Opinion
B229521
09-09-2011
In re JEREMIAH L. et al., Persons Coming Under the Juvenile Court Law. LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent, v. K.B., Defendant and Appellant.
Joseph T. Tavano, under appointment by the Court of Appeal, for Defendant and Appellant. Andrea Sheridan Ordin, County Counsel, James M. Owens, Assistant County Counsel, and Frederick Klink, Senior Deputy County Counsel, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Los Angeles County Super. Ct. No. CK83405)
APPEAL from the orders of the Superior Court of Los Angeles County, Jacqueline Lewis, Juvenile Court Referee. Affirmed.
Joseph T. Tavano, under appointment by the Court of Appeal, for Defendant and Appellant.
Andrea Sheridan Ordin, County Counsel, James M. Owens, Assistant County Counsel, and Frederick Klink, Senior Deputy County Counsel, for Plaintiff and Respondent.
K.B. (father) appeals from the orders of November 23, 2010, declaring his sons Jeremiah L. and Jordan L. (the children) dependents of the court under Welfare and Institutions Code section 360, subdivision (d) and ordering the children removed from his custody. Father contends: (1) trial counsel was ineffective in failing to object to hearsay statements of maternal grandmother; (2) substantial evidence does not support the jurisdictional findings father inflicted domestic violence on mother and father's marijuana use and conviction of sex with a minor placed the children at risk of harm; (3) substantial evidence does not support the order removing the children from father's custody; and (4) substantial evidence does not support the finding that the dependency court had no reason to know the Indian Child Welfare Act of 1978 (the ICWA) (92 Stat. 3069, 25 U.S.C. §§ 1901-1963) applied. We affirm.
All further statutory references are to the Welfare and Institutions Code, unless otherwise indicated.
STATEMENT OF FACTS AND PROCEDURE
Jeremiah, born in May 2009, and Jordan, born in July 2010, were born to father and C.L. (mother), who lived together. Father, a member of the Hoover Crips gang, smoked marijuana on a regular basis, forced mother to be a prostitute, acted as her pimp, inflicted domestic violence on mother, and threatened maternal grandmother. Mother was afraid to speak in father's presence. Father was convicted of unlawful sexual intercourse with a minor more than three years younger than the perpetrator (Pen. Code, § 261.5, subd. (c)), driving with a suspended license, and possession of marijuana. The mother of father's oldest child was granted temporary restraining orders against father in 2005 and 2006 due to domestic violence. Father had a physical altercation with the mother of his next oldest child, an infant, as he attempted to grab the child from her arms. In 2009, when 24 weeks pregnant, mother was assaulted by "some guy" who slapped her and caused her to fall to the sidewalk on the side of her stomach. She was guarded about disclosing the details of the assault when she went to a hospital emergency room for treatment.
In December 2009, the Department of Children and Family Services (the Department) received a report father and mother abused and neglected Jeremiah, including a report that father physically abused Jeremiah by shaking him. Father failed to make Jeremiah available for an agreed-on forensic medical assessment and, instead, fled the home with the family. Thereafter, father did not contact the Department until June 2010, when he learned that mother's welfare funds were suspended until the family contacted the Department. Mother was seven months pregnant, engaged in prostitution, and not receiving prenatal care. Father, who was regularly under the influence of marijuana, was Jeremiah's primary caretaker. He cared for Jeremiah while he was under the influence.
In July 2010, father physically assaulted mother, causing vaginal bleeding and cramping. As a result, mother went into labor and Jordan was born prematurely with underdeveloped lungs. Jeremiah was placed in out-of-home care, and parents agreed to a voluntary reunification plan, including monitored visits. However, the children were detained a few days later and a petition was filed because father tried to have an unmonitored visit. The dependency court ordered parents to visit separately. They violated this order.
On November 23, 2010, after a trial, the children were declared dependents of the court under section 300, subdivisions (a) and (b), based on the following sustained allegations: parents have a history of engaging in violent altercations and, on July 18, 2010, father physically assaulted mother while mother was pregnant with Jordan; father has a history of substance abuse and is a current user of marijuana, which renders him unable to provide regular care; and father has a felony conviction of sex with a minor. The dependency court found credible maternal grandmother's statements about father's domestic violence, rejecting the argument that maternal grandmother was biased. The court also found maternal grandmother's statements corroborated by other evidence and by mother's lack of credibility. Custody was taken from parents and reunification services were ordered. Father was ordered to participate in drug rehabilitation, a batterers intervention program, parenting, and individual counseling. Father was granted monitored visits in the Department's office where there was a security guard. The court observed, "father's behaviors, even here in court[,] cause the court concern and I believe that [his visits] should be in an office where there is a security guard."
