Opinion
NOT TO BE PUBLISHED
Superior Court County of Santa Barbara, No. J1173477 James E. Herman, Judge
Kate M. Chandler, under appointment by the Court of Appeal, for Appellant.
Dennis A. Marshall, County Counsel, County of Santa Barbara and Sarah A. McElhinney, Deputy, for Respondent.
YEGAN, J.
A.V., the biological mother of 11-year old D.V., appeals the juvenile court's orders, following a hearing pursuant to Welfare & Institutions Code section 366.26 , establishing a legal guardianship for D.V., dismissing the dependency proceeding and terminating visitation between A.V. and D.V. A.V. contends the trial court failed to comply with the notice provisions of the Indian Child Welfare Act (ICWA) and that the order terminating visitation is not supported by substantial evidence. We affirm.
All statutory references are to the Welfare and Institutions Code unless otherwise stated.
Facts
D.V. and her older sister, Da. V. were initially removed from their parents' care by Santa Barbara County Child Welfare Services (CWS) in November 2004, because A.V. had been arrested for possession of a controlled substance, the children were living in filthy conditions and they had untreated scabies and lice. In a December 2004 detention report, A.V. "indicated" that, "there 'may be' Indian heritage but does not have additional information on the possible Tribe. The father also has not... been able to provide additional information on possible Indian heritage." D.V. was placed with her maternal grandmother.
D.V. and her older sister, Da. V., were removed from parental custody at the same time and placed with their maternal grandmother. Later, the children were placed in separate non-family foster homes, had different case plans and had different visitation arrangements with their biological mother. D.V.'s sister, Da., is not a party to this appeal.
ICWA Notice and Findings
Respondent's initial detention report, filed in December 2004, noted that A.V. had "indicated" that "there 'may be' Indian heritage[, ]" but she did not have any information on the tribe to which she or her children might belong. D.V.'s biological father was also unable to provide any information concerning her possible Indian heritage. The trial court made no findings regarding ICWA at the detention hearing. The subject was not raised again until January 2007.
CWS noted in its status report for the January 2007 review hearing that the trial court had never made findings regarding ICWA. It further contended that ICWA did not apply because, "The mother has indicated to prior CWS workers that there 'may be' Indian Heritage but does not have additional information on the possible Tribe. The father also has not in the past been able to provide additional information on the possible Indian heritage. The maternal grandmother has stated that to the best of her knowledge, there is no Indian Heritage." The trial court ordered respondent to provide ICWA notice to the Bureau of Indian Affairs (BIA). That notice produced no additional information about D.V.'s possible Indian heritage.
Prior to the December 2007 status review hearing, CWS reported that the BIA had received the ICWA notices. Its response "confirms that the BIA was noticed regarding [D.V. and Da. V.], however [the BIA's letter] does not state whether or not the children are Indian children or what tribe they might belong to. The family has been unable to provide CWS with further detailed information as to what tribes family members may be members of and without additional information from the family it is not possible for CWS to determine what tribes to notice. [¶] The department respectfully requests that the Court make a finding at this time that ICWA does not apply." The trial court made no further findings or orders regarding ICWA until the December 2008 review hearing. At that hearing, it found, "ICWA does not apply."
Visitation with A.V.
For the first 16 months that D.V. was in foster care, A.V. had only minimal contact with her. A.V.'s whereabouts were unknown and she did not attend status review hearings or participate in reunification services. Reunification services were terminated after 12 months. Throughout this period, the trial court authorized CWS to allow visits at its discretion. A.V. sought no visits.
Before the section 366.26 hearing, CWS filed a section 387 modification petition because the maternal grandmother had become too ill to care for D.V. D.V. therefore had been placed in a temporary foster home. CWS recommended long term foster care as D.V.'s permanent plan because of her mental health and behavioral issues. CWS further recommended that D.V. return to her grandmother's care when the grandmother recovered. The trial court accepted those recommendations, continued the section 366.26 hearing and set the section 387 jurisdiction and disposition hearing for the same date. The grandmother did not provide CWS with any additional information before the hearing. When it was held in July 2006, the trial court selected long term foster care as the permanent plan for D.V. and set the next review hearing for January 2007.
