Opinion
H043678
04-03-2017
In re M.B., a Person Coming Under the Juvenile Court Law. SANTA CRUZ COUNTY HUMAN SERVICES DEPARTMENT, Plaintiff and Respondent, v. E.N. et al., Defendants and Appellants.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Santa Cruz County Super. Ct. No. DP002968)
Defendants E.N. and C.B. (Mother and Father, respectively) appeal from an order under Welfare and Institutions Code section 366.26 terminating their parental rights and selecting adoption as the permanent plan for their two-year old son, M.B. Both parents contend the trial court erred by (1) determining the beneficial parent-child relationship exception to the termination of parental rights did not apply, and (2) failing to give notice of the proceeding to relevant Native American tribes as required by the Indian Child Welfare Act of 1978 (25 U.S.C. § 1901 et seq.). For the reasons explained, we find no error and will affirm the order.
I. BACKGROUND
In early December 2014, a Santa Cruz County Sheriff's deputy responded to a report of trash being dumped outside a trailer parked on the side of a road. The deputy found Mother there with her six-month old son, M.B. She told the deputy they had been living in the trailer for several weeks along with her boyfriend (Father). While talking with Mother, the deputy observed that she appeared to be under the influence of a controlled substance and placed her under arrest for that offense Chemical testing conducted later that day revealed methamphetamine, amphetamines, and marijuana in her system.
The deputy entered the trailer and saw that it was in significant disrepair, with broken glass, a deteriorating floor, and no working heat source. There was a container of spoiled milk in the refrigerator and no functioning plumbing. Drug paraphernalia had been left out on the bed.
The deputy took M.B. into protective custody and contacted child welfare services. Two days later, the Santa Cruz County Human Services Department (Human Services Department) filed a petition alleging that M.B. was within the jurisdiction of the juvenile court based on the failure of his parents to protect him from the risk of serious harm or illness. (Welf. & Inst. Code, § 300. Unspecified statutory references are to this code.) The petition described the hazardous and uninhabitable conditions in which the family was living, that Mother was arrested for being under the influence of drugs, and also noted Father's parental rights to another child were terminated several years earlier because of abuse and neglect.
After a hearing the court ordered M.B. temporarily detained by the Human Services Department, finding there would be a substantial danger to his health if he were to remain in his parents' custody. Because Father indicated he may have Cherokee ancestry, the court found at the initial detention hearing that the Indian Child Welfare Act of 1978 (ICWA) may apply and ordered notices sent as required by that law. The court also ordered that the parents be allowed visitation with M.B. at least three times per week.
Within about a month from when he was taken into protective custody, M.B. was placed into foster care with the family of one of his mother's relatives. Despite his difficult start to life, M.B. was a healthy child reported to be happy and thriving with his foster family.
At the jurisdictional hearing on the allegations of the section 300 petition, the parents did not present any evidence and submitted the matter on the social worker's report. Regarding ICWA, the Human Services Department had not complied with the court's initial order to give notice to tribes. Instead, the social worker's report stated that although Father indicated possible Cherokee ancestry, in a previous dependency proceeding involving Father and a different child the court received responses from the three recognized Cherokee tribes and determined from those responses Father was not Cherokee. Based on that information, the Human Services Department asked the court to find that ICWA did not apply.
The court declared M.B. a dependent of the juvenile court and ordered that he continue to reside with his foster family while the Human Services Department provided reunification services to the parents. The court also ordered visitation to continue at the minimum level of three visits per week, to be supervised by a social worker.
After six months, the parties appeared before the court for a review hearing under section 366.21, subdivision (e), at which time the court considered the social worker's report regarding the progress of the efforts to reunify the family. According to the report, the parents were regularly visiting with M.B. three times per week, and the visits were going well. They brought gifts and snacks for their son and played with him appropriately. The visits were enjoyable for both M.B. and the parents, and M.B. had no trouble transitioning from his foster home to the visits. In the opinion of the social worker, however, the visits did not evidence a parent-child relationship but rather fell "under the definition of a visiting relationship."
