Opinion
E068922
02-21-2018
In re N.L., a Person Coming Under the Juvenile Court Law. RIVERSIDE COUNTY DEPARTMENT OF PUBLIC SOCIAL SERVICES, Plaintiff and Respondent, v. L.A. et al., Defendants and Appellants.
Rich Pfeiffer, under appointment by the Court of Appeal, for Defendant and Appellant L.A. Lauren K. Johnson, under appointment by the Court of Appeal, for Defendant and Appellant C.L. Gregory P. Priamos, County Counsel, James E. Brown, Guy B. Pittman and Carole Nunes Fong, Deputy County Counsel, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super.Ct.No. RIJ1500947) OPINION APPEAL from the Superior Court of Riverside County. Harry (Skip) A. Staley (retired judge of the Kern Super. Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.) and Jacqueline C. Jackson, Judges. Affirmed. Rich Pfeiffer, under appointment by the Court of Appeal, for Defendant and Appellant L.A. Lauren K. Johnson, under appointment by the Court of Appeal, for Defendant and Appellant C.L. Gregory P. Priamos, County Counsel, James E. Brown, Guy B. Pittman and Carole Nunes Fong, Deputy County Counsel, for Plaintiff and Respondent.
The juvenile court terminated the parental rights of defendants and appellants L.A. (Mother) and C.L. (Father; collectively, Parents) to their daughter, N.L. (Minor). (Welf. & Inst. Code, § 366.26, subd. (b)(1).) Parents contend the juvenile court erred by finding the Indian Child Welfare Act (ICWA) to be inapplicable because the Department's ICWA investigation was inadequate, which resulted in an inadequate ICWA notice. We affirm the judgment.
All subsequent statutory references will be to the Welfare and Institutions Code unless otherwise indicated.
FACTUAL AND PROCEDURAL HISTORY
A. BACKGROUND
When Father was 20 years old, in August 2009, he shared an 11-month old child, L.H., with his 15-year-old girlfriend, T.H. L.H. was detained in August 2009. T.H. delivered another child, J.H., in February 2010. J.H. was detained. In February 2012, the juvenile court terminated Father's and T.H.'s parental rights to L.H. and J.H.
Parents' son is C.L.J., who was born in August 2015. When C.L.J. was born, it was unclear if Parents had a residence and it appeared they were unable to care for the baby. As examples, (1) they lacked a car seat for C.L.J.; and (2) Mother did not appear to understand how to breastfeed C.L.J., and did not have a plan to provide C.L.J. with formula. Plaintiff and respondent Riverside County Department of Public Social Services (the Department) detained C.L.J. in August 2015. In September 2016, Mother's and Father's parental rights to C.L.J. were terminated.
B. DETENTION
Minor was born in December 2016. Mother had few supplies for Minor, Mother appeared to be developmentally delayed, Mother could not provide a residential address, Mother said she had no family support, and it was unclear if Mother had received prenatal care. Mother said she was unsure if she had Native American ancestry because her mother passed away when Mother was one year old and her father passed away when Mother was two years old. Mother completed the Parental Notification of Indian Status form (ICWA-020). Mother marked the box indicating she may have Indian ancestry, but Mother provided no tribal information or ancestral information.
Father abuses methamphetamines. Father did not visit the hospital when Minor was born; Father was incarcerated at the county jail. Father "reported that his maternal grandmother, [N.T.], had Native American ancestry, Blackfoot." Father did not know if his grandmother was a registered member of the tribe. Father completed an ICWA-020 form. Father marked the box indicating he may have Indian ancestry. Next to the box a handwritten note read, "Blackfoot-PGM." The Department detained Minor on December 29. Minor was placed in the same home as C.L.J.
At the detention hearing, the following exchange took place:
"[Department's attorney]: "I did receive mother's [Parental Notification of Indian Status form] ICWA-020. She claims Indian ancestry but does not indicate any tribe or any potential family members.
