In re N.S.
Filed 3/14/13 In re N.S. CA6
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opinion has not been certified for publication or ordered published for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
SIXTH
APPELLATE DISTRICT
In re N.S. et al., Persons Coming
Under the Juvenile Court Law.
SANTA CRUZ COUNTY HUMAN
SERVICES DEPARTMENT,
Plaintiff and
Respondent,
v.
B.S.,
Defendant and
Appellant.
H038534
(Santa Cruz
County
Super. Ct.
Nos. DP001738, DP001739,
DP001740)
B.S., mother
of N.S., L.F., and T.F. (the children), appeals from the juvenile court's
orders terminating her parental rights
as to the children pursuant to Welfare and Institutions Code section 366.26.
She asserts that the notice requirements of the Indian Child Welfare Act
(ICWA) (25 U.S.C. § 1901 et seq.) were not satisfied.
We find no
error and affirm those orders.
>
I
Procedural History
The facts
underlying dependency jurisdiction, the dependency proceedings, and the
termination of parental rights are generally immaterial to this appeal.
On July 13, 2007,
on behalf of N.S., L.F., and T.F. pursuant to section 300, subdivisions (b)
(failure to protect) and (g) (no provision for support).
At the
hearing on August 8, 2007,
the juvenile court found, "[b]ased on mother's indication that she has
Indian heritage," that "ICWA may apply." The court ordered mother and the maternal
grandparents, who were present, to "provide the social worker with
additional information." The court
found N.F., who was present at the hearing, to be the presumed father L.F. and
T.F. N.F. indicated that he had no
Indian heritage. N.S. had a different
father. As to N.S., the court indicated
that the Indian heritage of her father was unknown and the court would revisit
the issue of ICWA applicability "upon contact with father
. . . ."
The
Jurisdiction/Disposition Report, filed August
16, 2007, indicated that ICWA may apply since mother had stated
during a telephone call on July 30,
2007 that the children have Cherokee heritage. The paternal grandmother of L.F. and T.F.
believed the children may have Cherokee heritage through the maternal grandmother's
side of the family. It reported that
N.F., the father of L.F. and T.F., had disclaimed any Indian heritage. The report represented that the "Agency
will provide the family with relevant paperwork to further assess any possible
Native American heritage of the minors for ICWA purposes."
At the
hearing on August 16, 2007,
mother, the maternal grandparents, and the paternal grandmother and the
paternal step-grandfather of L.F. and T.F. were present. This time, based on mother's indication that
she had Indian heritage on her father's side, the juvenile court found that
ICWA may apply. It ordered proper notice
be given to the Bureau of Indian Affairs (BIA).
On September 6, 2007, the juvenile court
found that all the allegations in the dependency
petition on behalf of N.S. were true, sustained the petition, declared N.S.
to be a dependent child of the court, and ordered N.S. returned home with
family maintenance services. A six-month
family maintenance review hearing was calendared for February 21, 2008. As to L.F. and T.F., father's counsel advised
the court that their father was in custody in Sacramento
and was not transported for the hearing.
The court granted counsel's request to continue the matters.
On September 13, 2007, the juvenile
court sustained the petitions filed on behalf of L.F. and T.F after finding the
petitions' allegations to be true. The
court declared each of them to be a dependent child of the court and ordered
them returned home with family maintenance services. A six-month family maintenance review hearing
was calendared for February 21, 2008.
The
Agency's report for the six-month review of family maintenance, filed February 21, 2008, stated: "The
Indian Child Welfare Act may apply. Please see a memo submitted by Senior Social
Worker Laura McClain. On 12/12/2007 [N.F., father of L.F. and
T.F] reported that he does not have Indian Heritage."
