In re Richard O.
Filed 2/1/13 In
re Richard O. CA5
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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opinion has not been certified for publication or ordered published for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.
COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIFTH APPELLATE DISTRICT
In
re RICHARD O. et al., Persons Coming Under the Juvenile Court Law.
KERN COUNTY DEPARTMENT OF HUMAN
SERVICES,
Plaintiff and Respondent,
v.
MARIAH A.,
Defendant
and Appellant.
F065415
(Super.
Ct. Nos. JD127364, JD127365, JD127366, JD127367, JD127368, JD128367)
THE
COURT
title="">*
APPEAL from orders of the Superior
Court of Kern County. Louie A. Vega,
Judge.
Marissa Coffey, under appointment
by the Court of Appeal, for Defendant and Appellant.
Theresa A.
Goldner, County Counsel, and Elizabeth M. Giesick, Deputy County Counsel, for
Plaintiff and Respondent.
-ooOoo-
INTRODUCTION
Mariah A.
(mother) appeals from the juvenile court’s jurisdictional and dispositional
order finding that the Indian Child Welfare Act (ICWA) does not apply in this
case. We reject mother’s contention and
affirm the juvenile court’s order.
FACTS AND PROCEEDINGS
Mother and
her husband, M.A., were arrested and charged with willful cruelty to a child
(Pen. Code, § 273a, subd. (a)). On
September 19, 2011, the Kern County Department of Human Services (department)
filed separate petitions pursuant to Welfare and Institutions Code section 300
David O. (seven years old), William O. (six years old), Jeremiah O. (four
years old), and Gabriella A. (one year old).
The petitions alleged that mother failed to protect the children from
M.A., M.A. committed domestic violence on mother, and was verbally abusive to
the older children. The older children’s
father was Richard O., Sr., now deceased.
William O. that he was suffering emotional abuse inflicted by M.A. and that
William O. had begun to hit himself in the face with a shoe as a result of
M.A.’s abuse.
title="">[3] In March 2012, a petition was filed for
Michael A. who had just been born.
On
September 20, 2011, mother signed a parental notification of Indian status
form. Mother indicated she was of
Cherokee and Blackfoot ancestry. At a
hearing on September 20, 2011, mother told the court that she did not know if
Richard O., Sr. had any Indian ancestry.
The parties stipulated that mother would testify that she and Richard
O., Sr. were married and residing together when she gave birth to Richard,
David, William, and Jeremiah. Richard
O., Sr. held these children out as his own.
Mother also had an exclusive relationship with M.A. and was married to
him when she conceived Gabriella.
Notices were sent pursuant to the
ICWA to the United Keetoowah Band of Cherokee Indians, the Cherokee Nation of
Oklahoma, the Eastern Band of Cherokee Indians, the Blackfeet Tribe of Montana,
the Secretary of the Interior Bureau of Indian Affairs (BIA), and the Pacific
Regional Office of the Bureau of Indian Affairs.
M.A. The notices for the four older
children listed Richard O., Sr. as the other alleged father and stated it was
unknown whether he had Indian ancestry or attended an Indian school. In October 2011, letters were received by the
department from the United Keetoowah Band of Cherokee Indians, the Blackfeet
Tribe, the BIA, and the Cherokee Nation indicating that Richard, David,
William, Jeremiah, and Gabriella were not Indian descendants.
At a hearing on October 27, 2011,
the juvenile court found that proper notice had been made pursuant to the ICWA. In November 2011, the department sent a
second round of notices to the one tribe that had not previously responded to
the department, the Eastern Band of Cherokee Indians. Notices were also sent to the BIA, the
Pacific Regional Office of the Bureau of Indian Affairs, mother, and M.A. Richard O., Sr. was again listed as the other
alleged father as to the four older children.
The BIA sent a letter dated
November 30, 2011. This letter did not
indicate that the children had Indian ancestry.
The Family Support Services of the Cherokee Boys Club sent a letter on
January 10, 2012, that the children were not registered or considered members
of their tribe. On December 19, 2011,
the juvenile court found that the tribes and BIA had received appropriate notice
pursuant to the ICWA.
At the jurisdiction hearing, which
was conducted on February 2, 2012, and continued to February 24, 2012, the
juvenile court found that there was no evidence to establish the children fell
within the provisions of the ICWA and that it was not applicable in this
proceeding. The court found the
allegations of the amended petition true.
