.