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San Diego Cnty. Health & Human Servs. Agency v. Leticia G. (In re Andrea G.)

COURT OF APPEAL, FOURTH APPELLATE DISTRICT DIVISION ONE STATE OF CALIFORNIA
Feb 14, 2012
D060569 (Cal. Ct. App. Feb. 14, 2012)

Opinion

D060569

02-14-2012

In re ANDREA G., a Person Coming Under the Juvenile Court Law. SAN DIEGO COUNTY HEALTH AND HUMAN SERVICES AGENCY, Plaintiff and Respondent, v. LETICIA G., 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

(Super. Ct. No. SJ12594)

APPEAL from orders of the Superior Court of San Diego County, Garry G. Haehnle, Judge. Affirmed.

Leticia G. appeals juvenile court orders declaring her daughter, Andrea G., a dependent of the court, removing custody from her and ordering reunification services. Leticia contends substantial evidence does not support the jurisdictional and dispositional orders, and the court erred by not complying with the notice provisions of the Indian Child Welfare Act (25 U.S.C. § 1901 et seq.) (ICWA). We affirm the orders.

FACTUAL AND PROCEDURAL BACKGROUND

Eleven-year-old Andrea was taken into protective custody on June 17, 2011, when Leticia was arrested on a federal warrant and charged with conspiracy to distribute marijuana. When law enforcement officers arrived at the home, they found three young marijuana plants growing in Andrea's older brother Isaac G.'s bedroom and three methamphetamine pipes in Leticia's bedroom. Isaac and two other teenagers were smoking marijuana in his room. The San Diego County Health and Human Services Agency (the Agency) petitioned on Andrea's behalf under Welfare and Institutions Codesection 300, subdivision (b), alleging Andrea was at substantial risk because Leticia had not provided her with a suitable home.

Statutory references are to the Welfare and Institutions Code unless otherwise specified.

Leticia had been arrested for drug related crimes in 1997. She tested positive for methamphetamine at the time of Andrea's birth in 1999, and Andrea and her two older siblings were removed from her custody. Leticia later reunified with the children and jurisdiction was terminated in 2001. There were referrals to Child Welfare Services regarding the family in 2003, 2005 and 2006. All were determined to be unfounded or inconclusive.

Leticia said she did not know why she had been arrested and denied using any drugs since she tried marijuana in high school. She said Andrea had not tested positive for drugs at birth, but she admitted she had "done a line of cocaine" before Andrea was born because she had been told it would make the birth easier. Leticia said the methamphetamine pipes the police found belonged to a homeless friend who stayed downstairs, and she had not known what the pipes were used for and did not know about the marijuana plants. She said she watered the plants in her home, but she did not go into Isaac's room, although she sometimes peeked inside.

Isaac denied selling drugs and denied Leticia used or sold drugs. He said he was unsure if Leticia knew about the marijuana plants in his room. Andrea said Leticia did not use drugs and she had not seen any drugs in the home, but she had seen glass pipes in the refrigerator in Isaac's room and sometimes smelled "weird smoke" coming from his room.

Andrea's father, Andres G., had been incarcerated since Andrea was two years old. His expected release date is in 2024. Andres claimed Apache heritage and submitted an ICWA form in which he stated the paternal grandparents were from New Mexico and had Apache heritage. He said the paternal grandmother was deceased and incorrectly stated the paternal grandfather was also deceased. The paternal grandfather told the social worker the family suspected they may have Apache heritage because his maternal grandmother looked very Indian and the family was from New Mexico. He said no family members had ever registered with a tribe.

The court considered the information and found reasonable inquiry had been made to determine whether Andrea is an Indian child within the meaning of ICWA. It found the Indian heritage was so distant and remote that ICWA did not apply and ICWA notice was not required. At the contested jurisdictional/dispositional hearing, after considering the evidence and argument by counsel, the court found the allegations of the petition true, removed custody, ordered Andrea placed in relative care and ordered Leticia to participate in reunification services. It denied services to Andres.

DISCUSSION


I

Leticia contends substantial evidence does not support the jurisdictional and dispositional findings and orders. She asserts there was not substantial evidence presented to support the finding Andrea was at substantial risk of suffering serious physical harm or illness because Andrea did not know about the marijuana or the glass pipes and there was no marijuana in usable form in the home at the time she was taken into protective custody.

