Angela D. v. Superior Court
Filed 6/18/13 Angela
D. v. Superior Court 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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opinion has not been certified for publication or ordered published for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
ANGELA D.,
Petitioner,
SUPERIOR COURT, COUNTY OF
SANTA BARBARA,
Respondent;
SANTA BARBARA COUNTY CHILD WELFARE SERVICES,
Real Party in
Interest.
2d Juv. No. B247089
(Super. Ct. Nos.
J-1300277, J-1300278,
J-1300279,
J-1300280)
(Santa Barbara
County)
Petitioner Angela D.
(mother) seeks extraordinary writ review
(Cal. Rules of Court, rule 8.452) of the juvenile court's February 19, 2013
order, terminating mother’s reunification services and setting a Welfare and Institutions Code
section 366.26
title="">[1]
permanency planning hearing as to her children, Daisy M., Destiny G., Danielle
O., and Dominic O. Mother contends that
the court failed to comply with the Indian Child Welfare Act, title 25 of the
United States Code section 1912(d) (ICWA), because it did not require the
(CWS) to make adequate inquiry regarding the children’s Indian Ancestry; it did
not comply with every rule concerning certain forms; and it failed to obtain
further information concerning the claimed paternity status of the alleged
father of Danielle and Dominic. We deny
the petition.
FACTUAL AND PROCEDURAL BACKGROUND
On November 2, 2011, CWS
removed 9-year-old Daisy G., 7-year-old Destiny G., and 4-year-old twins
Danielle O. and Dominic O. from mother’s care and placed them in an emergency
shelter home. On November 7, 2011, it
filed a section 300 petition alleging that officers found heroin residue within
the children’s reach in mother’s home; mother injured Danielle; mother had a
criminal record; and CWS had received eight prior abuse and neglect referrals
concerning the children.
Prior to the detention
hearing, mother advised the CWS social worker that Victor G. is the biological
father of Daisy and Destiny, and that Steve O. is the biological father of
Danielle and Dominic. She also advised
the social worker that the children have no Indian ancestry. During juvenile court proceedings on November
8, 2011, mother advised the court that neither she, nor Steve O., nor Victor G.
has any Indian ancestry.
In its November 30, 2011
jurisdiction report, CWS stated that its social worker spoke with Steven
O. He explained that he took a paternity
test in South Dakota around the time that Danielle and Dominic were born, and
he is their biological father. He never
met the children and did not want to “deal with the mother in order to be part
of their lives.†Steven O. told the social
worker that Danielle and Dominic do not have any Indian ancestry. Victor G., the father of Daisy and Destiny,
was in federal custody in 2011. He wrote
to CWS and requested that Daisy and Destiny be placed with his parents, and CWS
placed them there. Victor G. was later
deported to Mexico.
CWS gave Victor G. and
Steven O. notice of the hearings below, including the 12-month review hearing.
They did not appear.
DISCUSSION
In seeking relief,
mother argues that CWS failed to make adequate inquiry regarding the children’s
Indian ancestry. She cites the absence
of completed ICWA forms on file (e.g., the IWCA-020) and similar errors. Mother is not entitled to relief.
The juvenile court and
CWS have an affirmative and continuing duty to inquire at the outset of the
proceedings whether any child subject to the proceedings was, or might be, an
Indian child. (§ 224.3, subd. (a); Cal.
Rules of Court, rule 5.481(a).) As part
of its duty, the court must “order the parent†to complete form ICWA–020 at the
first appearance by the parent in the juvenile
proceedings in which the child is at risk of entering foster care. (Cal. Rules of Court, rule 5.481(a)(2).)
In this case, mother not
only made no affirmative representation of Indian ancestry in the juvenile
court or on appeal, but also told the social worker and the juvenile court that
neither she nor Victor G. nor Steve O. had any such ancestry. She consistently reported to CWS and to the
juvenile court that neither the children, nor their respective fathers, have
Indian ancestry. Steven O., alleged
father of Danielle and Dominic, advised CWS that they have no Indian
ancestry.
Although Victor G.
communicated his preference regarding the placement of his children to CWS, the
record does not indicate that CWS asked him to complete the ICWA-020 form, or
asked him whether Daisy or Destiny had any Indian heritage. However, mother has failed to show by offer
of proof or other affirmative assertion of Indian heritage, in the juvenile
court or this court, that prejudice resulted from any error associated with the
ICWA investigation or notice procedures.
(See In re Aaliyah G. (2003)
109 Cal.App.4th 939, 942-943 [in the absence of any evidence to support a
reasonable inference child might have Indian heritage, no requirement to make
further or additional inquiries]; In re
H.B. (2008) 161 Cal.App.4th 115, 121-122 [technical noncompliance with ICWA
notice procedures excused where parents denied Indian ancestry];
769-770 [where parents do not claim Indian ancestry, failure to comply with
ICWA notice procedures was harmless error].
Mother also made no showing of prejudice with respect to her claim that
the court erred by failing to demand further information regarding the
paternity status of Steven O.
DISPOSITION
The petition is denied.
NOT TO BE PUBLISHED
PERREN,
J.
We
concur:
GILBERT, P.J.
YEGAN, J.
Thomas
R. Adams, Judge
Superior
Court County of Santa Barbara
______________________________
Terrence L. Lammers, for
Petitioner.
Dennis
A. Marshall, County Counsel, Gustavo E. Lavayen, Chief Deputy County Counsel,
for Respondent.
Institutions Code unless otherwise stated.
