Opinion
NOT TO BE PUBLISHED
Superior Court County of Santa Barbara, Thomas R. Adams, Judge, Super. Ct. No. J1164123
Lee Gulliver, under appointment by the Court of Appeal, for Defendant and Appellant.
Stephen Shane Stark, County Counsel, Maria S. Novatt, Deputy, for Plaintiff and Respondent.
PERREN, J.
Angela T. appeals from the juvenile court order terminating family reunification services and setting a permanent plan hearing. (Welf. & Inst. Code, § 366.26.) She asserts the trial court and the Santa Barbara County Child Welfare Services (CWS) failed to comply with the notice provisions of the Indian Child Welfare Act. We affirm.
All statutory references are to the Welfare and Institutions Code.
STATEMENT OF FACTS AND PROCEDURAL HISTORY
Angela T. (mother) is the mother of Talia B. On June 6, 2006, CWS filed a dependency petition on behalf of two-year-old Talia, mother's second child. The petition alleged that the minor was at risk of physical harm because mother had a long history of untreated substance abuse and her presumed father had a history of violent criminal activity. The parents were unable to care for Talia because they were incarcerated. The petition was amended on August 7, 2006, to include information about mother's arrest in February 2006 for a variety of charges, including forgery and possession of a controlled substance. Mother was ordered to appear at the detention hearing scheduled on June 7, 2006. She did not appear. The child was detained and the matter was set for adjudication on July 12, 2006.
On March 2, 1998, mother's oldest child, a son, was removed from her care due to neglect and her incarceration for possession of drugs and drug paraphernalia. After a contested disposition hearing, a legal guardianship was established for him by the juvenile court.
Mother did not attend the adjudication hearing. At the jurisdictional/dispositional hearing held on October 13, 2006, the court found the allegations in the amended petition to be true, made the minor a dependent of the court, ordered no reunification services and set the matter for a section 366.26 hearing on February 14, 2007.
The report prepared for the section 366.26 hearing recommended that mother's parental rights be terminated and that Talia be adopted by the foster parents with whom she had been placed since the beginning of the dependency action. The report also informed the juvenile court that CWS had sent form JV-130 "Parental Notification of Indian Status" to both parents with return envelopes for their responses. CWS also attempted to contact several of Talia's relatives to inquire of any known American Indian heritage. At the contested section 366.26 hearing, mother was asked if she had any American Indian heritage. Mother's attorney responded there was "[n]o ICWA." When questioned by the court, mother responded she did not know.
At the hearing, the court was informed that CWS had spoken to Talia's paternal grandfather on February 8, 2007, and he stated there was no Indian heritage on the paternal side of the family.
On March 13, 2007, CWS sent a notice of involuntary child custody proceedings for an Indian child to the Bureau of Indian Affairs (BIA). On March 14, 2007, CWS filed an addendum to the section 366.26 report indicating that it had sent JV-130 forms to each parent with a pre-paid return envelope and as of the writing of the report neither parent had returned the form. On that day the juvenile court made a finding that the Indian Child Welfare Act (ICWA) does not apply.
Mother filed a timely petition for extraordinary writ. In her petition, mother asserts the court and CWS failed to conduct the ICWA inquiry as provided by law and the court could not terminate parental rights without complying with ICWA.
CWS filed an answer contending mother waived her right to raise the issue on appeal, and the court and CWS complied with ICWA. In the alternative, CWS argues that if an error regarding ICWA was made, this court should remand the case for the limited purpose of compliance with the statute.
By order of May 10, 2007, the court notified the parties that the notice of intent to seek extraordinary writ relief shall be construed as a timely filed notice of appeal. The clerk was ordered to prepare, serve and file an augmented record. On August 28, 2007, we granted CWS's motion to augment the record with documents relating to the ICWA inquiry conducted for Talia.
DISCUSSION
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. (Cal. Rules of Court, rule 5.664(d).)
(Former Cal. Rules of Court, rule 1439, renumbered eff. Jan. 1, 2007.)
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); Cal. Rules of Court, rule 5.664.) 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); Cal. Rules of Court, rule 5.664(a)(1)(A), (B).) The court has reason to know a child might be an Indian child if, among other things, "[a] person . . . informs the court or the county welfare agency . . . or provides information suggesting that the child is an Indian child." (Cal. Rules of Court, rule 5.664(d)(4)(A).) In addition, section 224.3, subdivision (b) provides in part, "The circumstances that may provide reason to know the child is an Indian child include, but are not limited to, the following: [¶] (1) A person having an interest in the child, including the child, an officer of the court, a tribe, an Indian organization, a public or private agency, or a member of the child's extended family provides information suggesting the child is a member of a tribe or eligible for membership in a tribe or one or more of the child's biological parents, grandparents, or great-grandparents are or were a member of a tribe. . . ."
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); Cal. Rules of Court, rule 5.664(f).) 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.)
Courts have held repeatedly that 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'"]; In re Antoinette S. (2002) 104 Cal.App.4th 1401, 1408.) In In re Antoinette S., for example, the court held that the father's statement that he believed his deceased maternal grandparents might have had Indian ancestry, without identifying a tribe or the birthdates, birthplaces, tribal affiliations, or enrollment statuses of the deceased maternal grandparents, was sufficient to trigger the ICWA notice requirements. (Id. at pp. 1405-1408.) 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.'"
Here, even this very low threshold has not been met. Both mother and father received form JV-130 from CWS and failed to return it. When the trial court asked mother whether she had Indian heritage, she replied, "I don't know." Her attorney said there was no ICWA issue. CWS contacted the child's paternal grandfather, who said there was no Indian heritage on his side of the family. Based on this information, the court made a finding that the ICWA did not apply.
Mother was represented by counsel. Counsel not only did not object to the court's ICWA finding or the information provided the court, he represented that mother had no Indian heritage. Mother presented no evidence whatsoever suggesting even the possibility that Talia has Indian ancestry, nor does she do so now on appeal. Accordingly, we conclude both the court and CWS met the duty of inquiry under the ICWA. (See In re S.B. (2005) 130 Cal.App.4th 1148, 1161-1162 [ICWA duty of inquiry satisfied where court found ICWA did not apply and mother raised no objection]; see also In re Aaliyah G. (2003) 109 Cal.App.4th 939, 942-943 [in the absence of any evidence supporting a reasonable inference child might have Indian heritage, no requirement to make further or additional inquiries].)
Even were we to conclude that the court and CWS did not adequately discharge their duties or inquire under California Rules of Court, rule 5.664(d), reversal is not required. Neither mother nor her appellate counsel has given us any evidence that Talia may be an Indian child within the meaning of ICWA or that remand for further inquiry in the trial court would produce a favorable outcome for mother. (See In re Rebecca R. (2006) 143 Cal.App.4th 1426, 1431 [parent of non-Indian child should not be permitted to cause additional unwarranted delay without any showing the interests protected by ICWA are implicated].)
The order of the juvenile court is affirmed.
We concur:
GILBERT, P.J., COFFEE, J.