In re
Manuel T.
Filed 4/18/13 In re Manuel T. 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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opinion has not been certified for publication or ordered published for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
In
re MANUEL T., A Person Coming Under the Juvenile Court Law.
2d Juv. No. B243808
(Super. Ct.
No. J068195)
(Ventura
County)
VENTURA
COUNTY HUMAN SERVICES AGENCY,
Plaintiff and Respondent,
v.
V.
O.,
Defendant and Appellant.
V. O., mother of Manuel
T., appeals from a juvenile court order terminating her parental rights,
arguing that notice was not given to eight Cherokee tribes as required by the
§ 1901 et seq.; Welf. & Inst. Code, § 224.2, subd. (a).)
defect was cured after the appeal was filed.
Facts
and Procedural History
County Human Services Agency (HSA) detained six-month old Manuel on March
1, 2011 after appellant was arrested for
being under the influence of a controlled substance, felony possession of
marijuana for sale, dissuading a witness by force or threat, making criminal
threats, and possession of a smoking device with methamphetamine residue. Appellant was using methamphetamine and had
bags of marijuana, a scale, and rolls of money with a pay/owe sheet.
HSA filed a dependency
petition for failure to protect or provide (§300, subds. (b) & (g)),
alleging that appellant and the biological father were incarcerated and unable
to care for Manuel. At the March 30, 2011
jurisdiction/disposition hearing, respondent submitted a report summarizing
appellant's lengthy criminal and substance abuse history. The trial court ordered services, supervised
visits, and foster care.
As of the twelve month
review hearing date, appellant had not complied with her case plan, had tested
positive for drugs, and was arrested on a probation violation for not
submitting to a drug test. HSA reported
that the whereabouts of the biological father was unknown and that he had not
maintained contact with Manuel. The
trial court terminated services and set the matter for a section 366.26
hearing.
On July 10, 2012, appellant filed a section 388
petition to reinstate services. The
trial court denied the petition at a combined 388/366.26 hearing, found that
Manuel was adoptable, and terminated parental rights.
ICWA
Appellant
argues that the ICWA notice was defective.
(§ 224.2, subd. (a); see In re Alice M. (2008) 161 Cal.App.4th 1189, 1200-1201.) Before the detention hearing, appellant
signed a Parental Notification of Indian Status (ICWA-020) stating that she may
have Apache Indian ancestry. The trial
court found that ICWA may apply and directed HSA to give notice.
On
March 11, 2011, HSA sent
notice to the Bureau of Indian Affairs and four Arizona Apache tribes using
official addresses published in the Federal Register. HSA mailed the ICWA-030 notice for the March 30, 2011
jurisdiction/disposition hearing to the Bureau of Indian Affairs and four
Arizona Apache tribes, using addresses posted by the California Department of
Social Services.
Appellant,
in her opening brief, argued that ICWA notices were not sent to four
non-Arizona Apache tribes and claimed that the notices mailed to the Arizona
Apache tribes had incorrect addresses.
Thereafter, HSA mailed a new ICWA-030 notice to the Bureau of Indian
Affairs and all the Apache tribes (four Arizona
tribes and four non-Arizona tribes), using correct addresses. At a December
10, 2012 and January 28,
2013 status hearing, HSA filed documents describing the ICWA
investigation and lodged certified mail receipts showing that the ICWA-030
notice was served on the tribes and Bureau of Indian Affairs.
We
granted HSA's request to augment the record on appeal and take judicial notice
of the January 28, 2013 trial court order that notice was given as required by
ICWA, that Manuel is not an Indian child, an that ICWA does not apply.
re C.D. (2003) 110 Cal.App.4th 214, 226 [where agency did not initially
comply with the ICWA, the record may be augmented to show subsequent ICWA
compliance].) An agency's failure to
show compliance with the ICWA notice requirements may be cured while the appeal
is pending. (See
1108, 1116-1117; In re Justin S. (2007)
150 Cal.App.4th 1426, 1432.) That is the
case here.
The
judgment is affirmed.
NOT
TO BE PUBLISHED.
YEGAN,
J.
We concur:
GILBERT, P.J.
PERREN,
J.
Ellen Gay
Conroy, Judge
Superior
Court County
of Ventura
______________________________
Maureen L. Keaney, under
appointment by the Court of Appeal, for Defendant and Appellant.
Leroy Smith, County
Counsel, county of Ventura, Oliver G. Hess, Assistant County Counsel, for
Respondent
name="_ftn1" title="">[1] All further statutory references are to the
Welfare and Institutions Code.
name="_ftn2" title="">[2] Four tribes (the Mescalero Apache Tribe, the
San Carlos Apache Tribe, the Tonto Apache Tribe, and the Yavapai-Apache Nation)
responded to the ICWA-030 notice and confirmed that Manuel is not a tribe
member or eligible for tribal membership.
~(AUG 47-50)
