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In re S.J.

California Court of Appeals, Second District, First Division
Sep 18, 2008
B203674, B206285 (Cal. Ct. App. Sep. 18, 2008)

Opinion

NOT TO BE PUBLISHED

APPEAL from an order of the Superior Court of Los Angeles County No. CK15656, D. Terry Troung and Donna Levin, Juvenile Court Referees.

Kate M. Chandler, under appointment by the Court of Appeal, for Defendant and Appellant.

Raymond G. Fortner, Jr., County Counsel, James M. Owens, Assistant County Counsel, and Aileen Wong, Deputy County Counsel, for Plaintiff and Respondent.


WEISBERG, J.

Retired Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.

T.J., the mother of 22-month-old S.J., appeals from the juvenile court’s order terminating her parental rights under Welfare and Institutions Code section 366.26. The sole issue is whether the judgment should be reversed because the juvenile court violated state law interpreting the Indian Child Welfare Act (25 U.S.C. § 1901 et seq.) (ICWA) by failing to inquire about the American Indian ancestry of T.J. and Cornell P., S.J.’s alleged father. Because T.J. never affirmatively states that she may have Indian ancestry, any defect in the juvenile court’s inquiry was harmless. We affirm.

FACTS

S.J. was born to T.J. on November 2, 2006 with cocaine in his system. The next day, the Department of Child and Family Services (DCFS) placed S.J. in a foster home.

On November 8, DCFS filed a Juvenile Dependency Petition (Form JV-100) alleging that S.J. had tested positively for cocaine. The form stated that T.J. had abused drugs for 11 years and continued to abuse marijuana and cocaine. S.J.’s six minor siblings were dependents of the court, and T.J. had failed to reunify with S.J.’s adult sibling. Box “l” (“Child may be a member of, or may be eligible for membership in, a federally recognized Indian tribe”) and Box “m” (“Child may be of Indian ancestry”) on Form JV-100 were not checked.

S.J.’s six minor siblings have four different fathers, none of them the same as S.J.’s. The family has an extensive prior history with the Department, and at the time of S.J.’s birth, all his minor siblings were in foster homes.

DCFS filed a detention report concurrently with the petition. The report detailed the history of the family in juvenile dependency court since S.J.’s siblings were initially declared dependents in July of 1995 and described T.J.’s extensive criminal history. The report stated, “The Indian Child Welfare Act does not apply.”

At a hearing on November 8, the trial court clarified that the alleged father’s name was Cornell P. (not Darnell P., as it appeared on the petition and in the detention report). T.J.’s attorney stated, “Your Honor, I’m—I forgot to inquire about American Indian heritage. However, this is an ongoing case, as to the mother. And I did not bring my file. I don’t believe the mother has American Indian heritage, but could we reserve that?” The court replied, “The Department apparently questioned her, and she indicated, ‘no.’” The DCFS attorney added, “I have December of 2006 [sic] as mother saying that she does not have American Indian heritage.” The father had not yet been located. The court placed S.J. in the temporary care, custody and control of DCFS.

DCFS filed a “Jurisdiction/Disposition Report” on December 5 which stated, “The Indian Child Welfare Act does not apply,” and reported, “On 11/16/2006, DI Rivas spoke with the maternal grandmother regarding . . . Native American heritage . . . . DI inquired if there was Native American Ancestry in her family, grandmother stated, ‘No; I do not think so.’”

T.J. was arrested for theft on November 20, 2006, 18 days after S.J.’s birth, and received a sentence of two years. On January 8, 2007, DCFS recommended that T.J., who was incarcerated, not be offered reunification services for S.J. because she had not reunified with S.J.’s siblings after they were removed from her, and because she had failed to resolve her drug problem.

The court held a hearing on January 23, 2007, addressing jurisdiction and disposition for S.J., and conducting a 12-month review for the other children. T.J. was present (in custody). The court declared S.J. and the other children dependents of the court under Welfare and Institutions Code section 300, subdivision (b), removed S.J. from his parents’ care, and ordered no family reunification services for T.J. due to her lengthy incarceration. The court also denied family reunification services for Cornell P., S.J.’s alleged father (who still had not been located). The court urged DCFS to continue to search for Cornell P. in military records.

