Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
Alameda County Super. Ct. No. 0J07008576
Judge of the Superior Court of Contra Costa County, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.
T.G., the alleged father of T.K.L.G (the minor), appeals from an order denying his Welfare and Institutions Code section 388 petition and terminating his parental rights. T.G. contends the order terminating his parental rights must be reversed because the Alameda County Social Services Agency (Agency) had reason to know that the mother and the minor had Cherokee ancestry, yet mistakenly sent notice pursuant to the Indian Child Welfare Act (ICWA) to the Choctaw tribes.
All subsequent statutory references are to the Welfare and Institutions Code unless otherwise indicated.
We shall hold that notices were properly sent to three Choctaw tribes based upon specific information that the mother had possible Choctaw ancestors, and all three responded that the child is not an Indian child. The only reference in the record to Cherokee ancestry is an obvious clerical error, and in any event was not supported by any specific information that gave the court or the Agency reason to know that the mother or the minor might be eligible for membership in a Cherokee tribe.
We summarize the facts only as relevant to the issue of compliance with the IWCA, because T.G. does not raise any other claim of error.
On November 28, 2007, the Agency filed a section 300 petition on behalf of the minor, born in September 2007. The petition alleged, among other things, that the minor’s mother had a continuing substance abuse problem, and had left the minor with a caretaker for an extended period without supplies or other provision for his support. The minor’s half sibling, L.J., had tested positive for cocaine at birth. Mother also had a history of leaving L.J. with daycare providers for extended periods without provision for support, and Mother’s parental rights to L.J. had been terminated after she failed to reunify with L.J. despite receiving extensive services, including substance abuse treatment. The petition stated that Mother was homeless, and identified T.G., who was incarcerated, as an alleged father. Mother and T.G. were represented by counsel at the detention hearing, but neither appeared, and the court detained the minor.
The jurisdictional and dispositional reports stated that the minor has two half siblings, A.B., born in 1995, who had been adopted, and L.J., born in 2005, who was currently a dependant child placed with a relative. Mother had received reunification services for both and failed to reunify. Mother had contacted the child welfare worker and had initially agreed to a drug test, but then canceled. The reports further stated that the ICWA did not apply.
The court ordered a paternity test for T.G., and continued the jurisdictional and dispositional hearing to February 11, 2008. Mother and T.G. did not appear at the hearing. T.G.’s counsel stated that the paternity test had not been completed and the issue of paternity was still unresolved. He stated T.G. would seek services if he were found to be the biological father. Mother’s counsel stated Mother was homeless, her counsel had no way to reach her, and Mother had not contacted her counsel in over a month. The parties stipulated to the fact that L.J. had been born with a positive toxin screen, that he was detained in February 2005, shortly after his birth, and that Mother was offered services but failed to reunify, and her parental rights were terminated. The court also took judicial notice of the findings, orders, and judgment in that prior dependency. The court denied reunification services to Mother and stated that services would not be provided “to the alleged father, unless and until he establishes a legal basis for receiving these services,” and set a section 366.26 hearing for June 18, 2008.
In the meantime, the minor was placed with his maternal aunt, who had adopted A.B. and was in the processes of adopting L.J. Two due diligence reports were filed. The due diligence report as to Mother stated the minor “may be an Indian with the Choctaw tribe(s). [¶] . . . [Mother ] has some Choctaw lineage. When [the minor’s] older sibling, [L.J.], was born, the undersigned obtained some family history from the maternal aunt and current caretaker of [the minor and L.J.]. The Tribe was noticed per law, and declined to participate, finding that [L.J.] was not an Indian child under ICWA. The court, in that case, made a finding that [L.J.] was not an Indian child, and that ICWA did not apply. [The minor] has the same mother and matrilineal status, and the same information would apply to him. It could therefore be safely presumed that the same ICWA status would apply . . . . [Nonetheless,] the Tribe will be noticed per ICWA requirement on behalf of [the minor] for the 366.26 hearing.”
The due diligence report, as to T.G., stated he had been located in Santa Rita jail and was personally served with notice of the section 366.26 hearing. It stated: “The Indian Child Welfare Act does or may apply. [¶] The [minor] may be an Indian child with the Cherokee Nation tribe(s). [¶] . . . [M]other has Native American heritage. The Cherokee Nation had advised the Agency that another older sibling was not an Indian child, and they were not going to intervene. The Court then made findings that ICWA did not apply to the half sibling. The circumstances are the same as to the mother. At this time, it is not [known] whether the alleged father has any Indian heritage, so a finding cannot be requested.”
The court found due diligence and authorized notice of the section 366.26 hearing to Mother via her counsel. Shortly thereafter, the child welfare worker filed an ex parte application and obtained an order that paternity testing for T.G., the alleged father, be done as soon as possible.
Prior to the section 366.26 hearing, the agency filed an ICWA notice that identified three Choctaw tribes in which the minor might be eligible for membership, based upon the information the minor’s maternal aunt had provided. The notice identified information that the child’s maternal great-grandfather’s mother was 100 percent Choctaw and had moved with the tribe from Oklahoma to Arkansas. The notice also stated that “[a]ll three tribes found (April 2007) a prior sibling . . . [was] not . . . enrollable, as mother was not enrollable.”
