In re S.W.
Filed 1/17/13 In
re S.W. 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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publication or ordered published for purposes of rule 8.1115
IN THE COURT OF APPEAL OF THE STATE OF
FOURTH APPELLATE DISTRICT
DIVISION TWO
In re S.W. et al., Persons Coming Under
the Juvenile Court Law.
RIVERSIDE COUNTY DEPARTMENT OF PUBLIC
SOCIAL SERVICES,
Plaintiff and
Respondent,
v.
S.W.,
Defendant and
Appellant.
E056227
(Super.Ct.No.
INJ021573)
OPINION
APPEAL from the Superior Court of
County. Lawrence P. Best,
Temporary Judge. (Pursuant to Cal. Const., art.
VI, § 21.) Affirmed.
Matthew I. Thue, under
appointment by the Court of Appeal, for Defendant and Appellant.
Pamela J. Walls, County Counsel, and
Carole A. Nunes Fong, Deputy County Counsel, for Plaintiff and Respondent.
S.W. (the father) appeals from
an order terminating parental rights
to his infant children, S.W. (S.W. or the child) and B.G. His sole appellate contention is that proper
notice was not given as required by the Indian Child Welfare Act (ICWA) (25
U.S.C. § 1901 et seq.) and related federal and state law. We will hold that the trial court could
reasonably find that the notice that was given was proper. Accordingly, we will affirm.
I
FACTUAL AND
PROCEDURAL BACKGROUND
In 2010, S.W. was born
prematurely. The mother, T.G., tested
positive for methamphetamine. She
admitted smoking methamphetamine while pregnant. As a result, the Riverside County Department
of Public Social Services (the Department) detained S.W. and filed a dependency
petition with regard to her.
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The father was an only
child. His mother “had substance abuse
issues,†so he had been raised by his paternal aunts. When first interviewed, he denied having any
Native American ancestry. About two
weeks later, however, he told a social worker “he believed there was Cherokee
ancestry on his mother’s side of the family . . . .†However, “he was unable to provide any
additional information.â€
The father also filed a
(ICWA‑020) form, signed under penalty of perjury, stating “I may have
Indian ancestry[:] Cherokee.â€
In October 2010, the Department
attempted to give notice pursuant to ICWA.
The notice listed the name of the child as S.G. (using the mother’s
surname) rather than S.W. (using the father’s surname).
both the father and the mother, as well as other required information about
them. However, with regard to
grandparents and other, more remote ancestors, it said only, “No information
available.†A social worker who prepared
the notice stated that she “wasn’t able to contact father.â€
It is undisputed that the notice
was properly addressed and mailed. It is
also undisputed that it was sent to all appropriate tribes and other
persons. No tribe responded that the
child was a member or eligible for membership.
Two tribes affirmatively disclaimed any interest in the case.
In November 2010, at the
jurisdictional/dispositional hearing as to S.W., the juvenile court found that
proper notice pursuant to ICWA had been given, that S.W. was not an Indian
child, and that ICWA did not apply. It
further found jurisdiction over S.W. based on failure to protect. (Welf. & Inst. Code, § 300, subd.
(b).) It formally removed her from both
parents’ custody, and it ordered that they be provided with reunification
services.
In July 2011, the mother gave
birth to B.G. Because the mother was
still using methamphetamine, the Department detained B.G. and filed a
dependency petition as to him.
In August 2011, the father was
interviewed again, and once again, he denied having any Indian ancestry. He filed a new ICWA‑020 form, once
again signed under penalty of perjury, this time stating that he had no Indian
ancestry.
Later in August 2011, at a
six-month review hearing regarding S.W., the juvenile court terminated
reunification services and set a hearing pursuant to Welfare and Institutions
Code section 366.26.
In September 2011, at the
jurisdictional/dispositional hearing as to B.G., the juvenile court found
jurisdiction over B.G. based on failure to protect. (Welf. & Inst. Code, § 300, subd.
(b).) It also found that B.G. was not an
Indian child and that ICWA did not apply.
