In re J.K.

In re J.K.










Filed 1/6/12 In re J.K. CA4/2





NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FOURTH APPELLATE DISTRICT

DIVISION TWO

In re J.K., a Person Coming Under the Juvenile Court Law.
RIVERSIDE COUNTY DEPARTMENT OF PUBLIC SOCIAL SERVICES, Plaintiff and Respondent, v. M.O., Defendant and Appellant.	E053663 (Super.Ct.No. SWJ008668) OPINION

APPEAL from the Superior Court of Riverside County. Michael J. Rushton, Judge. Affirmed.
Karen J. Dodd, under appointment by the Court of Appeal, for Defendant and Appellant.
Pamela J. Walls, County Counsel, Julie Koons Jarvi, Deputy County Counsel, for Plaintiff and Respondent.
No appearance for Minor.
Defendant and appellant M.O. (Mother) originally filed her appeal to challenge the denial of an ex parte application to videotape visits with her child and to make the child available for a bonding study. However, Mother has changed the focus of her appeal to argue that plaintiff and respondent, Riverside County Department of Public Social Services (DPSS) failed to comply with the notice and inquiry requirements of the Indian Child Welfare Act (ICWA).
FACTUAL AND PROCEDURAL HISTORY
On September 9, 2008, DPSS filed a petition pursuant to Welfare and Institutions Code section 300, subdivisions (b) and (g),^[1] as to two minor children, J.K. (born in 2005) and J.O. (born in 2008). The petition alleged removal was necessary because of substance abuse, domestic violence, and child abuse in the home. It was further alleged Mother and her domestic partner R.B., were incarcerated for domestic violence. As a result, the children were left with no provision for support. The children were placed in protective custody on September 7, 2008. At the detention hearing on September 10, 2008, the court found there was probable cause for detention.
On December 5, 2008, the children were placed with Mother as long as she continued with her case plan and did not reside with R.B. At the dispositional hearing held January 26, 2009, the court found the allegations in the petition to be true. The children were conditionally returned to Mother’s custody under the supervision of the social worker, and with family maintenance services. Mother was ordered to participate in services as set forth in the case plan.
At the six-month review hearing held on July 28, 2009, pursuant to section 364,^[2] the children were continued in Mother’s custody. However, Mother was ordered to participate in therapy and drug testing. At that time, the younger child, J.O., was having overnight weekend visits with his biological father.
On February 24, 2010, the court held a 12-month review hearing pursuant to section 364. At that time, the court ordered Mother to immediately comply with the prior order requiring her to participate in therapy, drug testing, and to have a psychiatric medication evaluation. On March 5, 2010, Mother did not appear as directed for random drug testing. However, later tests were negative. As of March 25, 2010, Mother was not responding to telephone messages from the social worker, and was not present when home visits were attempted. In an addendum report filed March 25, 2010, the social worker also reported suspected child abuse by Mother.
At a continued 12-month review hearing on March 30, 2010, the court concluded there was a substantial risk to the children and ordered them detained from Mother. On April 1, 2010, DPSS filed a supplemental petition under section 387 alleging the prior disposition did not effectively protect the children and Mother put the children at risk by failing to follow prior court orders. On April 2, 2010, the court concluded there was a prima facie case to detain the children from Mother.
On May 27 and 28, 2010, the court held a contested evidentiary hearing on the section 387 petition and considered testimony by several witnesses. At a continued hearing on June 3, 2010, the court found the allegations against Mother in the section 387 petition to be true. J.K. was placed in Mother’s custody under a family maintenance plan as long as she was in full compliance with the case plan. J.O. was placed with his father.
On November 8, 2010, the social worker decided to check the welfare of J.K. at Mother’s home after it was learned Mother had submitted a diluted drug test. J.K. was found alone in the home with Mother’s boyfriend, who was a known felon and drug user. Apparently, Mother had just gone out for a walk. Both Mother and the boyfriend were arrested for being under the influence of a controlled substance. At that time, J.K. was removed from Mother and placed in protective custody.
On November 10, 2010, DPSS filed a second supplemental petition under section 387. The petition alleged the previous disposition had not been effective in protecting the child, because Mother had failed to comply with drug testing, was arrested on November 8, 2010, for being under the influence of a controlled substance in the presence of her child, and had neglected the child by leaving him alone with a known felon and drug user. It was further alleged Mother neglected the child by not supervising him appropriately in a public gym, which placed him at risk for physical harm.
At a detention hearing on November 12, 2010, the court found there was a prima facie case for detention. On January 20 and 24, 2011, the court held a contested hearing on the supplemental petition filed November 10, 2010, and considered testimony by Mother and the social worker. The court found the allegations in the petition to be true, and concluded it would be detrimental for Mother to have custody. J.K. was removed from Mother’s custody. Because the court concluded Mother had already received more than the maximum of 18 months of services and the child could not be returned to her custody, it denied Mother any further services and set a permanency hearing pursuant to section 366.26. Mother previously filed a petition for extraordinary writ pursuant to California Rules of Court, rule 8.452,^[3] challenging the denial of services. We affirmed the trial court’s findings and orders in an unpublished opinion filed April 22, 2011 (M.O. v. Superior Court (Apr. 22, 2011, E052828) [nonpub. opn.]).
On March 25, 2011, Mother filed an ex parte application seeking an order authorizing her to videotape visits with J.K., and for the child to be made available for a bonding assessment. The court denied this request. Mother appealed from that order but, as noted above, she raises an ICWA notice issue and does not challenge the court’s denial of her ex parte application. At the time the present appeal was filed, the section 366.26 hearing was scheduled for November 22, 2011.
DISCUSSION