"The Court: I was going to double check the old one for [C.L.J.]. So I'll do that . . . . [¶] . . . [¶] Father didn't claim any Indian ancestry for [C.L.J.] Did he learn something new?
"[Father's attorney]: He was told by his grandmother at some point. I'm not sure.
"The Court: Okay. And I'll double check mom's. [¶] . . . [¶] And on mother's forms for [C.L.J.], she also said she wasn't Indian. So does she have any specific tribe or are we just noticing the [Bureau of Indian Affairs (BIA)]?
"[Mother's attorney]: Your Honor, if I could just have one second?
"The Court: I don't know what happened, but magically they are both Indian. . . . [¶] . . . [¶] And then does mother have a tribe or just heard she is Indian from someone?
"[Mother's attorney]: Your Honor, she can't recall at this time.
"The Court: Okay. That's fine. We will notice the BIA."
The juvenile court concluded, "ICWA may apply. We do have ICWA-020s filed for both mother and father today, so we will do the ICWA noticing."
C. JURISDICTION
Mother had four sisters and two brothers. Mother did not maintain contact with her family due to the family rejecting Mother after Mother was raped by her uncle while in her early 20s. Father had three siblings. Father was placed in foster care at age three and remained in foster care for 15 years. Father lost contact with his family. On December 28, Mother told the Department she did not have Indian ancestry.
The Department sent notice of the dependency proceedings on the form titled, "Notice of Child Custody Proceeding for Indian Child" (ICWA-030). The notice was mailed to (1) Mother, (2) Father, (3) the Sacramento Area Director of the BIA; (4) the Secretary of the Interior for the U.S. Department of the Interior; and (5) the Blackfeet Tribe in Browning, Montana. The notice was mailed on January 12, 2017. The notice contained information about Mother; Father; Mother's mother; Mother's father; Father's mother; Father's father; both of Mother's grandmothers; one of Father's grandmothers, N.T.; C.L.J.; and one of Father's relatives whose exact relationship was unknown. The notice reflected that N.T. and C.L.J. might be affiliated with the Blackfeet Tribe.
Father alleged his maternal grandmother's Indian ancestry was derived from the Blackfoot Tribe. The Department sent the ICWA notice to the Blackfeet Tribe, as opposed to the Blackfoot Tribe. The Blackfeet Tribe of the Blackfeet Indian Reservation of Montana is a tribal entity recognized by the BIA. A tribal entity named Blackfoot is not on the list of recognized tribal entities. (82 Fed. Reg. 4915-02 [eff. Jan. 17, 2017].) ICWA notice provisions apply only to federally recognized tribes. (In re A.C. (2007) 155 Cal.App.4th 282, 286-287.)
On January 19, Father again said his maternal grandmother had Indian ancestry via the Blackfoot Tribe; he did not know if she was a registered member of the tribe. On January 24, Mother again said she did not have Indian ancestry.
On January 31, the Department sent a second ICWA-030 to the same five people and entities listed ante. The notice contained additional information about Father's mother. In regard to Father's father, T.L. (Grandfather), the notice contained (1) his name; (2) an alias; and (3) his last known address. The January 31 notice was filed with the juvenile court on March 1.
Also on January 31, a hearing took place in which the juvenile court scheduled a contested jurisdiction hearing. At the January 31 hearing, the juvenile court said, "And I do have a good ICWA-030 for [Minor] filed with the Court." The Department's attorney said, "And, your Honor, we did get responses from the Blackfeet Tribe indicating the child's not an Indian child." The juvenile court responded, "Okay. So the child's not Blackfeet. ICWA does not apply to them. I think we kind of know based on [C.L.J.], but we are just waiting for other responses to come."
The jurisdiction hearing took place on March 6. At the March 6 hearing, the Department's attorney said, "Additionally, the Court [sic] also submitted additional ICWA noticing. The -30 was filed on March 1st, 2017. I believe it was to supplement information regarding paternal grandparents. We did include that information in the report—or in the noticing. [¶] However, the worker did speak with [Grandfather]—the previous worker spoke with [Grandfather] and tried to get that information from them. However, [Grandfather] never responded with the dates of birth for the great-grandparents." The court replied, "Okay. Thank you."
