Opinion
NOT TO BE PUBLISHED
APPEAL from orders of the Superior Court of Los Angeles County, No. CK61670, Sherri Sobel, Referee.
Michael A. Salazar, under appointment by the Court of Appeal, for Defendant and Appellant.
Andrea Sheridan Ordin, County Counsel, James M. Owens, Assistant County Counsel, Kim Nemoy, Principal Deputy County Counsel, for Plaintiff and Respondent.
KLEIN, P. J.
R.B. (father) appeals jurisdictional findings and dispositional orders made with respect to father’s infant son, J.B. Father contends the jurisdictional findings against him lack evidentiary support, the juvenile court erred in failing to place J.B. in father’s care, and the case must be remanded with directions to comply with the Indian Child Welfare Act (ICWA). We affirm the jurisdictional findings and dispositional orders of the juvenile court but conditionally reverse the finding the ICWA does not apply and remand with directions to conduct further proceedings on the ICWA issue.
FACTS AND PROCEDURAL BACKGOUND
1. Detention of J.B.
J.B. and his mother tested positive for cocaine at J.B.’s birth in February of 2011. The Department of Children and Family Services (the Department) reported mother has older children who were declared dependents in 2005 based on physical abuse by their legal guardian, maternal great aunt. The children were returned to maternal great aunt’s care a year later and, upon her death, were placed in a permanent plan and have not reunified with mother.
Regarding the ICWA, the detention report indicated that, according to a minute order in the siblings’ case, the juvenile court had previously found the ICWA did not apply to J.B.’s siblings. However, shortly after J.B.’s birth, mother stated J.B. had Cherokee ancestry. The report indicated mother “states at times that she may or may not have a tribal affiliation.”
Mother indicated she has abused cocaine for the last 10 years and has been involved with father for six years. Mother stated father is unable to provide a home for J.B. because his wife of 29 years is unaware of their relationship. At the hospital, father stated his wife was aware of the baby but he refused to provide his home address.
At a Team Decision Making meeting, father stated he has been with mother for the past four years and has helped her with her other children who are in foster care. Father said he could not convince mother to obtain prenatal care during her pregnancy. He allowed mother to use his van but was unable to take her to the doctor because he had to work. Father had to report the van stolen and have mother arrested because she drove the van with other people in it. Father indicated he and mother were once involved in a physical altercation in which mother stabbed father in the shoulder. Father refused to give his address, stating it was unnecessary as his wife would not allow father to bring J.B. to their home. Father said he had found a room offered by a woman who could provide day care for J.B. However, father would not provide the address of the room or the name of the woman. Father indicated mother could live in the room with J.B. and he would provide for them but would continue to live with his wife. Father asked mother to stay in the room but she declined and opted to continue using drugs. Father does not know mother’s whereabouts and stated she is a prostitute who “often disappears.” However, father loved her despite her lifestyle. Mother once set fire to a door after father found her with someone. Father indicated “there is a lot of domestic violence in the home. He stated that mother was stabbed by an unknown person.”
Father’s criminal history consisted of an arrest in May of 2000 for kidnapping for the purpose of rape or robbery (Pen. Code, § 209, subd. (b)(1)); an arrest in September of 2000 for rape (Pen. Code, § 261, subd. (a)(2)) and false imprisonment (Pen. Code, § 236); a conviction of battery (Pen. Code, § 243, subd. (a)) and disorderly conduct/prostitution (Pen. Code, § 647b) in 2001; a conviction of disorderly conduct/prostitution (Pen. Code, § 647b) in 2005; and, a conviction of driving under the influence in 2008 (Veh. Code, § 23152, subd. (a).) Father denied the use of drugs.
2. The detention hearing.
At the detention hearing on February 14, 2001, mother filed a Parental Notification of Indian Status form (ICWA-020) which indicated mother may have Cherokee ancestry. The juvenile court observed mother’s case had never previously “been an American Indian case” and asked mother what information she had “about Cherokee heritage.” Mother responded: “From my knowledge[, ] I get it from my grandmother.” When the juvenile court asked if mother’s grandmother was a member of a tribe, mother responded, “I’m not sure.” The juvenile court stated “none of [mother’s] other children were ICWA. At this time I have no reason to know that this is an American Indian case. If the mother has any further information[, ] she needs to provide it to us.” Mother responded, “Okay.”
