Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
Superior Court County of Ventura, Ct. Nos. J066318, J066319, J066320, Tari L. Cody, Judge.
Maureen L. Keaney, under appointment by the Court of Appeal, for Defendant and Appellant.
Noel A. Klebaum, County Counsel, Oliver G. Hess, Assistant County Counsel, for Plaintiff and Respondent.
PERREN, J.
B.B. appeals an order of the juvenile court terminating parental rights and finding his children adoptable. (Welf. & Inst. Code, § 366.26.) His sole contention is that respondent Ventura County Human Services Agency (HSA) did not comply with the notice provisions of the Indian Child Welfare Act. (ICWA; 25 U.S.C. § 1901 et seq.) We affirm.
All statutory references are to the Welfare and Institutions Code unless otherwise stated.
FACTS AND PROCEDURAL HISTORY
On August 21, 2006, L.S., mother of the minors, was arrested for driving under the influence and child endangerment when she ran her car off the road with her children in the car. The children were detained and placed in foster care.
The court offered reunification services to L.S. but denied them to appellant B.B., the children's presumed father, who was serving a seven-year prison sentence that started in 2006. He had a criminal history dating back to 1992, including carrying a concealed weapon, kidnapping, second degree robbery, vandalism, threatening a crime with intent to terrorize, exhibiting a deadly weapon, inflicting corporal punishment on a spouse, and violating parole.
At the detention hearing on August 24, 2006, L.S. filed a parental notification of Indian status, JV-130, declaring that the children might have Indian ancestry. She indicated that the tribes were unknown. The court found that the ICWA might apply. B.B. did not appear at the hearing. That day HSA mailed form JV-135 ("Notice of Involuntary Child Custody Proceedings for an Indian Child") to the Bureau of Indian Affairs (BIA) by certified and registered mail. HSA had not yet contacted any of L.S.'s or B.B.'s relatives concerning possible Indian ancestry. Therefore, the notice contained no information regarding their relatives. The form mistakenly indicated "Blackfeet Tribe" in response to the request to "provide enrollment number or BIA/tribal agency." HSA did not mail notice to the Blackfeet Tribe.
HSA filed a report for the jurisdiction/disposition hearing on October 3, 2006. Attached to the report was a copy of B.B.'s responses to HSA's family assessment questionnaire. In response to the request to "list any American Indian heritage you have," B.B. stated: "My wife's got Indian blood." He did not respond to questions concerning whether he had Indian heritage or was a registered member of any tribe.
B.B. attended the hearing and submitted a JV-130 form on which he checked a box which stated: "The child is or may be a member of, or eligible for membership in, a federally recognized Indian tribe." He provided no information as to either his or L.S.'s Indian ancestry on the form. At the hearing, the court said that if B.B. "has more information or suddenly remembers more information, he needs to provide that to the agency concerning his native Indian ancestry." B.B. did not provide any additional information at the hearing. The court found that the ICWA may apply.
On October 31, 2006, HSA received a response from the BIA, requesting that HSA serve notice on the Blackfeet Tribe. In response, HSA served a second JV-135 to the BIA on November 13, 2006, deleting the mistaken reference to the Blackfeet Tribe. It again contained no information as to L.S.'s or B.B.'s relatives.
At the November 14, 2006, jurisdiction/disposition contest, the court stated "With respect to the JV-130, I do have one that was filed on October 3rd signed by [B.B.] that said the child may be a member or eligible for a membership in a federally recognized Indian tribe so ICWA may apply. He does not identify the name of the tribe, but based upon the answers that he's given on the JV-130, ICWA may apply. So notice needs to be given to, at least, the Bureau of Indian Affairs and perhaps tribes to see if they can be identified." B.B. was present but did not offer any further information regarding the children's Indian ancestry. HSA did not give notice to the BIA of any subsequent hearings. HSA reports prepared for subsequent hearings erroneously stated "The Indian Child Welfare Act does not apply."
On May 29, 2007, the BIA responded to the amended notice sent on November 13, 2006. The response states that "[t]his information does not require a response or action. The county already has provided an appropriate notice to the tribe or tribes." HSA filed the BIA's response with the court.