DISCUSSION
I. Ineffective Assistance of Counsel
Father contends counsel was ineffective in failing to object to the admission of maternal grandmother's statements in the social worker's reports concerning domestic violence. Father argues there was no tactical reason for counsel's failure to object once counsel learned maternal grandmother was unavailable to be cross-examined. We disagree with the contention.
A. Background
The social worker's report contained maternal grandmother's statements concerning father's infliction of domestic violence on mother. Mother disclosed to maternal grandmother that father physically assaulted her and caused her to go into labor, she was afraid of father, and father forced mother to prostitute herself by threatening to sell Jeremiah. Maternal grandmother also stated two friends saw father hit mother across the face.
Maternal grandmother was in court on October 29, 2010, to testify for the Department at the adjudication hearing. She left before the case was called, despite clear instructions that she remain, after father was seen staring at her in an intimidating manner. The case was continued to November 19, 2010, to give county counsel an opportunity to serve maternal grandmother with a subpoena.
The jurisdictional hearing began on November 19, 2010. The reports that contained maternal grandmother's statements were admitted into evidence, without objection by father. County counsel informed the dependency court that maternal grandmother had made herself unavailable to be served and her telephone was disconnected. Testifying, father and mother denied maternal grandmother's allegations and gave reasons why maternal grandmother was not credible. Father's attorney argued the only evidence of domestic violence was maternal grandmother's statements in the reports. Counsel cited those statements to support father's argument that maternal grandmother was not credible, had motive to lie, and lacked firsthand knowledge.
B. Legal Principles
A parent has a statutory right to competent counsel in dependency proceedings. (§ 317.5, subd. (a).) Whether the parent has a constitutional right to competent counsel under the federal due process clause is determined on a case-by-case basis, after determining whether the balance of the private interests, the state's interests, and the risk that the procedure used will result in erroneous decisions overcomes the presumption against appointed counsel. (Lassiter v. Department of Social Services (1981) 452 U.S. 18, 27, 31.)
A parent claiming ineffective assistance of counsel under either section 317.5, subdivision (a), or due process must show that "counsel failed to act in a manner to be expected of reasonably competent attorneys practicing in the field of juvenile dependency law." (In re Kristin H. (1996) 46 Cal.App.4th 1635, 1667-1668.) As the required showing of ineffectiveness under either the statute or due process is the same, we need not decide whether father had a due process right to competent counsel or only a statutory right.
The parent must also show prejudice. (Strickland v. Washington (1984) 466 U.S. 668, 687; In re Kristin H., supra, 46 Cal.App.4th at p. 1668.)
C. Standard of Review
We review counsel's performance under a deferential standard of scrutiny. (In re Jones (1996) 13 Cal.4th 552, 561-562.) "'It is all too tempting for a defendant to secondguess counsel's assistance after [an adverse judgment], and it is all too easy for a court, examining counsel's defense after it has proved unsuccessful, to conclude that a particular act or omission of counsel was unreasonable. [Citation.] A fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel's challenged conduct, and to evaluate the conduct from counsel's perspective at the time. Because of the difficulties inherent in making the evaluation, a court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action "might be considered sound trial strategy." [Citation.]' (Strickland v. Washington (1984) 466 U.S. 668, 689.)" (Ibid.)
"[An appellant] who raises the issue on appeal must establish deficient performance based upon the four corners of the record. 'If the record on appeal fails to show why counsel acted or failed to act in the instance asserted to be ineffective, unless counsel was asked for an explanation and failed to provide one, or unless there simply could be no satisfactory explanation, the claim must be rejected on appeal.' [Citations.]" (People v. Cunningham (2001) 25 Cal.4th 926, 1003.)
