Opinion
F079392
02-07-2020
In re JULIANNA G., a Person Coming Under the Juvenile Court Law. STANISLAUS COUNTY COMMUNITY SERVICES AGENCY, Plaintiff and Respondent, v. A.G., Defendant and Appellant.
Maureen L. Keaney, under appointment by the Court of Appeal, for Defendant and Appellant. Thomas E. Boze, County Counsel, and Maria Elena R. Ratliff, 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. JVDP-18-000010)
OPINION
THE COURT APPEAL from an order of the Superior Court of Stanislaus County. Ann Q. Ameral, Judge. Maureen L. Keaney, under appointment by the Court of Appeal, for Defendant and Appellant. Thomas E. Boze, County Counsel, and Maria Elena R. Ratliff, Deputy County Counsel, for Plaintiff and Respondent.
Before Levy, Acting P.J., Franson, J. and Smith, J.
-ooOoo-
INTRODUCTION
Appellant A.G. is the father of Julianna G., the minor who is the subject of a Welfare and Institutions Code section 300 petition. Father contends his submission of a DNA test showing "Native American" ancestry mandated further action by the Stanislaus County Community Services Agency (agency) and therefore, notice requirements under the Indian Child Welfare Act (ICWA), 25 United States Code, section 1901 et seq., have not been met.
References to code sections are to the Welfare and Institutions Code unless otherwise specified.
As we explain below, DNA testing showing Native American ancestry does not necessarily establish a minor is an Indian child within the meaning of ICWA. Regardless, the agency provided ICWA notice based on father's claim of Native American ancestry and the juvenile court thereafter determined the ICWA did not apply. We affirm.
FACTUAL AND PROCEDURAL SUMMARY
The only issue raised in this appeal is whether the agency fully complied with the ICWA notice requirements. "Because compliance with the ICWA is the only issue raised in this appeal, our discussion of the facts and procedural background focuses on the facts relevant to compliance with the ICWA." (In re I.B. (2015) 239 Cal.App.4th 367, 370.)
In 2013, father's and mother's fraternal twin children were the subject of a section 300 petition after one twin suffered physical abuse. There also were issues of domestic violence and substance abuse by the parents. The parents failed to reunify after one year and parental rights were terminated in January 2015. The children were adopted in July 2015.
A third child was born to father and mother during the pendency of the section 300 petition on behalf of the twins. This child was the subject of a section 300 petition and both parents were offered reunification services. They failed to reunify, and parental rights were terminated in June 2016. The child was adopted in September 2016.
The current case involves mother's and father's fourth child, Julianna G. In April 2018, mother tested positive for methamphetamine, amphetamine, MDMA, THC, morphine, and cocaine, while mother had custody of the minor. The minor was placed in protective custody. A section 300 petition was filed on behalf of the minor.
At the time of the detention hearing, mother and father each filed an ICWA-020 form stating that they had no known Indian ancestry. This was verified by the juvenile court during the hearing. The minor was placed in the foster home that previously adopted her siblings.
On June 11, 2018, the juvenile court found that the ICWA did not apply. At the contested jurisdiction and disposition hearing on July 12, 2018, the juvenile court sustained the petition, removed the minor from parental custody, and granted father reunification services.
The six-month status review report recommended termination of reunification services and the setting of a section 366.26 permanent plan hearing. Julianna G. continued to be placed with her three biological siblings in their adoptive home. Father now had an outstanding arrest warrant and was living with a girlfriend. The eldest son of the girlfriend was living with them; he was on probation with GPS monitoring and affiliated with a gang. Father also was abusing alcohol and other substances.
On January 25, 2019, father's reunification services were terminated. Julianna G.'s foster parents were granted de facto parent status on February 19, 2019.
On April 16, 2019, father filed a section 388 petition asking the juvenile court to reinstate reunification services. The juvenile court scheduled a hearing on the section 388 petition for May 16, 2019.
The section 366.26 report recommended termination of parental rights and placing Julianna G. for adoption. The family that had adopted Julianna G.'s three siblings and been declared de facto parents of Julianna G. wanted to adopt the minor.
The section 366.26 report also noted that during a visit with the minor, father told the social worker that he had recently done an ancestry DNA test and received results that he is "Native American." The social worker asked father to provide her with the test results and inquired whether any family member was an enrolled member of an Indian tribe. Father did not have any information that any family member was a tribal member.
Father then sent a text message to the social worker with his "DNA results." The social worker followed up by asking father to provide information about his parents and other family members, so the social worker could provide ICWA notice. The social worker also requested assistance from a third-party organization in locating information on father's parents, grandparents, and great-grandparents, to include on the ICWA notice.