“A man who may be the father of a child, but whose biological paternity has not been established, or, in the alternative, has not achieved presumed father status, is an ‘alleged’ father.” (In re Zacharia D. (1993) 6 Cal.4th 435, 449, fn. 15.)

DCFS filed a section 366.26 report on May 24, 2007, reporting that S.J.’s foster mother would likely adopt S.J. and recommending adoption as the permanent plan. The foster mother had cared for S.J. since he was one day old, loved him as her own, and was trained to address his special health needs (including asthma). The May 24 report continued to state that ICWA did not apply. S.J. and his siblings had no contact with T.J. since her incarceration shortly after S.J.’s birth. At a July 24, 2007 hearing, the DCFS attorney reported that the due diligence search for Cornell P., S.J.’s alleged father, was not complete.

On August 9, 2007, DCFS found Cornell P., contacted him by telephone, and served him with notice of the recommended adoption and the section 366.26 hearing. Cornell P. appeared at a hearing on August 17, 2007, and the court appointed an attorney for him. On September 21, the court reviewed the permanent plans and continued adoption as the plan for S.J. Cornell P. requested visits with S.J., and the court granted monitored visitation. At a hearing on October 30, 2007, both T.J. and Cornell P. declared their intent to contest S.J.’s adoption. Both T.J. and Cornell P. appeared at hearings on December 3, 2007 and January 7, 2008.

Cornell P. filed a section 388 petition on January 28, 2008, claiming that because he had visited S.J. and provided monetary support, he was no longer an alleged father, and under Adoption of Kelsey S. (1992) 1 Cal.4th 816,he was entitled to contest the adoption and receive reunification services. A DCFS interim review report filed on January 30 reported that although Cornell P. began weekly visits with S.J. in October 2007, he did not continue to visit regularly after October 24 and did not visit at all in December 2007. Cornell P. had not provided DCFS with a current address or telephone number. In the meantime, T.J. had left her residential facility on January 12, 2008, without notifying DCFS and in violation of her parole. The social worker recommended that the court terminate parental rights, and that the court finalize S.J.’s adoption by his foster mother. The report again stated, “The Indian Child Welfare Act does not apply.”

Neither T.J. nor Cornell P. appeared for the February 5, 2007 final hearing. The court concluded that notice was proper, took Cornell P.’s section 388 petition off calendar, and found that S.J. was adoptable. The court terminated the parental rights of T.J. and Cornell P., and under section 366.26, transferred S.J.’s care, custody and control to DCFS for adoption planning and placement.

T.J. filed this appeal.

DISCUSSION

T.J. contends the termination order must be reversed, because DCFS and the juvenile court failed to comply with their duty to inquire if T.J. had any American Indian ancestry, under ICWA and the California Rules of Court.

ICWA’s purpose is to “‘“protect the best interests of Indian children and to promote the stability and security of Indian tribes and families.’” [Citations.] ‘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 H.B. (2008) 161 Cal.App.4th 115, 120.) The statute defines “Indian child” as a child 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).)

ICWA requires that when the court “knows or has reason to know that an Indian child is involved,” the court must send notice to the appropriate tribe of the proceedings and of the tribe’s right to intervene. (25 U.S.C. § 1912(a).) To implement this requirement in a juvenile dependency proceeding, Welfare and Institutions Code section 224.3, subdivision (a) and the California Rules of Court then in effect, rule 5.664(d)(2), imposed on the juvenile court and on DCFS “an affirmative and continuing duty to inquire whether a [dependent child] . . . is or may be an Indian child. . . . The social worker must ask . . . the parents . . . whether the child may be an Indian child or may have Indian ancestors.”

Rule 5.664 was repealed effective January 1, 2008. The former rule is now contained in California Rules of Court, rule 5.481, which became effective January 1, 2008.