D. Counsel's Performance Was Not Ineffective
Contrary to father's contention, there is a satisfactory explanation for counsel's failure to object to the maternal grandmother's statements once counsel learned that maternal grandmother could not be subpoenaed: it was too late to object. An objection to the admission of hearsay evidence in a report must be "timely" made. (§ 355, subd. (c)(1).) "[A]n objection is timely if[, inter alia,] it gives the petitioner a reasonable period of time to meet the objection prior to a contested hearing." (§ 355, subd. (c)(2).) The point father identifies as the time when counsel should have objected is after the contested hearing had begun. Counsel could reasonably have concluded that an objection made at that time would have been denied as untimely, making any objection futile.
A satisfactory explanation appears for failing to make a timely objection, as well. Father stood to gain far more from acquiescing in the admission of maternal grandmother's out-of-court statements than from cross-examining her at trial. Had she been brought in for cross-examination, her out-of-court statements would have been admitted into evidence in any event. (§ 355, subd. (c).) Counsel could reasonably have concluded that cross-examination of maternal grandmother would only strengthen maternal grandmother's story and heighten her credibility. Indeed, the dependency court found maternal grandmother credible and unbiased, and found the attacks on maternal grandmother incredible. With maternal grandmother not testifying, counsel was able to argue that specific inconsistencies in maternal grandmother's statements rendered her claim of domestic violence not credible, without the risk maternal grandmother would explain the inconsistencies in live testimony. We conclude counsel's decisions regarding the admission of maternal grandmothers statements resulted from informed tactical choices within the range of reasonable competence. We will not second-guess counsel's reasonable tactical decisions. (People v. Weaver (2001) 26 Cal.4th 876, 926.)
Had a timely objection been made, the Department would have subpoenaed maternal grandmother, giving father an opportunity to cross-examine her.
In any event, maternal grandmother's statements were admissible without an opportunity for cross-examination because they were corroborated. (§ 355, subd. (c)(1); In re B.D. (2007) 156 Cal.App.4th 975, 984 [an objection to hearsay in a report does not render the hearsay inadmissible; rather, "uncorroborated, the hearsay statements [do] not constitute substantial evidence and [cannot] be used as the exclusive basis for . . . jurisdiction"]; In re Cindy L. (1997) 17 Cal.4th 15, 35 [corroboration is "'"'evidence . . . which would support a logical and reasonable inference'" that the act of abuse described in the hearsay statement occurred.' [Citation.]".) The hospital records indicate mother went into premature labor as a result of cramping and vaginal bleeding suffered when, as she told the medical personnel, she was assaulted. The fact maternal grandmother was not at the hospital with mother after the assault indicates maternal grandmother would not have known about the assault, injuries, and premature labor had mother not told her about them. The dependency court found mother's denial of father's assault "very non-credible." This evidence corroborates maternal grandmother's statement that mother called her and told her father assaulted her and caused her to go into premature labor. (See In re B.D., supra, at p. 985 [the corroborating evidence need not itself, without the aid of the hearsay statement, be sufficient to establish the finding; false statements can constitute corroboration].) Accordingly, maternal grandmother's statements were admissible even if counsel had timely objected.
"If any party to the jurisdictional hearing raises a timely objection to the admission of specific hearsay evidence contained in a social study, the specific hearsay evidence shall not be sufficient by itself to support a jurisdictional finding or any ultimate fact upon which a jurisdictional finding is based, unless the petitioner establishes one or more of the following exceptions: [Exceptions omitted]." (§ 355, subd. (c)(1).)
We conclude counsel was not ineffective for failing to object to maternal grandmother's out-of-court statements.
II. Substantial Evidence
Father contends substantial evidence does not support the jurisdictional findings, under section 300, subdivision (a) and (b), that father inflicted domestic violence on mother and father's marijuana use and conviction of sex with a minor placed the children at risk of harm, the order removing the children from father's custody, and the finding that the dependency court had no reason to know the ICWA applied. We conclude substantial evidence supports each of the challenged decisions of the dependency court.
In determining whether substantial evidence supports the factual findings, "all intendments are in favor of the judgment and [we] must accept as true the evidence which tends to establish the correctness of the findings as made, taking into account as well all inferences which might reasonably have been drawn by the trial court." (Crogan v. Metz (1956) 47 Cal.2d 398, 403-404.) "'"[T]he [appellate] court must review the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidence . . . such that a reasonable trier of fact could [make the findings made]."' [Citations.]" (In re Matthew S. (1988) 201 Cal.App.3d 315, 321.) "[I]ssues of fact and credibility are the province of the trial court. [Citation.]" (In re Heather A. (1996) 52 Cal.App.4th 183, 193.)