The parents' personal struggles were continuing. They remained unable to find stable housing, living in their car for extended periods and occasionally at a local shelter. Both parents had a recent history of methamphetamine use, and both regularly used marijuana. They entered substance abuse treatment programs, with varying degrees of success. Mother was reported to have "not had a lot of positive change" and to be in denial about her substance abuse whereas Father was "open to the treatment process" and had a "wonderful attitude" about it. The social worker expressed concerns about the potential for M.B. to return home because of the parents' continued unstable living situation and a perceived unwillingness to change their behavior despite regular participation in the court ordered services.
The social worker's report reiterated the previous determination that Father is not Cherokee, stated that Father reported no change in his Indian status since that time, and again asked the court to find ICWA did not apply. The court found that M.B. "is not an Indian child and ICWA does not apply to the matter." The court ordered that reunification services continue, that M.B. remain in the care of his foster family, and that the parents continue to be allowed visitation at least three times per week.
At the twelve-month review hearing under section 366.21, subdivision (f), the court again assessed the progress of the reunification efforts. The parents had by this time obtained housing and they continued to regularly attend scheduled visits, during which their genuine affection for M.B. and his enjoyment of the visits were apparent. The social worker began allowing some of the visits to be unsupervised, but then returned them to supervised when both parents tested positive for methamphetamine. After the positive tests for methamphetamine, the parents refused further drug testing. In the social worker's opinion, the parents' continued denial of their substance abuse problem and unwillingness to change resulted in a substantial risk of harm to M.B. if he were to be returned to their care. After taking evidence and hearing argument from counsel, the court terminated reunification services and set a selection and implementation hearing under section 366.26 to determine the most appropriate permanent plan for M.B.
The parents each filed a notice of intent to file a writ petition challenging the court's decision to terminate reunification services, which triggered the preparation of a record of the juvenile court proceedings, but neither filed a petition. (C.B. v. Superior Court (Santa Cruz County Human Services Department) (H043369).) On our own motion we have taken judicial notice of the record of proceedings filed in the writ matter, cited by the parties to support factual assertions in their briefs.
At the section 366.26 hearing, the Human Services Department recommended terminating parental rights and selecting adoption as the permanent plan. The social worker reported that M.B. was likely to be adopted by his current foster family, had bonded with them, and was thriving in that environment. In the social worker's opinion, the parents did not have a parent-child relationship with M.B. because of their continued substance abuse and lack of insight and judgment. While their visiting relationship with him was "fun" for all involved, the benefits of a secure relationship that new adoptive parents could provide outweighed any benefit from the relationship with the biological parents and therefore it was in M.B.'s best interest to have parental rights terminated.
The parents offered into evidence logs reflecting their regular visits with M.B. over many months, and the overall positive nature of those visits. Mother testified that she was able to give security and care to M.B., that she continued visiting with him even after reunification services were terminated by the court, that she engaged in enjoyable play activities with him during visits, and that she did not want her parental rights terminated because she wanted to be a part of her son's life. Father did not testify.
The parents urged the court to apply the beneficial parent-child relationship exception (§ 366.26, subd. (c)(1)(A)), which allows for parental rights to be preserved if the court finds the detriment caused to the child by terminating those rights would outweigh the benefit the child would receive from adoption. The court found that M.B. was likely to be adopted and that the beneficial parent-child relationship exception did not apply because while the parents had "a really lovely relationship with their son," it had not "reached that level of the type of parental relationship that it would be detrimental to [M.B.] to sever that parental relationship."
Based on those findings the court terminated the parental rights of Mother and Father, and selected adoption as the permanent plan for M.B.
II. DISCUSSION
Both parents contend the order terminating parental rights should be reversed because the trial court erred by not applying the beneficial parent-child relationship exception to adoption and by not providing the notice required under ICWA.
A. THE BENEFICIAL PARENT-CHILD RELATIONSHIP EXCEPTION TO ADOPTION
1. Applicable Law and Standards of Review
Where, as here, a child is declared a dependent of the juvenile court because of abuse or neglect and reasonable efforts to reunify the family are unsuccessful, the court must make the orders necessary to provide a stable and permanent home for the child. (§ 366.26, subd. (b).) If the court finds by clear and convincing evidence the child is likely to be adopted (something no one in this case disputes), the court is required to terminate parental rights and order the child placed for adoption unless one of the enumerated statutory exceptions applies. (§ 366.26, subd. (c)(1).)
