In re Daniel M.

Filed 9/29/06 In re Daniel M. CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION TWO

APPEAL from the Superior Court of San Bernardino County. James C. McGuire, Judge. Affirmed.

Nicole Williams, under appointment by the Court of Appeal, for Defendant and Appellant.

No appearance for Plaintiff and Respondent.

Lenore D. (Mother) appeals from an order of the dependency court terminating her parental rights as to her 10-month-old son, Daniel M. We find no error and affirm the judgment.

In July 2005, Daniel came to the attention of the San Bernardino County Department of Children’s Services (DCS) when he was detained immediately after his birth. Prior to Daniel’s birth, hospital staff was notified to inform DCS when he was born due to Mother’s previous history with DCS. Specifically, Mother’s three other children were removed from her care in 2000 due to severe physical abuse by their father, an unfit home, neglect, and domestic violence in the home. Mother failed to reunify with her other children; she lost custody of two of those children and her parental rights were terminated as to the third child.

When the social worker contacted Mother at the hospital, she noticed an underage male, later identified as Gary M., in the room. Mother claimed he was her younger brother; however, the social worker did not believe her. Mother reported Daniel’s father was Mike M. and that she had not seen him since November 2004. She stated she left him because he was abusing drugs, and she did not know his whereabouts. The social worker later received a call from relatives and concerned citizens that Mother “basically raped” the then-16-year-old Gary M. and that Gary was Daniel’s father. The social workers in Daniel’s half siblings’ case documented that Mother often manipulated and lied to get things to go her way. She was found to be of low intellectual functioning, and her ability to learn and understand the responsibilities of parenting were found to be limited.

On July 11, 2005, DCS filed a section 300 petition on behalf on the child pursuant to Welfare and Institutions Code section 300, subdivisions (b), (g), and (j).^[1]

At the detention hearing, the court adopted the findings noted in the detention report and detained Daniel in a confidential foster home. Mother was provided with supervised visits with Daniel. Upon the court’s inquiry of Native American ancestry, Mother indicated that she had Blackfoot, Cherokee, and “something else” on her mother’s side.

In a jurisdictional/dispositional report, DCS recommended that the allegations in the petition be found true and that the parents be offered no reunification services. Mother had been living a transient lifestyle, residing with various friends during her pregnancy and the siblings’ case. Mother was unable to provide the social worker with her current address. In her prior case, Mother lacked any motivation to reunify with her children, despite numerous referrals and services. Mother had admitted to drug use, and her psychological evaluation indicated she had limited skills in parenting her children. Mother appeared to have no family support due to her continued failure to take action and responsibility. Mother had made no change or improvements in her life, even after she lost custody of her other three children. She had no income and no home. On July 21, 2005, the social worker received an anonymous telephone call stating Mother was planning on kidnapping Daniel from the hospital and running to Las Vegas.

Regarding the Indian Child Welfare Act (ICWA), the social worker reported that Mother had Indian heritage through the maternal grandmother, Cindy D. However, other family members denied any Indian heritage. In the cases involving Daniel’s half siblings, ICWA notice for the siblings was completed to United Keetowah Band of Cherokee, Eastern Band of Cherokee, and Cherokee Tribe of Oklahoma. DCS received notification that neither the half siblings nor Mother were enrolled or eligible for enrollment. In addition, all 15 Sioux tribes and the Blackfeet Nations denied both enrollment and eligibility for enrollment in relation to Daniel’s half siblings. The juvenile court in the half siblings’ case found that, based on the responses from the tribes, the ICWA did not apply. The social worker opined that since Indian heritage was claimed by Mother, and Indian heritage had been ruled out in Mother’s other children, it was doubtful that any of the named tribes would change their determinations in Daniel’s case. Attached to the jurisdictional/dispositional report were the decisions by the relevant tribes.

By August 2005, the social worker located the alleged father, Mike M., who denied he was Daniel’s father and signed a waiver of paternity form. Gary M.’s mother informed the social worker that her son had admitted paternity; however, he was afraid to tell the social worker because he did not want Mother arrested. While the half siblings’ case was pending, Mother had lived with Gary’s mother, who took her in; she was later thrown out of the apartment after Gary’s mother discovered Mother had an illicit sexual relationship with her 16-year-old son. Mother eventually admitted that Daniel’s father was indeed Gary and not Mike M.

