|
(Cite
as: 161 Cal.App.4th 115, 74 Cal.Rptr.3d
27) |
Court
of Appeal, Second District, Division 7, California.
In
re H.B., a Person Coming Under the Juvenile Court Law.
Los
Angeles County Department of Children and Family Services, Plaintiff and
Respondent,
v.
Gail
B., Defendant and Appellant.
No.
B200606.
Feb.
25, 2008.
**28
Marissa Coffey, under appointment by the Court of Appeal, Monterey Park, for
Defendant and Appellant.
Raymond
G. Fortner, Jr., County Counsel, James M. Owens, Assistant County Counsel, and
Judith A. Luby, Principal Deputy County Counsel, for Plaintiff and
Respondent.
PERLUSS,
P.J.
*117
Gail B., the mother of four-year-old H.B., appeals from the juvenile court's
order terminating her parental rights under Welfare & Institutions Code
section 366.26. Without ever affirmatively stating either she or H.B. may have
American Indian ancestry, Gail B. contends the juvenile court's failure to
inquire about such ancestry violated the Indian Child Welfare Act (25 U.S.C. ?
1901 et seq. (ICWA)) and requires reversal of the termination order. We
affirm.
FACTUAL
AND PROCEDURAL BACKGROUND
The
jurisdiction/
The
record reveals extensive departmental intervention on behalf of Gail B.'s
children, beginning in July 1998. At that time the Department filed a petition
(sustained as amended) alleging Gail B.'s sons, D.B. and D.B., had been placed
in dangerous situations both by their father, who **29
drove under the influence of alcohol with them in the car and sexually abused
their seven half-siblings, and by their mother, whose drug use interfered with
her ability to care for the boys. In April 1999 the Department filed a petition
alleging Gail B. had neglected her third child, a girl (B.B.), and reciting the
previously sustained allegations with respect to the two boys. The Department
filed yet another petition in November 2000, one week after Gail B.'s fourth
child, a girl (T.B.), was born. The four children were temporarily returned to
their parents but removed again in March 2002 pursuant to a petition again
alleging neglect by Gail B. After the 2002 petition was dismissed as to the two
boys but sustained as to the two girls, all four children were released to their
father. The children were again detained in July 2003 after the father tested
positive for PCP. The new petition, which was sustained as to all four children,
alleged ongoing drug use, endangerment and domestic violence by the father. The
children were first placed with their adult half-siblings and then transferred
to foster homes.
In
July 2004 the Department received a referral alleging emotional abuse and
general neglect of then one-year-old H.B. by his mother.FN1
Rather than detain H.B., the Department initiated a voluntary family maintenance
contract with Gail B., which included parenting education, drug counseling and
testing and general counseling. The contract was extended to provide family
preservation services to the mother, but those services were terminated in March
2005 for non-compliance. After Gail B. tested positive for marijuana on three
occasions in early 2005, the Department detained H.B. from his mother and filed
a petition on May 26, 2005, which was consolidated with the pending *119
petitions related to his siblings. Nothing in the record available to us
suggests any of H.B.'s siblings was ever identified as possibly having American
Indian ancestry.
FN1.
Gail B. identified H.B.'s father as Henry K. Although the Department discovered
an address for him, he never responded to the Department's attempts to contact
him concerning the proceedings involving H.B.
The
petition initiating proceedings as to H.B. did not indicate whether he had been
identified as possibly having American Indian ancestry, but the detention report
filed concurrently with the petition stated ICWA did not apply.FN2
Gail B. did not appear at the detention hearing; and the court informed her
attorney, ?Next time, I'll want to make the inquiry of the ICWA and the
paternity.? The jurisdiction/
FN2.
The report also stated ?Mother is developmentally delayed and receives SSI ...
[but] does not qualify for Regional Center Services as she does not meet the
criteria.? Gail B. asserts her developmental delay somehow compromised the
Department's conclusion she had no American Indian ancestry, but we fail to see
anything in the record to support this conclusion. Even were her impairment
responsible for her failure to assert possible American Indian ancestry in the
dependency court, she (and her counsel) could have easily remedied this defect
on appeal.
Gail
B. personally appeared at the June 29, 2005 hearing, and both she and H.B. were
represented by counsel. Although it had previously announced its intention to do
so, the court did not inquire further about H.B.'s possible American Indian
ancestry.
