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In re Roosevelt

Court of Appeals of California, First District, Division Five.
Nov 7, 2003
No. A102173 (Cal. Ct. App. Nov. 7, 2003)

Opinion

A102173.

11-7-2003

In re ROOSEVELT L., JR., a Person Coming Under the Juvenile Court Law. ALAMEDA COUNTY SOCIAL SERVICES AGENCY, Plaintiff and Respondent, v. ROOSEVELT L., SR., Defendant and Appellant.


Roosevelt L., Sr., father of the dependent child Roosevelt L., Jr. (Roosevelt), appeals from an order terminating his parental rights and finding Roosevelt adoptable. (Welf. & Inst. Code, § 366.26.) He contends the juvenile court erred by failing to apply heightened standards of proof required by the Indian Child Welfare Act, title 25 of the United States Code section 1901 et seq. (ICWA) in terminating his parental rights. We will affirm the order.

I. FACTS AND PROCEDURAL HISTORY

Respondent Alameda County Social Services Agency (Agency) filed a petition on behalf of Roosevelt (born in 1996) and his minor half-sibling, Linda C., in January 1998. The petition alleged that Roosevelt came within the jurisdiction of the juvenile court under Welfare and Institutions Code section 300, subdivision (g)[], because appellants whereabouts and ability to provide a home for Roosevelt were unknown. Other allegations were asserted against the mother, L.G. The petition did not indicate that Roosevelt was subject to the ICWA. Roosevelt was placed in a foster home.

Unless otherwise indicated, all further section references are to the Welfare and Institutions Code.

A. JURISDICTIONAL AND DISPOSITIONAL HEARING

At the jurisdictional and dispositional hearing, the juvenile court found Roosevelt subject to juvenile court jurisdiction under section 300, subdivision (b), in that L.G. had a long history of substance abuse and engaged in domestic violence with his siblings father, and section 300, subdivision (g), in that appellants whereabouts were unknown. The court ordered services for L.G. Roosevelt was to remain in foster care until L.G. entered residential treatment.

B. INITIAL REVIEW HEARINGS

A status review report filed July 29, 1998, indicated the ICWA did not apply and appellant still could not be located. L.G. had entered a community support program, but had failed to enter residential treatment. At the August 1998 six-month review hearing, the court terminated reunification services for appellant, finding clear and convincing evidence that his whereabouts remained unknown and he had not contacted or visited Roosevelt for at least six months.

The Agencys 12-month review report disclosed that Roosevelt has fetal alcohol syndrome and is developmentally delayed, requiring placement with caregivers versed in caring for a special needs child. An addendum report filed in February 1999 recommended adoption as the permanent plan for Roosevelt. It also recommended a change of placement, because the foster mother was unable to facilitate the appointments Roosevelt required.

After a contested hearing in June 1999, the juvenile court terminated reunification services for L.G. and scheduled a section 366.26 hearing for October 18, 1999. Notice of the hearing was sent to appellant at an address on Linden Street in Oakland.

C. OCTOBER 1999 SECTION 366.26 HEARING

A section 366.26 report, filed on October 8, 1999, again indicated the ICWA did not apply. Appellant, identified as Roosevelts alleged father, had one or two visits with Roosevelt, but did not demonstrate much of a relationship with him. The Agency had located a prospective adoptive family, but their home study had not been completed. The child welfare worker believed that three-year-old Roosevelt, with special needs, fetal alcohol syndrome, and mild mental retardation, would be difficult to place for adoption. The Agency recommended that adoption be identified as the permanent plan, but parental rights not be terminated. At the October 18 hearing, the matter was continued to January 31, 2000, for an update on the home study.

On November 2, 1999, the court granted the Agencys ex parte application to serve notice of the section 366.26 hearing on appellant by publication. The court found the Agency had acted with due diligence in attempting to locate him. The mail sent to his last known address on Linden Street in Oakland had been returned with the word "vacant" written on it, and his last known telephone number had been disconnected. Database searches and searches of other public records failed to locate his address.

An addendum report of January 27, 2000, disclosed that the prospective adoptive family expressed doubts about the adoption. The Agency changed its recommendation to long-term foster care.

At the section 366.26 hearing on January 31, 2000, the court adopted the Agencys recommendations and ordered long-term foster care as the permanent plan.

