From Casetext: Smarter Legal Research

In re J.K.

COURT OF APPEAL OF THE STATE OF CALIFORNIA FOURTH APPELLATE DISTRICT DIVISION TWO
Jan 31, 2012
E053663 (Cal. Ct. App. Jan. 31, 2012)

Opinion

E053663 Super.Ct.No. SWJ008668

01-31-2012

In re J.K., a Person Coming Under the Juvenile Court Law. RIVERSIDE COUNTY DEPARTMENT OF PUBLIC SOCIAL SERVICES, Plaintiff and Respondent, v. M.O., Defendant and Appellant.


NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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.


ORDER MODIFYING

OPINION AND DENYING

PETITION FOR REHEARING


[NO CHANGE IN JUDGMENT]

The petition for rehearing is denied. The opinion filed in this matter on January 6, 2012, is modified as follows:

1. The entire "Discussion" section is deleted, and replaced with the following:

DISCUSSION

The current appeal pertains only to J.K. As Mother contends, S.K. is listed as J.K.'s father on the birth certificate. The record shows Mother told the social worker on September 7, 2008, that J.K. may have American Indian heritage through his father, S.K. Mother argues DPSS failed to satisfy its duty of inquiry by asking S.K. about his heritage, even though the social worker had contact with S.K. and his mother during the course of the proceeding. Mother further claims there is "no evidence at all in this appellate record" that the social worker ever asked J.K.'s father whether he had any Indian ancestry. As a result, she argues the juvenile court's orders concluding ICWA does not apply must be reversed, and the case must be remanded with directions for DPSS to make the required inquiries. We disagree.

ICWA provides that when a state court "knows or has reason to know that an Indian child is involved" in a juvenile dependency proceeding, the court must give the child's tribe notice of the pending proceedings and its right to intervene. (25 U.S.C. § 1912(a); In re S.B. (2005) 130 Cal.App.4th 1148, 1157 [Fourth Dist., Div. Two].) In addition, California law under section 224.3, subdivision (a) imposes "an affirmative and continuing duty to inquire" whether a child involved in a dependency proceeding "may be an Indian child."

Rule 5.481(a) also imposes "an affirmative and continuing duty [on the court and other officials] to inquire whether a child is or may be an Indian child." When a party is seeking foster care placement, a declaration freeing a child for adoption, or termination of parental rights, rule 5.481(a)(1) requires Form ICWA-0101(A) to be attached to the petition showing an inquiry was made as to whether the child has Indian ancestry. In addition, rule 5.481(a)(2) requires the court "[a]t the first appearance by a parent" to order the parent to complete Form ICWA-020. On this form, the parent must declare under penalty of perjury whether the child or the parent has Indian ancestry and whether the child or the parent is a member of an Indian tribe or could be eligible for membership in an Indian tribe. ICWA notice requirements do not apply when a child is temporarily detained on an emergency basis. (In re S.B., supra, 130 Cal.App.4th at pp. 1162-1163.)

Here, the record shows Form ICWA 010(A) as to Mother only was filed with the original petition on September 9, 2008. On September 10, 2009, when the court held the initial detention hearing, the record shows Mother completed and filed Form ICWA-020. Like Mother, we were unable to locate any documentation in the appellate record that specifically stated the social worker asked S.K. or his mother during the initial phases of the proceeding whether they had any American Indian heritage. As Mother contends, the record does show the social worker had contact with S.K. and his mother during the proceeding. As a result, it is possible the social worker asked S.K. or his mother whether they had any Indian heritage but forgot to document the inquiry. The social worker had a telephone number for S.K.'s mother. In attempts to contact S.K., the social worker called his mother on a number of occasions and also used her address to provide notice to S.K. In addition, the social worker had telephone conversations with S.K.

Based on the social worker's notes about her conversations with S.K. and his mother, it is not surprising the record at this stage of the proceeding does not include documentation about any possible Indian ancestry J.K. might have through S.K. During these conversations, S.K. and his mother both told the social worker they doubted whether S.K. was actually the biological father of J.K. S.K. requested a paternity test. The court acknowledged J.K.'s paternity was a disputed issue by ordering a paternity test. However, S.K. did not complete the testing, did not appear in the proceeding except through appointed counsel, and did not keep in touch with the social worker. The court considered S.K. an alleged father and did not provide him with services. In addition, at this stage of the proceeding, the children were returned to Mother's care, and DPSS was not seeking foster care placement, a declaration freeing either child for adoption, or termination of parental rights.