The Agency also filed registered receipts and responses of all three tribes finding that the minor was not eligible for membership, along with an acknowledgement of receipt of notice from the Bureau of Indian Affairs returning the notice based upon the tribal responses.
The section 366.26 report stated: “The Secretary of the Interior, the Bureau of Indian Affairs, and the Tribes have been notified as dictated by law. At this writing, responses received from The Mississippi Band of Choctaw Indians, Jena Band Choctaw, and the Choctaw Nation of Oklahoma all indicate that [the minor] is not an Indian child and they will not intervene in this matter. Registered receipt cards . . . have been received from the above parties and will be filed with the Court.”
On the date scheduled for the section 366.26 hearing, the maternal aunt, who had provided the information concerning Mother’s possible Indian ancestry, and who was the prospective adoptive mother, was present. Neither Mother nor T.G. appeared except through counsel. The court decided it would continue the hearing when it was informed that T.G., who was still incarcerated, had not been transferred to Santa Rita so that he could appear. County counsel requested the court, in the meantime, to make ICWA findings. The court agreed, and the following exchange occurred:
“[THE COURT]: . . . It would appear that all the Choctaw tribes have responded and indicated that the child is not a member of the Choctaw tribe. [¶] And I think that’s the only indication we had indicating any Native American ancestry. So I will make a finding today.
“[THE WORKER]: They use Cherokee, Your Honor. They use Cherokee as opposed to Choctaw, I believe.
“[THE COURT]: Okay. If that’s true, we’re in trouble because you noticed the Choctaw tribes.
“[THE WORKER]: Let me just check that just to make sure. [¶] No. It’s correct. Choctaw. I apologize.
“[THE COURT]: You sure? Because Choctaw and Cherokee are not the same thing.
“[THE WORKER]: I checked the notices. I apologize
“[THE COURT]: All right. I will go ahead and make a finding that the IWCA does not apply to this matter.”
The court then continued the section 366.26 hearing to July 14, 2008.
On June 23, 2008, based upon the results of DNA testing that established T.G. is the minor’s biological father, T.G. filed a section 388 petition seeking modification of the February 11, 2008 order denying reunification services to him. He asked that he be provided six months of reunification services and that the permanency planning hearing be vacated. In response to paragraph (3)(g) of the form petition, which asked for information concerning the child’s Indian tribe, if applicable and known, T.G. indicated, “N/A.”
Mother and T.G. appeared at the section 366.26 hearing with counsel, and the maternal aunt and prospective adoptive mother also appeared. T.G. informed the court that he was in jail when the minor was born and had been incarcerated for most of the minor’s life, but that he was taking parenting classes, and would be released in a few months and wanted to raise the child. Mother took no position on the section 388 petition, but stated that she wanted her sister to have the children, that she understood her sister might have to adopt, but she did not want her parental rights terminated.
The court again found the minor is not an Indian child and that the ICWA does not apply. The court also found that T.G. had failed to make a sufficient showing to qualify as a presumed father. The court explained that to be a presumed father he had “to have taken the child in, supported him, held him out to the community as his own” and he had made no such showing. In any event, the court found services to the biological father would not be in the minor’s best interest, and denied the section 388 petition. It found the minor adoptable and terminated parental rights.
Analysis
I.
ICWA NOTICE
T.G. contends the order terminating parental rights must be reversed because the Agency had reason to know that the minor was an Indian child with Cherokee ancestry, yet mistakenly sent notice pursuant to the ICWA to the Choctaw tribes.
The threshold question is whether T.G., as an alleged father, has standing to raise the issue of adequacy of the ICWA notice in this appeal. Under 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 child’s 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.S. § 1914.) The ICWA defines a “parent” as “any biological parent or parents of an Indian child . . .” but expressly excludes “an unwed father where paternity has not been acknowledged or established.” (25 U.S.C.S. § 1903(9).) In In re Daniel M. (2003) 110 Cal.App.4th 703, 707-708 (Daniel M.), the court held that, in light of this exclusion, an alleged father, who had not acknowledged paternity or established paternity through DNA testing prior to a section 366.26 hearing, was not a parent as defined under the ICWA with standing to challenge a lack of ICWA notice in an appeal of the order terminating parental rights. But here, unlike Daniel M., T.G. completed paternity testing a few weeks before the permanency hearing. The results established his status as the minor’s biological parent, and he filed a section 388 petition in which he acknowledged paternity. T.G.’s status as a biological father does not, of course, confer upon him the same rights as a presumed father for the purposes of the issues he may raise in dependency proceedings. (See In re Christopher M. (2003) 113 Cal.App.4th 155, 160.) Nonetheless, T.G. contends an unwed father who establishes paternity by DNA testing is not excluded from the definition of a parent under the ICWA, and therefore has standing to raise the issue of notice. We need not resolve the question, because, assuming arguendo that T.G. has standing to raise the issue of adequacy of notice, the record does not support his contention that notices were mistakenly sent to the Choctaw tribes instead of to the Cherokee tribes.