It denied reunification services and set a section 366.26 hearing.
In March 2012, at the section
366.26 hearing, the juvenile court found that both children were adoptable and
that there was no applicable exception to termination. Accordingly, it terminated parental rights.
II
THE ICWA
NOTICE WAS PROPER
“Congress enacted ICWA to
further the federal policy ‘“that, where possible, an Indian child should
remain in the Indian community . . . .â€â€™ [Citation.]â€
(In re W.B., Jr. (2012) 55
Cal.4th 30, 48.) “In certain respects, California’s
Indian child custody framework sets forth greater protections for Indian
children, their tribes and parents than ICWA.
[Citations.] Both federal and
state law expressly provide that if a state or federal law provides a higher
level of protection to the rights of the parent or Indian guardian of an Indian
child, the higher standard shall prevail.
[Citations.]†(
967, 977.)
“ICWA requires that when a court
knows or has reason to know that an Indian child is involved in a dependency
matter, it must ensure that notice is given to the relevant tribe or
tribes. [Citation.]†(In re
J.O. (2009) 178 Cal.App.4th 139, 154.)
ICWA defines an “Indian child†as an “unmarried person who is under age
eighteen and is either (a) a member of an Indian tribe or (b) is eligible for
membership in an Indian tribe and is the biological child of a member of an
Indian tribe . . . .â€
(25 U.S.C. § 1903(4).) However,
“[t]he juvenile court ‘“needs only a suggestion of Indian ancestry to trigger
the notice requirement.â€â€™
[Citation.]†(
380.)
“Under the implementing federal
regulation, the required ICWA notices must include ‘[a]ll names
of the Indian child’s 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.’ [Citation.]
California law requires that the notices contain substantially the same data,
including ‘ any other identifying information, if known.’ [Citation.]†(In re
C.B. (2010) 190 Cal.App.4th 102, 140, first italics added, some other
italics omitted.)
Under state law implementing
ICWA, “[t]he court [and the] county welfare department . . . have an
affirmative and continuing duty to inquire whether a child for whom a petition
under Section 300 . . . has been[] filed is or may be an Indian child
. . . .†(Welf. &
Inst. Code, § 224.3, subd. (a); see also Cal. Rules of Court, rule
5.481(a).) “If the court [or] social
worker . . . knows or has reason to know that an Indian child is
involved, the social worker . . . is required to make further inquiry
regarding the possible Indian status of the child, and to do so as soon as
practicable, by interviewing the parents, Indian custodian, and extended family
members . . . .†(Welf.
& Inst. Code, § 224.3, subd. (c).)
“‘The [trial] court must
determine whether proper notice was given under ICWA and whether ICWA applies
to the proceedings. [Citation.] We review the trial court’s findings for
substantial evidence. [Citation.]’ [Citation.]â€
(In re Christian P.
(2012) 208 Cal.App.4th 437, 451.)
“A deficiency in notice may be
harmless when it can be said that, if proper notice had been given, the child
would not have been found to be an Indian child and ICWA would not have
applied. [Citations.]†(In re
I.W. (2009) 180 Cal.App.4th 1517, 1530.)
Here, the Department does not
dispute that, based on the father’s statement that “there was Cherokee ancestry
on his mother’s side of the family,†it had a duty to give ICWA notice. The key issue is whether the notice that the
Department gave was adequate.
The father argues that the
notice was inadequate because it identified the child as S.G. rather than
S.W. It appears, however, that at that
point in her young life, she was known as S.G.
Both the original petition and the jurisdictional/dispositional report
had listed her as S.G. Moreover, at the
jurisdictional hearing, the juvenile court found that her true name was
S.G. The father was present at the
jurisdictional hearing, along with his appointed counsel, but did not object.
