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In re A.S.

COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION FOUR
Jan 11, 2012
No. B232409 (Cal. Ct. App. Jan. 11, 2012)

Opinion

B232409

01-11-2012

In re A.S., Jr., A Person Coming Under the Juvenile Court Law. LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent, v. ALAN S., Sr., et al., Defendants and Appellants.

Kate M. Chandler, under appointment by the Court of Appeal, for Defendant and Appellant, Alan S., Sr. Grace Clark, under appointment by the Court of Appeal, for Defendant and Appellant, Carra D. Andrea Sheridan Ordin, County Counsel, James M. Owens, Assistant County Counsel, and Keith Davis, Deputy County Counsel, for Plaintiff and Respondent.


NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

(Los Angeles County Super. Ct. No. CK79975)

APPEAL from an order of the Superior Court of Los Angeles County, David R. Fields, Judge. Affirmed.

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

Grace Clark, under appointment by the Court of Appeal, for Defendant and Appellant, Carra D.

Andrea Sheridan Ordin, County Counsel, James M. Owens, Assistant County Counsel, and Keith Davis, Deputy County Counsel, for Plaintiff and Respondent.

Appellants Carra D. (Mother) and Alan S., Sr., (Father), the parents of A.S., Jr., (A.S.) born in 2008, contend that respondent Department of Children and Family Services (DCFS) failed to comply with the notice and inquiry provisions of the Indian Child Welfare Act (25 U.S.C. § 1901 et seq., (ICWA)). We conclude DCFS substantially complied and affirm.

FACTUAL AND PROCEDURAL BACKGROUND

A. Proceedings Relating to Termination of Parental Rights

As appellants raise no issues with respect to the substance of the court's decision to terminate parental rights, our summary of the facts pertaining to that decision is brief.

In November 2009, DCFS filed a petition seeking jurisdiction over A.S. under Welfare and Institutions Code section 300, subdivision (b) due to the condition of the home and appellants' apparent mental health issues. At the January 2010 jurisdictional hearing, the court found jurisdiction established because the family home was in an unsanitary and hazardous condition. The court ordered reunification services. At the September 2010 review hearing, finding no substantial compliance with the reunification plan, the court terminated reunification services and set a section 366.26 hearing. In February 2011, Mother submitted a petition for modification. The petition was set for hearing and denied. At the April 2011 section 366.26 hearing, the court terminated parental rights and freed A.S. for adoption. Notices of appeal were timely filed.

DCFS intervention had begun some months earlier with a voluntary family maintenance plan, but appellants were unable to comply by keeping their home free of hazards and debris.
Undesignated statutory references are to the Welfare and Institutions Code.

The court dismissed the allegations pertaining to appellants' mental health.

B. Proceedings Relating to ICWA

At the November 13, 2009 detention hearing, Mother reported possible Cherokee ancestry on her father's side. The court ordered DCFS to investigate Mother's claim of Indian heritage by interviewing appellants and any known relatives and to give notice to any applicable tribe. The caseworker interviewed Mother twice prior to the jurisdictional/dispositional hearing, on November 20 and December 4, 2009. Mother reported that "he" -- apparently referring to her father -- had possible Native American ancestry. She identified the tribe as "Cherokee." Mother could provide no further information, such as registration number, specific tribe or affiliation number. She stated that no other relatives were available who could provide any further information.

Father reported no Indian ancestry at that time. Some time later, the possibility that Father had Ute heritage was raised. The court ordered DCFS to investigate Father's possible Indian heritage and notice any applicable tribes. Family members were interviewed and DCFS mailed notice to several Ute tribes noticed. Appellants do not raise any ICWA issues with respect to Father's possible Indian heritage.
Mother also reported possible "Canook" or "Canuck" ancestry on her mother's side. "Canuck" is an informal synonym for "Canadian," not the name of a federally registered Indian tribe. (See Webster's New College Dict. (2005), p. 216; 72 Fed. Reg. 13648-13652 (Mar. 22, 2007) & 76 Fed. Reg. 30438-30490 (May 25, 2011).) In any event, appellants do not raise any ICWA issues with respect to Mother's possible "Canuck" heritage.

On December 1, 2009 and January 15, 2010, DCFS sent notice of child custody proceedings to the Cherokee Nation of Oklahoma, the United Keetoowah Band of Cherokee Indians, and the Eastern Band of Cherokee Indians, as well as the Bureau of Indian Affairs and the Department of the Interior. The notices included A.S.'s name and the date and place of his birth; appellants' names, addresses and the dates and places of their births; and the names of Mother's mother and father; Father's mother and father; and the names of the majority of appellants' grandparents. The birthdate and birthplace of Mother's father was on the notice, which further stated he was homeless and that "[h]e does not know that [he] has a Cherokee background . . . . It was my Gran[d]father Ant[h]ony [D.] that has . . . a Cherokee background."

These are the three federally-recognized Cherokee tribes. (See In re C.D. (2003) 110 Cal.App.4th 214, 226.)

The birthdate and birthplace of Mother's mother was included on the form, as were the birthplaces of Mother's grandmothers and one of her grandfathers. Otherwise the birthdates and birthplaces were omitted as "unknown."

Anthony D.'s name appeared on the notice, which further stated he was residing in Atlanta, Georgia. His name was mistakenly typed in the box labeled "Father's Biological Grandfather."