A reviewing court must uphold a juvenile court's findings and orders if they are supported by substantial evidence. (In re Amos L. (1981) 124 Cal.App.3d 1031, 1036-1037.) Determinations of credibility of witnesses and resolutions of conflicts in the evidence are for the trier of fact. (In re Tanis H. (1997) 59 Cal.App.4th 1218, 1226-1227.) "[W]e must indulge in all reasonable inferences to support the findings of the juvenile court [citation], and we must also ' . . . view the record in the light most favorable to the orders of the juvenile court.' [Citation.]" (In re Luwanna S. (1973) 31 Cal.App.3d 112, 114.) The appellant bears the burden to show the evidence is insufficient to support the court's findings. (In re Geoffrey G. (1979) 98 Cal.App.3d 412, 420.)

The focus of the dependency statutes is to prevent harm to the child. (In re Jamie M. (1982) 134 Cal.App.3d 530, 536.) "The provision of a home environment free from the negative effects of substance abuse is a necessary condition for the safety, protection and physical and emotional well-being of the child." (§ 300.2.)

Section 361, subdivision (c)(1), provides a child may not be taken from the custody of his or her parents unless the juvenile court finds by clear and convincing evidence:

"There is or would be a substantial danger to the physical health, safety, protection, or physical or emotional well-being of the minor if the minor were returned home, and there are no reasonable means by which the minor's physical health can be protected without removing the minor from the minor's parent's . . . physical custody."

"The juvenile court has broad discretion to determine what would best serve and protect the child's interest and to fashion a dispositional order in accordance with this discretion." (In re Jose M. (1988) 206 Cal.App.3d 1098, 1103-1104.)

Substantial evidence supports the court's jurisdictional and dispositional findings and orders. Leticia has a history of abusing drugs and the past dependency case was based on her use of methamphetamine at the time of Andrea's birth. In the present case, Andrea was taken into protective custody after police came to the home to arrest Leticia on a federal warrant. Marijuana plants were in the home accessible to Andrea, and Isaac and two of his friends were smoking marijuana in his bedroom while Andrea was in the home. Methamphetamine pipes accessible to Andrea were found in an unlocked box in Leticia's bedroom. Leticia attempted to explain away the circumstances, saying, although she watered the plants in the house, she did not know the plants in Isaac's room were marijuana plants, and she was holding the pipes for a homeless friend and did not know they were methamphetamine pipes. The court found her explanations not credible. The court reasonably could have surmised either the presence of the marijuana plants and methamphetamine pipes signified that Leticia had returned to using drugs or that she was associating with drug users. It also could have determined that she knew Isaac was cultivating marijuana in his room or her supervision of him was so lax that she was turning a blind eye to him cultivating the plants and smoking marijuana in Andrea's presence. Either of these possibilities supports finding Andrea was at substantial risk in Leticia's custody and supports the jurisdictional and dispositional orders.

II

Leticia contends the court erred by not complying with the notice provisions of ICWA. She argues because Andres identified Apache heritage through relatives in New Mexico and provided inaccurate information about the family, and the paternal grandfather said he believed they had Apache heritage, the court and the social worker were required to make further inquiry and provide notice to the designated tribes.

Andres incorrectly stated the paternal grandfather had died and he gave an inaccurate birth date for the paternal grandmother.
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"ICWA protects the interests of Indian children and promotes the stability and security of Indian tribes and families by establishing certain minimum federal standards in juvenile dependency cases." (In re Shane G. (2008) 166 Cal.App.4th 1532, 1538.) An Indian child is defined as any unmarried person who is under age 18 and is either (a) a member of an Indian tribe, or (b) eligible for membership in an Indian tribe and the biological child of a member of an Indian tribe. (25 U.S.C. § 1903(4).)

ICWA imposes a duty to give the Indian child's tribe notice of the pending proceedings and provides the tribe a right to intervene "[w]hen a court 'knows or has reason to know that an Indian child is involved' in a juvenile dependency proceeding." (In re Shane G., supra, 166 Cal.App.4th at p. 1538; § 224.2, subd. (a).) "Alternatively, if there is insufficient reason to believe a child is an Indian child, notice need not be given." (In re Shane G., supra, at p. 1538.) Notice requirements are meant to ensure that the child's Indian tribe will have the opportunity to intervene and assert its rights in the proceedings. (In re Kahlen W. (1991) 233 Cal.App.3d 1414, 1421.)

