In re Oscar M. CA5 ( 2013 )

Filed 11/12/13 In re Oscar M. CA5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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
FIFTH APPELLATE DISTRICT
In re Oscar M., Jr., a Person Coming Under the
Juvenile Court Law.
STANISLAUS COUNTY COMMUNITY F067230
SERVICES AGENCY,
(Stanislaus Super. Ct. No. 516444)
Plaintiff and Respondent,
v. OPINION
Oscar M., Sr.,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Stanislaus County. Ann Q.
Ameral, Judge.
Seth F. Gorman, under appointment by the Court of Appeal, for Defendant and
Appellant.
John P. Doering, County Counsel, and Carrie M. Stephens, Deputy County
Counsel, for Plaintiff and Respondent.
-ooOoo-
FACTS
Section 300 Petition Allegations
Two-day old Oscar M.1 was detained at the neonatal intensive care unit of the
hospital in which he was born. A Welfare and Institutions Code section 300 petition was
filed alleging that Oscar M. and his biological mother, J.S., “tested positive for
amphetamines” and that mother admitted to “using methamphetamines for years,”
including during her pregnancy. Finally, the petition alleged that Oscar M., Sr., was the
presumed father and was incarcerated with a release date of March 9, 2014.2
Detention Report
A detention report filed by Stanislaus County Community Services Agency (the
Agency) on October 11, 2012, indicated that mother had reported Cherokee and Choctaw
ancestry in prior dependency proceedings. The report detailed prior dependency
proceedings involving Oscar M.’s sibling. In those proceedings, the court had found that
the Indian Child Welfare Act (ICWA) did not apply.
Social Worker’s Notes Regarding October 11, 2012, Visit
The jurisdiction/disposition report indicates the social worker met with mother on
October 11, 2012. Mother advised she would be moving “soon” and her physical and
mailing address would be on “Itasca Court.” Mother also reported Choctaw and
1Minor Oscar M. and his father share the same name. We refer to the elder Oscar
M. as “Oscar M., Sr.,” “father” or “appellant.” We refer to the younger Oscar M. as
“Oscar M.” or “Oscar.”
2 Mother and father executed a declaration of paternity indicating that Oscar M.,
Sr., was the father of Oscar M.
2.
Cherokee ancestry. She said there were no other possible fathers of Oscar M. other than
Oscar M., Sr.
October 12, 2012, Filings
Mother filed a Notification of Mailing Address on October 12, 2012, indicating an
address on “ITASCA CT.” The same day, father filed a Parental Notification of Indian
Status, which indicated that father had no Indian ancestry as far as he knew.
ICWA Notice
On October 25, 2012 a Notice of Child Custody Proceeding for Indian Child (the
Notice or the ICWA Notice) was filed.
We will describe certain aspects of the Notice, which relate to father’s claims on
appeal.
The Notice listed the child’s name as “Oscar Junior M[], Jr.” It designated
mother’s address being on “HASCA CT.” An attachment to the Notice’s certificate of
mailing indicates the Notice was physically mailed to mother at “HASCA CT.,” but the
first and last numbers of the address were transposed. The Notice also listed paternal
grandmother’s address as being the same as mother’s address.
The Notice reflects that the biological birth father has acknowledged parentage. It
also indicated that it was unknown whether there has been a judicial declaration of
parentage.
The Notice, as filed with the court, lists the child’s birth certificate as
“unavailable” and does not include a copy of the dependency petition.
Jurisdiction/Disposition Report
A jurisdiction/disposition report was filed by the Agency on November 1, 2012.
The report indicates that “Mother confirmed Cherokee and Choctaw ancestry and was not
able to provide any []new information.”
3.
Oscar M.’s birth certificate was attached to the report. The child’s birth certificate
lists his name as Oscar Junior M[].
An attachment to the report lists Oscar M.’s paternal great-grandmother’s name as
“Teresa [H.].”
November 8, 2012, Jurisdictional/Disposition Hearing
At a November 8, 2012, jurisdictional/disposition hearing, the court said: “I find
that proper notice was given. However, we need two more days for the Indian Child
Welfare Act notification to perfect.” The court continued the hearing to November 19,
2012.