D. JULY 26, 2000, POST PERMANENT PLAN REVIEW

The Agencys report of July 17, 2000, stated that appellants whereabouts continued to be unknown. At the ensuing July 26 review hearing pursuant to section 366.3, subdivision (d), the court adopted the Agencys recommendations and continued the permanent plan of a planned permanent living arrangement. A further review was scheduled for August 23, 2000, and then continued to January 10, 2001.

E. JANUARY 10, 2001, POST PERMANENT PLAN REVIEW

The Agencys status report of December 29, 2000, continued to indicate the ICWA did not apply. The Agency advised that Roosevelts foster parents again expressed an interest in adopting him.

On January 10, 2001, the juvenile court continued Roosevelts long-term foster care, accepting the Agencys recommendations.

On May 21, 2001, the juvenile court granted the Agencys ex parte application for a new placement for Roosevelt. Because the foster mother (and prospective adoptive mother) failed to provide adequate supervision or emergency contact information and showed ambivalence toward having Roosevelt in her home, Roosevelt was removed from his foster home and placed with a new foster mother. The ex parte request again indicated the ICWA did not apply.

F. JUNE 20, 2001, POST PERMANENT PLAN REVIEW

The Agencys June 15, 2001, status report concluded that appellant, now identified as Roosevelts presumed father, still could not be located. He had not contacted the social worker for a year, and although he had left a message inquiring about Roosevelts placement, his telephone number was disconnected and he did not call again. The Agency recommended that the planned permanent living arrangement continue.

On June 20, 2001, the juvenile court adopted the Agencys recommendations and continued long-term foster care for an additional six months. A review hearing was scheduled for December 12, 2001.

G. DECEMBER 12, 2001, POST PERMANENT PLAN REVIEW

The Agencys report, filed December 5, 2001, again asserted that appellants whereabouts were unknown and the ICWA did not apply. Appellant had not contacted the Agency or Roosevelt, and the Agency decided to proceed with adoptive planning for Roosevelt. The Agency recommended long-term foster care as the permanent plan until recruitment of an adoptive family. On December 12, 2001, the juvenile court continued Roosevelt in long-term foster care and ordered an adoption assessment.

H. MAY 29, 2002, POST PERMANENT PLAN REVIEW

The Agencys report of May 13, 2002, recommended a permanent plan of adoption and a section 366.26 hearing for termination of parental rights.

As of the review hearing on May 29, 2002, appellant had not contacted the Agency or Roosevelt and could not be located. The Agency had identified a prospective adoptive family, and was arranging foster placement of Roosevelt with them pending termination of parental rights. Roosevelt continued to display severe delays in cognition, language, and emotional development; at six years of age, he still was not toilet trained. The review hearing was continued to June 11, 2002.

In an interim review report filed on June 10, 2002, the Agency reported that appellant had been located in Oakland. He opposed the plan of adoption and expressed interest in gaining custody of Roosevelt. He did not request visitation.

On June 11, 2002, the juvenile court adopted the Agencys recommendations, except that it did not change the permanent plan to adoption. The court scheduled a due diligence search hearing as to L.G. for July 25, 2002, and ordered a section 366.26 hearing for October 4, 2002.

I. JULY 25, 2002, DUE DILIGENCE REPORT AND HEARING

The Agencys July 22, 2002, report recommended that Roosevelt be adopted. Appellant objected and expressed a desire to reunify with Roosevelt, claiming he had taken care of him from birth to eight months. When asked why he had not visited Roosevelt (who by then was six years and four months of age) or made any efforts toward reunification for several years, he responded he had been living in Portland, Oregon. At the time of the report, appellant was a security guard and lived with his partner of two years and four of her grandchildren, between the ages of nine months and nine years. He did not appear at a scheduled meeting with the social worker, offered no reason for failing to show up, and thereafter failed to contact the Agency. On August 23, 2002, the court found that both L.G. and appellant had been served with notice of the section 366.26 hearing.

J. SECTION 366.26 HEARING FOR TERMINATION OF PARENTAL RIGHTS

In its section 366.26 report, the Agency changed its recommendation from adoption to long-term foster care because the prospective adoptive family had physically abused Roosevelt and violated the personal rights of another child in the home. The Agency sought placement of Roosevelt with his previous foster parents. Appellant and L.G. opposed the plan of adoption and had requested visitation, but the social worker had "postponed parent-child contact in order to facilitate the childs growing relationship with his prospective adoptive parents." The report indicated the ICWA did not apply.

The section 366.26 hearing began on October 4, 2002. Appellant appeared for the first time in the proceedings. Minors counsel represented that Roosevelts former foster parents wished to adopt him. The court continued the hearing for a home study and for appellant to be appointed counsel. Counsel was appointed for appellant on October 10, 2002.

