(Cite as: 109 Cal.App.4th 939)

In re AALIYAH G., a Person Coming Under the Juvenile Court Law.

LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Plaintiff and

Respondent,

v.

ROBERT G., Defendant and Appellant.

No. B161963.

Court of Appeal, Second District, Division 5, California.

May 13, 2003.

[Opinion certified for partial publication.  [FN*] ]

FN* This opinion is certified for partial publication. The only parts of the opinion to be published are the following: the Introduction, the Indian Child Welfare Act section of the Discussion, and the Disposition.

SUMMARY

In a child dependency proceeding, the juvenile court terminated a father's parental rights. The county department of children and family services had stated in its juvenile dependency petition application and in its reports throughout the proceeding that the child did not have Indian heritage and, accordingly, that the Indian Child Welfare Act (ICWA) (25 U.S.C. § 1901 et seq.) was inapplicable. (Superior Court of Los Angeles County, No. CK25571, Thomas E. Grodin, Temporary Judge. [FN?] )

FN? Pursuant to California Constitution, article VI, section 21.

The Court of Appeal affirmed. The court held the ICWA had not been violated, since the juvenile court and county department of child and family services had discharged their affirmative duty under the ICWA and Cal. Rules of Court, rule 1439(d), to inquire whether the child had Indian heritage. The petition application was marked "No" to show that the child did not have Indian heritage, suggesting that an inquiry into the child's heritage had been made. In addition, the department had consistently reported that the ICWA was inapplicable, and neither the father nor any of the child's relatives had suggested anything to the contrary. (Opinion by Mosk, J., with Turner, P. J., and Grignon, J., concurring.) *940

HEADNOTES

Classified to California Digest of Official Reports

(1) Delinquent, Dependent, and Neglected Children § 74--Dependency Proceedings--Indian Child Welfare Act--Discharge of Affirmative Duty to Determine Indian Status.

In a child dependency proceeding in which a father's parental rights were terminated, the Indian Child Welfare Act (25 U.S.C. § 1901 et seq. (ICWA)), was not violated, since the juvenile court and county department of child and family services had discharged their affirmative duty to inquire whether the child had Indian heritage. Among other matters, the ICWA requires a court, when it knows or has reason to know that an Indian child is involved, to provide notice of an involuntary proceeding to the child's tribe (25 U.S.C. § 1912(a)), and Cal. Rules of Court, rule 1439(d), implements this notice requirement by imposing an affirmative duty on the court and county welfare department to inquire whether a child may be an Indian child when a juvenile dependency petition is involved. However, in this case, the record showed that the affirmative duty was discharged, and there was no indication the child had Indian ancestry. The petition application was marked "No" to show that the child did not have Indian heritage, suggesting that an inquiry into the child's heritage had been made. In addition, the department had consistently reported that the ICWA was inapplicable, and neither the father nor any of the child's relatives suggested anything to the contrary. Thus, absent some information that the child might have Indian heritage, the court did not have an obligation to make additional inquiry into the matter.

[See 10 Witkin, Summary of Cal. Law (9th ed. 1989) Parent and Child, § 724C; West's Key Number Digest, Indians  6.6(1).]

COUNSEL

Mark A. Massey, under appointment by the Court of Appeal, for Defendant and Appellant.

Lloyd W. Pellman, County Counsel, and Frank DaVanzo, Principal Deputy County Counsel, for Plaintiff and Respondent. *941

MOSK, J.

Introduction

Robert G. (father) appeals from an order terminating his parental rights to Aaliyah. He contends that his parental rights should not have been terminated because there was insufficient evidence to establish that the adoptive parents are capable of meeting Aaliyah's needs and that they have no prior referrals for child abuse or neglect. He also contends that there was insufficient evidence to support the juvenile court's finding that the Welfare and Institutions Code section 366.26, subdivision (c)(1)(A) exception did not apply. [FN1] In addition, father argues that the termination order must be reversed because the legally required affirmative inquiry was not made as to whether Aaliyah has Indian heritage. We affirm the order terminating father's parental rights. In the published portion of this opinion we discuss whether a sufficient inquiry was made as to whether or not the child has Indian heritage.