The juvenile court ordered J.B. detained and directed the Department to investigate release of the child to father. After father indicated his relationship with mother remained ongoing, the juvenile court directed father to attend Al-Anon at least twice a week and granted father monitored visitation.
3. Social reports submitted for the jurisdiction/disposition hearing.
The jurisdiction/disposition report indicated father had submitted a written statement in which he denied he had failed to protect J.B. and claimed he had “no history of engaging in violent altercations” with mother, he had never been stabbed by mother and mother had “never hurt or endangered her children.” With respect to the battery conviction, father asserted he “was drugged....”
The Department reported father had visited J.B. consistently and was attending anger management classes and Al-Anon. Regarding placement of J.B. in father’s care, the social worker informed father a home inspection would be conducted as soon as father obtained appropriate housing and provided evidence of child care. Father indicated he would notify the social worker when he had completed these requirements.
4. The jurisdiction/disposition hearing.
On March 21, 2011, the juvenile court conducted the adjudication. When asked about the risk to J.B. if released to father, the social worker testified father remains in a relationship with mother. Although father once indicated he was going to obtain separate housing, he had not done so.
Father denied he told the intake social worker that mother once stabbed him in the shoulder, that there was domestic violence in mother’s home, or that mother had been stabbed by an unknown person. Father indicated he wished to have J.B. live with him, his wife now was willing to have J.B. live in their home, he was complying with the case plan and he had not had contact with mother since the beginning of March.
After hearing argument, the juvenile court stated: “Unfortunately the father... is completely obsessed... with a violent drug abusing prostitute who has lost three other children....” “Father believes he can save [mother]. He hasn’t been able to do it in... four years and is certainly not going to use this [child] as a guinea pig to try to keep the mother in his life. It’s not going to happen.”
The juvenile court sustained counts b-1, b-2 and b-3 of the dependency petition. The juvenile court found, by clear and convincing evidence, there was substantial danger to J.B.’s physical well-being and there were no reasonable means to protect the child without removal “from the parents.”
Count b-1 alleged J.B. was born with a positive toxicology screen for cocaine, mother tested positive for cocaine at the child’s birth and father failed to take action to protect the child when he knew of the mother’s illicit drug use.
CONTENTIONS
Father contends the jurisdictional findings against him in counts b-1 and b-3 lacked evidentiary support. With respect to the removal of J.B. from parental custody, father contends the juvenile court erroneously applied Welfare and Institutions Code section 361 subdivision (c), rather than section 361.2. Father also contends mother’s assertion of Indian heritage through her grandmother was sufficient to require the Department and the juvenile court to investigate further by interviewing extended family members and, if necessary, to give notice under the ICWA.
Subsequent unspecified statutory references are to the Welfare and Institutions Code.
DISCUSSION
1. Substantial evidence supports the jurisdictional findings as to father.
Father contends there was insufficient evidence to permit the juvenile court to conclude father failed to take action to protect J.B. from mother’s illicit drug use as alleged in count b-1, or that mother and father “have a history of engaging in violent altercations” as alleged in count b-3.
Initially, we note father has not challenged the sufficiency of the evidence to support the jurisdictional findings as to mother in count b-2. Uncontested allegations against one parent are sufficient for jurisdiction. (In re Alexis H. (2005) 132 Cal.App.4th 11, 16; In re James C. (2002) 104 Cal.App.4th 470, 482; In re Alysha S. (1996) 51 Cal.App.4th 393, 397 [“a jurisdictional finding good against one parent is good against both”].) Thus, even if father’s arguments had merit, J.B. nonetheless would remain a dependent child. However, even if this point is overlooked, the evidence was sufficient to support the allegations as to father.
A juvenile court’s jurisdictional findings must be supported by a preponderance of the evidence. (In re J.K. (2009) 174 Cal.App.4th 1426, 1432; In re P.A. (2006) 144 Cal.App.4th 1339, 1344; § 355, subd. (a).) We review a juvenile court’s jurisdictional finding for substantial evidence. In so doing, we view “the record in the light most favorable to the challenged order, resolving conflicts in the evidence in favor of that order, and giving the evidence reasonable inferences.” (In re Alexis E. (2009) 171 Cal.App.4th 438, 450-451; In re Savannah M. (2005) 131 Cal.App.4th 1387, 1393; In re Heather A. (1996) 52 Cal.App.4th 183, 193.)