On December 5, 2002, the Agency switched its permanent plan recommendation back to adoption. L.G.s whereabouts were unknown, appellant had not contacted the social worker since the last hearing, and Roosevelts foster parents now desired to adopt him. The Agency recommended continued long-term foster care pending the section 366.26 hearing to establish adoption as the permanent plan. The report indicated the ICWA did not apply.

At the report and review hearing on December 5, 2002, appellants counsel represented that appellant had been trying to arrange a visit, but the social worker had not contacted him. Minors counsel opposed visitation by appellant, but the court ordered the social worker to establish at least one supervised visit.

In the report for the section 366.26 hearing, filed on January 22, 2003, the Agency recommended terminating parental rights as to both appellant and L.G., and to order a permanent plan of adoption. Appellant had been absent from Roosevelts life for four years. The report indicated appellant had a visit with Roosevelt on December 24, 2002 (although the social worker later explained that appellant had never actually shown up for the visit). An adoption assessment had found Roosevelt adoptable. His foster parents, who sought to adopt him, were 42 years old, had been married seven years, worked at the same employment, and lived with Roosevelt in a two-bedroom apartment with another foster son, aged 10. They had no criminal record or child protective services history, were very familiar with Roosevelts special needs, and were doing an excellent job of meeting them. They also understood the financial and legal responsibilities involved in adoption. Both L.G. and appellant opposed the adoption.

At the January 31, 2003, hearing, appellants counsel appeared, but appellant did not. The October 2002 section 366.26 report was admitted into evidence. The child welfare worker testified that although a visit was arranged for December 24, 2002, appellant had not shown up. Another visit was arranged for January 27, 2003, but appellant failed to appear for that visit as well. Appellant, therefore, had not visited Roosevelt since the court ordered visitation. Appellants counsel offered no evidence.

On January 31, 2003, the juvenile court adopted the Agencys recommendations, found by clear and convincing evidence that it was likely Roosevelt would be adopted, and terminated the parental rights of both L.G. and appellant.

K. MARCH 28, 2003, HEARING

In February 2003, the Agency learned that L.G. was an enrolled member of the Seminole Tribe and that she had died on February 5, 2003. The Agency placed on the juvenile court calendar a hearing "for discussion of 366.26 issues in light of newly discovered ICWA information." Appellants counsel was contacted and agreed to a hearing date.

The hearing was held on March 28, 2003. Appellant did not appear. On the record, the juvenile court judge stated there had been discussions off the record during which it was discovered "that the mother who is now deceased was an enrolled member of the Seminole Nation Tribe, Seminole Nation of Oklahoma, and that the minor in this case is eligible for [enrollment]."[] The court continued: "It appears that this is the first that we know of there being . . . a possibility of application of ICWA. The order terminating parental rights was made on January 31st of this year without any knowledge . . . ICWA would be involved, and the time for appealing on that order runs sometime next week, Tuesday, Wednesday or Thursday of next week. [¶] Counsel, Im going to ask if there is anything else for the record that needs to be stated by anyone." Appellants counsel made no comment.

The reporters transcript originally showed the word "annulment" rather than the word "enrollment." The Agency requested correction of the record, believing the court had actually stated that Roosevelt was eligible for "enrollment." We ordered a hearing in the juvenile court. After the hearing on September 19, 2003, the juvenile court corrected the transcript to reflect the word "enrollment" rather than "annulment."

The juvenile court continued the March 28 hearing to May 2, 2003, to ensure proper notice to the tribe and perfected notice for Roosevelts siblings. The juvenile court found that the ICWA applied.

Appellant filed a notice of appeal from the "orders terminating parental rights made January 31, 2003 and March 28, 2003." As mentioned, he contends the juvenile court erred in not applying the standards of the ICWA when terminating his parental rights.

II. DISCUSSION

The ICWA protects the interests of Indian children and promotes the stability and security of Indian tribes and families. (In re Kahlen W. (1991) 233 Cal.App.3d 1414, 1421.) Among other things, the ICWA sets forth a heightened standard of proof for termination of parental rights: "No termination of parental rights may be ordered . . . in the absence of a determination, supported by evidence beyond a reasonable doubt, including testimony of qualified expert witnesses, that the continued custody of the child by the parent or Indian custodian is likely to result in serious emotional or physical damage to the child." (25 U.S.C. § 1912(f).)