FN1 All further undesignated statutory references are to the Welfare and Institutions Code.

   Factual and Procedural Background [FN*]

FN* See footnote, ante, page 939.

   . . . . . . . . . . .

   Discussion

. . . . . . . . . . .

Indian Child Welfare Act

Los Angeles County Department of Children and Family Services (DCFS) stated in its petition application that Aaliyah did not have Indian heritage, and it continued to state in its reports throughout the proceedings that the Indian Child Welfare Act (25 U.S.C. § 1901 et seq. (ICWA)) did not apply. (1) Father, however, contends that the juvenile court and DCFS failed to satisfy their affirmative duty to inquire as to ICWA's applicability. We do not agree.

ICWA requires a court, if it "knows or has reason to know that an Indian child is involved" in any involuntary proceeding, to give notice to the Indian child's tribe of the pending proceedings and its right to intervene. (25 U.S.C. § 1912(a).) California Rules of Court, rule 1439 implements ICWA's notice *942 provisions in California courts. It provides that the court and DCFS have an "affirmative duty to inquire whether a child for whom a petition under section 300 is to be, or has been, filed is or may be an Indian child." (Cal. Rules of Court, rule 1439(d) (rule 1439(d).) Thus, the juvenile dependency petition form must be checked "if there is reason to know" the child is a member of or may be eligible for membership in an Indian tribe or "if there is reason to believe the child may be of Indian ancestry." (Rule 1439(d)(1).) Circumstances that may give rise to probable cause to believe a child is an Indian child include a party or welfare agency so informing the court or providing information suggesting the child is an Indian child, and if the child or its parents reside in a predominately Indian community. (Rule 1439(d)(2)(A), (B).) If proper notice under ICWA is not given, the Indian child, the child's parent or Indian custodian, or the child's tribe may petition the court to invalidate the proceeding. (25 U.S.C. § 1914.)

Father argues that the juvenile court and DCFS did not comply with their duty under rule 1439 to inquire whether the child has Indian heritage. The record here shows that any affirmative duty by DCFS and the court was discharged. The petition application was marked "No" to show that Aaliyah did not have Indian heritage. DCFS thereafter consistently reported that ICWA did not apply, and neither father nor any of Aaliyah's relatives ever suggested to the contrary. There is no indication in the record that Aaliyah has Indian heritage.

Nonetheless, father contends that the mere marking of a box and DCFS's subsequent statements in its reports of ICWA's inapplicability were insufficient to show that any affirmative duty that rule 1439(d) imposes was discharged. Checking the "No" box suggests that an inquiry as to Aaliyah's heritage was made. There is no indication to the contrary. The court had no obligation to make a further or additional inquiry absent any information or suggestion that the child might have Indian heritage. In the cases in which termination orders have been reversed for the failure to comply with ICWA notice requirements, there was information indicating that the child had Indian heritage. (See, e.g., In re Samuel P. (2002) 99 Cal.App.4th 1259, 1266 [121 Cal.Rptr.2d 820] [court failed to make an inquiry even though there was information in the record to support probable cause to believe the children were affiliated with Chumash Tribe]; In re Jonathan D. (2001) 92 Cal.App.4th 105 [111 Cal.Rptr.2d 628] [termination order reversed when court failed to give timely notice to Indian tribes]; In re Marinna J. (2001) 90 Cal.App.4th 731 [109 Cal.Rptr.2d 267] [termination order reversed because notice was not sent to Indian tribe despite family report that child had Indian heritage].)

Based on the record, there is sufficient evidence that an inquiry was made as to whether Aaliyah is an Indian child. The record also contains no *943 indication that Aaliyah has such heritage. We therefore conclude that there was no violation of ICWA.

Disposition

The order terminating Robert G.'s parental rights is affirmed.

Turner, P. J., and Grignon, J., concurred.

On June 12, 2003, the opinion was modified to read as printed above. *944

Cal.App.2.Dist.,2003.

In re AALIYAH G., a Person Coming Under the Juvenile Court Law.  LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent, v.  ROBERT G., Defendant and Appellant.