Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County, Marguerite Downing, Judge. Los Angeles County Super. Ct. No. CK73114
Joseph T. Tavano, under appointment by the Court of Appeal, for Defendant and Appellant.
Office of the Los Angeles County Counsel, James M. Owens, Assistant County Counsel, and Kim Nemoy, Senior Deputy County Counsel, for Plaintiff and Respondent.
KRIEGLER, J.
K.M. (mother) appeals from the judgment terminating parental rights to her son and daughter, who are twins, under Welfare and Institutions Code section 366.26. She contends the judgment must be reversed because the Department of Children and Family Services (the Department) did not conduct a sufficient inquiry under the Indian Child Welfare Act of 1978 (the ICWA) (92 Stat. 3069, 25 U.S.C. §§ 1901-1963). We affirm the judgment.
All further statutory references are to the Welfare and Institutions Code, unless otherwise indicated.
STATEMENT OF FACTS AND PROCEDURE
The children were born in February 2008 to mother and A.B., the alleged father. The parents were not married, did not live together, and mutually engaged in domestic violence and drug abuse. Mother used methamphetamines and was very volatile. She had care, custody, and control of the children. She severely physically abused them. One week after the babies were born, mother was observed on occasion to grab her son by the arm or leg and jerk him, slap him repeatedly, and yell at him; she smacked both children on their buttocks. When the son cried, she did not comfort him or attend to him.
At age three months, the children were detained from mother, because they were found to have severe current and old injuries. The son had a fracture of the proximal femur and swelling to the leg which caused extreme pain, a transverse fracture of the proximal shaft of the left radius [a broken left forearm], multiple healing left rib fractures with callus formation, a left periorbital hematoma [a black eye], bruises to the right periorbital area, bleeding lacerations on the nostrils, and dried blood in the nose. The daughter had five fractured ribs of the right side and increased uptake on the left side of ribs 3-7, large bleeding lacerations on the nostrils, and dried blood in the nose. One doctor stated the children were tortured. Mother failed to timely seek medical attention for the children, and she did not appear to care that they had been harmed.
His hip was “crushed into millions of pieces.”
The son had an extremely adverse reaction to mother during visits. Whenever mother held him, he was in complete state of inconsolable distress, but he calmed down as soon as she stopped holding him.
Mother told the dependency court on May 29, 2008, that she may have Indian ancestry. She did not know which tribe, but said maternal grandmother was the relative having Indian ancestry. The dependency court ordered the Department to interview maternal grandmother to investigate mother’s claim of Indian heritage.
A.B. stated he had no Indian ancestry.
The Department interviewed mother, maternal grandmother, maternal great aunt, and maternal great uncle. Maternal grandmother indicated maternal grandfather, who died in 1993, said he had Cherokee ancestry but she did not know if that was true. The maternal great grandparents through whom the children might have Indian heritage were P.M. and C.M. P.M. was deceased. It was unknown whether C.M. was deceased, and there was no information about his address. The only living member of maternal grandfather’s family that maternal grandmother knew about was maternal grandfather’s sister, who she believed lived “somewhere in Belgium.”
The Department sent a notice of the proceedings to the Bureau of Indian Affairs, the Secretary of the Interior, Eastern Band of Cherokee Indians, United Keetoowah Band of Cherokee, and Cherokee Nation. The Department received certified mail receipts from the Cherokee tribes and the Bureau of Indian Affairs, and a letter from Cherokee Nation stating the children were not considered Indian children.
Mother was arrested in December 2008. As to each of the twins, mother was charged with child abuse and inflicting great bodily injury to a child under the age of five. She faced 15 years in prison and was in custody for the rest of the proceedings.
The children were declared dependents of the court under section 300, subdivisions (a) (severe physical harm inflicted nonaccidentally), (b) (serious physical harm as a result of failure to protect, failure to protect from conduct of custodian, and substance abuse), (e) (children under the age of five suffered severe physical abuse), and (j) (sibling abuse). Custody was removed from the parents and no reunification services were ordered. The matter was continued for a section 366.26 hearing.
On May 7, 2009, the Department reported that the ICWA does not apply and requested an ICWA finding. In findings on May 13, 2009, and August 10, 2009, the dependency court found the ICWA does not apply.
On August 10, 2009, the section 366.26 hearing was held, and parental rights were terminated. The foster family, who had been caring for the children since detention, was deemed the prospective adoptive parents.
DISCUSSION
Mother’s sole contention on appeal is that, in failing to interview maternal grandfather’s sister and maternal great grandparents, the Department did not provide all available, identifying data to the tribes for determining whether the children were eligible for tribal membership. “The trial court’s finding that ICWA notice was adequate is reviewed for substantial evidence.” (In re J.T. (2007) 154 Cal.App.4th 986, 991.) We conclude the contention is without merit.
Mother mistakenly refers to the maternal great grandparents, on the maternal grandfather’s side, as the paternal great grandparents.
Section 224.3, subdivision (c), provides in pertinent part: “If the court, social worker, or probation officer knows or has reason to know that an Indian child is involved, the social worker or probation officer 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 [prescribing the contents of notice to the tribe].”
California Rules of Court, rule 5.481(a)(4) provides in pertinent part: “If the social worker... knows or has reason to know that an Indian child is or may be involved, that person or entity must make further inquiry as soon as practicable by: [¶] (A) Interviewing the parents, Indian custodian, and ‘extended family members’ as defined in 25 United States Code section 1901 and 1903(2).”
“‘[E]xtended family member’ shall be as defined by the law or custom of the Indian child’s tribe or, in the absence of such law or custom, shall be a person who has reached the age of eighteen and who is the Indian child’s grandparent, aunt or uncle, brother or sister, brother-in-law or sister-in-law, niece or nephew, first or second cousin, or stepparent;....” (25 U.S.C. § 1903(2).)
Substantial evidence supports finding the ICWA notice was based on an adequate inquiry. The Department’s duty to conduct a further inquiry under section 224.3, subdivision (c) was not triggered, because neither a grandparent’s sibling nor a great grandparent is an “extended family member.” (See 25 U.S.C. § 1903(2).) Moreover, maternal great grandmother was dead, and the whereabouts of the maternal great grandfather and maternal grandfather’s sister were unknown. The authorities cited by mother do not stand for the proposition that the Department has a duty to conduct a search for a person whose whereabouts are completely unknown. (See In re Louis S. (2004) 117 Cal.App.4th 622, 628 [issues discussed concerned the contents, service, and filing of notices]; In re Shane G. (2008) 166 Cal.App.4th 1532, 1538-1539 [appeal did not involve the scope of the duty of inquiry]; In re Alice M. (2008) 161 Cal.App.4th 1189, 1198-1201 [issue presented was whether the evidence was sufficient to trigger the duty to give notice]; In re S.M. (2004) 118 Cal.App.4th 1108, 1116 [the person with the alleged Indian heritage was “indisputably available” to be interviewed].) Accordingly, there was compliance with the ICWA.
DISPOSITION
The judgment is affirmed.
We concur: TURNER P. J., ARMSTRONG J.