After finding Minor came within the juvenile court's jurisdiction (§ 300, subds. (b) & (g)), the court said, "ICWA may apply. We are waiting for time to elapse."
D. DISPOSITION
On April 17, the juvenile court held a disposition hearing. At the hearing the juvenile court said, "And in addition, there was a new ICWA-030 filed March 1, 2017. I've also reviewed that." The juvenile court scheduled a hearing for August 15 to consider termination of parental rights.
E. TERMINATION OF PARENTAL RIGHTS
In the Department's report for the August 15, 2017, termination hearing, it wrote, "On January 6, 2017, at the Detention Hearing, the Court found that the Indian Child Welfare Act (ICWA) may apply to this case[.] It is respectfully requested that the Court find that ICWA does not apply as the 60 day timeline for the tribes to respond has been exceeded[.] [¶] On July 4, 2017, [Mother] stated that they do not have Indian heritage in their families. Due to [Father] being incarcerated, I was unable to inquire about Native American Ancestry[.]"
On August 15, the juvenile court held a hearing to consider terminating Mother's and Father's parental rights. At the hearing, the Department's attorney said, "Asking the Court to make a specific finding that ICWA does not apply. [¶] The Court found good notice on March 6, 2017. It has been over 60 days and the Department has not received additional responses."
The juvenile court said, "The Court will make a finding that this—based upon the lack of response from the Indian tribes and the notice provided, that this is not an Indian child and ICWA does not apply." The juvenile court terminated Mother's and Father's parental rights to Minor (§ 366.26, subd. (b)(1).)
DISCUSSION
A. CONTENTION
Parents contend the juvenile court erred by finding ICWA does not apply because the Department's ICWA investigation was inadequate and therefore the ICWA notice was inadequate.
B. LAW
"Juvenile courts and child protective agencies have 'an affirmative and continuing duty to inquire' whether a dependent child is or may be an Indian child. [Citations.] This affirmative duty to inquire is triggered whenever the child protective agency or its social worker 'knows or has reason to know that an Indian child is or may be involved . . . .' [Citation.] At that point, the social worker is required, as soon as practicable, to interview the child's parents, extended family members, the Indian custodian, if any, and any other person who can reasonably be expected to have information concerning the child's membership status or eligibility." (In re Michael V. (2016) 3 Cal.App.5th 225, 233.) There is no obligation for the Department to record all of its investigative efforts. (See In re Gerardo A. (2004) 119 Cal.App.4th 988, 995 [a silent record does not mean the department failed to make an adequate ICWA inquiry].)
C. STANDARD OF REVIEW
We apply the substantial evidence standard of review. (In re E.W. (2009) 170 Cal.App.4th 396, 403-404.) Under this standard, we view the record in the light most favorable to the juvenile court's finding that the Department complied with ICWA and make all reasonable inferences in favor of the juvenile court's finding. (In re H.B. (2008) 161 Cal.App.4th 115, 119-120.)
D. ANALYSIS
Father alleged that he may have Indian heritage through his maternal grandmother, N.T. (Great-Grandmother). In the January 31, 2017, ICWA notice, the Department provided Great-Grandmother's name and alias and her possible affiliation with the Blackfeet Tribe, but did not provide any additional information, such as an address or date of birth.
At the jurisdiction hearing on March 6, the Department's attorney explained that a social worker "spoke with [Grandfather]" "to supplement information regarding paternal grandparents," but "[Grandfather] never responded with the dates of birth for the great-grandparents."
Great-Grandmother is Father's maternal grandmother. In other words, Great-Grandmother is Father's mother's mother. The Department had only a name and two aliases—no address—for Father's mother, and presumably no means of contacting of her. The Department spoke to "the paternal grandfather." In other words, the Department spoke to Father's father.
