Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of Riverside County No. INJ17397, Christopher J. Sheldon, Judge.
Sharon S. Rollo, under appointment by the Court of Appeal, for Defendant and Appellant.
Joe S. Rank, County Counsel, and Sophia H. Choi, Deputy County Counsel, for Plaintiff and Respondent.
Karen J. Dodd, under appointment by the Court of Appeal, for Minor.
OPINION
HOLLENHORST, J.
Appellant Dusty S. (father) appeals from the juvenile court’s order terminating his parental rights to his son, D.S. (the child). Father argues that the order should be reversed because the Riverside County Department of Public Social Services (the department) failed to comply with requirements under the Indian Child Welfare Act (ICWA). (25 U.S.C. § 1901 et seq.) We disagree and affirm.
FACTUAL AND PROCEDURAL BACKGROUND
At the outset, we note that the circumstances leading to the dependency and the pleadings and procedures relating to the course of the dependency proceedings have no bearing on the issue on appeal of ICWA compliance. Therefore, we will only give a brief rendition of the facts regarding the actual dependency.
On October 3, 2005, the department filed a Welfare and Institutions Code section 300 petition on behalf of the child, who was two months old at the time. The petition alleged that he came within subdivisions (b) (failure to protect) and (g) (no provision for support). Specifically, the child was allegedly at risk of suffering harm because father had a history of mental health problems, the child’s mother (mother) abused controlled substances, and father and mother lacked the parenting skills and knowledge to meet the child’s special needs (he had an impaired immune system).
All further statutory references will be to the Welfare and Institutions Code, unless otherwise noted.
Mother is not a party to this appeal.
In the September 27, 2005, detention report, the social worker stated that the ICWA “does or may apply.” Mother denied any Indian heritage but advised the social worker that father “may have some percentage of unknown Indian Heritage.” However, due to father’s lack of cooperation with the social worker, that information could not be verified. Therefore, the social worker contacted Indian Child Family Services and requested a local tribal search under father’s name and birthdate.
At the detention hearing on October 4, 2005, father and mother were present. Mother’s counsel informed the court that mother indicated there may be Indian ancestry; however, mother could not provide the name of the tribe. Mother’s counsel stated that mother probably needed to talk to her relatives to get more information. Father did not say anything. The court detained the child in foster care. That same day, father and mother filled out Parental Notification of Indian Status forms. Father checked the box that said, “I have no Indian ancestry as far as I know.” Mother checked the box stating that she may have Indian ancestry.
In the jurisdiction report dated October 25, 2005, the social worker stated that ICWA did not apply. The social worker reported that on October 17, 2005, she asked father and mother about Indian ancestry. Father said, “‘My mom says yeah but I say no. I wouldn’t even know what tribe and I have never had anything to do with it.’” Mother stated, “‘My mom says somewhere in the family but I don’t know what it is and I don’t think that is major [sic] important.’”
At the contested jurisdiction hearing on October 31, 2005, the court found that the child came within section 300, subdivision (b). At the disposition hearing on February 8, 2006, the court adjudged the child a dependent of the court and ordered father and mother to participate in reunification services.
In the six-month status review report dated June 8, 2006, the social worker reported that father and mother had not completed any portion of their case plans, despite six months of available services. Father did not have permanent housing, and he was unemployed. The social worker recommended termination of reunification services. Nonetheless, at the review hearing, the court continued services. The court adopted the other recommendations of the social worker, including the finding that ICWA did not apply to this case.
By the time of the 12-month status review hearing, the social worker reported that father and mother had not addressed any component of their case plans. Thus, the social worker again recommended that reunification services be terminated. At the hearing, the court terminated reunification services and set a section 366.26 hearing.
The court terminated father’s and mother’s parental rights at the section 366.26 hearing held on July 23, 2007.
ANALYSIS
The Department Sufficiently Inquired About Indian Ancestry and Properly Determined That ICWA Did Not Apply
Father contends that the department and juvenile court failed to comply with the notice requirements of ICWA, and that the court erred in terminating his parental rights without applying the heightened standard of proof required by ICWA. We disagree.
A. Notice Requirements Under the ICWA
“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 Samuel P. (2002) 99 Cal.App.4th 1259, 1264-1265.) In other words, “‘[n]otice shall be sent whenever there is reason to believe the child may be an Indian child, and for every hearing thereafter unless and until it is determined that the child is not an Indian child.’ [Citation.]” (In re S.M. (2004) 118 Cal.App.4th 1108, 1115.) “Notice to the tribe provides it the opportunity to assert its rights. [Citation.]” (Ibid.)
B. The Court Had No Reason to Believe the Child May Be an Indian Child
In In re O.K. (2003) 106 Cal.App.4th 152 (O.K.), the parents appealed the termination of parental rights, arguing that the information provided by the paternal grandmother at the section 366.26 hearing was sufficient to trigger the ICWA notice requirements with regard to the father’s possible Indian heritage. At the section 366.26 hearing, the grandmother told the court that the father “‘may have Indian in him.’” (O.K., supra, at p. 154.) She stated that she did not know her family history that well, she was not an enrolled member, she did not know whether she or the father was eligible for membership, and she was not able to identify a particular tribe or nation. (Id. at pp. 154-155.) The appellate court concluded that this information “was too vague and speculative to give the juvenile court any reason to believe the minors might be Indian children.” (Id. at p. 157.)
Similarly, in the instant case, the juvenile court had no reason to believe the child might be an Indian child. Mother advised the social worker that father “may have some percentage of unknown Indian Heritage.” (Italics added.) The social worker was unable to verify that information due to father’s failure to cooperate. The social worker contacted Indian Child Family Services and requested a local tribal search under father’s name and birthdate. However, the record does not reflect any response from Indian Child Family Services. In any case, father later indicated on the Parental Notification of Indian Status form that he did not have any Indian heritage to his knowledge. Nonetheless, the social worker again asked him about any possible Indian ancestry. Father said, “‘My mom says yeah but I say no. I wouldn’t even know what tribe and I have never had anything to do with it.’”
As to mother, she initially denied any Indian heritage. On the day of the detention hearing, mother said she may have Indian ancestry; however, she could not even provide the name of the tribe. When the social worker subsequently asked mother about her Indian ancestry, mother stated, “My mom says somewhere in the family but I don’t know what it is and I don’t think that is major [sic] important.”
As in O.K., the information provided by father and mother “was too vague and speculative” to give the court here any reason to believe the child might have Indian heritage. (O.K., supra, 106 Cal.App.4th at p. 157.) Neither father nor mother knew their family history, and they were not able to identify a particular tribe or nation to which they could possibly belong. We conclude that the information given was insufficient to trigger the ICWA notice requirements. (Id. at pp. 155-157.)
We note father’s argument that the department failed to interview his and mother’s relatives about possible Indian ancestry. However, even if a social worker should have conducted such interviews, any error was harmless since there was nothing in the record to suggest that, had the department inquired further, more information would have been obtained. (People v. Watson (1956) 46 Cal.2d 818, 836.)
C. The Court Was Not Required to Apply the Heightened Standard of Proof Required by the ICWA
In a related claim, father contends that the order terminating parental rights must be reversed because it was not based on findings made beyond a reasonable doubt, as required by the ICWA. Although ICWA does provide that parental rights cannot be terminated absent a determination supported by evidence beyond a reasonable doubt (25 U.S.C. § 1912, subd. (f)), the court was not required to apply this standard of proof, since the ICWA did not apply here. As discussed ante, there was no reason for the court to believe that the child was an Indian child.
DISPOSITION
The order is affirmed.
We concur: RAMIREZ, P.J., McKINSTER, J.