As relevant here, section 300, subdivision (b) provides for dependency jurisdiction when “[t]he child has suffered, or there is a substantial risk that the child will suffer, serious physical harm or illness, as a result of the failure or inability of his or her parent or guardian to adequately supervise or protect the child....”
With respect to count b-1, which alleged father failed to take action to protect J.B. from mother’s illicit drug use, father contends he gave mother transportation to prenatal care but could not force her to attend and provided her with a room but she refused to move into it and continued to use drugs. Father claims there was nothing more he could have done and concludes the allegation against him in count b-1 must be set aside.
Although father took some minimal steps to protect J.B., father’s omissions were significant. He failed to ensure that mother attended prenatal care and took no action to prevent mother’s drug use during the pregnancy. Father could have driven mother to prenatal care appointments, gone with her to drug treatment and made plans to assume custody of the child at his birth. Given that father had mother arrested for misusing his van, he also could have sought to have her arrested for using drugs. Rather than undertaking any of these options, father allowed mother to expose J.B. to drugs during her pregnancy. Thus, the evidence supports the juvenile court’s finding on count b-1.
With respect to count b-3, father notes he denied that he told the initial social worker that mother stabbed him in the shoulder during an altercation. Further, even accepting his alleged statement to the initial social worker as true, there was no indication as to when the incident occurred or the severity of father’s injuries, and there is no evidence of “a history” of domestic violence. Father also claims there was insufficient evidence indicating domestic violence was likely to continue and that it directly placed the child at risk of physical harm. (In re Daisy H. (2011) 192 Cal.App.4th 713, 717.) Father further contends his 10-year old misdemeanor battery conviction does not warrant jurisdiction under section 300, subdivision (b). (In re Sergio C. (1999) 70 Cal.App.4th 957, 960.)
Although father testified mother never stabbed him, the juvenile court properly could credit father’s statements in the detention report that mother once stabbed father during an altercation and that domestic violence is an ongoing aspect of mother’s lifestyle. (See § 355, subd. (b).) Given the juvenile court’s finding that the relationship between mother and father remained ongoing, these facts were sufficient to support the count alleging J.B. was at risk of being exposed to domestic violence.
Additionally, despite father’s attempt to explain the circumstances surrounding his battery conviction, he concedes he previously was convicted of battery. In the case cited by father, In re Sergio C., supra, 70 Cal.App.4th at p. 960, there was insufficient proof of a history of prior convictions. (Ibid.)
In sum, the evidence amply supports the jurisdictional findings as to father in counts b-1 and b-3.
2. Removal of J.B. from parental care.
With respect to removal of J.B. from parental custody, father contends the juvenile court should have applied section 361.2, which directs that, when a child is removed from the custody of a parent pursuant to section 361 subdivision (c), the juvenile court must place the child with the non-custodial parent, if that parent requests custody, unless the juvenile court finds by clear and convincing evidence placement with the non-custodial parent would be detrimental to the safety, protection, or physical or emotional well-being of the child. (See In re John M. (2006) 141 Cal.App.4th 1564, 1569-1570; In re Luke M. (2003) 107 Cal.App.4th 1412, 1426.) Additionally, section 361.2, subdivision (c) requires the juvenile court to state the basis for its determination “either in writing or on the record....” (§ 361.2, subd. (c).)
Father notes J.B. was removed from mother’s custody and he requested placement of the child in his home. Father asserts he was in compliance with all orders of the juvenile court. Thus, there was no clear and convincing evidence it would be detrimental to J.B.’s safety, protection or physical or emotional well being to be placed in father’s custody. Father concludes the juvenile court erred in failing to place J.B. in his care as required under the provisions of section 361.2.
