In re A.G. CA2/6

Filed 6/24/15 In re A.G. 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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 A.I.G. et al., Persons Coming Under 2d Juv. No. B258555
the Juvenile Court Law. (Super. Ct. Nos. J069104, J069105,
J069106, J069107, J069108)
(Ventura County)
VENTURA COUNTY HUMAN ORDER MODIFYING OPINION
SERVICES AGENCY, AND DENYING REHEARING
[NO CHANGE IN JUDGMENT]
Plaintiff and Respondent,
v.
ANTHONY G. et al.,
Defendants and Appellants.
THE COURT:
It is ordered that the opinion filed herein on May 27, 2015, be modified as follows:
1. On page 4, the first sentence of the fourth paragraph, beginning "Substantial evidence
in the augmented record," is deleted and the following sentence is inserted in its place:
"Any error is harmless because the amended ICWA notices complied with ICWA."
There is no change in the judgment.
Appellant Anthony G.'s petition for rehearing is denied.
Filed 5/27/15 (unmodified version)
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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 A.I.G. et al., Persons Coming Under 2d Juv. No. B258555
the Juvenile Court Law. (Super. Ct. Nos. J069104, J069105,
J069106, J069107, J069108)
(Ventura County)
VENTURA COUNTY HUMAN
SERVICES AGENCY,
Plaintiff and Respondent,
v.
ANTHONY G. et al.,
Defendants and Appellants.
L.G. (Mother) and Anthony G. (Father) appeal from an order of the
juvenile court terminating their parental rights to five children, A.I.G., A.D.G., D.G.,
L.G., and A.G. (Welf. & Inst. Code, § 366.26.)1 They contend that Ventura County
Human Services Agency (HSA) did not 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 cured the ICWA notice defect while the appeal was
pending. We affirm.
1
All statutory references are to the Welfare and Institutions Code unless stated otherwise.
FACTUAL AND PROCEDURAL BACKGROUND
Mother and Father have five children together. Mother also has two older
children who previously became dependents of the juvenile court and with whom she did
not reunify.
In November 2012, HSA detained Mother and Father's five children and
filed a juvenile dependency petition for each child based on failure to protect the
children. (§ 300, subd. (b).) HSA alleged that Mother and Father were chronically
homeless, did not provide shelter or clothing for the children, and were living in unfit and
unsanitary conditions.
HSA interviewed Father on November 8, 2012, and interviewed the
paternal grandmother on November 12 concerning Indian ancestry. Based on those
interviews, HSA reported in the petitions that the children may be members of the Hopi
or Navajo Indian tribes. On November 15, Father filed a parental notification of Indian
status form (Form ICWA-020) in which he reported that he may have Navajo or
Chumash ancestry. Mother filed the same form and reported that she may have Indian
ancestry, but identified the tribe(s) as "unknown."
On November 19, 2012, HSA filed notices pursuant to ICWA. HSA
identified the Navajo and Chumash as Father's possible ancestral tribes. It reported the
source of this information to be interviews with Father and Mother on November 14. It
did not refer to the November 8 and 12 interviews and did not identify the paternal
grandmother as a source of information. It did not identify the Hopi as a possible
ancestral tribe. It did not include Mother's maiden name. It reported that maternal
grandmother had one-eighth and maternal great-grandfather had one-quarter Indian
heritage of an unknown tribe.
HSA served the ICWA notice on Mother, Father, the Bureau of Indian
Affairs (the Bureau), the Navajo Nation, the Santa Ynez Band of Chumash Indians, the
Ramah Navajo School Board, and the Colorado River Indian Tribes. It did not serve the
Hopi tribe.
2
The juvenile court sustained the petitions in December 2012 and ordered
that the children continue to be detained. The juvenile court ordered family reunification
services and supervised visits for both parents.
Each tribe that HSA served responded to the ICWA notice by reporting that
the children were not eligible for membership. The Bureau of Indian Affairs responded
by checking a box that said, "[T]he county has provided an appropriate notice to the tribe
or tribes." In February 2013, the juvenile court found that ICWA did not apply.
At the 12-month review hearing in December 2013, the juvenile court
terminated reunification services for both parents and scheduled a section 366.26 hearing.
Mother and Father's two boys were placed with a paternal great aunt and uncle who
wished to adopt them. Mother and Father's three girls were placed with another great
aunt and uncle who wished to adopt them.
At the section 366.26 hearing, the juvenile court found the children were
adoptable and the parent-child bond exception did not apply. It terminated parental rights
and selected a permanent plan of adoption.
DISCUSSION
Mother and Father filed opening briefs in which they asked that the matter
be remanded to the trial court for ICWA compliance. (In re Christian P. (2012) 208
Cal. App. 4th 437, 452.) Father argued that the ICWA notice was deficient because it did
not identify the Hopi tribe (§ 224.2, subd. (a)(3); 25 U.S.C. § 1912) or include other
information that HSA probably obtained from the paternal grandmother when it
interviewed her on November 12. Mother argued that the notice did not include her
maiden name (§ 224.2, subd. (a)(5)(C)), and that the record does not demonstrate that the
Bureau conducted an independent search of its records regarding the information she
provided.
After Mother's and Father's opening briefs were filed, HSA initiated
proceedings to cure the notice defects. 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.) We granted HSA's motion to augment the record.
3
HSA corrected the errors complained of by Father and Mother. It
interviewed the paternal grandmother. It amended its ICWA notice to include additional
information she provided and to include Mother's maiden name. HSA served the Bureau
of Indian Affairs and 13 tribes, including the Hopi tribe, with the amended notice.
Eight tribes, including the Hopi tribe, responded that the children are not
eligible for membership. Five tribes did not respond.
The juvenile court conducted an ICWA hearing in February 2015. It found
that the amended notice complied with ICWA, and the ICWA does not apply to these
children. The court found that, "[a]s of June 2014, the Bureau of Indian Affairs no longer
responds to ICWA 030 notices unless no tribes are named."
Substantial evidence in the augmented record supports the juvenile court's
findings. (In re Christian P., supra, 208 Cal. App. 4th 437, 451.) HSA complied with its
obligation to send notice to the identified tribes and, because Mother was unable to
identify a tribe, to send notice to the Bureau. (§ 224.2, subd. (a)(3), (4); 25 U.S.C.
§ 1912, subd. (a).) Mother does not cite authority, and we are aware of none, imposing
upon HSA the burden of demonstrating that the Bureau's internal response to the notice
was appropriate. We presume official duties are regularly performed. (Evid. Code,
§ 664.)
DISPOSITION
The order terminating parental rights is affirmed.
NOT TO BE PUBLISHED.
GILBERT, P.J.
We concur:
YEGAN, J.
PERREN, J.
4
Bruce A. Young, Judge
Superior Court County of Ventura
______________________________
Marissa Coffey, under appointment by the Court of Appeal, for Defendant
and Appellant Anthony G.
Karen B. Stalter, under appointment by the Court of Appeal, for Defendant
and Appellant L.G.
Leroy Smith, County Counsel, Cynthia Krause, Assistant County Counsel,
for Plaintiff and Respondent.
5