In re J.D.

Filed 1/6/09 In re J.D. CA1/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIRST APPELLATE DISTRICT

DIVISION TWO

On June 25, 2008, the Alameda County Juvenile Court terminated the parental rights of presumed father D.D. and mother J.L. over minor J.D. in accordance with Welfare and Institutions Code section 366.26. Father appeals from that order, contending only that the court and respondent Alameda County Social Services Agency (Agency) failed in the duty under the Indian Child Welfare Act (25 U.S.C.  1901 et seq. (ICWA)) to determine whether J.D. was a child with Indian ancestry, thus requiring notice to the relevant tribe of its right to intervene or assert jurisdiction. We conclude that this contention is without merit, and affirm.

BACKGROUND

Mother J.L. is not a party to this appeal, nor is another minor involved in the dependency. Father does not challenge the sufficiency of the evidence to support the courts jurisdictional findings or any other finding based on contested fact. In short, Fathers sole claim of error is purely procedural and legal. The following narrative is tailored accordingly.

Drugs are the blight of this family. Father has an extensive drug-related criminal history going back to 1986. Mother has a drug-related history that is not as extensive but goes back to 1987. Mothers mother also has a lengthy history of substance abuse. Mother, Father, Mothers mother, and a cousin of Mother are all described in court documents as drug registrants.

One month and six days after J.D. was born, the Agency filed a petition pursuant to Welfare and Institutions Code section 300 in which it was alleged that J.D. qualified as a dependent child by reason of Mothers drug use and both parents inability to provide care. In the petition and accompanying detention request, it was alleged in effect that J.D. was born addicted to opiates and was undergoing withdrawal. The detention report prepared by an Agency social worker advised the court that the ICWA does not apply. As for Father, the social worker reported it appears he is in custody with his next court hearing scheduled for 07/31/2007.

On July 25, 2007, the juvenile court ordered J.D. detained. Mother was personally present at the unreported detention hearing; Father was not, but appeared through counsel. Among the findings proposed by the Agency and adopted by the court was the following: Pursuant to California Rule of Court 5.664d, any parent or legal guardians who are present today are ordered to complete the JV 130 Parental Notification of Indian Status form and submit it to the Court before leaving the courtroom today unless that form was previously submitted.

The report prepared by the social worker for the combined jurisdictional and dispositional hearing again noted that the ICWA does not apply. J.D. had been placed with a maternal cousin, and was described as thriving. The social worker also noted that Father was in county jail in connection with drug charges related to cocaine.

A combined jurisdictional and dispositional hearing was held on August 8, 2007. Both parents were present and submitted the petition on the basis of the social workers report. The juvenile court sustained the allegations of the petition and adopted the findings recommended by the Agency, including the one ordering the parents to provide the Child Welfare Worker with the names, residences, and any known identifying information. J.D. was declared a dependent, and he was ordered placed in the home of an approved relative. The court further direct the Agency to provide reunification services, and it set a six-month review hearing.

In the status report prepared for the review, the social worker recommended that a 366.26 hearing be set to free the minor for adoption. Once more the social worker concluded that the ICWA does not apply.

Mother was present at the review held on February 27 and 28, 2008, but Father was not because be was being readied for transport to San Quentin to serve a sentence of five years. Both contested the Agencys recommendation. The court heard testimony from the social worker and from Mother.

At the conclusion of the hearing, the court heard argument and made the necessary findings. It concluded that, given the length of Fathers prison sentence, theres absolutely no possibility that he could reunify with his son within the maximum amount of time for reunification. As regards Mother, and her compliance with her reunification case plan, the court concluded she has done very, very little . . . and it does not seem to have had any effects on the problems that led this child to have come into foster care. The court adopted the Agencys recommendations. It terminated reunification services, and scheduled the termination hearing for June 25, 2008. It also adopted the finding proposed by the Agency that ICWA does not apply to this dependency matter.

