Opinion
C082758
03-27-2017
In re N.N. et al., Persons Coming Under the Juvenile Court Law. SACRAMENTO COUNTY DEPARTMENT OF HEALTH AND HUMAN SERVICES, Plaintiff and Respondent, v. A.C., Defendant and Appellant.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. JD237250 & JD237251)
Mother A.C. appeals from the order terminating dependency jurisdiction and ordering custody of her daughter, M.N., and son, N.N., to the minors' father. (Welf. & Inst. Code, § 361.2.) Mother claims the Sacramento County Department of Health and Human Services (Department) failed to comply with the inquiry and notice procedures of the Indian Child Welfare Act (ICWA). (25 U.S.C. § 1901 et seq.) The Department contends the ICWA inquiry and notice provisions are inapplicable because the Department sought to place the minors in the father's custody, not a foster parent. We shall affirm.
Undesignated statutory references are to the Welfare and Institutions Code.
FACTUAL AND PROCEDURAL BACKGROUND
In May 2016, mother was arrested on domestic violence charges against her girlfriend, Ashley. According to Ashley, mother punched and burned her with a butane lighter and a frying pan while heating up her methamphetamine pipe. N.N. (then age eight) and M.N. (then age nine), were home at the time. On May 12, 2016, the minors were placed in protective custody and transported to the children's receiving home.
On May 16, 2016, the Department filed a section 300 petition on behalf of minors, alleging substantial risk of serious physical harm and failure to protect. (§ 300, subds. (a) & (b).) The petition notes maternal grandmother told the Department that minors did not have Indian heritage but she later clarified minors have Osage and Cherokee heritage. In addition, on May 18, 2016, mother indicated to the court in her Parental Notification of Indian Status form (ICWA-020) that she may have Osage and Apache heritage. Father stated in his ICWA-020 form that he did not have Indian heritage.
The detention report recommended confidential foster care pending the jurisdiction/disposition hearing. After the Department had the opportunity to assess and interview father, who lives in Washington, it filed an addendum report dated May 18, 2016, and recommended releasing the minors to father. During the May 18, 2016, detention hearing, the court found that a prima facie showing was made that minors come within the provisions of section 300 and ordered the children released to their father, under the supervision of the Department. The court also found that minors may be Indian children and ordered the Department to provide notice to the identified tribes. In subsequent reports, the Department indicated it had complied with the ICWA notice provisions, but the record on appeal does not contain copies of the required notices. (25 U.S.C. § 1912(a).) For purposes of the appeal, the Department has conceded that it failed to comply with the ICWA inquiry and notice provisions.
The court found J.N. was the father on May 18, 2016, reasoning he was present at minors' births, was listed on M.N.'s birth certificate, lived with mother at the time of minors' births, and provided support for minors pursuant to an order out of Wyoming. In addition, the jurisdiction/disposition report indicates that father signed a declaration of paternity for both minors, although there is no copy in the appellate record. --------
The June 7, 2016, jurisdiction/disposition report recommended terminating dependency and granting custody to father. The same recommendations were made in an addendum report dated August 1, 2016.
The court sustained the section 300 petition on August 1, 2016. After a contested disposition hearing, on August 16, 2016, the juvenile court terminated minors' dependency status, awarded sole physical and legal custody to father, and ordered quarterly supervised visits for mother in Washington. (§ 361.2.)
DISCUSSION
Mother contends we must reverse the juvenile court's order because the Department did not comply with the inquiry and notice provisions of the ICWA. For purposes of this appeal, the Department concedes it failed to comply with the ICWA but contends reversal is not required because it did not seek placement of the minors in foster care.
"In any involuntary proceeding in a State court, 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." (25 U.S.C. § 1912(a); see also 25 C.F.R. § 23.11 (2014) [notice requirements when foster placement or termination of parental rights sought]; In re Louis S. (2004) 117 Cal.App.4th 622, 630 [Department bears the burden "to obtain all possible information about the minor's potential Indian background and provide that information to the relevant tribe or, if the tribe is unknown, to the [Bureau of Indian Affairs]"].) The ICWA defines foster care placement as "any action removing an Indian child from its parent or Indian custodian for temporary placement in a foster home or institution or the home of a guardian or conservator where the parent or Indian custodian cannot have the child returned upon demand, but where parental rights have not been terminated." (25 U.S.C. § 1903(1)(i).) Accordingly, the ICWA "requires notice only when child welfare authorities seek permanent foster care or termination of parental rights; it does not require notice anytime a child of possible or actual Native American descent is involved in a dependency proceeding." (In re Alexis H. (2005) 132 Cal.App.4th 11, 14, italics omitted; accord In re M.R. (2017) 7 Cal.App.5th 886, 904-905 [despite initially detaining the minor with maternal grandmother, no ICWA related error when the minor was placed with a presumed parent and the department never sought long-term foster care placement or termination of parental rights]; see also In re J.B. (2009) 178 Cal.App.4th 751, 754 [ICWA requirements as enacted by § 361, subd. (c)(6) for special findings and expert testimony are not required when an Indian child is removed from the custody of one parent and placed with another parent].) Because the Department did not seek foster care as defined by the ICWA, the ICWA does not apply. (In re Alexis H., at p. 15.)
Even if the ICWA applied, the Department's failure to provide adequate notice was harmless error. (In re Alexis H., supra, 132 Cal.App.4th at p. 16 [failure to follow ICWA notice requirement subject to harmless error analysis].) Although the Department initially recommended placement in foster care, it revised its recommendation prior to the detention hearing, once it had the opportunity to interview and assess father. Accordingly, throughout the proceedings, the Department recommended granting custody to father. (Ibid.; compare In re Jennifer A. (2002) 103 Cal.App.4th 692 [reversing orders placing minor in father's care where Department failed to comply with ICWA notice requirements, minor was placed in foster care, and Department throughout proceedings recommended continued foster care placement].)
DISPOSITION
The orders are affirmed.
/s/_________
Blease, Acting P. J. We concur: /s/_________
Nicholson, J. /s/_________
Hull, J.