At
the jurisdiction-disposition hearing the court sustained the petition, as
amended; found by clear and convincing evidence H.B. was in danger unless
removed from Gail B.'s custody; and, based on Gail B.'s failure to complete
previously ordered services,**30
accepted the Department recommendation that neither of H.B.'s parents be granted
reunification services. Subsequent departmental reports continued to state ICWA
did not apply, but the court never made an equivalent finding at any of the
multiple hearings that occurred before termination of Gail B.'s parental rights.
To this day, Gail B. has not claimed she or her children may have American
Indian ancestry.
DISCUSSION
1.
Standard
of Review
[1][2][3][4]
We review factual findings in the light most favorable to the juvenile court's
order. (In
re Rebecca R.
(2006) 143 Cal.App.4th 1426, 1430, 49 Cal.Rptr.3d 951 (Rebecca
R.).)
Indeed, ?[w]e must indulge in all legitimate *120
and reasonable inferences to uphold the [judgment]. If there is substantial
evidence supporting the judgment, our duty ends and the judgment must not be
disturbed.? (In
re Misako R.
(1991) 2 Cal.App.4th 538, 545, 3 Cal.Rptr.2d 217.) Our deference to the fact
finder, of course, is not without limit. The substantial evidence standard
requires evidence that is ? ?reasonable in nature, credible, and of solid
value.? ? (Constance
K. v. Superior Court
(1998) 61 Cal.App.4th 689, 705, 71 Cal.Rptr.2d 780.) A judgment is not supported
by substantial evidence if it is based solely upon unreasonable inferences,
speculation or conjecture. (See People
v. Anderson
(1968) 70 Cal.2d 15, 23-24, 73 Cal.Rptr. 550, 447 P.2d 942.)
2.
The
Juvenile Court Erred in Failing To Ensure Compliance with State-imposed ICWA
Inquiry Requirements
[5]
The purpose of ICWA is to ? ?protect the best interests of Indian children and
to promote the stability and security of Indian tribes and families.? ?
(In
re Karla C.
(2003) 113 Cal.App.4th 166, 173-174, 6 Cal.Rptr.3d 205, quoting 25 U.S.C. ?
1902; see also In
re Suzanna L.
(2002) 104 Cal.App.4th 223, 229, 127 Cal.Rptr.2d 860; In
re Santos Y.
(2001) 92 Cal.App.4th 1274, 1299, 112 Cal.Rptr.2d 692.) ?ICWA presumes it is in
the best interests of the child to retain tribal ties and cultural heritage and
in the interest of the tribe to preserve its future generations, a most
important resource.? (In
re Desiree F.
(2000) 83 Cal.App.4th 460, 469, 99 Cal.Rptr.2d 688.) For purposes of ICWA, an
?Indian child? is a child who is either a member of an Indian tribe or is
eligible for membership in an Indian tribe and is the biological child of a
member of an Indian tribe. (25 U.S.C. ? 1903(4).)
When
a 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, 30 Cal.Rptr.3d 726.) ICWA itself does not
expressly impose any duty to inquire as to American Indian ancestry; nor do the
controlling federal regulations. (See 25 C.F.R. ? 23.11(a) (1994).) FN3
But ICWA provides that states may provide ?a higher standard of protection to
the rights of the parent ... of an Indian child than the rights provided under
[ICWA]? (25 U.S.C. ? 1921), and *121
longstanding federal guidelines provide ?the state court shall make inquiries to
determine if the child involved is a member of an Indian tribe or if a parent of
the child is a member of an Indian tribe and the child is eligible for
**31
membership in an Indian tribe.? FN4
(Guidelines for State Courts; Indian Child Custody Proceedings (44 Fed.Reg.
67584 et seq. (Nov. 26, 1979) 67588, part B.5.(a)) (Guidelines); see
In
re S.B., supra,
130 Cal.App.4th at p. 1158, 30 Cal.Rptr.3d 726.)
FN3.
Although ICWA notice provisions apply if the court ?knows or has reason to know
that an Indian child is involved,? neither ICWA itself nor the federal
regulations define ?reason to know.? (See In
re S.B., supra,
130 Cal.App.4th at p. 1158, 30 Cal.Rptr.3d 726.)
FN4.
Nonetheless, the Guidelines expressly provide they ?are not intended to have
binding legislative effect.? (44 Fed.Reg. 67584.)