A.V. did not resurface until December 2006. When she did resume visits with D.V., however, her attendance was good. At the next review hearing, the trial court ordered that monthly visits continue at the discretion of CWS. In June 2007, CWS reported that A.V. had not missed any visits and that D.V. "want[s] to visit with [her] mother but [she is] equally happy to return to [her] foster home[]."
Monthly visits continued between June 2007 and the next review hearing in December 2007. Prior to that hearing, D.V.'s foster mother reported to CWS that D.V. "often wets her pants for a few nights following visitation with her mother. The case aide who supervises the visits reports that the visits go well." The trial court ordered that monthly visits continue at the discretion of CWS.
Before the next hearing in June 2008, D.V.'s foster mother reported that D.V. "becomes very moody and irritable one week prior to the visits and the week that follows after the visit. In addition, the foster mother report[ed] that [D.V.] wakes up at night crying and yelling 'stop it.' The foster mother has asked [D.V.] on several occasions who she is yelling 'stop it' to, however [D.V.] is unable to tell her." Although D.V. was "very bonded" to her foster mother and enjoyed "her placement very much[, ]" she was also having temper tantrums and nightmares in the weeks immediately preceding and following her visits with A.V. D.V. told the social worker that "she is afraid to be returned to her mother's care." CWS recommended that visits be reduced to once every three months because the visits were "becoming a detriment to [D.V.'s] emotional stability and place her at risk of losing her placement." The trial court adopted that recommendation.
At the December 2008 hearing, the social worker reported that D.V. had been moved to a new foster home because her former foster home was not "able to meet [D.V.'s] mental health needs." D.V. was adjusting well, although she had some behavioral issues. The new foster mother reported that D.V. "becomes very ill with the stomach flu prior to and after her visit with her mother. [D.V.] misses school days due to these physiological issues." D.V.'s CASA volunteer also expressed concern that the visits with A.V. were harmful to D.V. According to the CASA volunteer, D.V. was making progress in many areas but continued to exhibit "angry behaviors, at home and at school, after visiting with her mother." The order for one visit every three months remained unchanged.
In March 2009, CWS reported that D.V. continued to experience anxiety and nightmares prior to visits with A.V. After the visits, D.V. would complain of flu-like symptoms such as nausea and stomach aches. She told her teacher that she did not "really" want to visit with her mother. In addition, D.V.'s therapist reported that D.V. "became very moody and non-cooperative during session before and after visitation with her mother." CWS recommended that D.V. continue to see A.V. once every three months and have telephone contact with her every two weeks. The trial court adopted that recommendation.
By the time of the next hearing in June 2009, D.V. continued to do well in her foster home and no longer required therapy. She had been having one telephone call per month with A.V. and one face-to-face visit every three months. Her foster mother reported that, "since the decrease in visitation, [D.V.'s] behavior has improved and she is not as defiant. In addition, [D.V.] has not displayed any more stomach flu like symptoms and does not ask to call her mother." The trial court ordered that the visitation schedule remain in place during the next six-month review period.
At the December 2009 review hearing, CWS requested the trial court set a section 366.26 hearing to select legal guardianship as D.V.'s permanent plan. D.V. was doing well and was very bonded to the foster family. She expressed "great interest" in a legal guardianship and wrote the trial court a letter requesting one. The trial court continued the existing visitation schedule and set a section 366.26 hearing to consider establishing a legal guardianship.
In a series of reports filed before the section 366.26 hearing, CWS recommended that the court terminate visitation with D.V.'s biological family "to allow [D.V.] to bond to her guardianship family 100 percent." D.V.'s foster mother indicated that she "is supportive of the idea of continuing [D.V.'s] relationship with her mother. CWS trusts that the foster mother will follow through and [D.V.] will not be forced to pick between her foster parents and mother." D.V., however, informed her social worker that, although she would like to maintain minimal contact with A.V., she did not want contact with other family members. D.V. "has informed her foster parents that visitation creates great distress as demonstrated by her previous incidents with the family. It has also been reported that D.V. does not like telephone calls with her mother." At the hearing on August 19, 2010, the court issued letters of guardianship to the foster parents, found that continued visitation with A.V. was detrimental to D.V., and terminated the dependency case.