The matter was continued for the adoption of an appropriate case plan after
evaluation by a psychologist. Mother was
granted weekly visitations with the children.
On May 30, 2012, the department
filed a photographic copy of the death certificate of Richard O., Sr., who died
in Pima County, Arizona in 2006. The
printed form of the certificate had Box 4A which stated: “RACE (e.g. white, black, American Indian,
(specify tribe) etc. ¶ SPECIFY:â€
Written in the box for Richard O., Sr.’s race was “WHITE.â€
At the
disposition hearing on July 5, 2012, the court ordered the removal of the
children from their parents’ custody.
The court found that the parents had made minimal progress toward
alleviating or mitigating the causes for the dependency proceeding. The court ordered reunification services for
mother for six months. Mother was
ordered to participate in counseling for parent training, a 26-week program to
learn how to protect her children, and individual counseling to address her
self-esteem, codependency, mental health issues, and domestic violence as a
victim. Mother was also ordered to
comply with all medication recommendations by mental health professionals. M.A. was denied reunification services. Mother was permitted weekly, supervised
visitation with the children.
COMPLIANCE WITH ICWA
Mother
contends the department’s ICWA notice was deficient because it failed to
contain more identifying information for Richard O., Sr., the father of the
four older children. We disagree.
Congress
passed the ICWA to promote stability and security of Indian tribes and families
by establishing minimum standards for removal of Indian children from their families
and to effectuate the placement of such children in foster or adoptive homes
that will reflect the unique values of Indian culture. (In re
Levi U. (2000) 78 Cal.App.4th 191, 195 (Levi
U.).)
Social workers have an affirmative
and continuing duty to inquire whether a child in a section 300 proceeding is
or may be an Indian child. If the social
worker has reason to know an Indian child is involved, the social worker is
required to make further inquiry by interviewing parents, extended family
members, and the Indian custodian.
Neither the court nor a social services department, however, is required
to conduct a comprehensive investigation into the minor’s Indian status. (In re
C.Y. (2012) 208 Cal.App.4th 34, 39 (C.Y.);
In re S.B. (2005) 130 Cal.App.4th
1148, 1161; Levi U.,
regulations create a duty by the department or the court to “cast about,
attempting to learn the names of possible tribal units to which to send notices,
or to make further inquiry with BIA.†(
Although extensive information was
provided concerning mother’s family history, as well as that of M.A., mother
contends that almost no information was provided concerning Richard O.,
Sr. The ICWA notice as to Richard O.,
Sr., stated that it was unknown whether he had Indian ancestry. We note that although she was married to
Richard O., Sr. and had four children by him, mother provided no information
about him to the department. Richard O.,
Sr.’s name was listed in the appropriate ICWA notices to the tribes and the
BIA. If Richard O., Sr. had any Indian
ancestry, presumably there would have been a request for further information
from one of the tribes or the BIA. There
was none.
The court in C.Y. found no affirmative duty by the social services department or
the juvenile court to make further inquiry into the Indian status of a dead
parent by questioning the dead parent’s relatives concerning Indian
ancestry. C.Y. further noted that the court could hardly make inquiries of
persons not parties to the proceeding, or of a deceased parent. The initial inquiry need only be made to the
parents. (C.Y., supra, 208
Cal.App.4th at p. 42.) We apply the
reasoning and holding in C.Y. here.
Mother argues that the department
received Richard O., Sr.’s death certificate prior to May 30, 2012, and could
have conducted a further inquiry. We
agree with the general legal principle stated above that the department had a
continuing duty to investigate any potential Indian ancestry pursuant to the
ICWA. Whatever date the department
received Richard O., Sr.’s death certificate, the information on that
certificate indicated that his race was White, not American Indian which was a
choice stated in the designated box on the certificate itself. The death certificate provided no information
that would have placed the department on notice to conduct a further inquiry as
to Richard O., Sr.’s potential Indian ancestry.
Indeed, the death certificate was documentary evidence that Richard O.,
Sr. did not have any Indian ancestry.
We find that the juvenile court did
not err in finding that the children did not have Indian ancestry and that the
ICWA was inapplicable to this proceeding.
DISPOSITION
The orders
of the juvenile court are affirmed.
name="_ftn1" title="">* Before
Gomes, Acting P.J., Kane, J., and Peña, J.
name="_ftn2" title="">[1] All
statutory references are to the Welfare and Institutions Code unless otherwise
designated.