The provisions of the ICWA must be applied in dependency proceedings once the juvenile court knows or has reason to know the dependent minor is or may be an Indian child. California Rules of Court, rule 1439(e), provides: "If section 1(l) of the Juvenile Dependency Petition (Version One) (JV-100) or section 1(i) of the Juvenile Dependency Petition (Version Two) (JV-110) is checked, or if, upon inquiry, or based on other information, the court has reason to know the child may be an Indian child, the court shall proceed as if the child is an Indian child and shall proceed with all dependency hearings, observing the Welfare and Institutions Code timelines while complying with the [ICWA] and this rule." (Italics omitted; see also 25 U.S.C. § 1912(a) ["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 childs tribe, by registered mail with return receipt requested, of the pending proceedings and of their right of intervention." (Italics added.)].) The juvenile court may have reason to believe a dependent minor is an Indian child if, for example, the court is informed directly of that status, the court receives information suggesting the minor is an Indian child, or the minor or his parents live in a predominantly Indian community. (Cal. Rules of Court, rule 1439(d)(2)(A), (B).)

In the matter before us, the juvenile court did not know or have reason to know that Roosevelt may be an Indian child until after the January 31, 2003, termination of appellants parental rights under section 366.26, when the Agency advised the court of its discovery. The dependency petition and the Agencys subsequent reports all indicated the ICWA did not apply. Neither appellant, L.G., nor their respective counsel indicated Roosevelt might be a child of Indian heritage. Because the court had no reason to know of Roosevelts purported Indian ancestry as of the January 31, 2003, hearing, the ICWAs heightened standard of proof did not apply to the courts termination of parental rights on that date.

Attempting to sidestep this point, appellant contends the juvenile court reopened the section 366.26 hearing in March 2003, after discovering that Roosevelt could be subject to the ICWA, and then affirmed the order terminating his parental rights without applying the heightened scrutiny of the ICWA. There is no evidence whatsoever to support appellants claim.

First, appellant argues the juvenile court was suggesting the January 31, 2003, order could be vacated (annulled) when it stated: "the mother who is now deceased was an enrolled member of the Seminole Nation Tribe . . . and that the minor in this case is eligible for annulment." In light of the juvenile courts correction of the transcript—such that it reads Roosevelt was eligible for "enrollment" (into the tribe) rather than "annulment"—there is no basis for appellants argument.

Next, appellant contends the March 28, 2003, hearing to discuss "section 366.26 issues" reopened the section 366.26 hearing because the Agency provided notice of the hearing to appellants counsel. Following the termination of his parental rights at the January 31, 2003, section 366.26 hearing, he explains, he was not entitled to receive notice of any subsequent proceeding. (& sect; 366.3, subd. (a).) Therefore, he argues, because his counsel was given notice, the section 366.26 hearing must have been reopened. However, it is quite clear that the Agency was merely providing courtesy notice to appellants counsel. There was no indication, on the part of the court, counsel, or parties, of any intention to reopen the section 366.26 hearing. To the contrary, at the end of the March 28, 2003, hearing, the court advised that the time for appealing the January 31, 2003, section 366.26 order was ending the following week. The court would not have made this statement if the section 366.26 proceeding had been reopened. And if any counsel or party believed otherwise, they would have (and should have) spoken up. The section 366.26 hearing was not reopened.

Appellant also argues that the juvenile court should have reopened the section 366.26 hearing once it learned that Roosevelts mother was an enrolled member of the Seminole Nation Tribe. Appellant provides no authority for any sua sponte obligation to reopen a section 366.26 hearing or invalidate an order terminating parental rights in these circumstances. Moreover, the ICWA provides a specific method of modifying or vacating an order issued in contravention of the ICWA: "Any Indian child who is the subject of any action for foster care placement or termination of parental rights under State law, any parent or Indian custodian from whose custody such child was removed, and the Indian childs tribe may petition any court of competent jurisdiction to invalidate such action upon a showing that such action violated any provision of sections 101, 102, and 103 of this Act [25 USCS §§ 1911, 1912, and 1913]." (25 U.S.C. § 1914.) No such petition was filed.

