In re O.R.
Filed 1/14/13 In re O.R. CA2/7
NOT
TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been
certified for publication or ordered published for purposes of rule 8.1115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 SEVEN
In
re O.R. et al., Persons Coming Under the Juvenile Court Law.
___________________________________
LOS
ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES,
Plaintiff and Respondent,
v.
NICOLE
R.,
Defendant and Appellant.
B240360
(Los Angeles County Superior
Court
Case No. CK78504)
APPEAL
from an order of the Superior Court of
County, Elizabeth Kim, Juvenile Court Referee. Affirmed.
Judy Weissberg-Ortiz, under
appointment by the Court of Appeal, for Defendant and Appellant.
John
F. Krattli, County Counsel, James M. Owens, Assistant County Counsel, and
Aileen Wong, Deputy County Counsel, for Plaintiff and Respondent.
_____________________________
Appellant
Nicole R. (Mother) challenges the juvenile dependency court’s finding that her
child J.F. Jr. was not an Indian child within the Indian Child Welfare Act
(ICWA). She specifically contends that
the Department of Children and Family
Services (the “Departmentâ€) failed to satisfy ICWA’s inquiry and notice
requirements of the Act, and therefore the court’s determination that ICWA did
not apply is infirm. As we shall
explain, the Department’s inquiry into the Indian heritage of the child was
sufficient, however, the ICWA notice did contain several errors. Nonetheless, under the circumstances the
errors are harmless as they pertained to individuals who, by parents’
admission, were not enrolled or registered in any tribe. Accordingly, we affirm.
FACTUAL AND
PROCEDURAL BACKGROUND
Mother is the biological mother of
J.F. Jr., a son, born in February 2009; J.F. Sr. (Father) is the presumed
father of J.F. Jr. On August
13, 2009,
the Department received a referral that Mother and Father engaged in domestic
violence and J.F. Jr. was injured in the dispute. J.F. Jr.
due to emotional abuse and caretaker absence/incapacity.
On August
18, 2009,
the Department filed a dependency petition pursuant to Welfare and Institutions
Code section 300 on behalf of J.R. Jr. alleging that Mother and Father had
engaged in a violent altercation.
At
the August 18, 2009 detention hearing, Mother filed a
Parental Notification of Indian Status, stating that she did not have Indian
ancestry. The court made an inquiry as
to the Indian heritage regarding the Father, but the Father was not present at
the hearing. However, the paternal
grandfather of J.F. Jr. was present and claimed Indian Heritage. He stated that neither he nor J.F. Jr. were
registered with the tribe and indicated that he was uncertain as to whether
J.F. Jr. was eligible for registration.
The court ordered the Department to contact J.F. Jr.’s father’s side of
the family regarding possible Indian heritage and file a supplemental report
regarding this investigation. The court
ordered the children detained.
On
September 15, 2009, Father filed a Parental Notification of Indian Status
stating that he may have Indian Ancestry, specifically “Cherokee and other
(Kitu?).†He additionally stated that
other members of his family were members of a federally recognized tribe,
stating, “Cherokee – Delores [F.] – PGM†and “Kitu(?) – Samuel F. PGF. . . .â€
In
addition to the Parental Notification, the court asked Father if he or his
children were enrolled or registered with the Cherokee Nation. Father indicated that neither he nor his
children were registered, but he believed that his grandparents were members of
the tribe. He did not know if his
grandparents received any tribal benefits.
Accordingly, the trial court ordered the social worker to interview the
party claiming Indian heritage and include the results of the investigation in
the next report.
In the October
13, 2009
supplemental report, the social worker reported that Father failed to meet with
the social worker at the agreed upon appointment time. Further, despite being
requested to do so, Father failed to provide ICWA information. However, the
social worker indicated that sufficient information was obtained from other
sources to send ICWA notices. The
Department reported that notices were sent by certified mail to the Cherokee
Nation of Oklahoma, the United Keetowah Cherokee, Eastern Band Cherokee,
Secretary of the Interior, Bureau of
Indian Affairs (BIA) and Father on September 29,
2009.
On October
20, 2009,
trial counsel for the Department requested a continuance on the grounds that
the ICWA notices listed an incorrect date for the time of the next
hearing. The court continued the matter
until November 2, 2009.
On November
2, 2009,
the Department submitted Domestic Return Receipt from the BIA indicating that
the BIA received the September ICWA notice.