This claim is meritless. Assuming for the sake of discussion the juvenile court should have addressed section 361.2, subdivision (a) because J.B. was not residing with father at the time the section 300 petition was filed, any error was harmless. The juvenile court determined by clear and convincing evidence under section 361, subdivision (c)(1) that placement with either parent would be detrimental to J.B.’s well being, a substantial danger existed to his physical well-being and there were no reasonable means to protect the child without removal from his parents. Based on this express finding, father is unable to demonstrate prejudice. (See In re P.A. (2007) 155 Cal.App.4th 1197, 1212 [juvenile court finding by “ ‘clear and convincing evidence there exist[ed] a substantial danger to the children and [there was] no reasonable means to protect them without removal from the parents’ custody’ ” amounted to a finding that returning the child to her parents would be detrimental].)
In any event, father was in no position to have J.B. placed in his care. Father initially stated his wife was unwilling to have the child in her home and he planned to rent a room for mother and the child. He next planned to secure alternative housing for himself, but he failed to do so. Father’s testimony at the adjudication that his wife now was willing to have J.B. placed in their home was the first indication of this development. The juvenile court cannot be faulted for not considering this placement when father consistently had refused to disclose his home address and the Department had not been provided an opportunity to evaluate the home.
Additionally, father’s continuing involvement with mother suggested he would be unable or unwilling to protect J.B. from mother’s drug abuse, violence and instability. Based on the circumstances presented, no abuse of the juvenile court’s discretion appears in its refusal to place J.B. in father’s care.
3. The ICWA issue.
a. Background.
The detention report indicated that, according to a minute order entered in the dependency case of J.B.’s siblings, the juvenile court found the ICWA did not apply to J.B.’s siblings. However, shortly after J.B.’s birth, mother stated J.B. has Cherokee ancestry.
At the detention hearing, mother filed a Parental Notification of Indian Status form (form ICWA-020) which indicated mother may have Cherokee heritage. The juvenile court observed mother’s case had never previously “been an American Indian case” and asked mother what information she had “about Cherokee heritage.” Mother responded: “From my knowledge[, ] I get it from my grandmother.” When the juvenile court asked if mother’s grandmother was a member of a tribe, mother responded, “I’m not sure.” The juvenile court stated “none of [mother’s] other children were ICWA. At this time I have no reason to know that this is an American Indian case. If the mother has any further information[, ] she needs to provide it to us.” Mother responded, “Okay.”
b. The relevant law.
“Congress enacted ICWA in 1978 to protect Indian children and their tribes from the erosion of tribal ties and cultural heritage and to preserve future Indian generations. [Citations.] Because ‘ “the tribe has an interest in the child which is distinct from but on a parity with the interest of the parents” ’ [citation], a tribe has the right to intervene in a state court dependency proceeding at any time [citation].” (In re Nikki R. (2003) 106 Cal.App.4th 844, 848.)
If the juvenile court or the social worker “knows or has reason to know that an Indian child is involved, ” the social worker must “make further inquiry regarding the possible Indian status of the child... by interviewing the parents... and extended family members... and contacting... any other person that reasonably can be expected to have information regarding the child’s membership status or eligibility.” (§ 224.3, subd. (c); see also Cal. Rules of Court, rule 5.481(a)(4).)
Section 224.3, subdivision (b) provides in pertinent 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... 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....” (§ 224.3, subd. (b)(1); Cal. Rules of Court, rule 5.481(a)(5)(A).) The duty under the ICWA to inquire whether a dependent child is or may be an Indian child is affirmative and continuing. (§ 224.3, subd. (a).)
When a juvenile court “knows or has reason to know that an Indian child is involved” in a dependency case, it must give the child’s tribe notice of the proceedings and its right to intervene. (25 U.S.C. § 1912(a); §§ 224.2, subd. (a), 224.3, subd. (d); Cal. Rules of Court, rule 5.481(b); see also In re Damian C. (2009) 178 Cal.App.4th 192, 196.) “ ‘If the identity or location of... the tribe cannot be determined, ’ the notice need only be given to the BIA [Bureau of Indian Affairs].” (In re S.B. (2005) 130 Cal.App.4th 1148, 1157, quoting 25 U.S.C.A. § 1912(a).)