Lastly, appellant contends the juvenile court and the Agency violated their obligations to inquire about the possible application of the ICWA. Rule 1439(d) of the California Rules of Court reads: "The court and the county welfare department have an affirmative duty to inquire whether a child for whom a petition under section 300 is to be, or has been, filed is or may be an Indian child." The rule continues: "(1) Section 1(l) or 1(m) of the Juvenile Dependency Petition (Version One) (JV-100) or section 1(i) or 1(j) of the Juvenile Dependency Petition (Version Two) (JV-110) must be checked if there is reason to know the child may be a member of or eligible for membership in a federally recognized Indian tribe or if there is reason to believe the child may be of Indian ancestry." (Italics omitted.)

In In re Aaliyah G. (2003) 109 Cal.App.4th 939 (Aaliyah G.), the juvenile court had terminated the fathers parental rights. The department of children and family services had stated in the juvenile dependency petition and its reports that the child was not of Indian heritage and the ICWA was inapplicable. On appeal, the father argued that the court and the department had not complied with their duty of inquiry under California Rules of Court, rule 1439. The court disagreed, holding the duty of inquiry was discharged. The Agencys checking the "No" box on the petition, to show that the ICWA did not apply, suggested the Agency had made an inquiry as to the childs heritage, and there was no indication to the contrary. Absent any information or suggestion that the minor may have been an Indian child, the juvenile court had no obligation to make a further or additional inquiry. (Aaliyah G., supra, at p. 942.)

In the matter before us, the printed language on Roosevelts juvenile dependency petition read: "Child may come under the provisions of the Indian Child Welfare Act." The box next to that language was not checked, indicating the ICWA did not apply. The Agencys reports consistently reflected the understanding that the ICWA was inapplicable. Indeed, the Agencys January 10, 2001 status review report contained the sentence: "The Indian Child Welfare Act does or may apply," but the words "or may" were crossed out and replaced by the word "not," so that the sentence read "The Indian Child Welfare Act does not apply." This evidence suggests the Agency made an inquiry into the applicability of the ICWA and determined it did not apply. Furthermore, there was no indication from other sources that Roosevelt was of Indian heritage. The mother, represented by counsel, never stated he had any Indian heritage or objected to the representations of the Agencys reports in this regard. Nor did appellant suggest Roosevelt had any Indian heritage. Having no information or suggestion that Roosevelt might have been an Indian child, the juvenile court had no further duty to inquire. (See Aaliyah G., supra, 109 Cal.App.4th at p. 942.)[]

We recognize a distinction between Aaliyah G. and the matter before us. In Aaliyah G., there was no indication the child was of Indian ancestry, so the fact that the department checked the "No" box was consistent with it having made an inquiry and determining he was not an Indian child. Here, on the other hand, Roosevelt was an Indian child, and appellant argues that the Agency would have uncovered this fact if it had actually inquired of Lonzella. The adequacy of the Agencys inquiry, however, cannot be measured by whether it reached the correct conclusion, because there are many reasons the Agency might not learn Roosevelts true heritage despite their earnest inquiry. At bottom, the record is insufficient to demonstrate that the Agency did not fulfill its duty. In addition, we note that appellant has failed to explain how he would have standing to assert error under the ICWA as to the termination of his parental rights anyway. We need not address this issue, because we have resolved the appeal on other grounds.

Appellants reliance on In re Samuel P. (2002) 99 Cal.App.4th 1259, Dwayne P. v. Superior Court (2002) 103 Cal.App.4th 247, and In re Antoinette S. (2002) 104 Cal.App.4th 1401, is misplaced. In those cases, the juvenile court had information suggesting the childs Indian ancestry, but disregarded it. The cases on which appellant relies are therefore unhelpful to his arguments. (See Aaliyah G., supra, 109 Cal.App.4th at pp. 942-943.)

In the final analysis, the juvenile court did not know or have reason to know of Roosevelts possible Indian heritage until after the termination of appellants parental rights. The section 366.26 hearing was not reopened. And the heightened standard of title 25 United States Code section 1912(f), did not apply to the March 28, 2003, hearing, because that hearing did not address the termination of parental rights. Appellant has failed to establish reversible error.

III. DISPOSITION

The order is affirmed.

We concur: SIMONS, J. and GEMELLO, J.


Summaries of

In re Roosevelt

Court of Appeals of California, First District, Division Five.
Nov 7, 2003
No. A102173 (Cal. Ct. App. Nov. 7, 2003)
Case details for

In re Roosevelt

Case Details

Full title:In re ROOSEVELT L., JR., a Person Coming Under the Juvenile Court Law…

Court:Court of Appeals of California, First District, Division Five.

Date published: Nov 7, 2003

Citations

No. A102173 (Cal. Ct. App. Nov. 7, 2003)