The caseworker received responses from the Cherokee Nation of Oklahoma, the United Keetoowah Band of Cherokee Indians and the Eastern Band of Cherokee Indians stating that A.S. was not a member of any of the tribes and was not considered an Indian child by any of the tribes. At the April 2011 hearing, the court found that ICWA did not apply to the case.

DISCUSSION

"When a court 'knows or has reason to know that an Indian child is involved' in a juvenile dependency proceeding, a duty arises under ICWA to give the Indian child's tribe notice of the pending proceedings and its right to intervene." (In re Shane G. (2008) 166 Cal.App.4th 1532, 1538, quoting 25 U.S.C. § 1912(a); accord, In re Alice M. (2008) 161 Cal.App.4th 1189, 1195.) Among other things, the notice must include: (1) "The name, birthdate, and birthplace of the Indian child, if known" (2) "The name of the Indian tribe in which the child is a member or may be eligible for membership, if known" (3) "All names known of the Indian child's biological parents, grandparents, and great-grandparents . . . including maiden, married and former names or aliases, as well as their current and former addresses, birthdates, places of birth and death, tribal enrollment numbers, and any other identifying information, if known." (§ 224.2, subd. (a)(5)(A)-(C).)

Under ICWA, an "Indian child" is "any unmarried person who is under age eighteen and is either (a) a member of an Indian tribe or (b) 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).) Determination of tribal membership is made by the tribe. (In re B.R. (2009) 176 Cal.App.4th 773, 782; In re Santos Y. (2001) 92 Cal.App.4th 1274, 1300.) ICWA applies only to federally-recognized Indian tribes. (In re B.R., supra, at p. 781; In re K.P. (2009) 175 Cal.App.4th 1, 5.)

Neither the child nor the parents need be enrolled members of a tribe to trigger the ICWA notice requirements. (Dwayne P. v. Superior Court (2002) 103 Cal.App.4th 247, 254.) Notice must be given when the court "knows or has reason to know that an Indian child is involved . . . " (25 U.S.C. § 1912(a)) or "that the child may be an Indian child." (Guidelines for State Courts; Indian Child Custody Proceedings (44 Fed.Reg. 67586 (Nov. 26, 1979).) The court has such knowledge "[i]f anyone asserts that the child is an Indian or that there is reason to believe the child may be an Indian" (id., p. 67589) or "a person having an interest in the child . . . informs or otherwise provides information suggesting that the child is an Indian child to the court." (Cal. Rules of Court, rule 5.481(a)(5)(A).) Moreover, when the caseworker "knows or has reason to know that an Indian child is or may be involved," he or she "must make further inquiry as soon as practicable by: [¶] (A) Interviewing the parents, Indian custodian and 'extended family members' as defined in 25 United States Code section 1901 and 1903(2), to gather the information . . . which is required to complete the Notice of Child Custody Proceeding for Indian Child (form ICWA-030)." (Cal. Rules of Court, rule 5.481(a)(4)(A).)

Title 25 United States Code section 1903(2) defines "'extended family member[s]'" to include the child's "grandparent, aunt or uncle, brother or sister, brother-in-law or sister-in-law, niece or nephew, first or second cousin, or stepparent."

Appellants contend that the caseworker failed to conduct an adequate inquiry regarding A.S.'s possible Indian heritage and in particular, failed to interview Mother's mother, maternal grandmother and maternal aunt, all of whom were apparently readily accessible. Appellants based their contention on the fact that the only interviews relating to Indian heritage discussed in the caseworker's reports were the two interviews of Mother in November and December 2009. However, the content of the notices, which included the names of nearly every grandparent and great-grandparent and the birthdates and birthplaces of the majority of the grandparents, indicate that the caseworker conducted a more extensive inquiry than the reports reflected and obtained some information from sources other than Mother. Moreover, Mother made clear in her interviews with the caseworker that the possible Cherokee heritage was through her father, who was described as homeless and unaware of any information about his heritage. Thus, interviews of maternal relatives would have been pointless. This was confirmed by Mother's statement to the caseworker that there were no available family members with further information about A.S.'s possible Cherokee heritage.

The caseworker had been in contact with the maternal aunt, Melissa B., who lived in Georgia, about possible placement of A.S. Mother lived for a time with her maternal grandmother and the caseworker visited their home. Mother's mother was present in court and testified on at least one occasion.

As discussed, DCFS sent notice to all three federally-recognized Cherokee tribes. The notices contained A.S.'s name, birthdate and birthplace; the names, addresses, birthdates and birthplaces of his parents (appellants); the name, birthdate and birthplace of the grandparent Mother had identified as possibly having Cherokee heritage; the names, birthdates and birthplaces of the majority of his remaining grandparents; and the names of the majority of his great-grandparents. Appellants specify no significant errors in the notices and do not suggest that information omitted because it was unknown, such as the birthdates and birthplaces of certain grandparents and great-grandparents, would have been available through interviews with the maternal relatives or any other relatives whose contact information was known to the caseworker. We conclude that DCFS complied with ICWA by providing all known and available information to the tribes.

DISPOSITION

The order terminating parental rights is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

MANELLA, J. We concur: WILLHITE, Acting P. J. SUZUKAWA, J.


Summaries of

In re A.S.

COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION FOUR
Jan 11, 2012
No. B232409 (Cal. Ct. App. Jan. 11, 2012)
Case details for

In re A.S.

Case Details

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

Court:COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION FOUR

Date published: Jan 11, 2012

Citations

No. B232409 (Cal. Ct. App. Jan. 11, 2012)