Despite the lack of information about father's Native American ancestry, the social worker prepared the ICWA- 030 form, notice of child custody proceedings for Indian child, and served the notice on the Bureau of Indian Affairs (BIA). Because father never identified any potential tribes, no potential tribes were identified in the notice. The notice was mailed on May 3, 2019. The notice was received by the BIA on May 8, 2019.
By letter dated May 15, 2019, the BIA responded to the ICWA notice. The BIA's response stated the ICWA notice "contains insufficient information to determine Tribal affiliation." The response was filed with the juvenile court on May 20, 2019.
On May 16, 2019, the juvenile court denied an evidentiary hearing on father's section 388 petition and confirmed the section 366.26 hearing would be held on May 28, 2019.
Also, on May 16, 2019, the juvenile court addressed the agency's request for a determination that ICWA did not apply. After noting that "there never was an identified tribe," the juvenile court found that the ICWA did not apply.
At the May 28, 2019 section 366.26 hearing, the juvenile court again stated that the ICWA did not apply. Father objected to the recommendation to terminate parental rights. The juvenile court found the minor to be adoptable and terminated parental rights.
Father filed a timely notice of appeal on May 30, 2019.
DISCUSSION
The sole issue on appeal is father's claim that the ancestry DNA test demonstrated Indian ancestry and mandated further action by the agency. Father contends the juvenile court erred by failing to ensure compliance with the ICWA.
Standard of Review
Where, as here, the juvenile court has made a finding the ICWA is inapplicable, the finding is reviewed under the substantial evidence standard. (In re Rebecca R. (2006) 143 Cal.App.4th 1426, 1430; In re Karla C. (2003) 113 Cal.App.4th 166, 178-179.) Thus, we must uphold the juvenile court's orders and findings if any substantial evidence, contradicted or uncontradicted, supports them, and we must indulge all legitimate inferences in favor of affirmance. (In re John V. (1992) 5 Cal.App.4th 1201, 1212.) A juvenile court's ICWA finding is also subject to harmless error analysis. (In re Alexis H. (2005) 132 Cal.App.4th 11, 16.)
ICWA Notice Requirements
A parent can raise the issue of ICWA compliance at any stage of the proceedings, including in an appeal after termination of parental rights. (In re Isaiah W. (2016) 1 Cal.5th 1, 14.)
Congress enacted the ICWA to promote the stability and security of Indian tribes and families by establishing minimum standards for removal of Indian children from their families and the placement of such children in foster or adoptive homes that will reflect the unique values of Indian culture. (In re C.Y. (2012) 208 Cal.App.4th 34, 39; In re Levi U. (2000) 78 Cal.App.4th 191, 195.) An " 'Indian child' is defined as a child who is either (1) 'a member of an Indian tribe' or (2) 'eligible for membership in an Indian tribe and ... the biological child of a member of an Indian tribe ....' (25 U.S.C. § 1903(4).)" (In re Jonathon S. (2005) 129 Cal.App.4th 334, 338 (Jonathon S.).) The ICWA applies only to federally recognized tribes. (25 U.S.C. § 1903(8); Jonathon S., at p. 338; In re B.R. (2009) 176 Cal.App.4th 773, 783; In re Wanomi P. (1989) 216 Cal.App.3d 156, 166-168.)
"The ICWA establishes minimum federal standards, both procedural and substantive, governing the removal of Indian children from their families." (In re H.A. (2002) 103 Cal.App.4th 1206, 1210.) "Among the procedural safeguards included in the ICWA is a provision for notice, which states in part: 'In 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, by registered mail with return receipt requested, of the pending proceedings and of their right of intervention.' (25 U.S.C. § 1912(a).)" (In re D.T. (2003) 113 Cal.App.4th 1449, 1454.) Notice serves the dual purpose of (1) enabling the tribe to investigate and determine whether a child is an Indian child, and (2) advising the tribe of the pending proceeding and its right to intervene. (In re Desiree F. (2000) 83 Cal.App.4th 460, 470.)
Because the ICWA was enacted by Congress with the intent to "protect the best interests of Indian children and to promote the stability and security of Indian tribes and families" (25 U.S.C. § 1902), the juvenile court and the department had an affirmative and continuing duty at the outset of the proceedings to inquire whether a child who is subject to the proceedings is, or may be, an Indian child. (In re A.B. (2008) 164 Cal.App.4th 832, 838-839; see § 224.2, subd. (a); see also California Rules of Court, rule 5.481(a).)
References to rules are to the California Rules of Court.
