|
(Cite
as: 166 Cal.App.4th 1532, 83 Cal.Rptr.3d
513) |
Court
of Appeal, Fourth District, Division 1, California.
In
re SHANE G., a Person Coming Under the Juvenile Court Law.
San
Diego County Health and Human Services Agency, Plaintiff and
Respondent,
v.
L.K.
et al., Defendants and Appellants.
No.
D052632.
Aug.
26, 2008.
Certified
for Partial Publication.FN*
FN*
This opinion is ordered certified for publication with the exception of parts I
and II.
Background:
The Superior Court, San Diego County, No. 515833E,Cynthia Bashant and Gary M.
Bubis, JJ., terminated parental rights to child. Parents appealed.
Holdings:
The Court of Appeal, McConnell, P.J., held that:
(1)
county health and human services agency inquiry produced no information that
child was an Indian child, and
(2)
inability to find Indian Child Welfare Act (ICWA) notices and return receipts as
to child did not require reversal of termination of parental
rights.
Affirmed.
West
Headnotes
[1]
Indians 209 134(5)
209
Indians
209III Protection of Persons and Personal Rights; Domestic
Relations
209k132
Infants
209k134 Dependent Children; Termination of Parental Rights
209k134(5)
k. Notice of Pending State Proceedings and Right to Intervene. Most Cited
Cases
If
there is insufficient reason to believe a child in a juvenile dependency
proceeding is an Indian child, Indian Child Welfare Act (ICWA) notice need not
be given. Indian Child Welfare Act of 1978, ? 102(a), 25 U.S.C.A. ? 1912(a);
West's Ann.Cal.Welf. & Inst.Code ?? 224.3(d), 290.1(f), 290.2(e), 291(g),
292(f), 293(g), 294(i), 295(g), 297(d).
[2]
Indians 209 134(5)
209
Indians
209III Protection of Persons and Personal Rights; Domestic
Relations
209k132
Infants
209k134 Dependent Children; Termination of Parental Rights
209k134(5)
k. Notice of Pending State Proceedings and Right to Intervene. Most Cited
Cases
County
health and human services agency inquiry produced no information that child in
dependency proceeding was an Indian child, and thus no Indian Child Welfare Act
(ICWA) notice was required, even though child's grandmother indicated that
child's great-great-great-grandmother was member of Comanche tribe, where
Comanche tribe required a minimum blood quantum of one-eighth Comanche heritage
for tribal membership, and no one in child's family ever lived on a reservation,
attended an Indian school, participated in Indian ceremonies, or received
services from an Indian health clinic; agency received letter from Comanche
tribe concerning child's half-sibling, who shared his alleged Comanche heritage,
confirming required blood quantum for membership in tribe and stating that
half-sibling was not eligible. Indian Child Welfare Act of 1978, ? 102(a), 25
U.S.C.A. ? 1912(a); West's Ann.Cal.Welf. & Inst.Code ? 224.3.
See
10 Witkin, Summary of Cal. Law (10th ed. 2005) Parent and Child, ?? 526, 528;
Cal. Jur. 3d, Delinquent and Dependent, Children ? 122; Annot., Construction and
Application of Indian Child Welfare Act of 1978 (ICWA) (25 U.S.C.A. ?? 1901 et
seq.) Upon Child Custody Determinations (2001) 89 A.L.R.5th 195.
[3]
Indians 209 134(5)
209
Indians
209III Protection of Persons and Personal Rights; Domestic
Relations
209k132
Infants
209k134 Dependent Children; Termination of Parental Rights
209k134(5)
k. Notice of Pending State Proceedings and Right to Intervene. Most Cited
Cases
**514
Appellate Defenders, Inc., and Maryann M. Milcetic for Defendant and Appellant,
L.K.
Appellate
Defenders, Inc., and Kathleen Murphy Mallinger for Defendant and Appellant,
Shane G., Sr.