Given the Legislature's statement that adoption is the preferred permanent outcome for a dependent child when reunification efforts have failed, a court is allowed to order something other than adoption only in the situations specifically articulated in the governing statute. (§ 366.26, subds. (b)(1) and (c)(1)(B); see also, In re Celine R. (2003) 31 Cal.4th 45, 53 [" 'Adoption is the Legislature's first choice because it gives the child the best chance at [a full] emotional commitment from a responsible caretaker. ...' " [¶] "The statutory exceptions merely permit the court, in exceptional circumstances, to choose an option other than the norm, which remains adoption.")].)
Significantly, this case comes to us at a stage where it has already been determined that the parents are unfit to have the child returned to them. (See In re Josue G. (2003) 106 Cal.App.4th 725, 732 ["The selection and implementation hearing under section 366.26 takes place after the juvenile court finds that the parents are unfit and the child cannot be returned to them."]; In re G.B. (2014) 227 Cal.App.4th 1147, 1163 ["Once reunification services are terminated ... the focus of the proceedings changes from family reunification to the child's interest in permanence and stability."].) The only question we must answer is whether, as the parents urge, this is one of the extraordinary cases where a statutory exception to the termination of parental rights applies and the trial court erred in determining otherwise. (See In re Jasmine D. (2000) 78 Cal.App.4th 1339, 1350 ["...because a section 366.26 hearing occurs only after the court has repeatedly found the parent unable to meet the child's needs, it is only in an extraordinary case that the preservation of the parent's rights will prevail over the Legislature's preference for adoptive placement."].)
The statutory exception the parents argue should apply here is the beneficial parent-child relationship exception found in section 366.26, subdivision (c)(1)(B)(i). That exception allows the court to preserve parental rights and order an outcome other than adoption where two requirements are met: (1) the parents have maintained regular visitation and contact with the child; and (2) the child would benefit from continuing the relationship, and that benefit constitutes a compelling reason for determining that terminating parental rights would be detrimental to the child. (In re Aaliyah R. (2006) 136 Cal.App.4th 437, 450 ["(T)he court may forego adoption and refrain from terminating parental rights only if a parent has maintained regular visitation and contact with the child and the child would benefit from continuing the relationship. To trigger ... the exception, the parent must show the parent-child relationship is sufficiently strong that the child would suffer detriment from its termination."].)
A parent who claims the exception applies has the burden of establishing each of the required elements by a preponderance of the evidence. (In re Aaliyah R., supra, 136 Cal.App.4th at p. 449.) "To meet the burden of proving the ... exception the parent must show more than frequent and loving contact, an emotional bond with the child, or pleasant visits—the parent must show that he or she occupies a parental role in the life of the child." (In re I.W. (2009) 180 Cal.App.4th 1517, 1527. ) Further, the parental relationship must "promote[] the well-being of the child to such a degree as to outweigh the well-being the child would gain in a permanent home with new, adoptive parents." (In re Autumn H. (1994) 27 Cal.App.4th 567, 575.) Though the analysis must occur on a case-by-case basis with many variables taken into account, the court should consider such factors as the age of the child, the portion of the child's life spent in the parent's custody, the positive or negative effect of interaction between parent and child, and the child's particular needs. (Id. at p. 576.)
We apply two deferential standards of review to a decision declining to apply the beneficial parent-child relationship. We review the factual determination of whether the parents met their burden to prove the existence of a beneficial parent-child relationship for substantial evidence. (In re Bailey J. (2010) 189 Cal.App.4th 1308, 1314-1315.) Under this standard, our power "begins and ends with the determination as to whether there is any substantial evidence contradicted or uncontradicted which will support the finding of fact." (Whiteley v. Philip Morris, Inc. (2004) 117 Cal.App.4th 635, 678 (italics omitted).) We do not reweigh the evidence, evaluate the credibility of witnesses or indulge in inferences contrary to the findings of the trial court. (In re Michael G. (2012) 203 Cal.App.4th 580, 589.)