The current appeal pertains only to J.K. As Mother contends, S.K. is listed as J.K.’s father on the birth certificate. The record shows Mother told the social worker on September 7, 2008, that J.K. may have American Indian heritage through his father, S.K. Mother argues DPSS failed to satisfy its duty of inquiry by asking S.K. about his heritage, even though the social worker had contact with S.K. and his mother during the course of the proceeding. Mother further claims there is “no evidence at all in this appellate record” that the social worker ever asked J.K.’s father whether he had any Indian ancestry. As a result, she argues the juvenile court’s orders concluding ICWA does not apply must be reversed, and the case must be remanded with directions for DPSS to make the required inquiries. We disagree.
ICWA provides that when a state court “knows or has reason to know that an Indian child is involved” in a juvenile dependency proceeding, the court must give the child’s tribe notice of the pending proceedings and its right to intervene. (25 U.S.C. § 1912(a); In re S.B. (2005) 130 Cal.App.4th 1148, 1157 [Fourth Dist., Div. Two].) In addition, California law under section 224.3, subdivision (a) imposes “an affirmative and continuing duty to inquire” whether a child involved in a dependency proceeding “may be an Indian child.” Rule 5.481(a) also imposes “an affirmative and continuing duty [on the court and other officials] to inquire whether a child is or may be an Indian child.” The duty of inquiry applies when a party is seeking foster care placement, a declaration freeing a child for adoption, or termination of parental rights. (Rule 5.481(a).) ICWA notice requirements do not apply when a child is temporarily detained on an emergency basis. (In re S.B., supra, 130 Cal.App.4th at pp. 1162-1163.)
Like Mother, we were unable to locate any documentation in the appellate record which specifically stated the social worker asked S.K. or his mother whether they had any American Indian heritage. As Mother contends, the record does show the social worker had contact with S.K. and his mother during the proceeding. As a result, it is possible the social worker asked S.K. or his mother whether they had any Indian heritage but forgot to document the inquiry. The social worker had a telephone number for S.K.’s mother. In attempts to contact S.K., the social worker called his mother on a number of occasions and also used her address to provide notice to S.K. In addition, the social worker had telephone conversations with S.K. During these conversations, S.K. and his mother both told the social worker they doubted whether S.K. was actually the biological father of J.K. S.K. requested a paternity test. The court acknowledged J.K.’s paternity was a disputed issue by ordering a paternity test. However, S.K. did not complete the testing, did not appear in the proceeding except through appointed counsel, and did not keep in touch with the social worker. The court considered S.K. an alleged father and did not provide him with services.
As we read the record, the position of DPSS for most of the proceeding was that ICWA did not apply because the children were only detained temporarily in protective custody on an emergency basis, but then released a short time later to the custody of a parent. For example, in a report prepared on July 7, 2009, the social worker stated ICWA did not apply because the children were in the custody of a parent, “and it has not been determined that this is an ICWA case.”
On the other hand, the record indicates the position of DPSS changed after J.K. was removed from Mother for the third time on November 8, 2010. Shortly after this third removal, DPSS recommended J.K. remain a dependent child with denial of any further services to Mother. On January 24, 2011, the court followed the recommendation of DPSS, when it not only removed J.K. from Mother’s custody, but also denied any further services to Mother and set a section 366.26 hearing.
As noted above, the duty to inquire applies when a party is seeking foster care placement, a declaration freeing a child for adoption, or termination of parental rights. Therefore, J.K.’s possible Indian heritage would not have come in to play until the later part of the proceeding after J.K. was removed for the third time, and DPSS changed its recommendation to denial of further services to Mother. In keeping with the requirements of ICWA and state law, our review of the record revealed that DPSS did change its position between the third removal of J.K. on November 8, 2010, and the social worker’s report prepared on December 2, 2010, in anticipation of the jurisdiction/disposition hearing on the section 387 petition filed on November 10, 2010. During this time period, on November 10, 2010, the social worker signed a form indicating she had inquired as to whether J.K. had any Indian ancestry. The social worker then checked the box on the form stating, “The child has no known Indian ancestry.” It is also significant that in the recommendations made to the court at the time of the detention hearing on the third removal, the social worker represented that J.K. “is not an Indian child and the Indian Child Welfare Act (‘ICWA’) does not apply.” From these affirmative representations in the record during the relevant time period, we can reasonably infer the social worker did make the requisite inquiries and obtained the necessary information to support the statements made in the forms submitted to the court. (See, e.g, In re S.B., supra, 130 Cal.App.4th at p. 1161; In re E.H. (2006) 141 Cal.App.4th 1330, 1334 [Fourth Dist., Div. Two].) We therefore disagree with Mother’s contention there is “no evidence at all in this appellate record” that the social worker ever asked S.K. whether he had any Indian ancestry.
In any event, Mother would not be entitled to a reversal of the court’s ICWA findings under the circumstances as presented unless she could show “a miscarriage of justice” or prejudice. (In re Rebecca R. (2006) 143 Cal.App.4th 1426, 1430-1431 [Fourth Dist., Div. Two].) In other words, we would not reverse based on the circumstances presented unless Mother or S.K. made an affirmative representation of Indian heritage, because there could be no prejudice unless a parent, if asked, would have stated the child has Indian ancestry. (Ibid.) Here, Mother, as the appealing party, made no such affirmative representation. As a result, a reversal is unnecessary even assuming the duty of inquiry was not completely satisfied.
DISPOSITION
The courts orders are affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS

/s/ MILLER
J.


We concur:


/s/ McKINSTER
Acting P. J.


/s/ RICHLI
J.