An
"ICWA Attachment to Social Worker's Report," also filed February 21, 2008 in each child's
case, stated: "The minor's mother
[B.S.] initially indicated that she may have Native American ancestry on the
paternal side of her family. This Court
asked the maternal grandfather during a hearing about his family's heritage and
the maternal grandfather stated that he may have some distant tribal connection
but that he wasn't sure, he is not entitled to any rights affiliated with any
tribe, he has gained no benefits from any tribal connection, and that the
'little extinct tribe was perhaps six to seven generations
back.' " The ICWA report
indicated that the Agency had sent ICWA notice to two parents and the BIA. The report stated that the BIA's response
indicated that, with regard to each child, "the family ha[d] provided
insufficient information substantiating any federally recognized tribe."
The ICWA
notice for the six-month review hearing, which was attached to the social
worker's ICWA reports, reflected that mother's tribe, band, and location was of
"unknown origin." The notice
indicated that the maternal grandfather's tribe was of "U[n]known Origin,
6-7 Generations Back." As to the
maternal grandmother's and the paternal grandmother's Indian heritage, the
notice indicated: "None Reported."
The notice contained no information regarding the paternal grandfather
or the great-grandparents. The
certificate of mailing stated that the notice had been mailed on September 12,
2007 to the Sacramento Area Director of the BIA, B.S. (mother), and N.F.
(father of L.F. and T.F.).
The letter
from the BIA, dated September 21, 2007, was attached to the social worker's
ICWA reports as well. It acknowledged
receipt of the ICWA notice but stated:
"The Family has provided insufficient information substantiating
any federally recognized tribe. The
the year 1900 with names, birth dates and/or birthplaces of ancestors to help
in establishing a biological link with the original ancestral tribal
member(s)." It further stated: "We depend on the family's information and the investigation conducted by the Dept.
of Social Services to help us identify tribal heritage so that the appropriate
tribe and/or rancheria can be notified.
This form is not to be considered a determination that the child(ren) is
or is not an Indian child under the ICWA.
Notice to the Bureau of Indian Affairs is not a substitute for serving
notice on the identified federally recognized tribe and the parent or Indian
custodian. Compliance with 25 U.S.C.
1912 is still required."
At the
sixth-month review hearing in the children's dependency cases on
February 21, 2008, the juvenile court found that "proper ICWA notice
has been given pursuant to [now former California Rules of Court, rule ]
5.664(f)." It further found that
N.S., L.F. and T.F were not Indian children and ICWA did not apply to the
dependency proceedings. The minute order
for that hearing shows that mother and her counsel were present at this
hearing. It does not reflect that either
mother or her counsel interposed any objection to the correctness of the ICWA
notice or asserted that mother had Cherokee ancestry.
On August
2, 2008, supplemental petitions for a more restrictive placement were filed
pursuant to section 387. On October 23,
2008, the court found the petitions' allegations were true and sustained the
petitions.
On October
31, 2008, the juvenile court made its dispositional orders removing the
children from parental custody and committed them to the Department's care,
custody and control for placement with the maternal grandparents and the
paternal grandmother and the paternal step-grandfather of L.F. and T.F. The court appointed those grandparents as the
children's joint guardians and ordered that letters of guardianship be issued. It terminated dependency jurisdiction but
retained jurisdiction of the guardianship under sections 366.3
and 366.4. Letters of guardianship were
issued.
On April
14, 2011, petitions were filed requesting that the court terminate the existing
joint guardianship and appoint the paternal grandmother and paternal
step-grandfather of L.F. and T.F. as the sole legal guardians of the children
pending a section 366.26 hearing. The
petitions indicated that this paternal set of grandparents was willing to adopt
the children.
On July 11,
2011, the juvenile court reinstated the dependencies
and ordered the issuance of letters of guardianship appointing the paternal
grandmother and paternal step-grandfather of L.F. and T.F. as guardians of the
children. Letters of guardianship were
issued.
On February
16, 2012, the juvenile court made orders maintaining the legal guardianship
with respect to each child and setting the matters for a post permanency
planning hearing in February 2013. On
April 2, 2012, the court set hearings under section 366.26 for June 12, 2012.
On June 12,
2012, the court rescheduled the section 366.26 hearings for July 13, 2012.