Discussion
ICWA
ICWA requires that an Indian tribe receive notice of, and an opportunity to intervene in a dependency proceeding when the subject of the proceeding is an "Indian child." An "Indian child" is "any unmarried person who is under age 18 and 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." (In re Shane G. (2008) 166 Cal.App.4th 1532, 1538; 23 U.S.C.A. § 1903(4).)
The notices required under ICWA must be given to potentially impacted tribes and to the Bureau of Indian Affairs (BIA) "when there is reason to believe the child may be an Indian child. [Citation.] '[T]he juvenile court needs only a suggestion of Indian ancestry to trigger the notice requirement.' (In re Nikki R. (2003) 106 Cal.App.4th 844, 848.)" (In re Francisco W. (2006) 139 Cal.App.4th 695, 703.) For example, a juvenile court or agency seeking foster care placement will have reason to believe a child is an Indian child where "[t]he child or a person having an interest in the child, including... a member of the child's extended family, informs or otherwise provides information suggesting that the child is an Indian child to the court [or] the county welfare agency...." (Cal. Rules of Court, rule 5.481(a)(5).)
When the juvenile court or agency seeking the foster care placement receive information suggesting a child is an Indian child, they have a duty to inquire further into the child's possible Indian status. "Further inquiry includes interviewing the parents, Indian custodian, extended family members or any other person who can reasonably be expected to have information concerning the child's membership status or eligibility." (In re Shane G., supra, 166 Cal.App.4th at p. 1539.) The juvenile court has no duty, however, to inquire of persons who are not parties to the proceeding. "[A]s long as the social worker did inquire of the parents, and as long as the parents failed to provide any information requiring follow up, [the social worker] had no further duty of inquiry." (In re S.B. (2005) 130 Cal.App.4th 1148, 1161.)
Moreover, ICWA notices are not required where there is insufficient reason to believe a child may be an Indian child. (Id. at p. 1538.) This may occur where parents or grandparents make vague references to possible Indian ancestry, but are unable to provide any specific information concerning the name of the tribe involved or identifying relatives who may have been members of the tribe. For example, in In re Jonah D. (2010) 189 Cal.App.4th 118, the children's paternal grandmother told the foster care agency, " 'I can't say what tribe it is and I don't have any living relatives to provide any additional information. I was a little kid when my grandmother told me about our Native American ancestry but I just don't know which tribe it was.' " (Id. at p. 125.) The court of appeal found no error in the dependency court's failure to send ICWA notices because the information provided was "too vague, attenuated and speculative to give the dependency court any reason to believe the children might be Indian children." (Id.)
Similarly, in In re Shane G., supra, the child's maternal grandmother "indicated Shane's great-great-great-grandmother was a Comanche princess. However, no one in the family ever lived on a reservation, attended an Indian school, participated in Indian ceremonies or received services from an Indian health clinic. Most significantly, the evidence before the court showed the Comanche tribe requires a minimum blood quantum for membership that excludes Shane." (Id. at p. 1539.) The court of appeal held that ICWA notice to the Comanche tribe was not required. (Id.)
The court in In re Z.N. (2009) 181 Cal.App.4th 282, found no duty to send ICWA notices where the only information concerning Indian status was mother's statement that her maternal grandmother was part Cherokee and her paternal grandmother was part Apache. The mother was not registered with any tribe and did not believe her mother had registered. (Id. at p. 297.) Under these facts, the Court of Appeal held ICWA notices were not required because, "Whatever the status of the grandmothers, they were great-grandmothers of the twins, and this information did not suggest that the twins were members or eligible for membership as children of a member." (Id. at p. 298.)
Similarly, In re O.K. (2003) 106 Cal.App.4th 152, held ICWA notices were not required where the child's grandmother said that his father "may have Indian in him[, ]" but could not identify the tribe involved and admitted she did not know her family history. (Id. at pp. 155, 157.) In re Levi U. (2000) 78 Cal.App.4th 191, reached the same result where the grandmother said her mother had been born on a reservation in Oklahoma, but she did not know the name of the tribe. (Id. at pp. 194, 198-199.)