November 19, 2012, Continued Jurisdictional/Disposition Hearing
At the November 19, 2012, hearing, the court determined the allegations of the
dependency petition were true by a preponderance of the evidence and that Oscar M. was
a person described by Welfare and Institutions Code3 section 300, subdivisions (b), (g)
and (j).
The court stated it was “unknown” if ICWA applies.4 The subsequent minute
order states it is “unknown if [ICWA] applies.” However, the same minute order also
3
All further statutory references are to the Welfare and Institutions Code unless
otherwise stated.
4Determining whether ICWA “applies” can have multiple meanings. First, there
is the determination whether ICWA notice must be sent. (§ 224.2, subd. (a).) This
determination hinges on whether the court, a social worker or probation officer “knows or
has reason to know that an Indian child is involved.” (§ 224.2, subd. (a).) Second, there
may be a later determination that ICWA “does not apply to the proceedings” (§ 224.3,
subd. (e)(3)) because no tribe has determined the child is a member or eligible for
membership. Thus ICWA may “apply” with respect to its notice provisions even if it
ultimately “does not apply to the proceedings” under section 224.3, subdivision(e)(3).
Based on the context here, the trial court’s determination that it was “unknown” if ICWA
applies does not refer to ICWA’s notice provisions (which clearly applied). Rather the
court was indicating that it was unknown at that point whether any of the tribes would
determine Oscar M. was an Indian child.
4.
adopted and incorporated findings and orders from the social worker’s report filed
November 1, 2012. One of the findings that was adopted and incorporated into the
minute order was a finding “that the Indian Child Welfare Act does not apply to these
proceedings.”
Father’s Writ
Father filed a writ challenging the juvenile court’s denial of services and its order
setting a section 366.26 hearing. (See Oscar M. v. Superior Court (Mar. 5, 2013,
F066178) [nonpub. opn.].)5 Father did not raise any ICWA issues in the writ petition.
We denied the petition in a nonpublished opinion. (See ibid.)
Section 366.26 Report and Hearing
The Agency filed a section 366.26 report on March 8, 2013. The report
recommended the court terminate parental rights and find ICWA inapplicable.
The court found ICWA did not apply and terminated parental rights. Father now
appeals the termination of his parental rights.
DISCUSSION
I.
FATHER IS FORECLOSED FROM CHALLENGING ALLEGED
DEFICIENCIES IN THE OCTOBER 25, 2012 ICWA NOTICE
Father raises several deficiencies in the ICWA notice, including allegedly
incorrect names and a missing address. We find that father waived any claims regarding
deficiencies in the ICWA notice by failing to seek prior appellate review of the trial
court’s November 8, 2012, finding that proper ICWA notice had been given.
“An appeal from the most recent order entered in a dependency matter may not
challenge prior orders for which the statutory time for filing an appeal has passed.” (In re
Pedro N. (1995) 35 Cal. App. 4th 183, 189.) This rule applies to ICWA notice issues.
5 See California Rules of Court, rule 8.1115(b)(1).
5.
(Ibid.) Here, father mounted no appellate challenge to the juvenile court’s finding that
proper ICWA notice had been given. Though he filed a writ challenging the disposition
orders, he did not seek review of the court’s finding that proper ICWA notice had been
given.6 Given this failure, he may not raise alleged deficiencies in the ICWA Notice on
this appeal from the order terminating parental rights. (Cf. ibid.)
Father contends he has not forfeited this issue, relying on In re Gerardo A. (2004)
119 Cal. App. 4th 988 (Gerardo A.). In Gerardo A., this court held the father did not
forfeit his ICWA claim by failing to appeal a January 2002 removal order in a timely
fashion. (Id. at p. 993.) However, in Gerardo A., the father was “first properly noticed in
August 2003, when he was personally served in state prison with notice of the
termination hearing.…” (Id. at p. 991.) Thus we held, “[u]nder these circumstances” the
appeal was “the first opportunity” for father “to raise the issue of ICWA compliance.”