On July 13, 2012, contested section 366.26
hearings were held in the children's dependency cases. The juvenile court terminated the parental
rights of mother B.S., J.S. (father of N.S.), and N.F. (father of L.F. and
T.F.). The court continued the children
as dependent children of the court and found a permanent plan of adoption was
appropriate.
Mother
filed a notice of appeal from the orders terminating her parental rights as to
the children.
II
Applicable Law
"ICWA
is a federal law giving Indian tribes concurrent jurisdiction over state court
child custody proceedings that involve Indian children living off of a
reservation. (25 U.S.C. § 1911(b)-(c);
Holyfield (1989) 490 U.S. 30, 36, 109 S.Ct. 1597, 104 L.Ed.2d
29.)" (In re W.B., Jr. (2012) 55 Cal.4th 30, 48, fn. omitted.) "ICWA is quite precise in setting out
the scope of its provisions. It applies
to any ' "child custody proceeding" ' involving an
' "Indian child." '
(25 U.S.C. § 1903.) An
'Indian child' is an unmarried person under 18 who is either a member of an
Indian tribe or is eligible for membership and is the biological child of a
tribe member. (25 U.S.C. § 1903(4).) A ' "child custody
proceeding" ' is any action resulting in a foster care placement,
termination of parental rights, preadoptive placement, or adoptive placement.
(25 U.S.C. § 1903(1).) A
' "foster care placement" ' refers to the temporary removal
of a child from the parent or Indian custodian to a foster home or institution,
or the home of a guardian or conservator, where parental rights have not been
terminated but the parent or Indian custodian cannot have the child returned on
demand. (25 U.S.C. § 1901(1)
(i).)" (Id. at pp. 49-50.)
"When
applicable, ICWA imposes three types of requirements: notice, procedural rules,
and enforcement. (See
1156-1157 . . . .) First,
if the court knows or has reason to know that an ' "Indian
child" ' is involved in a ' "child custody
proceeding," ' as those terms are defined in the Act (25 U.S.C. §
1903(1), (4)), the social services agency must send notice to the child's
parent, Indian custodian, and tribe by registered mail, with return receipt
requested. (25 U.S.C. § 1912(a).) If the identity or location of the tribe
cannot be determined, notice must be sent to the Bureau of Indian Affairs
(BIA). (Ibid.) No hearing on foster
care placement or termination of parental rights may be held until at least 10
days after the tribe or BIA has received notice. (Ibid.)" (Id.
at p. 48.)
"Next,
after notice has been given, the child's tribe has 'a right to intervene at any
point in the proceeding.' (25 U.S.C. §
1911(c).) 'At the heart of the ICWA are
its provisions concerning jurisdiction over Indian child custody
proceedings. . . . [I]n
the case of children not domiciled on the reservation: on petition of either
parent or the tribe, state-court proceedings for foster care placement or
termination of parental rights are to be transferred to the tribal court,
except in cases of "good cause," objection by either parent, or
declination of jurisdiction by the tribal court.' (Mississippi
Band of Choctaw Indians v. Holyfield, supra,
490 U.S. at p. 36, 109 S.Ct. 1597, fn. omitted.) If the tribal court does not assume
jurisdiction, ICWA imposes various procedural and substantive requirements on
the state court proceedings. Indigent
parents or Indian custodians have the right to court-appointed counsel. (25 U.S.C. § 1912(b).) Before the court can place an Indian child in
foster care or terminate parental rights, it must find 'that active efforts
have been made to provide remedial services and rehabilitative programs
designed to prevent the breakup of the Indian family and that these efforts
have proved unsuccessful.' (25 U.S.C.
§ 1912(d).) A foster care placement
also requires a finding, by clear and convincing evidence, based on testimony
from 'qualified expert witnesses,' that 'continued custody of the child by the
parent . . . is likely to result in serious emotional or physical
damage to the child.' (25 U.S.C. §
1912(e).) Before a termination of parental
rights may occur, likelihood of harm must be proven beyond a reasonable doubt. (25 U.S.C. § 1912(f).)" (Id.
at pp. 48-49.)