John
J. Sansone, County Counsel, John E. Philips, Chief Deputy County Counsel, and
Dana C. Shoffner, Deputy County Counsel, for Plaintiff and
Respondent.
Carl
Fabian, under appointment by the Court of Appeal, for Minor.
McCONNELL,
P.J.
*1534
L.K. and Shane G., Sr., (together the parents) appeal a juvenile court judgment
terminating their parental rights to their minor son Shane G. under Welfare and
Institutions Code section 366.26.FN1
The parents challenge the sufficiency of the evidence to support the court's
finding the beneficial parent-child relationship and beneficial sibling
relationship exceptions did not apply to preclude terminating their parental
rights. They further contend reversal is required because the court failed to
ensure proper notice under the Indian Child Welfare Act (ICWA) (25 U.S.C. ? 1901
et seq.). We affirm the judgment.
FN1.
Statutory references are to the Welfare and Institutions Code unless otherwise
specified.
*1535
FACTUAL AND PROCEDURAL BACKGROUND
In
January 2006 five-year-old Shane became a dependent of the juvenile court under
section 300, subdivision (b) and was removed from parental custody based on
findings his parents left him with the paternal grandmother who could not care
for him because she had health problems and no home of her own. L.K. had four
other children FN2
and a history with child protective services dating to 1994. She used
methamphetamine and was often homeless and transient. She voluntarily gave legal
guardianship of her three daughters to the maternal grandmother. Both parents
had extensive criminal histories. Just before the jurisdiction hearing, L.K. was
arrested on drug charges and was serving a one-year sentence for a prior
burglary conviction.
FN2.
Shane, Sr., is not the father of the other minors. These children, 13-year-old
Danica, 11-year-old Jasmine, 10-year-old Amber and nine-year-old Anthony, are
not subjects of this appeal.
Shane
and his siblings visited L.K. at the jail, and after her release, at a park.
Shane and his brother Anthony had been living in separate foster homes, but were
later placed together. The parents had not complied with reunification services
and stopped visiting the minors. L.K. was arrested again. At a 12-month hearing,
the court terminated services and set a section 366.26 selection and
implementation hearing for Shane.
The
social worker assessed Shane as adoptable and recommended adoption as
**515
his permanent plan. L.K. remained incarcerated. Neither parent had much contact
with Shane for the past year. Shane and Anthony were moved to the foster home of
Lisa U., who was interested in adopting them.
The
San Diego County Health and Human Services Agency (Agency) filed a petition for
modification under section 388 seeking to have the court terminate L.K.'s visits
with Shane. The petition alleged L.K. had not visited Shane for many months due
to her incarceration, Shane displayed severe anxiety and anger after a recent
visit, and Shane's therapist believed visits were detrimental to him. The court
granted the petition, finding there was a change in circumstances and it was in
Shane's best interests to suspend visits. L.K. appealed, and in an unpublished
opinion, this court affirmed the order granting the modification
petition.
According
to an addendum report, Anthony was moved to a new foster home because the social
worker believed it was in Shane's best interests to *1536
live apart from him. Shane said he felt safer since Anthony moved because he no
longer worried about Anthony hitting him, twisting his arm or pushing him down
the stairs. Lisa arranged visits between Shane and Anthony, and was amenable to
Shane having contact with his sisters. By this time, Shane had been living with
Lisa for nine months and referred to her as ?mom.? His academic performance had
improved dramatically and he no longer had issues with enuresis, especially
since Anthony moved out. Shane told Lisa he loved her and wanted to stay with
her forever.
The
social worker again recommended adoption for Shane as he had no current
relationship with his parents and terminating parental rights would not greatly
harm him. Also, Shane had never lived with Anthony other than the 18 months they
were placed in the same foster home. The social worker noted Shane experienced
anxiety from prolonged contact with Anthony, and Shane deserved the opportunity
to be raised in an environment where he felt safe and protected. Lisa was
willing to maintain sibling contact.
