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Los Angeles Cnty. Dep't of Children & Family Servs. v. Billy P. (In re Isaac P.)

COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION TWO
Jan 31, 2012
B234953 (Cal. Ct. App. Jan. 31, 2012)

Opinion

B234953

01-31-2012

In re ISAAC P., a Person Coming Under the Juvenile Court Law. LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent, v. BILLY P., Defendant and Appellant.

Grace Clark, under appointment by the Court of Appeal, for Defendant and Appellant. Andrea Sheridan Ordin, County Counsel, James M. Owens, Assistant County Counsel, Sarah Vesecky, 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. CK65775)

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

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

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

Billy P. (Father) appeals from a juvenile court order terminating his parental rights to his son Isaac. Father's sole contention on appeal is that the Bureau of Indian Affairs (BIA) "did not attempt to identify a tribe for the maternal side of the family, causing inadequate notice" under the Indian Child Welfare Act (ICWA). The law requires us to presume that the BIA regularly carries out its official duties. Father did not rebut the presumption of regularity.

FACTS

Isaac was born in April 2008. He and his mother Valerie G. (aka Vanessa G.) (Mother) tested positive for methamphetamine at the hospital. The Department of Children and Family Services (DCFS) was alerted. Mother was recently released from prison after serving six months for receiving stolen property and joy riding. Father was in prison for auto theft. Mother admittedly chose to use methamphetamine knowing it could have an adverse effect on her fetus. She denied Indian heritage. Mother feigned interest in reunification, but gave the DCFS social worker a false address and a false telephone number, left the hospital before being discharged, and could not be found.

When contacted in prison, Father was not cooperative. He asked whether Isaac tested positive for cocaine at birth, demanded a paternity test, and refused to disclose any information about Mother. Father has a rap sheet that is nine pages long. Mother has a lengthy felony record as well. They are habitual drug abusers and thieves.

A dependency petition was filed on behalf of Isaac, alleging that he was born with a positive toxicological result for methamphetamine. Mother's drug abuse endangers Isaac's physical and emotional health and safety, and she abandoned Isaac in the hospital, making no plan for his care and supervision. The petition alleged that Father failed to provide Isaac with the necessities of life, placing the baby at risk of physical and emotional harm.

On April 29, 2008, the court found a prima facie case for detaining Isaac, and gave custody to DCFS. DCFS subsequently determined that Mother used a false name at the hospital when she delivered Isaac. Using Mother's correct name, DCFS learned that Mother has two older children: Margaret (taken into protective custody in November 2006, when Mother tested positive for methamphetamine and cocaine at the time of birth) and Michelle (in legal guardianship since one year after her birth in 2001). In Margaret's case, Mother admitted using methamphetamine, marijuana, alcohol and heroin since the age of 13 or 14. DCFS filed an amended petition for Isaac, to correct Mother's name and to add allegations that Mother failed to reunify with her daughter.

In its jurisdiction report, DCFS indicated that ICWA "does or may apply." Father claimed that his great grandmother was a full-blooded Cherokee. Though Father did not know his great grandmother's name or birth date, he provided DCFS with the information he had to enable DCFS to give notice under ICWA. Father "stated that he is one eighth American Indian and does not believe that child Isaac [P.] is eligible." Isaac's maternal great aunt, Sylvia W., told DCFS that "[m]aternal relatives claim Indian Heritage but do not know tribe name . . . ." DCFS gave notice to the Cherokee Nation, the United Keetoowah Band of Cherokee and the Eastern Bank of Cherokee Indians. It also gave notice to the BIA twice, once for Father and once for Mother. The BIA responded that no action was required because DCFS provided appropriate notice to the tribes.

Mother called Sylvia W. in February 2008 to say that she was pregnant and was still using drugs. After Sylvia W. learned of Isaac's birth, she contacted DCFS: she is adopting Mother's child Margaret, and wants to adopt Isaac as well. Father was willing to attend classes to reunify with Isaac, if he is the baby's biological parent; however, Father wanted "at least a year to get things in order to have [Isaac] in his care." Mother made no attempt to visit Isaac, who underwent emergency surgery on May 20 for pyloric stenosis. Mother had disappeared, and could not be found.

At the jurisdiction hearing on July 21, 2008, the court sustained all but one of the allegations against Mother and Father. Mother was not given reunification services, due to the chronic drug abuse that prevented her from reunifying with her daughter Margaret. Mother was briefly located in early July, while incarcerated, and given oral notice of the hearing. She was subsequently released from jail and promptly disappeared again. Paternity testing showed that Father is Isaac's biological parent, despite his protestations that he was in jail when Mother became pregnant. Father was given reunification services and ordered to undergo random drug testing upon his release from prison, plus individual counseling and parenting programs. Isaac was placed with maternal great aunt Sylvia W.

DCFS received letters from the three noticed Cherokee tribes. They denied that Isaac is an Indian child in relationship to their tribes. On November 10, 2008, the court found that ICWA does not apply.