At the conclusion of the review hearing, the court advised both Mother and Father of their right to seek expedited review by petition for extraordinary writ. Although both parents commenced a writ proceeding, neither finished the process, and we terminated the proceedings without reaching the merits.

The social worker filed a 366.26 WIC Report for the termination hearing. Under the heading Indian Child Welfare Act Status, the social worker advised the court: On 02/28/2008 the Court found that [J. D.] is not an Indian child and no further notice is required under ICWA, based upon a statement in the Jurisdictional report dated 08/08/2007 indicating that that ICWA does not apply to this dependency matter. The undersigned was unable to find any evidence of inquiry into the families Indian ancestry. [] On 06/05/2008 Child Welfare Worker Kathleen MacIntyre phoned two available numbers for the mother. Both numbers were out of service. CWW MacIntyre phoned the relative caretaker, a maternal relative by marriage, who stated that [to] her knowledge the mothers family has no Indian ancestry. CWW MacIntyre phoned the paternal grandmother who stated that to her knowledge the fathers family has no Indian ancestry.

Both Mother and Father were present at the brief termination hearing conducted on June 25, 2008. They opposed the Agencys recommendation, but submitted their opposition on the social workers report. After hearing very brief argument, the court accepted the Agencys recommendation and terminated the parental rights of both Father and Mother.

DISCUSSION

Before addressing Fathers contention, we briefly review the requirements and principal features of the ICWA.

The ICWA was enacted in 1978 in order to protect the best interests of Indian children and to promote the stability and security of Indian tribes and families . . . . (25 U.S.C.  1902.) Congress intended to secure this goal by presuming it is in the best interests of the child to retain tribal ties and cultural heritage and in the interest of the tribe to preserve its future generations, a most important resource. (In re Desiree F. (2000) 83 Cal.App.4th 460, 469.) The ICWA thus establishes minimum federal standards, both procedural and substantive, governing the removal of children of Indian ancestry from their families. The ICWA has a preference for giving jurisdiction to the tribe, which has the right to intervene at any point in state court dependency proceedings. (25 U.S.C.  1911(c).) [Citation]. Of course, the tribes right to assert jurisdiction over the proceeding or to intervene is meaningless if the tribe has no notice that the action is pending. [Citation.] Notice ensures that the tribe will be afforded the opportunity to assert its rights under the [ICWA] irrespective of the position of the parents, Indian custodian or state agencies. [Citation.] (Dwayne P. v. Superior Court (2002) 103 Cal.App.4th 247, 253.)

To ensure these rights, the ICWA specifies the following notice to the tribe: In any involuntary proceeding in a State court, where the court knows or has reason to know that an Indian child is involved, the party seeking the foster care placement of, or termination of parental rights to, an Indian child shall notify the parent or Indian custodian and the Indian childs tribe, by registered mail with return receipt requested. (25 U.S.C.  1912(a).) The notice must include the following if known: All names known, and current and former addresses of the Indian childs biological mother, biological father, maternal and paternal grandparents and great grandparents or Indian custodians, including maiden, married and former names or aliases; birthdates; places of birth and death; tribal enrollment numbers, and/or other identifying information. (25 C.F.R.  23.11(d)(3).) Unless a tribe expressly indicates that it has no interest in the state court proceeding, failure to comply with this notice requirement constitutes reversible error. (In re I.G. (2005) 133 Cal.App.4th 1246, 1252; In re Desiree F., supra, 83 Cal.App.4th 460, 472.)

California has adopted a statute and a detailed rule of court to implement the ICWA. As relevant here, the rule provides: The court, court-connected investigator, and party seeking a foster-care placement . . . or . . . termination of parental rights . . . have an affirmative and continuing duty to inquire whether a child is or may be an Indian child . . . . (Cal. Rules of Court, rule 5.481(a) [effective Jan. 1, 2008; formerly rule 5.664].) The statute specifies that The circumstances that may provide reason to know the child is an Indian child include, but are not limited to, the following: [] (1) A person having an interest in the child, including the child, an officer of the court, a tribe, an Indian organization, a public or private agency, or a member of the childs extended family provides information suggesting the child is a member of a tribe or eligible for membership in a tribe or one or more of the childs biological parents, grandparents, or great-grandparents are or were a member of a tribe. [] (2) The residence or domicile of the child, the childs parents, or Indian custodian is in a predominately Indian community. [] (3) The child or the childs family has received services or benefits from a tribe or services that are available to Indians from tribes or the federal government, such as the Indian Health Service. (Welf. & Inst. Code,  224.3, subd. (b); accord Cal. Rules of Court, rule 5.481(a)(5).)