In speaking to Grandfather, the Department was hoping to find more information about Father's great-grandparents, and presumably, information about Great-Grandmother in particular because her ancestry allegedly included Indian ancestors. Grandfather did not provide information about Great-Grandmother, but may have been the source of the two additional names that were listed for Father's mother in the January 31 ICWA notice but not listed in the January 12 ICWA notice.
In sum, the record reflects the Department tried to discover Great-Grandmother's date of birth but Grandfather lacked the information or was unwilling to share the information. The Department did gain more information about Father's mother's name and aliases, which would arguably assist in assessing Minor's tribal membership because the alleged ancestry came from Father's mother's side of the family. Given that the Department asked questions and tried to obtain the information concerning Minor's tribal membership status or eligibility, we conclude substantial evidence supports the juvenile court's finding that the Department conducted an adequate ICWA inquiry.
E. FATHER'S PATERNAL FAMILY
Father contends, "The Department erred by failing to acquire easily obtainable information regarding [F]ather's paternal family so a meaningful inquiry could be conducted by the relevant Tribe." Father does not explain why there needed to be further investigation into the paternal side of his family in order for the tribe to conduct a meaningful inquiry. The alleged Indian ancestry was on the maternal side of Father's family, not the paternal side. Father does not explain how more information about the paternal side of his family would have assisted the tribe in investigating the maternal connection to the tribe. Thus, we are not persuaded that the Department's investigation was inadequate.
F. GRANDFATHER
Parents contend the Department's investigation and notice were inadequate because the Department spoke with Grandfather but did not include Grandfather's date of birth or Grandfather's father's name on the ICWA notice. It is unclear if Grandfather provided this information to the Department. It is possible the Department contacted Grandfather and he was unwilling to share information about himself and his side of the family with the Department. Grandfather may have been defensive due to Father's removal from Grandfather's care at age three. (See In re Charlotte V. (2016) 6 Cal.App.5th 51, 58 ["It is also possible that the maternal grandfather was evasive or uncooperative about his wife's information"].)
Given that the Department contacted Grandfather and tried to obtain identifying information from him, substantial evidence supports the juvenile court's finding that the Department adequately investigated the information relating to Minor's tribal membership status or eligibility.
G. CUSTODIAL STATUS
1. PROCEDURAL HISTORY
On December 29, 2016, the Department personally interviewed Father at the county jail. During that meeting Father alleged that Great-Grandmother had Indian ancestry via the Blackfoot Tribe. Also during that interview, Father disclosed that he "has a broken hand due to his cell mate [sic] disrespecting him and he did not want 'to catch a case,' so he hit his hand on the cell door causing him to break his hand."
On January 19, 2017, the Department again interviewed Father, in-person, at the county jail. Father again told the Department that Great-Grandmother might have Indian ancestry via the Blackfoot Tribe. Father did not know if Great-Grandmother was a registered member of the tribe. In the Department's report for the August 15, 2017, termination hearing, the Department wrote, "On July 4, 2017, [Mother] stated that they do not have Indian heritage in their families. Due to [Father] being incarcerated, I was unable to inquire about Native American Ancestry."
2. ANALYSIS
Parents contend the Department could have interviewed Father about his Indian ancestry despite his custodial status.
First, given that Mother was denying Indian heritage on Father's side of the family, any interview likely would have pertained to whether Father lied about his alleged Indian heritage, and thus may not have been favorable to the issue raised in this appeal. Second, the ICWA notices were mailed in January 2017. It is unclear what further information Father is asserting he should have been asked about in July 2017, and it is unclear why he did not offer that information, if any, when he was interviewed in-person, at the jail, on December 29, 2016, and January 19, 2017.