In January 2009, DCFS reported that Isaac is bonding with Sylvia W. Father was released from prison in October 2008, but did not contact DCFS. The social worker managed to locate Father in January 2009, through his parole officer. Mother's whereabouts were unknown. She calls Sylvia W. and asks for money, but does not inquire about Isaac. Father received referrals for parenting classes, drug testing, and individual counseling to address case issues and his "criminal lifestyle." Father had four negative drug tests, participates in a parenting class and individual counseling, and had monitored visits with Isaac on January 30, February 22, and March 1. The visits were scheduled to last two hours, but Father always terminated the visits after one hour.

In June 2009, DCFS reported that Isaac remains in a safe and stable environment with Sylvia W. and his half-sister Margaret. Father continued to participate in court-ordered services, but his visits were sporadic. He attends three visits per month, with about 75 percent completion, and complains that the distance is too great. He was not interested in attending Isaac's medical visits. The social worker observed that Isaac was not supplied with age-appropriate toys; however, Isaac seemed secure and smiled while being held by Father. Father had a total of 14 visits since his release from prison. Father was arrested by police with Mother on March 4, 2009: they appeared to be intoxicated and admitted to using methamphetamine. Charges were dropped after Father's drug test came back negative. Father completed his parenting class, but continued to attend additional classes to enrich his parenting skills. He requested additional drug tests to show his commitment to staying clean. He continues to attend individual counseling. Sylvia W. wrote to say that she is devoted to Isaac and Margaret, and noted that Father and his relatives did not express any interest in Isaac for the first seven months of the boy's life.

In August 2009, the court directed DCFS to address possible overnight visits for Father. DCFS recommended that Father have overnight visits with Isaac in the home of the paternal aunt. The court approved overnight visits, on condition that Mother not be present during the visits. DCFS was ordered to make unannounced inspections when Father has Isaac. Father had weekend visits with Isaac in September and October 2009. Isaac appeared to be happy with Father, whose interest in his son had greatly increased. He had negative drug tests, attended narcotics anonymous meetings, and denied having contact with Mother; however, Father was seen visiting Mother at an inpatient drug abuse center, with Isaac in tow. Mother was discharged from the program after being caught "huffing" aerosol on the premises.

When confronted by the social worker, Father denied visiting Mother but this was a lie because the records from Mother's facility showed that Father signed the visitor register multiple times, and was seen there by the staff with a baby at hand. Father argued that he left Isaac in his sister's care when he visited Mother; however, that was a lie because Father's sister told the social worker that Father took Isaac "everywhere" he went. Father finally admitted that he wanted Mother to see Isaac.

DCFS reassessed Isaac's risk with Father as "high" because Father violated court orders that Mother is not to be present during Isaac's weekend visits with Father. DCFS asked the court to terminate Father's services. Later, DCFS withdrew its recommendation, and instead recommended that Father receive family preservation services because he consistently tested negative for drugs, had good visits, and Isaac is attached to him. The court approved the recommendation on January 5, 2009. Isaac was placed in Father's home. DCFS was ordered to make weekly unannounced visits to Father's home and he had to continue drug testing.

On May 12, 2010, Father was arrested for giving false information to a police officer regarding a traffic accident. During a progress hearing on June 8, 2010, the court ordered Father to participate in an outpatient drug program, with random drug testing. The court warned Father that he cannot be a monitor if Mother wishes to visit; rather, Mother must contact DCFS to arrange visitation.

In a July 2010 report, DCFS observed that Isaac continues to be comfortable living with Father and the paternal grandmother, while participating in weekend visits with his half-sister Margaret, at the home of Margaret's adoptive mother, Sylvia W. Father sought to have this dependency case terminated because the burden of undergoing family preservation services, weekly drug testing, an outpatient drug program and individual counseling prevent him from working. Mother threatened Sylvia W. in telephone calls, warning her to leave Father alone and to stop accusing him of drug use. Father continued to test negative for drugs. The court ordered that Father continue to have weekly drug tests and that DCFS make unannounced visits to Father's home.

In August 2010, DCFS filed a subsequent petition. It alleged that Father physically abused Isaac by slapping him; that he failed to regularly participate in drug counseling and random and on-demand drug testing; that he violated a court order not to act as a monitor if Mother visited; and that he allowed Mother to have access to Isaac. Isaac was detained and placed in the home of Sylvia W.

Mother called the social worker and accused Father of being "up to his old ways," i.e., using drugs, and she claimed that Father slapped Isaac while she was in Father's room on a visit. The paternal grandmother (who lives with Father) believes that Mother is spending time in Father's room and feels that Mother has a strong influence over Father. Father denies contact with Mother. Father missed drug tests after it was made clear that someone was going to watch him while he gave a urine sample. Father's sister stated that Father uses someone else's urine during tests, to obtain negative results. A case manager at Father's counseling program stated that Father appears to be under the influence of drugs, at times. The court approved Isaac's removal from Father's custody.