Upon a parent’s first appearance, the juvenile court must also order the parent to complete a Parental Notification of Indian Status form. (Rule 5.664(d)(3).) Although ICWA does not impose a duty to inquire about Indian ancestry, California has adopted these rules under the statute’s provision that states may require “a higher standard of protection to the rights of the parent . . . of an Indian child than the rights provided under [ICWA].” (25 U.S.C. § 1921; In re S.B. (2005)130 Cal.App.4th 1148, 1158.)

“A violation of ICWA notice requirements may be harmless error, particularly when, as here, the source of the duty to inquire is not ICWA itself but rather . . . a [California] rule of court implementing ICWA.” (In re H.B., supra, 161 Cal.App.4th at p. 121.) The failure to comply with the California notice requirements “must be held harmless unless the appellant can show a reasonable probability that he or she would have enjoyed a more favorable result in the absence of the error.” (In re S.B., supra, 130 Cal.App.4th at p. 1162.)

The record shows that on S.J.’s initial dependency petition, DCFS did not check any of the two boxes indicating Indian heritage. At the initial hearing, T.J.’s attorney stated she did not believe her client had Indian heritage, and the court stated that the department had questioned T.J. and she answered “no.” The DCFS attorney stated that he had “mother saying that she does not have American Indian heritage.” Shortly thereafter, S.J.’s maternal grandmother told a DCFS employee that there was no Indian ancestry in her family. The reports thereafter continued to state that ICWA did not apply. From these affirmative representations, it is “fairly inferable” that a social worker did make the necessary inquiry. (In re S.B., supra, 130 Cal.App.4th at p. 1161.)

Nothing in the record shows, however, that T.J. was ever asked to complete the notification form, and the juvenile court never asked her about S.J.’s possible Indian ancestry on the record. This was error. (In re H.B., supra, 161 Cal.App.4th at p. 121.)

T.J. has never asserted that S.J. has any Indian ancestry, either in the dependency court or on appeal. She has never stated that she would have indicated that he had Indian heritage if she had filled out a Notification of Indian Status form, or if she had been asked directly by the court, on the record, whether he had any possible Indian heritage. She never claimed Indian ancestry during the protracted dependency proceedings regarding her six other children. The indications in the record that S.J. does not have Indian heritage through his mother, and T.J.’s failure to claim on appeal that there nevertheless is some basis for asserting that ICWA applies, support our conclusion that any error by the juvenile court was harmless. (In re H.B., supra, 130 Cal.4th at p. 122; In re A.B. (2008) 164 Cal.App.4th 832, 843.) To reverse would cause S.J. “additional unwarranted delay and hardship, without any showing whatsoever that the interests protected by the ICWA are implicated in any way.” (In re Rebecca R. (2006) 143 Cal.App.4th 1426, 1431.)

T.J. is the sole appellant in this case. We note that Cornell P., as an alleged father, has no standing to pursue an appeal based on lack of ICWA notice. (In re Daniel M. (2003) 110 Cal.App.4th 703, 707-708.) 25 United States Code section 1903(9) expressly excludes from the definition of “parent” an “‘unwed father where paternity has not been acknowledged or established.’” In California, “an alleged father may acknowledge or establish paternity by voluntarily signing a declaration of paternity at the time of the child’s birth, for filing with the birth certificate [citation], or through blood testing.” (Id. at pp. 708-709, fn. omitted.) Cornell P. did not take either of those steps. We also note that there is no indication in the record that Cornell P. has any Indian heritage.

DISPOSITION

The order is affirmed.

We concur MALLANO, P.J., ROTHSCHILD, J.


Summaries of

In re S.J.

California Court of Appeals, Second District, First Division
Sep 18, 2008
B203674, B206285 (Cal. Ct. App. Sep. 18, 2008)
Case details for

In re S.J.

Case Details

Full title:In re S.J., a Person Coming Under the Juvenile Court Law. LOS ANGELES…

Court:California Court of Appeals, Second District, First Division

Date published: Sep 18, 2008

Citations

B203674, B206285 (Cal. Ct. App. Sep. 18, 2008)