(Id. at p. 993, italics added.) In other words, we would not fault an appellant for failing
to timely challenge a January 2002 order when his first proper notice of the proceedings
came in August 2003.
The same cannot be said of the present case.7 Here, father was clearly on notice of
the disposition/jurisdiction order because he challenged it through writ proceedings.
6 The fact that the trial court made two contradictory findings regarding ICWA
applicability at the disposition hearing is immaterial. Even when the court stated it was
unknown if ICWA applied, it also stated that proper ICWA notice had been given.
Father is therefore foreclosed from arguing that the ICWA notice was improper under
both of the trial court’s contradictory findings.
7 Moreover, the alleged ICWA violations were different in Gerardo A., supra, 119
Cal. App. 4th 988. In that case, the agency completely failed to serve ICWA notice on two
tribes, “both of whom [sic] were entitled to notice.” (Id. at p. 995.) In contrast, the
contention we deem forfeited here is the claim that the ICWA notices were deficient due
to misspellings, etc.
6.
Thus, this appeal is not the first opportunity for father to have raised the issue of defects
in the October 25, 2012, ICWA notice.8
II.
EVEN IF FATHER WERE NOT FORECLOSED FROM CHALLENGING
DEFICIENCIES IN THE ICWA NOTICE, ANY DEFICIENCIES ARE
HARMLESS
Even if father had not been foreclosed from raising the deficiencies in this appeal,
those deficiencies were harmless.
Deficiencies in ICWA notices are subject to harmless error review. (In re
Brandon T. (2008) 164 Cal. App. 4th 1400, 1414; In re S.B. (2005) 130 Cal. App. 4th 1148,
1162.) The purpose of ICWA notice is to enable tribes to “determine whether the child is
in fact an Indian child. [Citation.]” (In re Cheyanne F. (2008) 164 Cal. App. 4th 571,
576.) Thus, courts have held deficiencies in the ICWA notice to be harmless where “it
can be inferred” that nondeficient notice “would not have led to a different
determination.” (In re Brandon T., supra, at p. 1415.) We conclude the purported
deficiencies raised by father were harmless.
Omission of Oscar M.’s Birth Certificate
First, father contends the Agency erroneously failed to provide a copy of Oscar
M.’s birth certificate. (See § 224.2, subd. (a)(5)(E).) He argues that the ICWA Notice
appends the suffix “Jr.” to Oscar M.’s name while the birth certificate does not. Father
fails to establish prejudice. The ICWA Notice states the exact same first, middle and last
name for Oscar M. as the birth certificate does. Thus, the purported discrepancy cited by
father is not a misstatement of Oscar M.’s name because suffixes like “Jr.” are not
generally considered part of a person’s name. (See 57 Am.Jur.2d, Name, § 8.) Rather,
8It is, however, the first opportunity for father to raise the claim that no ICWA
notice was provided for the section 366.26 hearing. We therefore address that claim on
the merits. (See § III, post.)
7.
the addition of the suffix “Jr.” provided additional, correct information to the tribes,
advising them that the child shares the same name as his father. There is no reason to
believe the addition of “Jr.” to Oscar M.’s name hampered the tribes’ ability to determine
whether Oscar M. was eligible for membership. To the extent there was any error in
adding “Jr.” to Oscar M.’s name in the ICWA Notice, or failing to provide the birth
certificate, no prejudice has been demonstrated.
The Agency’s Failure to Update the Tribes Regarding the Birth Certificate’s
Listing of Appellant as Oscar M.’s Father
Father also points out the Notice indicates it is unknown whether he was listed on
Oscar M.’s birth certificate. Father contends the Agency should have updated this
information once it obtained the birth certificate. Again, we see no prejudice. If
someone other than appellant had been listed on the birth certificate as Oscar M.’s father,
and that person was not included in the ICWA notice, then the failure to notify the tribes
that appellant was not listed as the father on the birth certificate might have been
prejudicial. In such a scenario, the notice would be materially defective because the
tribes would have been deprived of important information that would be helpful in
determining Oscar M.’s eligibility. That is not the case here.