"Once
the appropriate showing is made, ICWA establishes rules for the placement of an
Indian child outside the home. 'The most
important substantive requirement imposed on state courts is that of
§ 1915(a), which, absent "good cause" to the contrary, mandates
that adoptive placements be made preferentially with (1) members of the child's
extended family, (2) other members of the same tribe, or (3) other Indian
families.' (Mississippi Band of Choctaw Indians v. Holyfield, at pp. 36–37, 109
S.Ct. 1597.)" (Id. at p. 49.)
"Finally,
an enforcement provision offers recourse if an Indian child has been removed
from parental custody in violation of ICWA.
Upon a petition from the parent or the child's tribe to 'any court of
competent jurisdiction,' a foster care placement or termination of parental
rights will be invalidated if the action was conducted in violation of
ICWA. (25 U.S.C. § 1914.)" (Ibid.)
"In
2006, with the passage of Senate Bill No. 678 (2005–2006 Reg. Sess.), the
Legislature incorporated ICWA's requirements into
at p. 52.) "ICWA's many procedural
requirements for juvenile dependency . . . cases are found in
sections 224 through 224.6 of the Welfare and Institutions Code." (Ibid.)
Under
California law, if the court or a social worker "knows or has reason to
know that an Indian child is involved" in an Indian child custody
proceeding, notice must be sent, "by registered or certified mail with
return receipt requested," "to all
tribes of which the child may be a member or eligible for membership, until the
court makes a determination as to which tribe is the child's tribe in
accordance with subdivision (d) of Section 224.1, after which notice need only
be sent to the tribe determined to be the Indian child's tribe." (§ 224.2, subd. (a)(1) & (a)(3),
italics added.) This mandate "must
be construed as requiring notice to all
federally recognized tribes within the general umbrella identified by the
child's parents or relatives."
name="_ftnref4" title="">[4] (In re
Alice M. (2008) 161 Cal.App.4th 1189, 1202.)
The court
and the county welfare department "have an affirmative and continuing duty
to inquire whether a child for whom a petition under Section 300
. . . is to be, or has been, filed is or may be an Indian child in
all dependency proceedings . . . if the child is at risk of entering
foster care or is in foster care."
(§ 224.3, subd. (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 to gather the information required in paragraph (5) of
subdivision (a) of Section 224.2, contacting the Bureau of Indian Affairs and
the State Department of Social Services for assistance in identifying the names
and contact information of the tribes in which the child may be a member or
eligible for membership in and contacting the tribes and any other person that
reasonably can be expected to have information regarding the child's membership
status or eligibility."
(§ 224.3, subd. (c).) If the
court or social worker "knows or has reason to know that an Indian child
is involved, the social worker . . . shall provide notice in accordance with
paragraph (5) of subdivision (a) of Section 224.2." (§ 224.3, subd. (d).)
III
Discussion
A.
Mother
contends that, since she and another family member indicated that the maternal
side of the family had Cherokee Indian ancestry, "it was incumbent upon
the social worker to either provide ICWA notice to the three federally
recognized Cherokee Indian tribes or to demonstrate that each of the possible
links articulated by family members had been convincingly
discredited." She insists that the
tribal information provided with regard to the maternal grandfather "may
or may not be complete information, as appellant-mother's statement of tribal
affiliation may have been with regard to her mother or her father's side of the
family, or both."
Mother
believes that the social worker made a decision to not send the ICWA notices to
the Cherokee Indian tribes based upon the maternal grandfather's comments to
the court, which were described in the social worker's ICWA report filed
February 21, 2008. Mother speculates
that the information provided by the maternal grandfather may have been
unreliable, stating: "He may not have had an abiding interest in his
Indian ancestry . . . . Indeed, the maternal grandfather may
have had a faulty or selective memory in the matter." She argues that the "ICWA Attachment
report did not properly foreclose the strong suggestion from [her] and the
paternal grandmother that the three minors had or may have had Cherokee Indian
tribe heritage." Nothing in the
record discloses that mother had ever received information from her father suggesting
Cherokee heritage.