We review for abuse of discretion the finding that a beneficial parent-child relationship does not present a " 'compelling reason' " to conclude that terminating parental rights would be detrimental to the child. (In re Bailey J., supra, 189 Cal.App.4th at p. 1315; see also, In re K.P. (2012) 203 Cal.App.4th 614, 622 [agreeing with and applying the two-part Bailey J. standard of review].) When reviewing for abuse of discretion, we will uphold the trial court's ruling " 'unless it falls outside the bounds of reason.' " (Avant! Corp. v. Superior Court (2000) 79 Cal.App.4th 876, 881.) If more than one inference can reasonably be drawn from the facts, we will not substitute our judgment for that of the trial court. (Walker v. Superior Court (1991) 53 Cal.3d 257, 272.)
2. The Existence of a Beneficial Parent-Child Relationship
The juvenile court did not specifically find that no beneficial parent-child relationship existed; rather, it appears from the record that the court declined to apply the parent-child relationship exception because the parental relationship did not constitute a compelling reason to determine that terminating parental rights would be detrimental to the child. In rendering its decision, the court stated, "[W]hile [M.B.] has a relationship with [the parents], it hasn't reached that level of the type of parental relationship that it would be detrimental to [M.B.] to sever that parental relationship."
The parents, however, contend that the court's characterization of the relationship as a "really lovely relationship" but "definitely [] a visiting relationship" is tantamount to a finding of no beneficial parent-child relationship. Even assuming the parents are correct that the court did make a finding adverse to them in this portion of the analysis (i.e., that no beneficial parent-child relationship existed), that factual finding is supported by substantial evidence.
The record contains evidence that M.B. was happy and thriving in the care of his foster parents, had deeply bonded with his foster family, and had lived with them for more than twice as long as the approximately six months he was in the care of his biological parents. As the trial court pointed out, an example of the deeper bond and comfort level M.B. has with his foster parents is the fact that when his parents put on a birthday party for him during one of their scheduled visits, M.B. did not eat or drink anything until one of his foster parents arrived.
We acknowledge that despite facing numerous challenges (including being homeless for much of the dependency period), the parents made significant efforts to regularly visit with M.B. and to ensure the visits were a positive experience for him. But evidence of frequent and loving contact is not sufficient to establish the existence of a beneficial parent-child relationship. (In re I.W., supra, 180 Cal.App.4th at p. 1527.) With the understanding that "[i]nteraction between natural parent and child will always confer some incidental benefit to the child," the court must decide whether the regular visitation has "continued or developed a significant, positive, emotional attachment from child to parent." (In re Autumn H., supra, 27 Cal.App.4th at p. 575.) Here, the juvenile court determined that the significant, positive, emotional attachment was to the foster parents, not the biological parents.
Notwithstanding the parents' admirable efforts to participate in visitation over a long period of time and under difficult circumstances, the finding that the relationship between the parents and M.B. did not rise to the level of a beneficial parent-child relationship is supported by substantial evidence.
3. No Compelling Reason to Conclude Terminating Parental Rights Would Be Detrimental to the Child
The trial court did not abuse its discretion by determining the relationship between parents and child was not a compelling reason to conclude that terminating parental rights would be detrimental to M.B. Both parents argue that terminating parental rights would be harmful to the child, but neither cites to anything in the record to support the assertion that being adopted by the foster family with whom he had been living and thriving since six months of age would be detrimental to M.B. No evidence of detriment to the child was presented to the trial court, meaning the parents necessarily did not meet their burden of proof on that issue. (See In re Zachary G. (1999) 77 Cal.App.4th 799, 809 [once a likelihood of adoption is shown, burden shifts to the parents to show that termination of parental rights would be detrimental to the child].)
Father argues that due to the evident mutual affection between M.B. and the parents, it would "seem somewhat cynical" (and presumably therefore improper) to conclude that separation from the parents would not be harmful to the child. Both parents assert that because of the genuine love for the child shown by them during visitation it necessarily follows that harm to the child would result from terminating parental rights. But if we were to agree with that position then every circumstance where mutual affection between parent and child is shown would be sufficient to invoke the beneficial parent-child relationship exception to adoption. Such an interpretation does not comport with established rules that adoption is the preferred outcome at this stage of the proceedings and that the statutory exceptions apply only in "extraordinary case[s]." (In re Jasmine D., supra, 78 Cal.App.4th at p. 1350.)