The inclusion of this information (i.e., that father is indeed listed on the birth
certificate) would not have altered the tribes’ determination as to Oscar M.’s membership
or eligibility.
Omission of the Dependency Petition
Father also notes the failure to provide a copy of the dependency petition with the
ICWA Notice. We agree, the Agency erred in omitting this document. (See § 224.2,
subd. (a)(5)(D).) But, the error was harmless. Father points to no material information in
the dependency petition that was not included in the ICWA Notice. Thus, there is no
showing that the failure to provide the dependency petition prejudiced father, Oscar M. or
the tribes.
8.
Omission of Information on Whether there had been a Judicial Declaration of
Parentage
Similarly, father alleges the ICWA notice fails to include information regarding
the voluntary declaration of paternity. However, the notice states, “Biological birth
father has acknowledged parentage.” Father also contends the notice incorrectly states
that it was “unknown” whether there had been a judicial declaration of parentage.
However, he provides no argument that this error was prejudicial. Conceivably, if there
had been a judicial determination of parentage in favor of an individual not named in the
ICWA notice, then this type of error could have been prejudicial. Again, in that scenario,
the tribes would have been deprived of material information regarding Oscar M.’s
ancestry. Here, however, there is no dispute that father and mother are the parents of
Oscar M. Thus, whether there had been a judicial determination of parentage is not
material because the tribes were notified of the names of Oscar M.’s parents.
Alleged Misspelling of Paternal Great-Grandmother’s Name on the ICWA
Notice
Father next claims that Oscar M.’s paternal great-grandmother’s name was
misspelled. The evidence in the record does not support this contention. The record
simply reflects that the spelling of the paternal great-grandmother’s name differs from the
ICWA Notice (“Theresa”) to the Agency’s jurisdiction report (“Teresa”). Father points
to no evidence regarding which is the correct spelling. (See In re D.W. (2011) 193
Cal. App. 4th 413, 417-418.) On the record before us, it is equally likely that the ICWA
Notice was correct and the jurisdiction report was incorrect. In sum, father has failed to
carry his burden of demonstrating error on this point. (See ibid.)
Allegedly Incorrect Listing of Paternal Grandmother’s Address
Father also claims paternal grandmother’s address was listed incorrectly on the
ICWA Notice. But, none of the tribes determined Oscar M. to be an Indian child based
on his descent from paternal grandmother despite having her name and date of birth. By
9.
definition, paternal ancestors are relevant to an ICWA determination insofar as they
affect the child’s eligibility through the father. Here, father claimed no Indian heritage,
much less tribal membership. Thus, “it can be inferred” that nondeficient notice “would
not have led to a different determination.” (In re Brandon T., supra, 164 Cal.App.4th at
p. 1415.) Father has not shown that the inclusion of an incorrect address “could thwart a
search that utilized” grandmother’s correct name and date of birth. (Cf. In re D.W.,
supra, 193 Cal.App.4th at p. 418.)
III.
THE FAILURE TO NOTICE THE SECTION 366.26 HEARING WAS
HARMLESS
Father contends the agency failed to provide notice of the section 366.26 hearing
to the tribes. We do not resolve whether error occurred9 because we deem any lack of
notice harmless in this case.
“An ICWA notice violation may be held harmless when … even if notice had
been given, the child would not have been found to be an Indian child, and hence the
substantive provisions of the ICWA would not have applied. [Citations.]” (In re S.B.,
supra, 130 Cal.App.4th at p. 1162, fn. omitted.) In response to the October 25, 2012,
9 As discussed ante, the court made two contradictory findings after the
jurisdiction/disposition hearing: (1) that ICWA did not apply and (2) that it was
unknown whether ICWA applied. If the court had only found that ICWA did not apply,
then the “failure” to notice the section 366.26 would not have been erroneous. Notice of
subsequent hearings is only required “until it is determined that the ICWA does not
apply. [Citations.]” (In re K.P. (2009) 175 Cal. App. 4th 1, 5, italics added. See also,
§ 224.2, subd. (b).) Conversely, if the court had only determined that it was unknown
whether ICWA applied, then the failure to notice subsequent hearings would have been
erroneous. (§ 224.2, subd. (b).) Thus, the dual findings complicate the analysis of
whether the failure to notice the section 366.26 hearing was erroneous. However, we
need not decide that issue because we conclude the lack of notice, even if erroneous, was
harmless.