As this
court has recognized: "[T]here are
many instances in which vague or ambiguous information is provided regarding
Indian heritage or association (e.g., 'I think my grandfather has some Indian
blood'; 'My great-grandmother was born on an Indian reservation in New
Mexico'). In these types of cases,
. . . inquiry is necessary before any attempt at notice to a specific
tribe even can be made." (
In this case, however, mother initially made an affirmative claim of
Cherokee heritage, which would have required ICWA notices to all Cherokee
tribes if new information had not dispelled that claim (cf.
This court
must assume, in the absence of any contrary evidence, the social worker
complied with her affirmative and continuing duty of inquiry and diligently
sought to ascertain whether the children were Indian children. (See Evid. Code, § 664 ["It is presumed
that official duty has been regularly performed"]; see
1426, 1429-1430 [presumption that Department of Children's Services carried out
its duties of inquiry].) Although the
first indicated to the court that there might be Cherokee heritage through the
the children had Cherokee heritage, the ICWA notice reflects that the maternal
grandmother has no known Indian heritage.
The ICWA notice further indicates that the maternal grandfather had
Indian ancestry but that heritage was not Cherokee. Under the circumstances, we must presume that
additional information obtained by the social worker from mother's parents upon
further inquiry superseded the mother's and the paternal grandmother's original
statements regarding maternal Cherokee heritage.
Mother
cites In re Damian C. (2009) 178
Cal.App.4th 192 for the proposition that an initial suggestion of tribal
affiliation, even if later disclaimed, still requires notice to those
tribes. "[In Damian C.], the Agency had a reason to know Damian is an Indian
child. [The mother] stated she may have
Indian ancestry, Pasqua Yaqui, through the maternal grandfather
. . . . [The maternal
grandfather] reported he had heard his father . . . was Yaqui or
Navajo, then heard the family had no Indian heritage, and he did not know to
which Yaqui or Navajo tribe the family may have been related or where the tribe
or band may be located. He said the
family's attempts to research their possible Indian heritage had been
unsuccessful and he has no contact information for his father [a maternal
great-grandfather]. This information
constituted a 'reason to know that an Indian child is or may be involved' and
triggered the requirement to make further inquiry. The Agency additionally was required to
provide notice to the federally recognized Navajo and Yaqui tribes because,
even though [the maternal grandfather] reported the family had been
unsuccessful in establishing the family's Indian heritage, the question of membership
in the tribe rests with the tribe itself.
[Citation.] [The maternal grandfather's] explanation he lacked
sufficient information to determine whether the family in fact had Indian
heritage did not release the Agency from the obligation to provide
notice." (Id. at p. 199.)
proposition advanced by mother. Rather,
it supports the principle that where a family member has received mixed
information from a now unavailable relative, some of it suggesting Indian heritage
and other information indicating no Indian heritage, there remains a
possibility of Indian Heritage and that circumstance constitutes a "reason
to know that an Indian child is involved" (§ 224.2, subd. (a)).
In this
case in contrast, there was no indication that some member of the family had
provided mixed information regarding Indian heritage to mother and that person
was presently deceased or otherwise unavailable. Here, the social worker impliedly contacted
both maternal grandparents, who were mother's immediate lineal ancestors and
who were closely involved with the children and acted as their guardians for a
period. Accepting mother's position
would only build error and unnecessary delay into lengthy dependency
proceedings where ICWA information has evolved upon further inquiry and initial
claims of tribal heritage have been revealed as fallacious.
It is a
well settled principle of appellate review that a court's order is presumed
correct. (Denham v. Superior Court (1970) 2 Cal.3d 557, 564.) " 'All intendments and presumptions
are indulged to support it on matters as to which the record is silent, and
error must be affirmatively shown. This
is not only a general principle of appellate practice but an ingredient of the
constitutional doctrine of reversible error.'