In the instant case, the only "evidence" relating to D.V.'s possible Indian status is mother's statement that there "may be" Indian heritage, and the maternal grandmother's statement that "to the best of her knowledge, there is no Indian heritage." Even if it had not been contradicted by the maternal grandmother, mother's statement was, "too vague, attenuated and speculative to give the dependency court any reason to believe the children might be Indian children." (In re Jonah D., supra, 189 Cal.App.4th at p. 125.) The trial court's duty to inquire further as to D.V.'s Indian heritage was never triggered, nor was the duty to send ICWA notices to any tribe or to the BIA. There was no error.
Findings on Visitation
In its order establishing the legal guardianship, the trial court found that further visitation between A.V. and D.V. would be detrimental to D.V. A.V. contends that finding is not supported by substantial evidence. She is incorrect.
Section 366.26, subdivision (c)(4)(C) requires the court to make an order for visitation, "unless the court finds by a preponderance of the evidence that the visitation would be detrimental to the physical or emotional well-being of the child." In determining whether substantial evidence supports the trial court's finding here that visitation would be detrimental to D.V., we consider the entire record in the light most favorable to the order, drawing every reasonable inference and resolving all conflicts in favor of the order. (Kuhn v. Dept. of General Services (1994) 22 Cal.App.4th 1627, 1632-1633; In re Misako R. (1992) 2 Cal.App.4th 538, 545.)
The evidence before the trial court established by a preponderance that continued visits between A.V. and D.V. were detrimental to D.V. As we have noted, A.V. did not visit with D.V. between April 2005 and December 2006. After she reestablished contact, A.V. had monthly face-to-face visits and more frequent telephone calls with D.V. D.V. then began to exhibit symptoms of anxiety and emotional distress. Her foster mother reported that she was incontinent for several nights before and after visits with A.V. By June 2008, the foster mother was reporting that D.V. became moody and irritable around the time of the visits. She also had nightmares and temper tantrums and had stated she was afraid to be returned to A.V.'s custody.
Within six months, CWS had to move D.V. to another foster home because her former foster mother could not meet D.V.'s mental health needs. The new foster mother also reported that D.V. had difficulties before and after visits with A.V. D.V. became very ill with stomach flu-like symptoms after the visits. She also exhibited angry behaviors, at home and at school. By March 2009, D.V. was telling her teacher that she did not really want to see A.V.
At that point, D.V. was still having one face-to-face visit with A.V. every three months, but she was taking to her on the telephone every two weeks. On CWS's recommendation, telephone calls were reduced to once a month. D.V.'s symptoms of anxiety surrounding the telephone calls and visits began to diminish. The next status report, filed in June 2009, noted that D.V. was having fewer problems with illness, anger and anxiety since the telephone and visitation schedule had changed. Before the guardianship hearing in August 2010, D.V. told her foster parents that the visits with A.V. caused her "great distress." She also stated that, although she wanted to maintain minimal contact with A.V., she did not want to see her sisters or step father and did not like telephone calls with A.V. The social worker offered the opinion that D.V. needed to stop visiting with A.V. in order to fully bond with her new family.
This constitutes substantial evidence supporting the trial court's finding that continued visitation between A.V. and D.V. would be detrimental to D.V.'s physical and emotional well-being. Based on the social worker's reports, the trial court could reasonably find that D.V. suffered from anxiety and stress before and after her face-to-face visits with A.V. Her stomach flu-like symptoms, nightmares and behavioral problems persisted for two full years and then began to diminish as soon as visitation was sharply reduced. D.V. herself indicated that she did not want visits to continue and that she wanted only "minimal" contact with A.V. Under these circumstances, the trial court properly found that visitation was detrimental to D.V. and should be terminated.
Conclusion
The judgment/order dated August 10, 2010 establishing legal guardianship, dismissing the dependency and terminating visitation between D.V. and A.V. is affirmed.
We concur: GILBERT, P.J., PERREN, J.