In re Gabriel C. CA2/6 ( 2014 )

Filed 8/21/14 In re Gabriel C. 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or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 Gabriel C., a Person Coming Under 2d Juv. No. B254129
the Juvenile Court Law. (Super. Ct. No. J068965)
(Ventura County)
HUMAN SERVICES AGENCY,
Plaintiff and Respondent,
v.
CHRISTOPHER C.,
Defendant and Appellant.
Christopher C. (father) appeals from the order of the juvenile court
terminating his parental rights with respect to his son, Gabriel C. (Welf. & Inst. Code,
§ 366.26.)1 Father contends that Ventura County Human Services Agency (HSA) failed to
comply with the notice provisions of the Indian Child Welfare Act (ICWA) (25 U.S.C. §
1901 et seq.) and the California ICWA related statutes (§ 224 et seq.). HSA, however,
cured the ICWA notice defect while the appeal was pending. We affirm.
Facts and Procedural History
On August 7, 2012, HSA filed a petition for failure to protect (§ 300, subd.
(b)) one-year old Gabriel after father punched out a car window during a domestic dispute
1 All statutory references are to the Welfare and Institutions Code unless otherwise stated.
with Gabriel's mother, Frances V. Gabriel was cut by shards of glass and treated at the
hospital. The petition stated that mother had a history of substance abuse and suffered from
a mental health disability but was not participating in mental health services. Father had a
criminal record and history of substance abuse that interfered with his ability to care for and
supervise Gabriel.
The trial court sustained the amended petition, detained Gabriel, and ordered
reunification services. Services were terminated on August 12, 2013, at the 12-month
review hearing based on the parents' failure to follow the case plan. The trial court set the
matter for a 366.26 hearing and found that ICWA did not apply.
At the section 366.26 hearing, HSA reported that mother had dropped out of
contact and father had been arrested for substance related crimes and was in jail. The trial
court found that parent-child relationship exception did not apply and terminated parental
rights, freeing Gabriel for adoption.
ICWA
Before parental rights were terminated, Gabriel's mother advised HSA that she
may have Cherokee, Blackfeet and Apache Indian ancestry. HSA sent ICWA notices to the
Bureau of Indian Affairs and the tribes but failed to list the maternal great-great-
grandmother (Dortha D.) as a blood relative.
Father argues that HSA did not comply with the ICWA and requests that the
matter be remanded with directions to serve the tribes with an amended notice that lists the
maternal great-great-grandmother. (See In re S.E. (2013) 217 Cal.App.4th 610, 615-616
[failure to state the name of minor's great-great-grandfather rendered ICWA notice
inadequate].) After father's opening brief was filed, HSA initiated proceedings to cure the
notice defect and served the Bureau of Indian Affirms and tribes with an amended notice
listing the maternal great-great-grandmother who is still living.
We granted HSA's motion to augment the record which reflects that HSA
corrected the ICWA error that father complains about. (In re C.D. (2003) 110 Cal.App.4th
214, 224-226.) It is settled that a social services agency may cure an ICWA notice defect
while the appeal is pending. (In re Christopher I. (2003) 106 Cal.App.4th 533, 562-567
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[appellate record augmented to reflect that newly sent ICWA notices were adequate]; Alicia
B. v. Superior Court (2004) 116 Cal.App.4th 856, 867 [same]; In re S.M. (2004) 118
Cal.App.4th 1108, 1117; In re Justin S. (2007) 150 Cal.App.4th 1426, 1432.)
The augmented record reflects that HSA mailed revised ICWA notices on
March 18, 2014, and that seven tribes (Cherokee Nation, United Keetoowah Band of
Cherokee, Eastern Band of Cherokee, Jicarilla Apache Nation, Mescalero Apache Tribe,
Tonto Apache Tribe, and San Carlos Apache Tribe) responded that Gabriel is not eligible
for tribal membership. Five tribes (Apache Tribe of Ok, Ft. Sill Apache Tribe, Blackfeet
Nation, White Mountain Apache Tribe, and Yavapai Mountain Apache Tribe) declined to
respond within the 60 days required by ICWA. On May 27, 2014, the trial court found that
ICWA does not apply to Gabriel. (§ 224.3, subd. (e)(3).) HSA has fully complied with the
relief that father is requesting by serving the tribes with amended ICWA notices listing the
maternal great-great-grandmother as the child's blood relative.
The judgment (order terminating parental rights) is affirmed.
NOT TO BE PUBLISHED.
YEGAN, J.
We concur:
GILBERT, P.J.
PERREN, J.
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Bruce A. Young, Judge
Superior Court County of Ventura
______________________________
Terence M. Chucas, under appointment by the Court of Appeal, for Appellant.
Leroy Smith, County Counsel, County of Ventura and Alison L. Harris,
Assistant County Counsel, for Respondent.
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