Because the right to intervene is meaningless unless the tribe receives notification, the ICWA’s notice requirements are strictly construed. (In re Samuel P. (2002) 99 Cal.App.4th 1259, 1267.) If “proper and adequate notice” has been given, and if there has been no response to the notice within 60 days, the juvenile court may determine the ICWA does not apply. (§ 224.3, subd. (e)(3); Cal. Rules of Court, rule 5.482(d).)
“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. [Citations.]” (In re Nikki R., supra, 106 Cal.App.4th at p. 848; In re Merrick V. (2004) 122 Cal.App.4th 235, 246; Dwayne P. v. Superior Court (2002) 103 Cal.App.4th 247, 256-258.) “A hint may suffice for this minimal showing.” (In re Miguel E. (2004) 120 Cal.App.4th 521, 549.)
We review a juvenile court’s ICWA findings for substantial evidence. (In re E.W. (2009) 170 Cal.App.4th 396, 404.)
c. Absent prior ICWA notice with respect to J.B.’s siblings, mother’s statements were sufficient to require the Department to inquire further regarding J.B.’s Indian status and give notice.
Mother told the social worker and the juvenile court she believed she had Cherokee ancestry through her grandmother. Mother filed a Parental Notification of Indian Status form (ICWA-020) indicating this belief.
Based on the authority cited above, mother’s statements provided the juvenile court and the Department reason to know J.B. might be an Indian child. Consequently, the Department had an obligation to inquire regarding the child’s possible Indian status by interviewing “extended family members... and any other person that reasonably can be expected to have information concerning the child’s membership status or eligibility.” (§ 224.3, subd. (c).) “If the inquiry leads the social worker or the [juvenile] court to know or have reason to know an Indian child is involved, the social worker must provide notice. (§§ 224.3, subd. (d), 224.2, subd. (a)(5)(A)-(G).)” (In re Shane G. (2008) 166 Cal.App.4th 1532, 1539.)
Indeed, several cases have held a parent’s statement that a child may belong to a certain tribe is sufficient to trigger ICWA notice. In In re Antoinette S. (2002) 104 Cal.App.4th 1401, the parent’s suggestion the child “ ‘might’ be an Indian child was enough” to satisfy the “ ‘minimal showing required to trigger the statutory notice provisions.’ ” (Id. at p. 1407.)
In In re Alice M. (2008) 161 Cal.App.4th 1189, mother submitted a “Parental Notification of Indian Status” form on which mother “answered ‘American Indian, Navajo-Apache’ in response to the query whether [the child] ‘is or may be a member of, or eligible for membership in, a federally recognized Indian tribe.’ ” (Id. at p. 1194.) In re Alice M. held mother’s response on the form, standing alone, “gave the court reason to know that [the child] may be an Indian child.” (Id. at p. 1198.) Similarly, Dwayne P. v. Superior Court, supra, 103 Cal.App.4th 247, concluded the parents’ statement the child has “Cherokee Indian heritage” was sufficient to trigger notice. (Id. at p. 257.)
The Department asserts there was no duty to investigate or notify here in that there was insufficient reason to believe J.B. might be an Indian child. The Department relies on In re O.K. (2003) 106 Cal.App.4th 152, 157, In re Jeremiah G. (2009) 172 Cal.App.4th 1514, 1516, In re J.D. (2010) 189 Cal.App.4th 118, 125, and In re Z.N. (2009) 181 Cal.App.4th 282, 302. However, these cases are distinguishable.
In In re O.K., supra, 106 Cal.App.4th 152, the child’s paternal grandmother stated “ ‘the boy... may have Indian in him. I don’t know my family history that much, but where [we’re] from it is that section....’ ” (Id. at p. 155.) In re O.K. concluded ICWA notice was not required, finding “[t]he information provided... was too vague and speculative to give the juvenile court any reason to believe the minors might be Indian children.” (Id. at p. 157.) Unlike In re O.K., mother’s ancestry claim was not based on having lived in an area populated by Native Americans.
In re Jeremiah G. held the assertion there was a “possibility” the great-grandfather of the child’s father “was Indian, ” without more, was too vague and speculative to require ICWA notice. (In re Jeremiah G., supra, 172 Cal.App.4th at p. 1517.) However, in that case the father retracted the claim of Indian heritage and there was no other basis for suspecting the child had Native American heritage. (Id. at p. 1521.)