Nor is it the case that parental rights cannot be terminated if any resulting harm to the child is shown; rather, the statutory exception to termination applies only where the benefits from the parental relationship "outweigh the well-being the child would gain in a permanent home with new, adoptive parents." (In re Autumn H., supra, 27 Cal.App.4th at p. 575; see also, In re Angel B. (2002) 97 Cal.App.4th 454, 466 ["A biological parent who has failed to reunify with an adoptable child may not derail an adoption merely by showing the child would derive some benefit from continuing a relationship maintained during periods of visitation with the parent."].)
Mother separately argues that the juvenile court misunderstood the law and failed to properly exercise its discretion by treating the finding that the parents had a "visiting relationship" with M.B. as dispositive on the issue of the beneficial parent-child relationship exception. We see no merit in this argument, as the record reflects the trial court appropriately weighed the correct considerations when it determined the parental relationship did not rise to such a level that detriment to the child would result from terminating parental rights. There is no indication in the record that the court misunderstood the parameters of its discretion.
Under these circumstances, where the evidence showed the child was thriving in his likely adoptive home (where he had lived for longer than he did with his biological parents), and the parents diligently and lovingly attended scheduled visitation but consistently had difficulties with substance abuse and obtaining stable housing, it was not an abuse of discretion to conclude that the benefits of a permanent adoptive home for M.B. outweigh any detriment to him from terminating parental rights. (See In re Aaliyah R., supra, 136 Cal.App.4th at p. 450.) To be sure, we do not expect the benefits of adoption make the termination of parental rights any less emotionally devastating for the parents. But the Legislature has appropriately dictated that the focus in dependency proceedings must remain on what is best for the child. No evidence of a compelling reason to believe that terminating parental rights would be detrimental to the child was presented, and the evidence showed M.B. had much to gain from placement in his proposed adoptive home. On this record, we find no error in the trial court's decision that the beneficial parent-child relationship exception to adoption did not apply.
B. FAILURE TO GIVE NOTICE UNDER ICWA
The parents contend the juvenile court erred by failing to require notice of the proceedings to relevant Native American tribes under ICWA. They assert notice was required because Father initially claimed possible Cherokee ancestry, even though the social worker later reported to the court that responses from the Cherokee tribes in a previous dependency proceeding involving Father indicated no Indian status. The court then found that ICWA did not apply. We must determine whether there is sufficient evidence in the record to support that finding.
Both parents confuse the issue by arguing the court erred in using the evidence of the noticing from the prior proceeding to find ICWA notice requirements were complied with in this case. But the court did not make any findings regarding ICWA compliance or notices having been sent. Rather, the court found that "ICWA does not apply." If the evidence before the court gave no reason to know M.B. is an Indian child, this finding is correct and no notices would be required.
1. ICWA Notice Requirements and Standard of Review
The Indian Child Welfare Act of 1978 (25 U.S.C. § 1901 et seq.) was enacted by Congress in response to concerns about abusive child welfare practices that resulted in the separation of large numbers of Indian children from their families and placement in non-Indian foster homes. (In re Isaiah W. (2016) 1 Cal.5th 1, 7, citing Mississippi Band of Choctaw Indians v. Holyfield (1989) 490 U.S. 30, 32.) ICWA requires that "[i]n any involuntary proceeding in a State court, where the court knows or has reason to know that an Indian child is involved, the party seeking the foster care placement of, or termination of parental rights, to an Indian child shall notify the parent or Indian custodian and the Indian child's tribe ... ." (25 U.S.C. § 1912(a); see also Welf. & Inst. Code § 224.2 [codifying in California law and expanding upon the federal ICWA notice requirements].) "This notice requirement ... enables a tribe to determine whether the child is an Indian child and, if so, whether to intervene in or exercise jurisdiction over the proceeding." (In re Isaiah W., supra, 1 Cal.5th at p. 5.)
Both the federal statute (25 U.S.C. section 1912(a)) and its California counterpart (Welfare and Institutions Code section 224.2) require ICWA notice only in those proceedings where the court "knows or has reason to know" an Indian child is involved. "The relevant question is not whether the evidence currently supports a finding that the minors are Indian children; it is whether the evidence triggers the notice requirement of ICWA so that the tribes themselves may make that determination." (In re D.C. (2015) 243 Cal.App.4th 41, 63.)