As we read the record, the position of DPSS for most of the proceeding was that ICWA did not apply because the children were only detained temporarily in protective custody on an emergency basis, but then released a short time later to the custody of a parent. For example, in a report prepared on July 7, 2009, the social worker stated ICWA did not apply because the children were in the custody of a parent, "and it has not been determined that this is an ICWA case."

On the other hand, the record indicates the position of DPSS changed after J.K. was removed from Mother for the third time on November 8, 2010. Shortly after this third removal, DPSS recommended J.K. remain a dependent child with denial of any further services to Mother. On January 24, 2011, the court followed the recommendation of DPSS, when it not only removed J.K. from Mother's custody, but also denied any further services to Mother and set a section 366.26 hearing.

As noted above, the duty to inquire applies when a party is seeking foster care placement, a declaration freeing a child for adoption, or termination of parental rights. Therefore, J.K.'s possible Indian heritage would not have come in to play until the latter part of the proceeding after J.K. was removed for the third time, and DPSS changed its recommendation to denial of further services to Mother. In keeping with the requirements of ICWA and state law, our review of the record revealed that DPSS did change its position between the third removal of J.K. on November 8, 2010, and the social worker's report prepared on December 2, 2010, in anticipation of the jurisdiction/disposition hearing on the section 387 petition filed on November 10, 2010. During this time period, on November 10, 2010, the social worker signed a form indicating she had inquired as to whether J.K. had any Indian ancestry. The social worker then checked the box on the form stating, "The child has no known Indian ancestry." It is also significant that in the recommendations made to the court at the time of the detention hearing on the third removal, the social worker represented that J.K. "is not an Indian child and the Indian Child Welfare Act ('ICWA') does not apply." (Italics added.) From these affirmative representations in the record during the relevant time period, we can reasonably infer the social worker did make the requisite inquiries and obtained the necessary information to support the statements made in the forms submitted to the court. (See, e.g, In re S.B., supra, 130 Cal.App.4th at p. 1161; In re E.H. (2006) 141 Cal.App.4th 1330, 1334 [Fourth Dist., Div. Two].) We therefore disagree with Mother's contention there is "no evidence at all in this appellate record" that the social worker ever asked S.K. whether he had any Indian ancestry.

In any event, Mother would not be entitled to a reversal of the court's ICWA findings under the circumstances as presented unless she could show "a miscarriage of justice" or prejudice. (In re Rebecca R. (2006) 143 Cal.App.4th 1426, 1430-1431 [Fourth Dist., Div. Two].) There could be no "miscarriage of justice" or prejudice unless a parent, if asked, would have stated the child has Indian ancestry. (Ibid.)

As Mother contends, the record indicates she did tell the social worker at the beginning of the proceeding on September 7, 2008, that J.K. may have Indian ancestry through his father, S.K. However, the record also indicates Mother provided no specific information about J.K.'s possible Indian ancestry that would have triggered the duty to provide tribal notification. S.K. did not appear in court, and there is nothing in the record indicating he was willing or able to provide the social worker with specific information about possible Indian ancestry. Without more, Mother's unsupported, blanket statement at the beginning of the proceeding about possible Indian ancestry through a nonparticipating parent who contests paternity is not enough to give the social worker or the court "reason to know" J.K. is or even could be an Indian child. As the appealing party, Mother has, once again, made no specific, affirmative representation of Indian ancestry. As a result, there is nothing to show reversal is warranted based on a miscarriage of justice, even assuming the duty of inquiry was not completely satisfied.

Except for this modification, the opinion remains unchanged. The modification does not affect a change in the judgment.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

MILLER

J.

We concur:

McKINSTER

Acting P. J.

RICHLI

J.


Summaries of

In re J.K.

COURT OF APPEAL OF THE STATE OF CALIFORNIA FOURTH APPELLATE DISTRICT DIVISION TWO
Jan 31, 2012
E053663 (Cal. Ct. App. Jan. 31, 2012)
Case details for

In re J.K.

Case Details

Full title:In re J.K., a Person Coming Under the Juvenile Court Law. RIVERSIDE COUNTY…

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

Date published: Jan 31, 2012

Citations

E053663 (Cal. Ct. App. Jan. 31, 2012)