The notice requirements have been described by several courts as a two-step process to be followed by the social service agency: First, it should identify any possible tribal affiliations and send proper notice to those entities, return receipt requested. [Citation.] Second,[the agency] should provide to the juvenile court a copy of the notice sent and the return receipt, as well as any correspondence received from the Indian entity relevant to the minors status. (In re Marinna J. (2001) 90 Cal.App.4th 731, 739-740, fn. 4; see also In re Jennifer A. (2002) 103 Cal.App.4th 692, 702-703; In re Asia L. (2003) 107 Cal.App.4th 498, 507.) When proper notice is not given under the ICWA, the courts orders are voidable. (25 U.S.C.  1914.)

Fathers argument comprises less than two pages of his brief. Apart from invoking former California Rules of Court rule 5.664, he relies on the silence of the record as demonstrating that the court and the Agency failed to comply with their continuing duty to inquire as to ascertain whether J.D. qualified under the ICWA as an Indian child. Father cites In re Kahlen W. (1991) 233 Cal.App.3d 1414, but that decision is materially distinguishable because there, unlike here, the mother of a dependent unambiguously stated that she was a tribe member. (Id. at p. 1420.) And although counsel for the Agency makes a persuasive argument for why we should conclude that Father has failed to preserve the issue for review, we will address the merits of Fathers contention. We do so because the duty to inquire as to possible Indian heritage is a continuing one, because the rights potentially at issue are not Fathers alone, and because a question as to previous efforts to perform that duty arose so late in the proceedings.

At the time of the detention, Mother, who was present, was ordered by the court to fill out a Judicial Council (Form JV-130). (See Cal. Rules of Court, rule 5.481(a)(2).) We are required to presume that this was done (Evid. Code,  664) and that it showed no Indian ancestry on Mothers side. Even assuming that the social workers recital in the 366.26 WIC Report is accurate in that the social worker was unable to find any evidence of inquiry into the families Indian ancestry, that does not conclusively establish that no such inquiry had been made, particularly by the court at the detention hearing. It is useful to reiterate that the record before us does not include a reporters transcript of that proceeding. There is consequently nothing beyond the social workers comment to rebut the presumption mentioned above.

The social worker goes on to advise the court that inquiry had been made of relatives of Mother and Father with no indication that either side had Indian ancestry. Father did not in the trial court, nor does he now on this appeal, challenge the truth of the social workers inquiries. However belatedly, as shown the record, inquiry was made. It follows that any omission was one of timing, not substance, i.e., a complete failure to inquire. Moreover, the reason to know inquiry is not an express part of the ICWA, only a state obligation imposed to implement the federal statute. (See In re H.B. (2008) 161 Cal.App.4th 115, 120-121.) Thus, any error is not of federal magnitude.

Finally, and most importantly, Father has never stated, or provided proof, that either he or Mother has in fact Indian ancestrydespite the fact that both he and Mother had been directed by the juvenile court at the jurisdictional and dispositional hearing to provide the social worker with identifying information. In these circumstances, we join with other courts which in comparable settings have treated any failure to inquire as harmless. (In re H.B., supra, 161 Cal.App.4th 115, 122; In re N.E. (2008) 160 Cal.App.4th 766, 769-771; In re Rebecca R. (2006) 143 Cal.App.4th 1426, 1430‑1431.)

DISPOSITION

The order terminating parental rights is affirmed.

_________________________

Richman, J.

We concur:

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Kline, P.J.

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Haerle, J.

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