A new social worker reopened the issue of ICWA compliance after the court terminated reunification services in the summer of 2007 and set a section 366.26 hearing for November 13, 2007. The social worker interviewed L.S. on August 7, 2007. L.S. again stated she might have Indian ancestry. L.S. filled out a second JV-130. She again stated she had no knowledge of any tribal affiliation. She said that the basis of her belief that she had Indian ancestry was "due to her last name" and that she believed the ancestry was through her paternal relatives. However, she could not provide any contact information for any of her paternal relatives and said she would not be able to provide any further information regarding possible Indian ancestry. The social worker also sent a new JV-130 form to B.B. She received no response from him.
HSA's report for the November 13 hearing stated that notice had been given to the BIA and Blackfeet Tribe, certified mail, return receipt requested, on September 12, 2007. Copies filed with the court showed that they were sent form JV-300 (Notice of Hearing on Selection of a Permanent Plan), not form JV-135.
Prior to a continued hearing date of January 8, 2008, HSA made further inquiry. On December 19, 2007, a social worker interviewed B.B. B.B. again stated that his side of the family did not have Indian ancestry and that any Indian ancestry was through L.S.'s family.
On December 21, and 26, 2007, the social worker interviewed M.S., L.S.'s grandmother. M.S. said that her husband L.S., Jr., died in 1992. She said that she believed the family may have Indian heritage because L.S., Sr., her husband's father, may have lived for a time on an Indian reservation in Greely, Colorado. She did not know whether L.S., Sr. had an affiliation with a specific tribe. M.S. had no other information regarding the family's Indian ancestry and could provide no other source from which additional information could be obtained.
On December 27, 2007, HSA sent an amended form JV-135 containing L.S.'s name for the January 8, 2008, hearing to the BIA and the Blackfeet Tribe, as well as the parties, via certified mail, return receipt requested. HSA submitted proof that the BIA received the notice on December 31, 2007, and the Blackfeet Tribe received notice on January 3, 2008. HSA also submitted a memorandum to the court informing it of its recent attempts to obtain more information concerning the children's Indian ancestry.
Shortly before the January 8 hearing, HSA received a letter from B.B. returning the JV-130 form. This time, the form contained names of his great-great grandfather, great-grandfather and great uncle. He did not state that his relatives had any Indian ancestry but requested that HSA check with the BIA "on children's great grandfather, out of Texas, Calif. (States) for Indian ancestry . . . ." B.B. also wrote: "Today a social worker & a representative of the court who was asking info on my children's Indian ancestry came to visit me. The social worker did not relay everything to the gentle man of the court. I know, I should have demanded that the social worker relay all info, but I did not." HSA filed the letter and form with the court.
At the hearing on January 8, 2008, B.B. testified and provided no further information regarding his children's possible Indian ancestry. The court found that "no further [ICWA] notice was required, despite late-coming information that did not indicate that there was any particular tribe or any further information that would support, other than speculation, that these were Indian children." The court found the children adoptable and terminated parental rights.
In this appeal, B.B. contends the termination order must be reversed because the notice provisions of the ICWA were violated.
DISCUSSION
Standard of Review
"We review factual findings in the light most favorable to the juvenile court's order. [Citation.] Indeed, '[w]e must indulge in all legitimate and reasonable inferences to uphold the [judgment]. If there is substantial evidence supporting the judgment, our duty ends and the judgment must not be disturbed.' [Citation.]" (In re H.B. (2008) 161 Cal.App.4th 115, 119-120.)
ICWA
The ICWA protects the interests of Indian children and promotes the stability and security of Indian tribes by establishing minimum standards for, and permitting tribal participation in, dependency actions. (25 U.S.C. §§ 1901, 1902, 1903(1), 1911(c), 1912.) "The ICWA presumes it is in the best interests of the child to retain tribal ties and cultural heritage and in the interest of the tribe to preserve its future generations, a most important resource." (In re Desiree F. (2000) 83 Cal.App.4th 460, 469.) The juvenile court and social services agencies have an affirmative duty to inquire at the outset of the proceedings whether a child who is subject to the proceedings is, or may be, an Indian child. (Id., at p. 470.)
The duty to provide notice under the ICWA arises when "the court knows or has reason to know that an Indian child is involved." (25 U.S.C. § 1912(a).) For purposes of the ICWA, an "Indian child" is one who is either a "member of an Indian tribe" or is "eligible for membership in an Indian tribe and is the biological child of a member of an Indian tribe." (25 U.S.C. § 1903(4).)