A social worker who "knows or has reason to know that an Indian child is ... involved ... must make further inquiry" regarding the possible Indian status of the child, "as soon as practicable, by: [¶] (A) [i]nterviewing the parents, Indian custodian, and 'extended family members'... to gather the information listed in Welfare and Institutions Code section 224.2[, subdivision(a)(5)] ...." (Rule 5.481(a)(4); In re Gabriel G. (2012) 206 Cal.App.4th 1160, 1165.) "[I]f the court [or] social worker ... subsequently receive[] 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 under paragraph (3) of subdivision (a) of Section 224.2 and the Bureau of Indian Affairs." (Former § 224.3, subd. (f), as amended Stats. 2018, ch. 833 § 7.)
Analysis
Here, when father informed the social worker he had completed an ancestry DNA test that revealed Native American ancestry, the social worker sought information to complete the ICWA-030 form giving notice of the proceedings. The social worker prepared the ICWA-030 form and served the notice on the BIA. Because father never identified any Indian tribes in which he might be eligible for membership, no potential tribes were identified in the notice. The notice was mailed on May 3, 2019. The notice was received by the BIA on May 8, 2019. The BIA responded that there was insufficient information to determine any tribal affiliation.
Service on the Secretary of the Department of the Interior is no longer required.
Father contends service on the BIA is insufficient. However, when the agency was provided with no information about any potential tribe, service on the BIA is all that is required. (25 U.S.C. § 1912(a).) The regulations now provide that instead of service to the Secretary of the Interior, service of the ICWA-030 notice is only to the appropriate regional BIA office when no potential tribe is known.
Father also apparently contends that an ancestry DNA test indicating "Native American" ancestry establishes that the minor is an Indian child. This is not the case. The ICWA applies only to federally recognized tribes and only a child who is a member of, or eligible for membership in, a federally recognized Indian tribe falls within the ICWA. (25 U.S.C. § 1903(8); Jonathon S., supra, 129 Cal.App.4th at p. 338.)
While American Indians are often referred to as Native Americans, the term Native American has a different connotation under ancestry DNA testing. For purposes of Ancestry DNA, the term Native American is defined as indigenous to North, Central, or South America. It is defined as "[s]tretching from Alaska to the [t]ip of Argentina" by ancestry.com. The DNA testing company 23 and Me includes North and South America, Greenland, and parts of Asia in its Native American classification. These definitions include many indigenous people that are not within a federally recognized tribe, as not even all tribes in the United States are federally recognized. (25 U.S.C. § 1903(8); In re K.P. (2009) 175 Cal.App.4th 1, 4-5.)
<https://www/ancestry.com/dna/ethnicity/native-america> (as of Feb. 4, 2020).
<https://customercare.23andme.com/hc/en-us/articles/212169298-23andMe-Reference-Populations-Regions#East_Asian_Native-American> (as of Feb. 4, 2020).
There was no evidence before the juvenile court that father's ancestry DNA result established eligibility for membership in a federally recognized tribe. (In re K.P., supra, 175 Cal.App.4th at pp. 4-5.) Although DNA testing does not establish eligibility for tribal membership in a federally recognized tribe, it may provide grounds for notifying the BIA to see if such eligibility can be established. (See Beckenhauer, Redefining Race: Can Genetic Testing Provide Biological Proof of Indian Ethnicity? (2003) 56 Stan.L.Rev. 161, 163.)
Here, the agency notified the BIA and provided all the information about father's family history obtained from father about his parents and other family members, and from a third-party organization contacted to assist in locating information on father's parents, grandparents, and great-grandparents. The agency satisfied its burden to provide the BIA with all available information about Juliana's background in order to determine Native American heritage. In re Louis S. (2004) 117 Cal.App.4th 622, 630.)
The BIA responded to the ICWA notice on May 15, 2019, stating there was insufficient information to determine tribal affiliation. The BIA's response was filed with the juvenile court on May 20, 2019. The notice included all the information available to the agency that would assist in making an ICWA determination.
On May 16, 2019, the juvenile court noted "there never was an identified tribe" and made a finding the ICWA did not apply. Again, on May 28, 2019, at the section 366.26 hearing, the juvenile court found that the ICWA did not apply.
Once ICWA notice has been given, the BIA, or any tribe, has 60 days to respond. Rule 5.482(c)(1) does not permit the juvenile court to make a determination on whether ICWA applies until expiration of the 60-day period, or earlier if a response to the ICWA notice is received. Here, a response from the BIA was received and the finding that ICWA did not apply was made after the BIA response and determination.
The agency complied with its duty to inquire and attempt to ascertain if the child was an Indian child; "the obligation is only one of inquiry and not an absolute duty to ascertain or refute Native American ancestry." (In re Antoinette S. (2002) 104 Cal.App.4th 1401, 1413.)
There is nothing in the record that would support a finding the ICWA applies and the juvenile court did not err.
DISPOSITION
The juvenile court's section 366.26 order is affirmed.