[Citations.]" (
A parent appealing from an order terminating parental rights "has
the duty to present error affirmatively by an adequate record; error is never
presumed. (Null v. City of Los Angeles (1988) 206 Cal.App.3d 1528, 1532. . . ,
and cases cited therein.)" (
417-418 ["Because the record does not establish which, if any, of the
three spellings of the grandmother's first name is correct, father has not
shown affirmatively that the spelling used in the ICWA notice was
erroneous"].)
Contrary to
mother's assertion, the record does not demonstrate that the social worker
should have sent the September 2007 ICWA notices to the Cherokee Indian tribes
or she should have sent new ICWA notices to the Cherokee Indian tribes for the
section 366.26 hearing held in July 2012 because, at those times, the social
worker had no reason to know that the children may have Cherokee heritage.
B.
Great-Grandparents
Mother
suggests that the September 2007 notices were inadequate because they did not
contain any information about the children's great-grandparents. She argues: "Both sets of grandparents
remained as fixtures throughout the case.
It is simply impossible to fathom that during this time, the social
worker was unable in her due diligence to ascertain any relevant information
[regarding the great-grandparents] from the four very invested and engaged
grandparents . . . ."
Section
224.2, subdivision (a)(5), requires ICWA notice to include certain information,
including the following: "(A) The
name, birthdate, and birthplace of the Indian child, if known. [¶] (B) The name
of the Indian tribe in which the child is a member or may be eligible for
membership, if known. [¶] (C) All names
known of the Indian child's biological parents, grandparents, and
. . . , including maiden, married and former names or aliases,
as well as their current and former addresses, birthdates, places of birth and
death, tribal enrollment numbers, and any other identifying information,
Part 23.11
of the federal regulations implementing ICWA provides that the notices must
include, "if known,"
"[a]ll names known, and current and former addresses of the Indian child's
biological mother, biological father, maternal and paternal grandparents and
including maiden, married and former names or aliases; birthdates; places of
birth and death; tribal enrollment numbers, and/or other identifying
information." (25 CFR
§ 23.11(d)(3), italics added; see 25 C.F.R. § 23.11(a), (b), & (c).)
Mother has
not pointed to anything in the record establishing that the maternal
grandparents had any information regarding the biological great-grandparents
that they were willing to share or had shared with the social worker but was
omitted from the September 2007 notices due to the social worker's error or
failure to diligently inquire.
Consequently, the record on appeal does not demonstrate that those
notices were inadequate. Of course, the
omission of information regarding the non-Indian great-grandparents would be
harmless error in any case. (See
571, 576-577.)
Neither has
mother established, by reference to the record, that the social worker
subsequently received any information regarding the great-grandparents and,
therefore, the social worker was required to send new ICWA notices for the
section 366.26 hearing. (See
§ 224.3, subd. (f).)
Mother's arguments
regarding the omission of information regarding the great-grandparents ignore
the cardinal principles of appellate review and are rejected.
C.
Mother
maintains that the juvenile court's February 2008 finding that ICWA did not
apply to the children's dependency proceedings was premature because ICWA does
not apply if a court orders family maintenance.
She insists that the court had a sua sponte duty to order "a new
and continuing inquiry into proper noticing under ICWA, particularly at the
critical time of the proceedings that led to the termination of [her] parental
rights."
In
11, which mother cites in support of her contention, the father claimed descent
from both the Cherokee Nation and Apache tribes. (Id.
at p. 13.) ICWA notices were sent to a
number of Indian tribes. (
Following a contested hearing, the juvenile court placed the children
with the mother, declared the children dependents of the court, and ordered
family maintenance services. (
information in the notices was incomplete and inaccurate in a number of
respects. (Ibid.) The appellate court
concluded the defective notices constituted harmless error in light of ICWA's
purposes, because the Department of Children and Family Services had not
pursued foster care or adoption but rather recommended from the beginning that
the children remain with their mother. (
department took further action that might lead to foster care or adoption,
future notices would contain complete and accurate information. (Ibid.)
appears to suggest, that ICWA notice provided in a dependency proceeding before
foster care is being sought is premature or a nullity. Rather, it determined that the deficiencies
in the notices were harmless error.