On August 23, 2005, the social worker spoke with the maternal great-grandfather regarding possible Indian heritage. The maternal great-grandfather did not have specific information on Indian heritage but indicated that he believed there was Cherokee blood through his grandmother. The maternal great-grandfather did not know of any Blackfeet heritage on the maternal side of the family. Gary M. (Father) later claimed Indian heritage.

At the September 7, 2005, jurisdictional hearing, the court found the allegations in the petition true.

In October 2005, the social worker sent notice to the Bureau of Indian Affairs (BIA), the Blackfeet Nation, the Bay Mills Indian Community (Chippewa), the Bad River Band of Lake Superior (Chippewa), the Cherokee Nation of Oklahoma, the Eastern Band of Cherokee Indian, the United Keetowah Band of Cherokee Indians, the Absentee-Shawnee Tribe of Oklahoma, the Eastern Shawnee Tribe of Oklahoma, and the Shawnee Tribe.

The social worker received responses from the Cherokee Nation of Oklahoma, Eastern Band of Cherokee Indians, United Keetowah Band of Cherokee Indians, and the Blackfeet Nation “denying consideration.”

As of November 2005, Mother continued to be homeless and resided with various friends and family members. She was also unemployed. The social worker provided Mother with gas vouchers for visits; however, she missed numerous visits or arrived late. She had minimal contact with Daniel, who was “highly bonded” with the relative caregiver and his half sister, who also resided in the home. Mother had failed to follow through with any referrals. Father had left the area, and his whereabouts were unknown. He had refused to contact DCS. Father’s mother was not an option for relative placement, as she previously had had children removed from her custody.

At the December 22, 2005, dispositional hearing, following testimony from the social worker and Mother and argument from counsel, the juvenile court denied reunification services pursuant to section 361.5, subdivisions (b)(10) and (b)(11). The court found that Mother had not made a reasonable attempt to take advantage of the visitation that was offered, and also found it “disturbing” that Mother denied drug use when the court previously found “that substance abuse allegations were true.” The court also found that Mother had failed to follow through on the referrals that were provided. The court indicated that it was not denying services based upon Mother’s mental status and did not believe Mother’s “intellectual capacity or mental functioning was impaired in any significant or meaningful way.” The court declared Daniel to be a dependent of the court and ordered that Mother be permitted to visit him one time per month. The court then set a section 366.26.

In a section 366.26 report, the social worker recommended terminating parental rights. Daniel’s prospective adoptive parents continued to meet his physical, emotional, social, educational, and medical needs. Daniel was very bonded to his prospective adoptive parents, and they had expressed a strong desire to provide for and meet Daniel’s needs on a permanent basis. On the other hand, Mother missed several visits with Daniel and was observed to have no bond with her son.

The social worker again sent notice of the proceedings to the relevant tribes. The United Keetowah Band of Cherokee, Eastern Band of Cherokee, and Cherokee Nation responded that Daniel was not eligible for membership or enrollment.

At the May 17, 2006, section 366.26 hearing, the social worker testified that she had gathered as much information as possible from the relatives concerning American Indian heritage and that there were blanks in the notices because the family members were unable to provide that specific information. The social worker also opined that Daniel should be freed for adoption.

At the conclusion of the hearing, the court found that “ICWA compliance had been made . . . and the child does not fall under the ICWA requirements.” The court also found Daniel adoptable and terminated parental rights.

Mother appealed, and upon her request this court appointed counsel to represent her. Appellate counsel submitted a brief under the authority of In re Sade C. (1996) 13 Cal.4th 952, People v. Wende (1979) 25 Cal.3d 436, and Anders v. California (1967) 386 U.S. 738 [87 S.Ct. 1396, 18 L.Ed.2d 493] setting forth a statement of the case, a summary of the facts, and potential arguable issues and requesting this court to undertake a review of the entire record.

We have invited Mother to file a supplemental brief, and she has not done so.

Even though we are not required to conduct an independent review of the record under In re Sade C., supra, 13 Cal.4th 952, we have done so. We have completed that review and find no arguable issues.

The judgment is affirmed.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

RICHLI

J.

We concur:

HOLLENHORST

Acting P.J.

KING

J.

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^[1] All future statutory references are to the Welfare and Institutions Code unless otherwise stated.