Opinion
E067108
04-26-2017
In re M.G., a Person Coming Under the Juvenile Court Law. SAN BERNARDINO COUNTY CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent, v. S.O. et al., Defendants and Appellants.
Konrad S. Lee, under appointment by the Court of Appeal, for Defendant and Appellant S.O. Megan Turkat-Schirn, under appointment by the Court of Appeal, for Defendant and Appellant A.G. Jean-Rene Basle, County Counsel, and Kristina M. Robb, Deputy County Counsel, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super.Ct.No. J255303) OPINION APPEAL from the Superior Court of San Bernardino County. Christopher B. Marshall, Judge. Affirmed. Konrad S. Lee, under appointment by the Court of Appeal, for Defendant and Appellant S.O. Megan Turkat-Schirn, under appointment by the Court of Appeal, for Defendant and Appellant A.G. Jean-Rene Basle, County Counsel, and Kristina M. Robb, Deputy County Counsel, for Plaintiff and Respondent.
Defendants and appellants S.O. (mother) and A.G. (father) appeal from the juvenile court's order terminating their parental rights with respect to M.G. (child), who is the subject of this dependency proceeding. Their only contention on appeal is that plaintiff and respondent San Bernardino County Children and Family Services (CFS) failed to comply with the notice requirements of the Indian Child Welfare Act (ICWA). (25 U.S.C. § 1901 et seq.) We affirm the judgment.
I. FACTUAL AND PROCEDURAL HISTORY
Mother and father were both minors themselves in March 2014, when the child was born. In June 2014, CFS filed the dependency petition that initiated these proceedings. In August 2014, the child was declared a dependent of the court, and removed from parental custody.
The facts giving rise to the dependency are irrelevant to the claims of error raised by mother and father on appeal, so they will not be discussed. --------
Both mother and father reported Indian ancestry. ICWA notices containing at least some information about the child, mother, father, all four of the child's grandparents, and all eight of the child's great-grandparents were sent to the relevant tribes. Complete information was not included, however, for all of these relatives. Among other things, the notices did not include birth dates or place of birth for the child's maternal grandfather, maternal great-grandparents, and three of four paternal great-grandparents. For those relatives, the notices indicated "No information available" in the box for birth date and place.
None of the tribes responding to the ICWA notices found the child to qualify for membership. On October 23, 2014, the juvenile court found that notice had been conducted as required by ICWA, and that no affirmative response from any tribe had been received, so ICWA did not apply.
After protracted reunification efforts failed, on October 21, 2016, the juvenile court terminated the parental rights of both mother and father.
II. DISCUSSION
Mother and father contend that the ICWA notices sent by CFS were defective because they did not include the birthdates of certain relatives. We find that they have failed to demonstrate any error.
Under ICWA, "[j]uvenile courts and child protective agencies have 'an affirmative and continuing duty to inquire' whether a dependent child is or may be an Indian child. [Citations.] This affirmative duty to inquire is triggered whenever the child protective agency or its social worker 'knows or has reason to know that an Indian child is or may be involved . . . .' [Citation.] At that point, the social worker is required, as soon as practicable, to interview the child's parents, extended family members, the Indian custodian, if any, and any other person who can reasonably be expected to have information concerning the child's membership status or eligibility. [Citations.]" (In re Michael V. (2016) 3 Cal.App.5th 225, 233.)
Under federal law, an ICWA notice must include "[a]ll names known . . . of the parents, the parents' birthdates and birthplaces, and Tribal enrollment numbers if known," as well as, "[i]f known, the names, birthdates, birthplaces, and Tribal enrollment information of other direct lineal ancestors of the child, such as grandparents." (25 C.F.R. § 23.111(d)(2), (3), italics added.) Similarly, under state law, an ICWA notice must include specified information regarding "the Indian child's biological parents, grandparents, and great grand-parents . . . if known." (Welf. & Inst. Code, § 224.2, subd. (a)(5)(C), italics added.)
"We review the trial court's findings whether proper notice was given under ICWA and whether ICWA applies to the proceedings for substantial evidence." (In re D. N. (2013) 218 Cal.App.4th 1246, 1251.) "'"On review of the sufficiency of the evidence, we presume in favor of the order, considering the evidence in the light most favorable to the prevailing party, giving the prevailing party the benefit of every reasonable inference and resolving all conflicts in support of the order." [Citation.]' [Citation.] 'Mere support for a contrary conclusion is not enough to defeat the finding [citation]; nor is the existence of evidence from which a different trier of fact might find otherwise in an exercise of discretion [citation].' [Citation.]" (In re Charlotte V. (2016) 6 Cal.App.5th 51, 57.)
There is no indication in the record that CFS knew, but nevertheless omitted, the birthdates that mother and father observe were absent from the ICWA notices. The notices themselves affirmatively state that the information was not available. Rather, mother and father speculate that the information "should have been obtainable" from maternal and paternal relatives who were in contact with CFS during the course of the dependency proceedings.
Nothing in the record, however, establishes that CFS did not interview the family members at issue. Under the official duty presumption, Evidence Code section 664, "[i]t is presumed that official duty has been regularly performed." We are therefore required to presume that CFS interviewed everyone whom it had a legal duty to interview. And in the absence of evidence conclusively rebutting that presumption, it supports the finding of compliance with ICWA. (See In re S.B. (2009) 174 Cal.App.4th 808, 812-813 [official duty presumption supports finding that notice was sent to all applicable tribes, not just to the tribes that responded].)
Moreover, under the applicable standard of review, we must consider the evidence in the light most favorable to the prevailing party. (In re Charlotte V., supra, 6 Cal.App.5th at p. 57.) We therefore presume not only that CFS conducted the interviews, but that it reported all the information garnered from the interviews. Even assuming the family members at issue did have information regarding the birth dates and places absent from the ICWA notices—an assumption not established by the record—they chose not to share that information with CFS. (See In re Charlotte V., supra, at p. 58 ["It is also possible that the maternal grandfather was evasive or uncooperative about his wife's information."].)
Mother and father complain that CFS "did not demonstrate that an investigation had been completed to obtain complete information . . . ." However, they point to no requirement that CFS must document its information-gathering process, much less that it must file such documentation. In the absence of a timely objection in the trial court regarding the extent of CFS's investigation, mother and father "must take the record as [they] find[] it." (In re Charlotte V, supra, 6 Cal.App.5th at p. 58.) As discussed above, the record above does not reveal any error by CFS. Substantial information was provided regarding the child, mother, father, all four of the child's grandparents, and all eight of the child's great-grandparents; information not included was expressly reported to be not available. Mother and father have not demonstrated that any known or likely available information was omitted from the ICWA notices.
In re S.M. (2004) 118 Cal.App.4th 1108, a case cited by father, does not require a different result. In that case, the ICWA notices lacked information about the paternal grandmother—who was the child's de facto parent, and who had notified the social worker that she had "'Cherokee blood'" on her '"mother's side'"—or the paternal great-grandmother. (In re S.M., supra, at pp. 1113, 1116.) There was affirmative evidence in the record, therefore, that known or likely available information had not been included in the ICWA notices. The present record lacks any such evidence of the inadequacy of either CFS's investigation or reporting of information for the ICWA notices.
In short, mother and father have not shown that the juvenile court erred by finding that ICWA did not apply.
III. DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
HOLLENHORST
Acting P. J. We concur: CODRINGTON
J. SLOUGH
J.