Section 224.3, subdivision (a), imposes an "affirmative and continuing duty" on the court and the Agency "to inquire whether a child for whom a petition . . . is to be, or has been, filed is or may be an Indian child in all dependency proceedings . . . ." Section 224.3, subdivision (b), states circumstances that may provide reason to know the child is an Indian child include the following:

"(1) A person having an interest in the child . . . provides information suggesting the child is a member of a tribe or eligible for membership in a tribe or one or more of the child's biological parents, grandparents, or great-grandparents are or were a member of a tribe.
"(2) The residence or domicile of the child, the child's parents, or Indian custodian is in a predominantly Indian community.
"(3) The child or the child's family has received services or benefits from a tribe or services that are available to Indians from tribes or the federal government, such as the Indian Health Service." (§ 224.3, subd. (b); see also Cal. Rules of Court, rule 5.481(a)(5).)

If these or other circumstances indicate a child may be an Indian child, the social worker must further inquire regarding the child's possible Indian status. Further inquiry includes interviewing the parents, Indian custodian, extended family members or any other person who can reasonably 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 court to know or have reason to know an Indian child is involved, the social worker must provide notice. (§ 224. 3, subd. (d); In re Shane G., supra, 166 Cal.App.4th at pp. 1538-1539.) More than a bare suggestion of Indian ancestry is needed before notice is required. (In re Jeremiah G. (2009) 172 Cal.App.4th 1514, 1520.)

Proper inquiry was conducted to determine whether there was reason to know Andrea was an Indian child within the meaning of ICWA. The social worker asked both parents whether they had possible Indian heritage. Andres filled out the ICWA form and claimed his family had Apache heritage. He said he believed both the paternal grandfather and the paternal grandmother had Apache heritage and were from New Mexico. He stated the paternal grandmother was deceased and incorrectly stated the grandfather was also deceased. He was unable to provide any information about the paternal great-grandparents except that both paternal great-grandmothers had died in New Mexico.

The social worker followed up with the paternal relatives, discovered the paternal grandfather was alive and interviewed him about possible Indian heritage. The paternal grandfather said he suspected the family may have some Apache heritage because his maternal grandmother looked very Indian and his family was from New Mexico. He said neither he nor any family members were ever registered with a tribe.

The court stated that although Andres had designated a tribe, the claim of Indian heritage was very distant and remote. This was not error. The paternal grandfather's statement he suspected his grandmother may have been Apache because she looked very Indian and the family was from New Mexico was only a mere suggestion of Indian heritage. There was no information that Andrea was eligible for tribal membership or that any family members had been members of a tribe. Neither Andrea nor her parents lived in an Indian community or had ever received benefits available to Indians. An ancestor's Indian-like appearance and the fact the family was from the same state as an Indian tribe without more did not provide sufficient reason to know, or have reason to know, that Andrea was an Indian child within the meaning of the statute. The court did not err by finding ICWA did not apply.

DISPOSITION

The orders are affirmed.

______________________

IRION, J.

WE CONCUR:

______________________

MCCONNELL, P. J.

______________________

O'ROURKE, J.


Summaries of

San Diego Cnty. Health & Human Servs. Agency v. Leticia G. (In re Andrea G.)

COURT OF APPEAL, FOURTH APPELLATE DISTRICT DIVISION ONE STATE OF CALIFORNIA
Feb 14, 2012
D060569 (Cal. Ct. App. Feb. 14, 2012)
Case details for

San Diego Cnty. Health & Human Servs. Agency v. Leticia G. (In re Andrea G.)

Case Details

Full title:In re ANDREA G., a Person Coming Under the Juvenile Court Law. SAN DIEGO…

Court:COURT OF APPEAL, FOURTH APPELLATE DISTRICT DIVISION ONE STATE OF CALIFORNIA

Date published: Feb 14, 2012

Citations

D060569 (Cal. Ct. App. Feb. 14, 2012)