Only a hint or suggestion of Indian ancestry is required to trigger the ICWA notice requirements. (See In re Miguel E. (2004) 120 Cal.App.4th 521, 549 ["'The determination of a child's Indian status is up to the tribe; therefore, the juvenile court needs only a suggestion of Indian ancestry to trigger the notice requirement'"].) As the court explained in Dwayne P. v. Superior Court (2002) 103 Cal.App.4th 247, 257, "We agree that '[t]o maintain stability in placements of children in juvenile proceedings, it is preferable to err on the side of giving notice and examining thoroughly whether the juvenile is an Indian child. . . .'"
Once the ICWA notice provisions are triggered, notice must be sent to the Indian child's tribe and, if the tribe is unknown, to the BIA. (25 U.S.C. § 1912(a).) The BIA and the tribe have the right to determine whether a child is an Indian child. (In re Junious M. (1983) 144 Cal.App.3d 786, 794.)
The Court did not Err in Failing to Make Additional Inquiry Concerning Indian Ancestry
B.B. contends the ICWA notice requirements were not met because (1) HSA did not inquire of L.S.'s maternal grandparents concerning Indian ancestry even though they were present at the August 24, 2006, detention hearing, (2) the amended JV-135 form did not include the name of L.S.'s maternal grandmother, and (3) the court refused to make further inquiry after B.B. provided the names of his great grandfather, grandfather and mother.
As to L.S., the information provided by her grandmother that her husband may have had Indian ancestry because he may have lived on a reservation in Greeley, Colorado, was too vague and speculative to trigger any duty of inquiry. (See, e.g., In re O.K. (2003) 106 Cal.App.4th 152, 157 ["The information provided by the paternal grandmother that [the child's] father 'may have Indian in him' was not based on any known Indian ancestors . . . was too vague and speculative to give the juvenile court any reason to believe the minors might be Indian children"]; see also In re Aaron R. (2005) 130 Cal.App.4th 697, 707 [vague statements as to possible Indian heritage are insufficient to trigger notice requirements].)
There is not a hint of evidence in the record that the children may be members of the Blackfeet Tribe. The reference to the Blackfeet Tribe in the first notice sent to the BIA was characterized as a mistake by HSA and neither L.S., B.B. nor any of their relatives ever claimed membership in that tribe. The only information forthcoming from L.S.'s relatives was that L.S.'s grandmother thought that her husband may have had Indian ancestry because he may have lived on a reservation in Greeley, Colorado, for awhile. The Blackfeet Tribe is not native to Colorado but to Montana.
Even if this information were sufficient to trigger a duty to notify, HSA fulfilled its duty of inquiry when it sent an amended Form JV-135 to the BIA and Blackfeet Tribe containing all the information L.S.'s grandmother was able to provide and provided verification to the court that the forms were sent. (In re S.B. (2008) 164 Cal.App.4th 289, 301.) As L.S.'s grandmother made no claim that she had Indian heritage, inclusion of her name on the form was not required. (Alicia B. v. Superior Court (2004) 116 Cal.App.4th 856, 867.)
B.B. was given numerous opportunities to identify the tribe to which he was affiliated. The court's refusal to consider B.B.'s eleventh-hour change of mind as to his Indian ancestry was not error. Where, as here, a parent has repeatedly stated he has no Indian ancestry during the proceedings, a court has no duty to make further inquiry despite an about-face at the conclusion of the proceeding. (See, e.g., In re Rebecca R. (2006) 143 Cal.App.4th 1426, 1431 ["There is nothing whatever which prevented [father], in his briefing or otherwise, from removing any doubt or speculation. He should have made an offer of proof or other affirmative representation that, had he been asked, he would have been able to proffer some Indian connection sufficient to invoke the ICWA. He did not"].)
Whether information can reasonably suggest that the minor is an Indian child depends upon the totality of circumstances, including the nature and source of the information. (In re O.K., supra, 106 Cal.App.4th at pp. 156-157.) Parents unable to reunify with their children have already caused the children serious harm; the rules do not permit them to cause additional unwarranted delay and hardship, without any showing whatsoever that the interests protected by the ICWA are implicated in any way. The juvenile court was justified in discrediting B.B.'s eleventh-hour about face concerning his Indian ancestry as he had consistently represented throughout the proceedings that he had no Indian ancestry.
Based on the totality of circumstances, the juvenile court had no duty to make further or additional inquiries in the absence of any credible evidence supporting a reasonable inference the children might have Indian heritage. (In re Aaliyah G. (2003) 109 Cal.App.4th 939, 942.) As there was no requirement to give notice, any errors in the notices given were necessarily harmless.
The order of the juvenile court is affirmed.
We concur: GILBERT, P.J., COFFEE, J.