At
the time the Department commenced proceedings concerning H.B., California Rules
of Court, rule 1439(d),FN5
imposed on both the juvenile court and the Department ?an affirmative and
continuing duty to inquire whether a [dependent] child ... is or may be an
Indian child.? Rule 1439(d)(2) provided ?the social worker must ask ... the
parents ... whether the child may be an Indian child or may have Indian
ancestors.? Rule 1439(d)(3) provided, ?[a]t the first appearance by a parent ...
in any dependency case, ... the parent ... must be ordered to complete form
JV-130, Parental
Notification of Indian Status.?
FN5.
Effective January 1, 2007, the California Rules of Court were renumbered and
former rule 1439 is now rule 5.664. Effective January 1, 2008, former rule 5.664
was repealed and replaced, in part, with current rule 5.481. In this opinion, we
refer to this rule as rule 1439, which was in effect during all hearings
relevant to this appeal, and quote from the rule as it read at that time. All
further rule references are to the California Rules of Court.
The
requirement that the court order the parent to complete form JV-130 became
effective on January 1, 2005. The initial dependency petition regarding H.B. was
filed on May 26, 2005.FN6
Nonetheless, there is no evidence in the record Gail B. was ever asked to
complete form JV-130, and the juvenile court failed to make the required inquiry
on the record. This was error.
FN6.
As discussed, the detention report prepared for the May 26, 2005 hearing
affirmatively stated ?[t]he Indian Child Welfare Act does not apply,? as did
every Department report thereafter. Similarly, neither of the boxes on the
petition (Judicial Council form no. JV-100) indicating tribal membership or
eligibility for membership or Indian ancestry was checked.
3.
Any
Error in Compliance with Applicable Inquiry Requirements Was
Harmless
[6][7]
A violation of ICWA notice requirements may be harmless error, particularly
when, as here, the source of the duty to inquire is not ICWA itself but rather
rule 1439(d), a rule of court implementing ICWA. (In
re S.B., supra,
130 Cal.App.4th at p. 1162, 30 Cal.Rptr.3d 726; see Nicole
K. v. Superior Court
(2007) 146 *122
Cal.App.4th 779, 784, 53 Cal.Rptr.3d 251.) ?[A]ny failure to comply with a
higher state standard, above and beyond what the ICWA itself requires, must be
held harmless unless the appellant can show a reasonable probability that he or
she would have enjoyed a more favorable result in the absence of the error.?
(In
re S.B.,
at p. 1162, 30 Cal.Rptr.3d 726.)
In
this case Gail B. has never asserted H.B. may have American Indian ancestry or
suggested she would have said he did had she been required to complete form
JV-130 or to answer on the record the juvenile court's inquiries on that
subject. Absent any affirmative representation of Indian ancestry, either in the
dependency court or on appeal, Gail B.'s statement to the social worker denying
such ancestry and her failure to indicate any of her children may have Indian
ancestry throughout the Department's lengthy involvement with this family fully
support the conclusion any error by the juvenile court was harmless. (See
In
re Rebecca R., supra,
**32
143 Cal.App.4th at p. 1431, 49 Cal.Rptr.3d 951 [?There is nothing whatever which
prevented [father], in his briefing or otherwise, from removing any doubt or
speculation. He should have made an offer of proof or other affirmative
representation that, had he been asked, he would have been able to proffer some
Indian connection sufficient to invoke the ICWA. He did not?].) ?The knowledge
of any Indian connection is a matter wholly within the appealing parent's
knowledge and disclosure is a matter entirely within the parent's present
control. The ICWA is not a ?get out of jail free? card dealt to parents of
non-Indian children, allowing them to avoid a termination order by withholding
secret knowledge, keeping an extra ace up their sleeves. Parents cannot spring
the matter for the first time on appeal without at least showing their hands.
Parents unable to reunify with their children have already caused the children
serious harm; the rules do not permit them to cause additional unwarranted delay
and hardship, without any showing whatsoever that the interests protected by the
ICWA are implicated in any way.? (Ibid.;
cf. In
re J.N.
(2006) 138 Cal.App.4th 450, 461, 41 Cal.Rptr.3d 494 [rejecting contention of
harmless error when Department failed to indicate mother was ever asked about
possible Indian heritage].)
*123
DISPOSITION
The
order of the juvenile court terminating the parental rights of Gail. B. is
affirmed.
We
concur: WOODS, J., and WILEY, J.FN*
FN*
Judge of the Los Angeles County Superior Court, assigned by the Chief Justice
pursuant to article VI, section 6 of the California Constitution.