The name a person actually uses
is controlling over the name listed on his or her birth certificate. (Code Civ. Proc., § 1279.5, subd. (a);
Cal.3d 640, 646, fn. 1; 83 Ops.Cal.Atty.Gen. 136 (2000).) Moreover, a child’s parents have the right to
determine the child’s name, unless they disagree. (Marriage
of Schiffman, at
pp. 645-646.) Here, the child was
called S.G., and the father evidently concurred with calling her S.G. Accordingly, at least as of the date of the
ICWA notice, her name was S.G. (See Donald J.
v. Evna M. (1978) 81 Cal.App.3d 929, 937 [“where a child has used a
particular surname for a substantial period of time without objection by either
natural parent, the court . . . should exercise its power to change
the child’s surname reluctantlyâ€].)
Separately and alternatively,
this asserted error was harmless. Under
the circumstances of this case, the child’s name was irrelevant to the
determination of whether she was an Indian child. Because the father could not trace his
ancestry to any particular Cherokee tribe, there was no possibility that the
child had already been enrolled in any tribe, under any name. To determine her Indian status, a tribe would
have to look to the names of her ancestors.
The notice, however, did include the correct names of both parents. Moreover, for the reasons we will discuss
below, it was not required to include the names of any more distant
ancestors. The child’s name did not add
any potentially useful information to the notice.
The father also argues that the
notice was inadequate because it did not include any information about the
child’s grandparents. The Department,
however, was required to include this information in the notice only if it was
available. (25 C.F.R. § 23.11,
subds. (a), (d)(3); Welf. & Inst. Code, § 224.2, subd.
(a)(5)(C).) The record shows that, when
the father first told the social worker that he believed he had Cherokee
ancestry, “he was unable to provide any additional information.†Moreover, in the course of preparing the
notice, the social worker tried to contact the father again but was unable to
do so. This is substantial evidence that
the social worker did inquire about the child’s Indian ancestry but was unable
to obtain any additional information.
The father responds, “[I]t is
beyond reason to interpret this . . . as establishing that [the]
father did not even know his mother’s name.â€
“We are not entitled to discount evidence ‘“unless it is physically
impossible or inherently improbable and such inherent improbability plainly
appears.†[Citation.]’ [Citation.]â€
(California Sportfishing
Protection Alliance v. State Water Resources Control Bd. (2008) 160
Cal.App.4th 1625, 1640.) Due to his
mother’s “substance abuse issues,†the father had been raised by his paternal
aunts; it is conceivable that he did not know her true name. It is also possible that he simply was not
forthcoming with the social worker.
Moreover, even assuming that the social worker failed to ask the father
for his mother’s name in the first interview, it is clear that she tried to
contact him again but was unable to do so.
There is no requirement that a social worker gather all of the
information relevant to ICWA notice in any single interview. There is substantial evidence that the social
worker fulfilled her duty of inquiry.
Finally, the father argues that
the social worker failed to inquire of his paternal aunts. However, the social worker does not appear to
have had any contact information for these aunts until May 2011, when one of
them phoned her to discuss placement. In
August 2011, the other aunt likewise phoned.
Meanwhile, in November 2010, the juvenile court had already found that
S.W. was not an Indian child and that ICWA did not apply. Moreover, in August 2011, the father stated
that he had no Indian ancestry and filed a new ICWA‑020 form so stating
under penalty of perjury. On this
record, the social worker was not required to pose additional — and most likely
fruitless — inquiries to the paternal aunts.
As the Department points out,
Cal.App.4th 1514 is nearly on point.
There, the father stated, “‘My great grandfather was Indian. I don’t know
if he was part of a tribe or not.’†(
Indian Status†form stating that he might have Indian ancestry. (Ibid.) Three weeks later, however, he filled out a
second “Parental Notification of Indian Status†form stating that he had no
Indian ancestry. The father’s counsel
conceded that the father had “retracted†his claim of Indian ancestry. (Id.
at p. 1519.) The juvenile court
therefore held that the child was not an Indian child. (Ibid.)