10.
ICWA notice, no tribe claimed Oscar M. was an Indian child. Thus, there is no reason to
believe a notice for the section 366.26 hearing, providing the same information regarding
Oscar M. and his relatives as the October 25, 2012 notice, would have changed the tribes’
determination. (See § II, ante.)
IV.
THE AGENCY DID NOT VIOLATE ITS DUTY OF INQUIRY
Father argues the Agency violated its duty to sufficiently inquire about
information regarding Oscar’s ancestry. (See § 224.3, subds. (a) & (c).)
So long as it adequately inquires about the information as required by statute, the
Agency does not necessarily violate section 224.3 by failing to obtain that information.
The reason for this is obvious. Once the Agency adequately inquires about the
information, its success in actually obtaining the information may be outside its control.
If relatives are unavailable or have no helpful information, the Agency may be unable to
obtain certain information despite adequate inquiry. “To fulfill its responsibility, the
Agency has an affirmative and continuing duty to inquire about, and if possible obtain,
this information. [Citations.]” (In re A.G. (2012) 204 Cal. App. 4th 1390, 1396, italics
added.)
Here, father does not show any information missing from the ICWA Notice was
caused by the Agency failing to inquire about the information.
First, father contends that despite his own failure to claim Indian ancestry, it is a
“reasonable inference” that paternal grandmother was never asked to provide information
regarding her ancestry. But the record indicates the social worker went to the residence
paternal grandmother shared with mother in an “attempt[] to review ICWA information
with the paternal grandmother.” However, she was not present. The Agency had a duty
to inquire, but not a duty to conduct a comprehensive investigation into a minor’s
11.
potential Indian status. (See In re C.Y. (2012) 208 Cal. App. 4th 34, 39.) The Agency
simply tried to contact paternal grandmother and was unsuccessful.
Father contends that the Agency only made a single attempt to obtain ancestry
information from his brother, S.M. The record reflects otherwise. While it is true that
the Agency called S.M. on October 30, 2012, and was unable to leave a message, this
was not the Agency’s only attempt to contact him. The record reflects that on October
18, 2012, the Agency attempted to reach S.M. by telephone and “left a message …
requesting a return telephone call.…” The purpose of the call was to discuss ICWA. The
Agency attempted to contact S.M. on multiple occasions.
Father also argues that some information regarding mother’s ancestry is missing
from the ICWA notice. Again, father fails to show that this was the result of the
Agency’s failure to inquire about the information. To the contrary, the agency did
contact mother and discussed potential Indian ancestry.10 Mother “reported Native
American Indian ancestry of [C]herokee and [C]hoctaw and stated there was not enough
for them to be recognized .…” A social worker’s report indicates that mother “confirmed
Cherokee and Choctaw ancestry and was not able to provide any []new information.”
Accordingly, the ICWA notice reflected that mother claimed Cherokee and Choctaw
ancestry.
Finally, father argues there is no indication in the record that the ICWA notice was
reviewed with a maternal aunt. It is father’s duty to present ICWA error affirmatively
10 Moreover, the record indicates that the Agency had difficulty communicating
with mother. There was evidence that mother would only contact the social worker
through Facebook. Shortly thereafter, mother came to the social worker’s office. She
was drug tested that day and the results were positive for methamphetamine. That day,
mother entered a residential treatment program. She testified that she was not allowed to
speak to anyone while in the program.
12.
with an adequate record. (Cf. In re D.W., supra, 193 Cal.App.4th at pp. 417-418.) We
will not presume ICWA error has occurred. (Cf. ibid.)
Father has failed to demonstrate the Agency violated its duty of inquiry.
DISPOSITION
The order is affirmed.
_____________________
Poochigian, J.
WE CONCUR:
_____________________
Gomes, Acting P.J.
_____________________
Detjen, J.
13.