The Department also submitted a letter from the Cherokee Nation in Oklahoma indicating that it had received
notice. During this hearing, Mother and
Father waived their trial rights and submitted the petition on the basis of the
social workers report. The court
sustained the petition and declared J.F. Jr. and O.R. to be dependent children
of the court pursuant to Welfare and Institutions Code section 300. The court ordered the children to be removed
from the custody of the parents and suitably placed. The court offered Mother and Father to
participate in family reunification
services and monitored visits with the children and with Department
discretion to liberalize visitation.
At the conclusion of the hearing,
the court asked for a 90-day progress report on the ICWA matter, and “in the
event this child is a child described by the Indian Child Welfare Act, the
disposition orders will be vacated at that time. . . .†On January 13, 2010, the court advanced this progress
hearing to February 23, 2010.
At the February
23, 2010
progress hearing, the court stated that it was in receipt of response letters
and proof of service for the ICWA notices sent on November
13, 2009. The court found that ICWA did not apply to
this case. The letter from the Cherokee
Nation contained the incorrect names of Father, Mother and J.F. Jr. and
incorrect birth dates for Mother and J.F. Jr.
On May
26, 2010,
at the six-month review hearing, the juvenile court terminated Father’s
reunification services. However, the
court found that Mother was in compliance with the case plan and set the matter
for a 12-month review hearing. The court
found Mother in compliance with the case plan at the 12-month hearing as well.
In a report for the Welfare and
Institutions Code section 366.22 review hearing, the Department disclosed that
Mother was non-compliant with random drug testing and had tested positive for
marijuana. On May
31, 2011,
the juvenile court terminated family reunification services for Mother and set
a Welfare and Institutions Code section 366.26 hearing.
In the Welfare and Institutions Code
section 366.26 report, the social worker stated that adoption by the maternal
great-grandmother had been identified as the permanent plan for the children
and that home study was in progress. At
a continued Welfare and Institutions Code section 366.26 hearing on January
24, 2012,
the Department disclosed that the home study had yet to be completed. On January 24, 2012, the court ordered the Welfare and
Institutions Code section 366.26 hearing to be continued until May 2012.
Thereafter on March
28, 2012,
Mother filed a notice of appeal
24, 2012
order continuing the Welfare and Institutions Code section 366.26 proceedings.
DISCUSSION
On
appeal, Mother argues that the juvenile dependency court erred in finding that
ICWA did not apply. Specifically, she
asserts the Department failed to comply with the ICWA inquiry and notice
requirements.
I. Federal and
State ICWA Notice Requirements
The purpose of ICWA is to “‘protect the best interests of
Indian children and to promote the stability and security of Indian tribes and
families.’†(In re Karla C.
(2003) 113 Cal.App.4th 166, 173-174, quoting 25 U.S.C., § 1902; see also In
re Suzanna L. (2002) 104 Cal.App.4th 223, 229; In re Santos Y.
(2001) 92 Cal.App.4th 1274, 1299.) “ICWA
presumes 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.â€
(In re Desiree F. (2000) 83 Cal.App.4th 460, 469.) For purposes of ICWA, an “Indian child†is a
child who is either a member of an Indian tribe or is eligible for membership
in an Indian tribe and is the biological child of a member of an Indian
tribe. (25 U.S.C., § 1903, subd.
(4).)
When a 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
subd. (a); In re S.B (2005) 130
Cal.App.4th 1148,1157.) Under ICWA, an
Indian tribe is entitled to intervene in a state court proceeding brought to
remove an Indian child from a parental home and place the child in foster
care. (25 U.S.C., § 1911, subd.
(c).) Because the right to intervene is
meaningless unless the tribe receives notification, ICWA specifies notice
requirements and those notice requirements are strictly construed. (In re
Samuel P. (2002) 99 Cal.App.4th 1259,
1267.)
The object of tribal notice is to enable a review of tribal
records to ascertain a child’s status under ICWA. (In re
K.M. (2009) 172 Cal.App.4th 115, 119; In re D.T. (2003) 113
Cal.App.4th 1449, 1455.) The notices
“must contain enough information to be meaningful. [Citation.]
The notice must include: if known, (1) the Indian child’s name,
birthplace, and birth date; (2) the name of the tribe in which the Indian child
is enrolled or may be eligible for enrollment; (3) names and addresses of the
child’s parents, grandparents, great grandparents, and other identifying
information; and (4) a copy of the dependency petition.†(In re Francisco W. (2006) 139
Cal.App.4th 695, 703.) “It is essential
to provide the Indian tribe with all available information about the child’s
ancestors, especially the one with alleged Indian heritage. [Citation.]