We review a trial court's decision regarding whether ICWA applies using the substantial evidence standard of review. (In re I.W., supra, 180 Cal.App.4th at p. 1530.) In so doing, we review the entire record to determine whether the court's findings are supported by evidence that is "of 'ponderable legal significance' " and is " 'reasonable ..., credible, and of solid value ... .' " (Kuhn v. Department of General Services (1994) 22 Cal.App.4th 1627, 1633.) We do not reweigh the evidence. The trial court decision will be upheld even when there is also contradictory evidence. (In re Michael G., supra, 203 Cal.App.4th at p. 589.)
2. The Trial Court's Finding That ICWA Does Not Apply
Since ICWA applies in every case where the court has reason to know the involved child is an Indian child, the question we must answer is whether there is substantial evidence in the record to support the conclusion that the juvenile court had no reason to believe M.B. is an Indian child. "The circumstances that may provide reason to know the child is an Indian child include, without limitation, when 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.' " (In re Michael V. (2016) 3 Cal.App.5th 225, 233; see also Welf. & Inst. Code § 224.3, subd. (b).)
At the outset of this case, Father indicated on the form provided by the court that he is or may be a member of or eligible for membership in the federally recognized Cherokee tribe. That circumstance, standing alone, would clearly trigger ICWA noticing requirements. (In re B.H. (2015) 241 Cal.App.4th 603, 608 [father's bare claim of "Cherokee" heritage sufficient to trigger ICWA]; but see In re O.K. (2003) 106 Cal.App.4th 152, 157 [relative's claim that child's father " 'may have Indian in him' " without reference to specific tribe or nation was insufficient to trigger notice requirements].)
At the time it found that ICWA did not apply, the juvenile court had other information at its disposal in addition to Father's claim of possible Cherokee heritage: the reports prepared by the social worker for the jurisdictional and six month review hearings. In the reports, the social worker noted the determination in a previous dependency proceeding involving Father that ICWA did not apply: "The Department respectfully requests that the Court to [sic] take judicial notice of the dependency regarding [M.B.'s] half sibling [case number cited]. In that matter the Court found that the Indian Child Welfare Act did not apply based on the responses from three Cherokee tribes. The father ... has reported that there are no changes to his ICWA status." The social worker reiterated this information in the report submitted to the court for the six-month review hearing, at which time the court made the finding that ICWA did not apply. The social worker's report is admissible and competent evidence of the facts asserted therein. (See Welf. & Inst. Code § 281; see also In re M.B. (2011) 201 Cal.App.4th 1057, 1071 [Welfare and Institutions Code section 281 is very broad, and is generally understood to authorize the admission of a social worker's report, including hearsay in the report, in any dependency proceeding]; In re Keyonie R. (1996) 42 Cal.App.4th 1569, 1572-1573 [Legislature intended that social worker reports be admitted as competent evidence in dependency proceedings].)
Father makes much of the fact that the record does not indicate whether the court ever ruled on the request to take judicial notice of the previous dependency proceeding. He argues that appropriate procedures for judicial notice were not followed so judicial notice would be improper in any event. But since the social worker's statements about what occurred in the other proceeding are admissible as competent evidence under Welfare and Institutions Code section 281, it makes no difference whether the court took judicial notice of the court records. The evidence of negative ICWA responses from three Cherokee tribes in the earlier proceeding was properly before the court in the social worker's report without regard to the request for judicial notice.
The juvenile court therefore had to determine if there was sufficient reason to know M.B. is an Indian child based on the following information: The only parent who claimed Indian heritage was Father, who initially claimed possible Cherokee ancestry. Father had made the same claim of Cherokee heritage in a previous dependency proceeding, and responses from the three Cherokee tribes showed Father's child in that proceeding was not an Indian child. Father reported to the social worker in this proceeding that nothing had changed with regard to his ICWA status. There was no indication of any other circumstances that would change that fact (M.B. does have a different mother than the child in the other proceeding, but since Mother here reported no Indian ancestry, M.B.'s Indian heritage, if any, could have come only through Father).
These facts constitute substantial evidence to support the conclusion that there was no reason to know M.B. is an Indian child. (See Dwayne P. v. Superior Court (2002) 103 Cal.App.4th 247, 258 [construing "reason to know" statutory language to mean facts that "suggest" the child is an Indian child].) Father's bare assertion of Cherokee heritage was already determined to be inaccurate in an earlier judicial proceeding. At most, the evidence on this point is in conflict, but it is not our role to reweigh it. We may only determine whether there is substantial evidence to support the juvenile court's finding, even if other evidence points to a contrary conclusion.