"We do not reweigh the evidence or exercise independent judgment, but merely determine if there are sufficient facts to support the findings of the trial court." (In re Matthew S., supra, 201 Cal.App.3d at p. 321.) If supported by substantial evidence, the judgment or finding must be upheld, even though substantial evidence may also exist that would support a contrary judgment and the dependency court might have reached a different conclusion had it determined the facts and weighed credibility differently. (In re Dakota H. (2005) 132 Cal.App.4th 212, 228.) Thus, the pertinent inquiry when a finding is challenged on sufficiency of the evidence grounds is whether substantial evidence supports the finding, not whether a contrary finding might have been made. (Ibid.)
A. Jurisdictional Findings
Section 300, subdivision (a) describes a child who: "has suffered, or there is a substantial risk that the child will suffer, serious physical harm inflicted nonaccidentally upon the child by the child's parent or guardian. For the purposes of this subdivision, a court may find there is a substantial risk of serious future injury based on the manner in which a less serious injury was inflicted, a history of repeated inflictions of injuries on the child or the child's siblings, or a combination of these and other actions by the parent or guardian which indicate the child is at risk of serious physical harm. . . ."
Section 300, subdivision (b) describes in pertinent part a child who has suffered, or is a substantial risk of suffering, "serious physical harm or illness, as a result of the failure or inability of his or her parent or guardian to adequately supervise or protect the child . . . ." "While evidence of past conduct may be probative of current conditions, the question under section 300 is whether circumstances at the time of the hearing subject the minor to the defined risk of harm." (In re Rocco M. (1991) 1 Cal.App.4th 814, 824.)
The purpose of the juvenile court law is to provide "maximum safety and protection for children" being harmed or who are at risk of harm. (§ 300.2.)
1. Evidence of Domestic Violence
Father contends the record lacks sufficient evidence to support the finding he inflicted domestic violence on mother. Maternal grandmother's report that mother disclosed father assaulted her and caused her to go into labor prematurely, corroborated by the evidence in the hospital records that mother suffered cramps and vaginal bleeding from an assault, and mother's non-credible denial, is ample sufficient evidence that father inflicted domestic violence on mother. Moreover, there was evidence father had a history of inflicting domestic violence on the mothers of his children. Two domestic violence restraining orders were issued against him to protect the mother of his oldest child. He physically assaulted the mother of his second oldest child, then an infant, to force her to release the child from her arms.
"[We note] the obvious: Domestic violence against a spouse is detrimental to children." (Guardianship of Simpson (1998) 67 Cal.App.4th 914, 940.) Domestic violence in the household creates a substantial risk the children will encounter the violence and suffer serious physical harm therefrom. (In re Heather A., supra, 52 Cal.App.4th at p. 194; see also In re Basilio T. (1992) 4 Cal.App.4th 155, 168-169.) Father's assault of mother injured Jordan by causing him to be born prematurely, with underdeveloped lungs. Father's assault of the mother of his second oldest child created a substantial risk the child would be injured by being dropped, grabbed, and hit.
Father's argument that there was evidence, such as the parents' denials, that father did not assault mother is but a request we reweigh the evidence. This we will not do. (See, e.g., Scott v. Pacific Gas & Electric Co. (1995) 11 Cal.4th 454, 465 ["When considering a claim of insufficient evidence on appeal, we do not reweigh the evidence, but rather determine whether, after resolving all conflicts favorably to the prevailing party, and according the prevailing party the benefit of all reasonable inferences, there is substantial evidence to support the judgment."].)
2. Evidence Father's Marijuana Use Created a Risk of Harm
Father's contention substantial evidence does not support the finding his medical marijuana use placed the children at risk of harm is devoid of merit.
Marijuana is an hallucinogenic substance. (Health & Saf. Code, § 11054, subd. (d)(13).) "The provision of a home environment free from the negative effects of substance abuse is a necessary condition for the safety, protection and physical and emotional well-being of the child." (§ 300.2.) [L]egal use of marijuana can be abuse if it presents a risk of harm to minors." (In re Alexis E. (2009) 171 Cal.App.4th 438, 452.) The Compassionate Use Act of 1996, which protects patients who use marijuana for medical purposes from criminal prosecution, "[does not] supersede legislation prohibiting persons from engaging in conduct that endangers others . . . ." (Health & Saf. Code, § 11362.5, subd. (b)(2).)