Third, it is unclear why the Department was unable to question Father. As examples, Father may have had issues in jail that resulted in Father being restricted from having visitors and telephone calls, or the facility may have been on lockdown. There is nothing indicating what it was about Father's custodial status that caused the Department to have difficulty contacting Father. As a result of the silent record we cannot fault the Department for failing to question Father about Mother's assertion that Father lied or was mistaken about his Indian heritage. In sum, we find Parents' assertion concerning the lack of a third interview to be unpersuasive.
Mother contends the Department "failed to state why" it was unable to communicate with Father. We agree that more information concerning how Father's custodial status hindered the interview process would have been helpful. However, the record is silent on this point. The information we have in the record reflects the Department wanted to interview Father concerning Mother's assertion that Father does not have Indian heritage, but, for some reason related to Father's incarceration, the Department was unable to do so. The silence in the record concerning the precise reason why the Department was unable to interview Father will not support a reversal because the Department is not required to document every detail of its investigation. (See In re Gerardo A., supra, 119 Cal.App.4th at p. 995 [a silent record does not mean the department failed to make an adequate ICWA inquiry]; see also In re Charlotte V., supra, 6 Cal.App.5th at p. 58 [failure to question the social worker about the report in the juvenile court means the parent must "take the record as she finds it"].)
H. ATTORNEY'S STATEMENT
1. PROCEDURAL HISTORY
On January 12, the first ICWA notice in the case was mailed. The only tribe to receive the notice was the Blackfeet Tribe of Browning, Montana. At the January 31 hearing, the Department's attorney's said, "[W]e did get responses from the Blackfeet Tribe indicating the child's not an Indian Child." The juvenile court responded, "So the child's not Blackfeet. ICWA does not apply to them. I think we kind of know based on [C.L.J.], but we are just waiting for other responses to come."
That same day, on January 31, the Department mailed a second ICWA notice in the case. The only tribe that received the second ICWA notice was the Blackfeet Tribe, in Browning, Montana. The Blackfeet Tribe received the second notice on February 10. At the hearing on August 15, when Mother's and Father's parental rights were terminated, the juvenile court said, "The Court will make a finding that this—based upon the lack of response from the Indian tribes and the notice provided, that this is not an Indian child and ICWA does not apply."
2. ANALYSIS
Parents contend the juvenile court erred by relying on the Department's attorney's January 31 statement, "[W]e did get responses from the Blackfeet Tribe indicating the child's not an Indian Child," because there is no evidence in the record reflecting a response from the Blackfeet Tribe.
To the extent the juvenile court erred by relying on counsel's unsupported statement on January 31, the error was cured by the second notice and second finding. The law provides that if a response to an adequate ICWA notice is not received within 60 days, then the juvenile court may determine that ICWA does not apply. (§ 224.3, subd. (e)(3).)
The Blackfeet Tribe received a second notice in the case on February 10. The record does not include a response from the tribe. Therefore, the juvenile court's August 15 finding is correct—"based upon the lack of response from the Indian tribes and the notice provided, that this is not an Indian child and ICWA does not apply." (§ 224.3, subd. (e)(3).) Given that the juvenile court's ultimate ruling on the issue was proper, we conclude the juvenile court did not err.
At the hearing on August 15, 2017, the juvenile court terminated Mother's and Father's parental rights. Father filed his notice of appeal on the same day as the hearing—August 15, 2017. The juvenile court's order terminating Mother's and Father's parental rights was filed on August 17, 2017. Mother filed her notice of appeal on August 29, 2017.
The Department requests this court take judicial notice of a postjudgment letter dated January 4, 2018. The letter is from the Blackfeet Tribe and it reflects Minor is not a member of the Blackfeet Tribe. The letter was filed in the juvenile court on January 4, 2018. We grant the Department's request for judicial notice, which means we take judicial notice of the letter's existence, but not the truth of its content. (Evid. Code, §§ 452, subd. (d), 453; In re Tanya F. (1980) 111 Cal.App.3d 436, 440; In re K.M. (2015) 242 Cal.App.4th 450, 456.)
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
MILLER
J. We concur: McKINSTER
Acting P. J. SLOUGH
J.