In fact,
California law contemplates early ICWA inquiry and notice. The court and the county welfare department
have "an affirmative and continuing duty to inquire whether a child for
whom a petition under Section 300 . . . is to be, or has been, filed is or may be an Indian child in all
dependency proceedings . . . if the child is at risk of entering foster care or is in foster care." (§ 224.3, subd. (a), italics
added.) 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
. . . ." (§ 224.3,
subd. (c).) In some cases, ICWA notices
must be sent even before the hearing on an initial petition: "If the
. . . social worker [who determines that the child shall be retained
in custody and is responsible for filing the dependency petition] knows or has
reason to know that an Indian child is involved, notice shall be given in
accordance with Section 224.2."
(§ 290.1, subd. (f).) A
dependent child who is placed in a parent's custody may still be at
child may be subsequently removed from parental custody. (See §§ 387 [supplemental petition],
364, subd. (e) [subsequent proceedings]; see also Cal.Rules of Court, rule
5.706(f).)
In addition,
the reviewing court in Alexis H.
recognized the department's ongoing responsibility to provide ICWA notices in
the future. Section 224.2, subdivision
(b), provides in part: "Notice shall be sent whenever it is known or there
is reason to know that an Indian child is involved, and for every hearing thereafter, including, but not limited to, the
hearing at which a final adoption order is to be granted, unless it is determined that the Indian Child Welfare Act (25 U.S.C.
Sec. 1901 et seq.) does not apply to the case in accordance with Section
224.3." (Italics added.)
Section
224.3, subdivision (e)(3), states: "If proper and adequate notice has been
provided pursuant to Section 224.2, and neither a tribe nor the Bureau of
Indian Affairs has provided a determinative response within 60 days after
receiving that notice, the court may determine that the Indian Child Welfare
Act (25 U.S.C. Sec. 1901 et seq.) does not apply to the proceedings, provided
that the court shall reverse its determination of the inapplicability of the
Indian Child Welfare Act and apply the act prospectively if a tribe or the
Bureau of Indian Affairs subsequently confirms that the child is an Indian
child."
"Notwithstanding
a determination that the Indian Child Welfare Act does not apply to the
proceedings made in accordance with subdivision (e) [of section 224.3], if the
court [or] social worker . . . subsequently receives any information required
under paragraph (5) of subdivision (a) of Section 224.2 that was not previously
available or included in the notice issued under Section 224.2, the social
worker . . . shall provide the additional information to any tribes entitled to
notice . . . and the Bureau of Indian Affairs." (§ 224.3, subd. (f).)
In this
case, the court determined that ICWA did not apply to the children's dependency
proceedings. (See § 224.3, subd.
(e)(3).) The record does not disclose
that the ICWA notices leading to that judicial determination were legally
deficient. Neither does the record
reveal that the court or the social worker subsequently received any additional
information not previously included in those ICWA notices. (See § 224.3, subd. (f).) The juvenile court had no duty to order the
social worker to conduct a further inquiry into the applicability of ICWA or to
send ICWA notices for the section 366.26 hearing.
DISPOSITION
The July
13, 2012 orders terminating parental rights are affirmed.
_________________________________
ELIA,
J.
WE CONCUR:
______________________________
RUSHING, P. J.
______________________________
PREMO, J.
further statutory references are to the Welfare and Institutions Code unless
otherwise stated. On our own motion, we
take judicial notice of the record filed in B.S.
v. Superior Court, H037949. (Evid.
Code, §§ 452, subd. (d), 459, subd. (a).)
establishment of a legal guardianship, the court may continue jurisdiction over
the child as a dependent child of the juvenile court or may terminate its
dependency jurisdiction and retain jurisdiction over the child as a ward of the
legal guardianship, as authorized by Section 366.4." (§ 366.3, subd. (a).)