The notice requirements of the ICWA specify that “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 child’s tribe, by registered mail with return receipt requested, of the pending proceedings and of their right of intervention.” (25 U.S.C.S. § 1912(a).) If the identity of the tribe cannot be determined, notice must be given to the Bureau of Indian Affairs. (Ibid.; see also In re Robert A. (2007) 147 Cal.App.4th 982, 988.) The same standard requiring notice when the court or agency knows or has reason to know the child is an Indian child is now codified in sections 224.3, subdivision (d); 290.1, subdivision (f); 290.2, subdivision (e); 291, subdivision (g); 292, subdivision (f); 293, subdivision (g); 294, subdivision (i); 295, subdivision (g); and 297, subdivision (d). State law also mandates notice to “all tribes of which the child may be a member or eligible for membership.” (§ 224.2, subd. (a)(3); In re J.T. (2007) 154 Cal.App.4th 986, 992.)
T.G. did not assert below, nor does he contend on appeal, that he has any Indian ancestry, or that the agency or the court failed to perform any duty of inquiry with respect to his Indian ancestry. (See Cal. Rules of Court, rule 5.481.) The only information in the record that the minor might be an Indian child was based upon Mother’s family history. The record reflects that the agency, in a prior dependency proceeding involving the minor’s older half sibling, obtained specific information through the maternal aunt that Mother had some “Choctaw lineage.” The agency sent notices of the dependency proceeding to three Choctaw tribes, based upon information from this relative that one or more of the half sibling’s great-grandparents might have been a member of or eligible for membership in a Choctaw tribe. The agency received responses that the older half sibling was not an Indian child. In the absence of any information that he might be an Indian child through his biological father, it was a safe assumption that the minor also was not an Indian child, because the minor had the same matrilineal status as his half sibling. (But see In re Robert A., supra, 147 Cal.App.4th at pp. 989-990 [notices and responses sent in a subsequent dependency proceeding involving half sibling would not necessarily render ICWA notice error in prior dependency harmless].) Nonetheless, the agency again sent notices in this proceeding to the Secretary of the Interior, the Bureau of Indian Affairs, and the three Choctaw tribes that it had previously noticed. All of the responses were that the minor was not an Indian child, and the notices, the registered receipts of notice, and responses were all filed with the court. (§ 224.2, subd. (c).)
T.G. bases his assertion that the notices should have been sent to the Cherokee tribes, not the Choctaw, upon two instances in which the child welfare worker made statements confusing the Choctaw and Cherokee tribes. First, he cites the child welfare worker’s exchange with the court that occurred prior to the court making its formal finding that the minor is not an Indian child. When the court stated that the only indication of Indian ancestry was with the Choctaw tribes, the child welfare worker interjected: “They use Cherokee, Your Honor. They use Cherokee as opposed to Choctaw, I believe.” The record reflects, however, that the child welfare worker was merely momentarily confused, corrected herself, and confirmed the court’s initial statement that the only indication of Indian ancestry was through the Choctaw tribes.
Second, T.G. cites the reference by the same child welfare worker in one of the two due diligence reports to the “Cherokee Nation tribe(s)” when describing responses to ICWA notices sent in connection with the prior dependency involving the minor’s older sibling. When read in context of the entire record, it is obvious that this reference to the Cherokee Nation was merely a clerical error reflecting the same momentary confusion of Choctaw and Cherokee evinced by the child welfare worker at the hearing in which the court made its finding that the minor is not an Indian child. Every other description in the record of information concerning the mother’s possible Indian ancestry states she might have some relationship to the Choctaw tribes, including the more detailed information set forth in the other due diligence report authored by the same child welfare worker, the summary concerning ICWA status in the section 366.26 report, and the ICWA notices filed with the court, which only identify maternal relatives who might be members of, or eligible for membership in, a Choctaw tribe.
The duty to notify a tribe is not triggered by a child welfare worker’s inadvertent reference to it, unsupported by any information that would give the court or the worker a “reason to know” that the child is or may be eligible for membership in that tribe. (§ 224.2, subd. (a).) The only evidence in the record of a circumstance providing a “reason to know” was the information provided by a member of the child’s extended family, i.e., the maternal aunt, who identified relatives with possible relationships to the Choctaw tribes. (See Cal. Rules of Court, rule 5.481(a)(5) & (b)(3).) The agency sent notices to the tribes identifying these relatives in connection with the prior dependency involving the minor’s half sibling and in this proceeding, and received and filed with the court responses determining that the child was not an Indian child. The purpose of providing an interested tribe with notice and an opportunity to intervene was thereby fully served. (See In re Desiree F. (2000) 83 Cal.App.4th 460, 469.) T.G. fails to cite in the record, or make any other affirmative showing, that there was any circumstance that would give the worker who made the conflicting references to the Cherokee any “reason to know” the child might be a member of or eligible for membership in a Cherokee tribe. We conclude the minor discrepancies T.G. cites do not meet his burden to demonstrate error with respect to the tribes noticed. “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.” (In re Rebecca R. (2006) 143 Cal.App.4th 1426, 1431.)
Conclusion
The judgment is affirmed.
We concur: MARCHIANO, P. J., MARGULIES, J.