Opinion
C085565
03-26-2018
In re A.A. et al., Persons Coming Under the Juvenile Court Law. SACRAMENTO COUNTY DEPARTMENT OF CHILD, FAMILY AND ADULT SERVICES, Plaintiff and Respondent, v. R.A. et al., Defendants and Appellants.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. Nos. JD230472, JD233703, JD233704, JD233705, JD23376, JD233707, JD233708)
C.S. (mother) appeals from the juvenile court's orders terminating parental rights for her seven children, L.U., R.A., A.G., Vi.G., Va.G., J.G., and A.A. (collectively, the minors). (Welf. & Inst. Code, § 366.26.) R.A. (father) also appeals from the same order for the two children he shares with mother, R.A. and A.A. Father contends the juvenile court failed to comply with the inquiry and notice procedures of the Indian Child Welfare Act (ICWA) as to R.A. and A.A. (25 U.S.C. § 1901 et seq.) Pursuant to the California Rules of Court, rule 8.200(a)(5) mother joins and adopts by reference father's argument.
Undesignated statutory references are to the Welfare and Institutions Code.
Respondent Sacramento County Department of Health and Human Services (Department) argues the juvenile court had no reason to know minors were Indian children. In the alternative, the Department contends any error was harmless, since father previously notified the court in a 2010 dependency proceeding pertaining to A.A. that he had no Indian ancestry.
We previously granted the Department's request for judicial notice and to augment the record with the following documents from the 2010 dependency proceedings: (1) the Parental Notification of Indian Status form (ICWA-020) completed by father and (2) the juvenile court's order finding father was the adjudicated father of A.A. and there was no evidence before the court that A.A. was an Indian child as to father. --------
We will affirm.
FACTUAL AND PROCEDURAL BACKGROUND
We limit our recitation of the background to the facts relevant to the issue on appeal; application of the ICWA.
2010 Proceedings
In March 2010, the juvenile court sustained a section 300, subdivision (b) petition alleging mother and father had repeatedly left A.A. (then age eight) alone to care for her four younger siblings (A.G., Vi.G., J.G., and Va.G.), and declared A.A. to be a dependent of the court. A.A. was returned to her mother's custody in June 2010, and the dependency was terminated in March 2012. During the case, father completed a Parental Notification of Indian Status form indicating he had no Indian ancestry as far as he knew.
Also in March 2010, the juvenile court found father to be the adjudicated father of A.A. The court further found that, as to the father, "there is no evidence before the Court that the child is an Indian child within the meaning of [ICWA]."
2013 Proceedings
On August 26, 2013, the Department filed section 300 petitions on behalf of L.U. (then age one), R.A. (then age two), A.G. (then age four), Vi.G. (then age five), Va.G. (then age nine), J.G. (then age nine), and A.A. (then age 11), alleging failure to protect. (§ 300, subd. (b).) It was alleged mother and her boyfriend had a history of engaging in domestic violence in the presence of the children. In addition, mother had a history of domestic violence with other partners, and she was unwilling to address the domestic violence. The petitions stated the social worker asked mother about any known or suspected Indian ancestry, and mother said none. On August 29, 2013, mother indicated in her ICWA-020 form that she had no Indian ancestry.
During the August 29, 2013 detention hearing, the juvenile court found that a prima facie showing was made that the minors come within the provisions of section 300 and ordered the children detained. The court noted father, who was incarcerated and not present during the hearing, was found in previous dependency proceedings to be the adjudicated father of A.A. The court further noted there was "no evidence" before the court that the minors were Indian children within the meaning of the ICWA as to mother and found the minors were not Indian children. Subsequent reports from the Department stated the ICWA did not apply.
In September 2013, mother submitted on the petition and the juvenile court assumed jurisdiction over the minors pursuant to section 300, subdivision (b). In addition, the court again found the minors were not Indian children. Father was not present during the hearing. In October 2013, the court found father to be the presumed father of A.A. and R.A. and removed the minors from mother's custody. In November 2013, the court placed the minors with the maternal great-aunt.
In November 2014, the juvenile court terminated reunification services for mother and father and set a section 366.26 hearing. In April 2015, the court ordered a permanent plan of legal guardianship with the maternal great-aunt for the minors. In December 2015, the court set a section 366.26 hearing.
In July 2016, mother filed section 388 petitions requesting the juvenile court terminate the legal guardianship for all the minors, return them to her care, and vacate the section 366.26 hearing. She also filed section 388 petitions requesting the court vacate a prior no-contact order between father and the minors.
In August 2017, the juvenile court granted mother's section 388 petitions regarding the no-contact order and authorized the Department to arrange visitation between the minors and father. The court also denied mother's section 388 petitions to terminate guardianship, return the minors to her care, and to vacate the section 366.26 hearing. In addition, the court terminated mother's and father's parental rights and ordered the minors placed for adoption.
Father and mother each filed a timely appeal.
DISCUSSION
Father and mother each contend the juvenile court failed to comply with its mandated duty of inquiry regarding father's Indian heritage as to A.A. and R.A. The Department contends the court complied with its duty of inquiry under ICWA and any error was harmless, since father denied any Indian heritage during the 2010 proceedings involving A.A.
For purposes of the ICWA, an "Indian child" is one who 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).) "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. [Citation.]" (In re K.M. (2009) 172 Cal.App.4th 115, 118-119.)
"[W]hen the juvenile court knows or has reason to believe the child may be an Indian child, notice must be given to the particular tribe in question or the Secretary." (In re Desiree F. (2000) 83 Cal.App.4th 460, 471; see also 25 U.S.C. §§ 1903(8), 1912(a).) A mere suggestion of Indian ancestry is sufficient to trigger the notice requirements, which are construed strictly. (In re Robert A. (2007) 147 Cal.App.4th 982, 989.) "When both biological parents deny any Indian heritage, however, there is no tribe to notify of the proceedings." (In re A.B. (2008) 164 Cal.App.4th 832, 843.)
A juvenile court's failure to comply with the ICWA inquiry requirements does not require reversal if the error is harmless. (In re H.B. (2008) 161 Cal.App.4th 115, 121-122.) In In re A.B., the appellate court concluded the juvenile court's duty of inquiry error was harmless where the father had denied Indian heritage in the appealed case and, in a prior proceeding involving a different child, the mother submitted a Parental Notification of Indian Status form informing the court that she had no knowledge of any Indian ancestry. (In re A.B., supra, 164 Cal.App.4th at pp. 839, 843.)
Similar to In re A.B., during the 2010 proceedings involving A.A., father disclaimed Indian heritage in a Parental Notification of Indian Status form. Mother also denied any Indian ancestry in the case on appeal. To the extent the juvenile court erred in its duty of inquiry as to A.A. and R.A., any error was harmless.
DISPOSITION
The orders of the juvenile court are affirmed.
/s/_________
Duarte, J. We concur: /s/_________
Hull, Acting P. J. /s/_________
Hoch, J.