In In re J.D. the paternal grandmother stated, “ ‘I can’t say what tribe it is and I don’t have any living relatives to provide any additional information. I was a little kid when my grandmother told me about our Native American ancestry but I just don’t know which tribe it was.’ ” (In re J.D., supra, 189 Cal.App.4th at p. 125.) In re J.D. found this information “too vague, attenuated and speculative to give the dependency court any reason to believe the children might be Indian children.” (Id. at p. 125.) The present case is distinguishable in that mother provided more detailed information which identified a specific tribe and she filed a Parental Notification of Indian Status form.
In In re Z.N., supra, 181Cal.App.4th 282, the mother stated one of her grandmothers “was Cherokee” and another was “part Apache” but indicated she herself was not registered and did “not believe her mother established any affiliation.” (Id. at p. 297.) In re Z.N. concluded mother’s grandmothers were great grandmothers to the children at issue and mother’s information did not suggest the children were members or eligible for membership as children of a member. (Id. at p. 298.) However, In re Z.N. appears to have improperly determined the issue of eligibility, which is exclusively the province of the tribe.
Unlike In re Jeremiah G. and In re J.D., mother’s statements were not vague and speculative in that she identified the relative through whom J.B. might have Indian ancestry, mother’s grandmother, she cited a specific tribe, the Cherokees, and she filed a Parental Notification of Indian Status form. Given that the ICWA notice provisions are to be interpreted broadly and it is preferable to err on the side of examining thoroughly whether the child is an Indian child, we conclude mother’s claim of Indian ancestry was sufficient to satisfy the “ ‘minimal showing required to trigger the statutory notice provisions.’ ” (In re Antoinette S., supra, 104 Cal.App.4th at p. 1407; Dwayne P. v. Superior Court, supra, 103 Cal.App.4th at pp. 256-257.) Thus, the Department had a duty to inquire further as to J.B.’s Indian heritage and to give notice under the ICWA.
We reach this conclusion with one important caveat related to the juvenile court’s determination the ICWA did not apply to J.B.’s older siblings.
The record does not indicate the basis of the juvenile court’s previous determination the ICWA did not apply to J.B.’s siblings. If the juvenile court based this finding on proper and adequate ICWA notice or a tribal determination J.B.’s siblings are not Indian children, there is no reason to suspect the result will be different as to J.B., given that mother is the only parent claiming Indian heritage. If this is the case, any error in failing to investigate J.B.’s Indian heritage must be considered harmless. (See In re E.W., supra, 170 Cal.App.4th at pp. 400-402 [where notice to tribes was provided regarding one sibling, there was no reason to believe that providing notice regarding the other sibling would produce different results].) To the extent In re Robert A. (2007) 147 Cal.App.4th 982, suggests new ICWA notices must be given in this situation, we respectfully disagree.
However, if the juvenile court’s prior determination was based on mother’s failure to assert Indian heritage, mother’s present claim that J.B. has Cherokee ancestry, even though it may conflict with mother’s previous statements, is sufficient to require the Department to inquire further as to J.B.’s Indian heritage and to give notice under the ICWA.
We therefore conditionally reverse the finding the ICWA does not apply and remand with directions to reinstate the finding if it was based upon proper and adequate ICWA notice given with respect to J.B.’s siblings. Otherwise, the juvenile court is directed to instruct the Department to comply with the ICWA inquiry and notice requirements.
DISPOSITION
The jurisdictional findings and dispositional orders are affirmed. The finding the ICWA does not apply is conditionally reversed and the matter is remanded to the juvenile court with directions to reinstate the finding if it was based upon proper and adequate ICWA notice given with respect to J.B.’s siblings. Otherwise, the juvenile court is directed to instruct the Department of Children and Family Services to comply with the ICWA inquiry and notice requirements.
We concur: KITCHING, J., ALDRICH, J.
Count b-2 alleged mother has a 10-year history of illicit drug abuse and is a current user of cocaine and marijuana.
Count b-3 alleged mother and father “have a history of engaging in violent altercations. The mother stabbed the father’s shoulder. The father has a criminal history of a conviction of Battery on a Person. Such violent conduct on the part of the mother against the father... places the child at risk of physical and emotional harm....”