Notice . . . must include available information about the maternal and
paternal grandparents and great-grandparents, including maiden, married and
former names or aliases; birthdates; place of birth and death; current and
former addresses; tribal enrollment numbers; and other identifying data.†(Ibid; In re C.D. (2003) 110
Cal.App.4th 214, 224-225.)
Where the tribes have received ICWA notice, any error as to
that notice is subject to harmless error review. (Nicole
K. v. Superior Court (2007) 146
Cal.App.4th 779, 784 [holding that an erroneous birth year for parent was
harmless because this parent did not claim any direct connection to the
tribe].)
II. Analysis of Inquiry and Notice In This
Case
In the instant case, Mother claims
the IWCA notices contained the following errors: (1) J.R. Jr.’s full name was
not on the notice, (2) J.R. Jr.’s birth date was incorrect on the notice, (3)
Mother’s full name was not on the notice, (4) Mother’s birth date was incorrect
on the notice, and (5) Father’s full name was not on the notice. We find that these errors were harmless.
K. v Superior Court, supra,
146 Cal.App.4th 779, presented a similar scenario to the instant case. In Nicole
K., appellant argued that the court of appeal should reverse a judgment
because the ICWA notice listed an incorrect birth year for the appellant. (Ibid.) However, the Third District held that since
appellant admitted that she did not have a direct connection to any tribe
“there is no basis to believe that providing her correct year of birth would
have produced different results concerning the minors’ Indian heritage.†(Ibid.)
Here, errors in the ICWA notice were
harmless because those individuals whose information was incorrect were not
directly connected to any tribe. It
appears that Mother, Father, and the child were not registered or affiliated
with any Indian tribe. Mother admitted
that she did not have any Indian heritage and that the child was not registered
with any tribe. Father admitted that he
was not affiliated with any tribe and merely thought his grandparents may have
been registered. Only the paternal
great-grandmother, Delores F., and paternal great-grandfather, Samuel F., were
identified as possibly having a connection with an Indian tribe. Furthermore, there is no indication that the
ICWA notices contained any errors related to these two individuals. Thus, even if the Mother’s, Father’s or
child’s information had been correct there is no reason to believe that this
information would have produced a difference result concerning the minor’s
Native American heritage.
In addition to the errors in the
notice, Mother contends the Department did not comply with its inquiry duty
under ICWA. We disagree.
The record shows that the Department
sufficiently complied with the inquiry requirement under ICWA. The Department attempted to interview Father
to obtain ICWA information. The record
shows that Father failed to meet with the social worker and did not provide
ICWA information although repeatedly requested to do so. Because Father did not cooperate, the
Department had to obtain information from other sources to prepare the ICWA
notices. Ultimately, the Department gave
notice to the tribes Father and the paternal grandfather had identified.
Accordingly, Mother has not shown
that the Department has failed to inquire and obtain, if possible, all the
information about a child’s family history.
As the court held in In re K.M.,
further inquiry is not required based on mere supposition. (In re
K.M., supra, 172 Cal.App.4th at
p. 119; citing In re Levi U. (2000)
78 Cal.App.4th 191, 199 [the agency is not required to conduct an extensive
independent investigation or to “cast about, attempting to learn the names of
possible tribal units to which to send noticesâ€].) Indeed as the court in In re K.M., observed,
“[p]arents unable to reunify with their children have already caused the
children serious harm; the rules do not permit them to cause additional
unwarranted delay and hardship without any showing whatsoever that the
interests protected by ICWA are implicated in any way.†(In re
K.M., supra, 172 Cal.App.4th at
p. 120.)
In view of the foregoing, we
conclude the court did not commit reversible error with respect to the ICWA
finding in this case.
DISPOSITION
The order is affirmed.
WOODS,
Acting P. J.
We concur:
ZELON,
J. JACKSON,
J.
[1] J.F. Jr. has an older
half-brother, O.R., who was named in this petition. However O.R. is not the subject of this
appeal because O.R. and J.F. Jr. do not have the same father, and O.R.’s father
did not claim Indian heritage.
from an order entered at a Welfare and Institutions Code section 366.26
hearing. (Dwayne P. v. Superior Court (2002) 103 Cal.App.4th 247, 260.)