The risk to children being cared for by a parent under the influence of a hallucinogenic drug is not speculative. Father's acknowledgement he frequently used marijuana, a hallucinogenic drug, and was regularly under its influence when the children were in his care, is ample evidence his medicinal marijuana use created a substantial risk of harm to the children. (Compare In re David M. (2005) 134 Cal.App.4th 822, 829-832 [single, positive marijuana test at child's birth did not establish a substantial risk of harm, where the baby's toxicology screen was negative, the older sibling was not exposed to drugs, drug paraphernalia, or second-hand marijuana smoke, and the mother remained free from drugs during the months between the detention and jurisdictional hearings.].)
3. Substantial Evidence Supporting Jurisdiction
The conclusion reached by the dependency court that the children were at substantial risk of serious physical harm under section 300, subdivisions (a) and (b), due to father's domestic violence and marijuana use is amply supported by substantial evidence. As the dependency court properly took jurisdiction based on such conduct, we need not consider father's challenge to the finding his conviction for sex with a minor created a risk of harm. (In re Alexis E., supra, 171 Cal.App.4th at p. 451.)
B. Removal Order
Father contends substantial evidence does not support the order removing the children from his custody under section 361, subdivision (c), because any danger to the children is merely speculative. We disagree with the contention.
Section 361, subdivision (c) provides in pertinent part: "A dependent child may not be taken from the physical custody of his or her parents . . . with whom the child resides at the time the petition was initiated, unless the juvenile court finds clear and convincing evidence of any of the following circumstances listed in paragraphs (1) to (5), inclusive[:] [¶] (1) There is or would be a substantial danger to the physical health, safety, protection, or physical or emotional well-being of the minor if the minor were returned home, and there are no reasonable means by which the minor's physical health can be protected without removing the minor from the minor's parent's . . . physical custody."
"Findings made at a juvenile dependency hearing where the minors are placed out of the home of a parent must be supported by clear and convincing evidence. [Citation.] However, on review, this court only determines whether, viewed in the light most favorable to the judgment, there is substantial evidence to support the findings of the juvenile court." (In re Albert B. (1989) 215 Cal.App.3d 361, 375.)
Father had a history of physically assaulting the mothers of his children while the children were present and of being under the influence of a hallucinogenic drug while caring for the children. His assault of mother during her pregnancy with Jordan caused harm to Jordan. He denied his role in the domestic violence and minimized the significance of being under the influence of a hallucinogenic drug while the children were in his care. He was not rehabilitated. The foregoing is substantial evidence supporting the conclusion the children would be at substantial risk of harm if returned to father's custody.
C. The ICWA
Father contends substantial evidence does not support the dependency court's finding it lacked reason to know the children were Indian children for purposes of the requirement in section 224.2 that notice of the proceedings be sent to the Indian child's tribe when the court has reason to know the child is an Indian child. (See §§ 224.2, subds. (a)-(b), 224.3, subd. (d).) We conclude substantial evidence supports the finding.
1. Legal Principles
Section 224.3 provides in pertinent part: "(a) The court [and] 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[] in all dependency proceedings . . . if the child is at risk of entering foster care or is in foster care. [¶] (b) The circumstances that may provide reason to know the child is an Indian child include, but are not limited to, the following: [¶] (1) A person having an interest in the child, including . . . a member of the child's extended family provides information suggesting the child is a member of a tribe or eligible for membership in a tribe or one or more of the child's biological parents, grandparents, or great-grandparents are or were a member of a tribe. [¶] . . . [¶] (d) 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."
"'Indian child' means any 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." (25 U.S.C. § 1903(4).)
Such notice must be provided to the Indian child's tribe, among others. (§ 224.2, subd. (a).)