Cases holding that a parent's claim of Indian heritage meets the "reason to know" standard involve situations where the court was confronted with only the parent's bare claim of Indian heritage, without information directly contrary to that claim as here. (See In re Alice M. (2008) 161 Cal.App.4th 1189, 1194; Dwayne P. v. Superior Court, supra, 103 Cal.App.4th at p. 258; In re Antoinette S. (2002) 104 Cal.App.4th 1401, 1405.) We are aware of no cases holding that a parent's bare claim of Indian heritage provides a "reason to know" a child is an Indian child when the court also has before it competent evidence directly contradicting that claim. Indeed, it has been recognized that even where a parent makes an initial claim of Indian heritage, a court is justified in not finding ICWA applicable when later-acquired information contradicts the initial claim. (In re Jeremiah G. (2009) 172 Cal.App.4th 1514, 1521 [no ICWA notice required where father initially reported he may have Indian heritage, then several weeks later reported he did not].)
Mother cites In re Robert A. (2007) 147 Cal.App.4th 982, 989 for the proposition that "ICWA notices in separate dependency cases [involving half-siblings] are not fungible," but that case is readily distinguishable. There the agency conceded ICWA applied and argued only that the failure to send notices was cured by the fact that notices were later sent in a separate dependency case involving a half-sibling. Robert A. did not decide the issue of whether a reported prior finding of no Indian ancestry constitutes sufficient evidence for a court to decide it has "no reason to know" the involved parent's other child is likewise not an Indian child. It could not possibly have decided that issue, since the finding of non-Indian status from the half-sibling's case was not made until well after the challenged decision. (Id. at pp. 989-990 [the challenged orders "were issued two months before the ICWA notices in the half-sibling's case were mailed to the Indian tribes."].)
Mother relies on In re Jonathan D. (2001) 92 Cal.App.4th 105, but that case is also distinguishable because there ICWA notices were sent, and the issues were whether those notices were sufficient and whether the noticed tribes were given adequate time to respond. In addition, the case is factually inapposite regarding whether there was a reason to know of Indian status, as the court was advised by counsel, "there's a definite ICWA, Indian Child Welfare Act, link. Her mother's father or somebody was full-blooded Cherokee. They have got the number and they can prove that." (Id. at p. 108).
Both parents argue the evidence is insufficient to support the court's ICWA finding because the ICWA notices from the prior proceeding are not included in the record on appeal, and there is no indication the court actually reviewed the notices to ensure they were not defective. Because the notices might have been defective, they maintain, we cannot be certain the tribes received sufficient information in the prior proceeding to properly determine Father is not Cherokee. Father asserts, "there is no record from which one may determine that the ICWA notice provided in 2012 in the half-sibling's case was actually inclusive of any or all information presently known about the minor's possible Indian heritage, or that it was sent and received by all federally recognized Cherokee Indian tribes, or that the tribes were responsive to the minor's possible status as an Indian child."
But there is a record from which we can determine the notices in the previous proceeding were properly sent: The social worker's report is competent evidence of the facts it contains, and the stated fact that responses were received from the three Cherokee tribes certainly gives rise to a fair inference notices were sent. That evidence must then be viewed in light of Evidence Code section 664 (the "official duty presumption") which requires us to presume an official duty such as sending ICWA notices in a dependency proceeding was properly performed. (See In re Jeffrey A. (2002) 103 Cal.App.4th 1103, 1108 ["Ordinarily, when a social worker's report or other documentation indicates that ICWA notice has been provided, it can properly be presumed that such notice was in compliance with the requirements of the ICWA."].)
Nothing in the record calls into question the social worker's report regarding the negative responses received from Cherokee tribes in the previous proceeding, and under Evidence Code section 664 we must presume that the notices prompting those responses were fully compliant with the law. Accordingly, substantial evidence supports the finding that ICWA does not apply and the court did not err by not giving ICWA notice.
III. DISPOSITION
The order is affirmed.
/s/_________
Grover, J.
WE CONCUR:
/s/_________ Rushing, P. J. /s/_________ Premo, J.