DCFS did not recommend reunification services for Father: Isaac has been detained twice in his short life and Father has exhausted the 18 months of reunification services to which he was entitled. On September 16, 2010, the court sustained an allegation that Father failed to regularly participate in drug counseling and random testing, in violation of the court's orders, which places Isaac at risk of physical and emotional harm. The other allegations were dismissed. Father was not given reunification services. The court set a permanent plan hearing date and directed DCFS to proceed with an adoptive home study.

In January 2011, DCFS reported that Father stopped visiting Isaac on September 5, 2010, saying that he was not going to fight for custody of his son. Father was arrested in December 2010, and was due to be released in the fall of 2011. Mother was also incarcerated. Isaac lived with Father from January 7 to July 28, 2010.

A contested permanent plan hearing was conducted on July 15, 2011. Father was present, in custody. Father indicated that he was unable to communicate with Isaac for the last six months because the prison has been in lockdown, which also prevented him from participating in any programs. He was scheduled for release in November 2011. The court terminated parental rights, finding that there was no parental contact with Isaac since September 2010, and neither Mother nor Father has maintained a parental role with Isaac. The matter was referred for adoptive planning. Father appeals from the order terminating parental rights.

DISCUSSION

Father challenges the juvenile court's finding that ICWA does not apply. Specifically, he argues that the BIA did not attempt to identify a tribe for Mother's side of the family, resulting in inadequate notice to the tribes. Father concedes that notice was sent to three Cherokee bands and the BIA. The Cherokee bands determined that Isaac is not an Indian child, on Father's side. As Father observes, Mother denied Indian heritage. He argues that "apparently based on unidentified maternal relatives' claim of Native American heritage through an unknown Indian tribe, the ICWA notices also included the maternal side of Isaac's family." He posits that the BIA did not follow through on the notices it received from DCFS.

The juvenile court findings regarding ICWA are reviewed under a substantial evidence standard. (In re E. W. (2009) 170 Cal.App.4th 396, 403-404.) When possible Indian heritage is raised in a dependency proceeding, but the tribe is unknown, notice must be given to the BIA. (25 U.S.C. § 1912(a).) The BIA "shall make reasonable documented efforts to locate and notify the child's tribe and the child's Indian parents . . . ." (25 C.F.R. § 23.11(f) (2011).) "Under the statutory scheme, the burden of identifying and providing notice to the proper tribe in these circumstances shifts from the state court to the Secretary [of the Interior], who presumably has more resources and skill with which to ferret out the necessary information." (In re Kahlen W. (1991) 233 Cal.App.3d 1414, 1422.)

Father does not argue that the ICWA notices sent by DCFS were deficient on their face. Instead, he asks this Court to presume that the BIA did not perform its duties after receiving proper notice from DCFS. At most, Father says "it appears that . . . the BIA overlooked its responsibility to attempt to identify a tribe for the maternal side of the family" leading "to an apparent oversight" by the BIA. (Italics added.)

Father cites no authority for the proposition that a possible mistake by the BIA is grounds for reversal. The presumption is that the BIA regularly performed its official duties. (Evid. Code, § 644.) No one ever brought to the attention of the juvenile court that the BIA may have failed in its duties. Neither Mother nor her relatives came forward to confirm the vague and ambiguous claim that they have some Indian heritage. In fact, Mother denied Indian heritage.

The information provided to the court must give rise to a reason to know of the child's Indian heritage. The information in this case fell far short of the mark. For all the court could tell, any Indian heritage may have existed five generations earlier, which would not give the court reason to know or to believe that Isaac is an Indian child.

Notice is required when information from the child's extended family suggests that the child is a tribe member, or is eligible for membership, or that the child's biological parents, grandparents, or great-grandparents are or were tribe members; the child resides in a predominantly Indian community; or the child and his family have received tribal services or benefits. (Welf. & Inst. Code, § 224.3, subd. (b)(1).)

In any event, despite the lack of information, DCFS notified the BIA twice. At that point, the duty shifted to the BIA to perform its role. DCFS has no control over the actions of the BIA, nor does the juvenile court. If the BIA did not perform a search for a tribe on Mother's side (which we do not know for certain), this is not a grounds for reversal.

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.

BOREN, P.J. We concur:

DOI TODD, J.

CHAVEZ, J.


Summaries of

Los Angeles Cnty. Dep't of Children & Family Servs. v. Billy P. (In re Isaac P.)

COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION TWO
Jan 31, 2012
B234953 (Cal. Ct. App. Jan. 31, 2012)
Case details for

Los Angeles Cnty. Dep't of Children & Family Servs. v. Billy P. (In re Isaac P.)

Case Details

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

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

Date published: Jan 31, 2012

Citations

B234953 (Cal. Ct. App. Jan. 31, 2012)