The appellate court affirmed,
stating: “In a juvenile dependency
proceeding, a claim that a parent, and thus the child, ‘may’ have Native
American heritage is insufficient to trigger ICWA notice requirements if the
claim is not accompanied by other information that would reasonably suggest the
minor has Indian ancestry. Here, the
assertion that there was a ‘possibility’ the great-grandfather of the minor’s
father ‘was Indian,’ without more, was too vague and speculative to require
ICWA notice . . . .
[Citation.] This is particularly
so in this case because the minor’s father, who made the assertion, later
retracted it, telling the juvenile court that he ‘didn’t actually have [Indian
ancestry].’†(In re Jeremiah G., supra,
172 Cal.App.4th at p. 1516.)
In Jeremiah G., the father specified a particular Indian ancestor, but
could not specify a tribe; here, the father specified a particular tribe (or
tribal group), but could not specify an Indian ancestor. Thereafter, like the father in
claim of Indian ancestry. The father
concedes that Jeremiah G. “does
appear to hold that a parent’s recantation of a claim of Indian ancestry allows
a dependency case to proceed [without] ICWA notice.†We conclude that, after the father’s recantation,
neither the court nor the social worker knew or had reason to know that the
children might be Indian children. (See
Welf. & Inst. Code, § 224.3, subd. (c).)
The father argues that the
Department forfeited a claim that he recanted by failing to raise it
below. However, it is the father who is
arguing, for the first time on appeal, that the Department failed to satisfy
its ICWA duties. Thus, the Department
had no reason to raise this argument below.
The father also argues that
Cal.App.4th 1160. In
filed an ICWA‑020 form stating “that the paternal grandfather, Gasper G.,
‘is or was a member’ of a ‘Cherokee’ tribe.â€
(Id. at p. 1163.) However, the form was unsigned. (Ibid.) Later, the social worker reported that, in an
interview, the father had stated that he had no Indian heritage. (Id.
at p. 1164.)
The appellate court stated: “[T]he social worker[] . . . did
not provide any specifics regarding the inquiry he made of father as to his
Indian heritage. For example, the social
worker did not state whether he limited his inquiry to father’s registration in
a federally recognized tribe or inquired about the registration status of
father’s relatives. Nor did the social
worker state whether he specifically asked father to elaborate on the
information provided in the ICWA‑020 form or to explain any discrepancy
between its contents and father’s statement to the social worker. On the record before us, we cannot discern
whether father meant to convey that while he was not a registered member of a
Cherokee tribe, his own father was registered.â€
(In re Gabriel G.,
p. 1167.) Here, by contrast, we are
not looking at a vague, oral hearsay recantation made under unknown
circumstances. Rather, we have a written
statement, under oath, filed by the father’s attorney, definitively stating
that the father had no Indian ancestry.
Thus, Jeremiah G., not
Finally, the father argues that,
in recanting, he may have relied on the tribes’ responses (or lack of
responses) to the Department’s assertedly inadequate notice. This is sheer speculation. If he had some familial information that he
had Indian ancestry, the Department’s notice would seem to be no reason to
recant, particularly as he is claiming that the notice was inadequate and as
one tribe did not respond at all. At a
minimum, absent affirmative evidence that the Department did, in fact,
influence the father’s recantation, the juvenile court could reasonably
conclude that the recantation was genuine.
We therefore conclude that the
juvenile court could properly find that the notice requirements of ICWA and all
related federal and state law were satisfied.
III
DISPOSITION
The order appealed from is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL
REPORTS
RICHLI
J.
We concur:
RAMIREZ
P.
J.
KING
J.
with the same mother but different fathers, were also subjects of the
petition. They are not involved in this
appeal.
petition had likewise listed the child as S.G.
The detention report had listed her as S.W., but the
jurisdictional/dispositional report once again listed her as S.G. At the jurisdictional hearing, the juvenile
court found that the child’s true name was S.G.
In June 2011, a
report filed in connection with the six-month review hearing included a copy of
the child’s birth certificate, which listed her as S.W. The social worker pointed this out and asked
the court “to change the child[’s] . . . name on
record . . . .â€
Accordingly, at the six-month review hearing, the juvenile court found
that the child’s true name was S.W.