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2. Background
Father stated on the Parental Notification of Indian Status form that he had no Indian ancestry. Mother stated on her form she "may have" Indian ancestry "Mo's Fa's Mo (MGGM on Mo's paternal side)[;]" she identified no tribe. However, at the August 27, 2010 hearing, mother told the dependency court it was the maternal great great-grandmother ("[mother's] father, his grandmother") who may have Indian ancestry on maternal grandfather's side. Mother did not know why she thought she might have American Indian heritage. Mother stated maternal grandfather told her maternal great great-grandmother was Indian. She stated maternal great-grandmother, maternal grandparents, and mother were not registered with any tribe. Maternal grandfather stated to the court maternal great-grandfather and maternal great great-grandmother told him maternal great great-grandmother was part Cherokee. He did not know if anyone was registered with a tribe. He said he could ask maternal great-grandmother if there was more information.
The Department was ordered to contact maternal great-grandmother on maternal grandfather's side for further information. The court stated, "At this time the court has no reason to know that the children would fall under the Indian Child Welfare Act. It sounds like family lore at this point."
Following the August 27, 2010 hearing, the social worker asked mother if she alleged Indian heritage on maternal grandfather's side, and mother stated, "'No, well I was told that my dad may have Indian in him but you have to talk to him about that.'" The only name and contact information mother could give the social worker was maternal grandfather's name and telephone number. Mother stated she did not know the tribe heritage of the family. Maternal grandmother told the social worker, "'Indian heritage, that girl ain't got no Indian in her. You can ask her father but I really doubt it.'"
The social worker attempted to contact maternal grandfather on numerous occasions in September and October 2010, but the line was disconnected or the message mail box was full. The social worker asked mother to tell maternal grandfather to call the social worker for an interview regarding possible Indian heritage. Maternal grandfather did not call. At the hearing on October 20, 2010, the dependency court ordered the matter to be addressed in a supplemental report if and when maternal grandfather called.
At the jurisdictional/dispositional hearing on November 23, 2010, mother had no further information from her family on possible Indian heritage. The dependency court found it had no reason to know the children fell under the ICWA. The court explained: "California has codified the requirements of ICWA by passing a separate rule of court[,] by altering the phrase, 'reason to believe' to 'reason to know.' [¶] Reason to know has been defined by [section] 224.3[, subdivision] (b) as . . . anyone having an interest in the child provides information suggesting the child is member of a tribe, or eligible for membership in a tribe, or at least one of the child's biological parents, grandparents, or great-grandparents are or were member of a tribe. [¶] I would note that based on the fact that the court has not been provided any information, and no one has indicated that anybody has been registered. The mother indicates that the paternal grandfather says that his father's mother was part Cherokee. Maternal grandmother says she has no information on that. They haven't been able to get any information from the grandfather. [¶ ] There is no information today suggesting the child is a member of a tribe or eligible for membership in a tribe. [¶] The court, pursuant to the above definition does not have reason to know that this is an Indian child as defined under ICWA and does not order notice to any tribe or the [Bureau of Indian Affairs]. [¶] Parents are ordered to keep the Department, their attorney and the court aware of any new information related to possible ICWA status."
3. Substantial Evidence Supports the Finding the Dependency Court Had No Reason to Know of an Indian Child
No circumstances were present that provided the court with reason to know the children were Indian children. No one "provid[ed] information suggesting the child is a member in a tribe or eligible for membership in a tribe." (§ 224.3, subd. (b); see 25 U.S.C. § 1903(4) [definition of "Indian child"].) No one "provided information suggesting . . . one or more of the child's biological parents, grandparents, or great-grandparents are or were a member of a tribe." (§ 224.3, subd. (b).) The dependency court was told father had no Indian heritage and maternal great-grandmother, maternal grandparents, and mother were not registered with a tribe. The suggestion that maternal great great-grandmother was part Cherokee came from maternal grandfather, who was told this by maternal great-grandfather and maternal great great-grandmother. Maternal grandfather stated he would find out from maternal great-grandmother if there was further information. In these circumstances, the fact he did not make himself available to the social worker for a follow-up interview reasonably indicated that the story of Indian ancestry was nothing more than unfounded "family lore."
The foregoing is substantial evidence supporting the dependency court's finding it had no information suggesting the children were members of a tribe or eligible for tribal membership and had a parent who was a tribe member, under the ICWA definition of Indian child. The court had no reason to know the children were Indian children. (See 25 U.S.C. § 1903(4).)
DISPOSITION
The orders are affirmed.
KRIEGLER, J. We concur:
ARMSTRONG, Acting P. J.
MOSK, J.