At
a contested selection and implementation hearing, social worker Deena Larks
testified the parents had not seen Shane for seven months. Shane and Anthony
continued to visit each other and Lisa was committed to continuing their
contact. In Larks' opinion, Shane's anxiety and fear of living with Anthony
adversely affected their bond. Larks believed the permanence, stability and
sense of safety that adoption offered Shane outweighed any detriment caused by
losing contact with Anthony. In any event, Lisa had already arranged for regular
visits and telephone contact between Shane and Anthony. Similarly, the benefit
of adoption for Shane outweighed the benefits of maintaining contact with his
sisters, with whom he had never lived. Lisa was willing to foster contact
between Shane and his sisters.
The
parties stipulated to Shane's testimony as follows: Shane would be sad if he
could no longer see Anthony. He wanted to see Anthony but not live with him. He
would be sad if he could no longer see his sisters. The last time he remembered
seeing them was when he was six years old. Shane wanted to see L.K. but ?only a
little bit until she goes to college.? He had not seen Shane, Sr., in a long
time. Shane wanted to see him, but only sometimes, until Shane, Sr., went to
college.
The
court addressed the applicability of ICWA. L.K. initially indicated she had no
Native American heritage, but she later claimed she may have some *1537
Comanche heritage. However, L.K. stated neither she nor the minors had ever been
tribal members. The court acknowledged there had been a finding from 2005 that
ICWA **516
did not apply in this case. Although there was a letter in the file from the
Comanche tribe stating it did not intend to intervene because the child (Shane's
sibling Danica) did not have at least one-eighth Comanche heritage, the ICWA
notices were not in the file. There was another finding in January 2006 that
ICWA did not apply to any of the minors.
Agency
argued ICWA notice was not required because there was no reason to believe,
based on L.K.'s information, that Shane was a member of a tribe or eligible for
membership in a tribe. The court continued the matter for Agency to provide
copies of ICWA notices.
Several
days later, Agency filed an addendum report with additional ICWA inquiry
information. The social worker interviewed the maternal grandmother, who stated
Shane's great-great-great-grandmother was a Comanche princess. The maternal
grandmother said she never saw any ceremonial costumes and no one in the family
ever participated in Indian ceremonies, lived on a reservation, attended an
Indian school or received services from an Indian health clinic. Agency told the
court the ICWA notices in the file concerned one of L.K.'s older children, but
Agency had no ICWA notices that were sent as to Shane.
The
parties stipulated to the testimony of Amber Robinson from the Comanche
enrollment office, who would say the Comanche tribe requires any member to be at
least one-eighth Comanche. The parties also stipulated the maternal grandmother
would testify Shane has 1/
The
court found Agency performed a reasonable ICWA inquiry and there was no reason
to believe Shane was an Indian child as defined by federal law. Based on the
addendum report, stipulated testimony and letter from the Comanche tribe, ICWA
did not apply. The court further found Shane was adoptable and none of the
exceptions to adoption applied to preclude terminating parental
rights.
*1538
DISCUSSION
I-II
FN**
FN**
See footnote *, ante.
III
L.K.
contends the court erred by failing to ensure sufficient ICWA notice was sent to
the Comanche tribe. Shane, Sr., joins in this argument.
A
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 Kahlen W.
(1991) 233 Cal.App.3d 1414, 1421, 285 Cal.Rptr. 507; In
re Jullian B.
(2000) 82 Cal.App.4th 1337, 1344, 99 Cal.Rptr.2d 241.) ICWA defines an Indian
child as any unmarried person who is under age 18 and is either: (1) a member of
an Indian tribe, or (2) eligible for membership in an Indian tribe and the
biological child of a member of an Indian tribe. (25 U.S.C. ?
1903(4).)
[1]
When a court ?knows or has reason to know that an Indian child is involved? in a
juvenile dependency proceeding, a duty arises under ICWA to give the Indian
child's tribe notice of the pending proceedings and its right to intervene. (25
U.S.C. ? 1912(a); ?? 224.3, subd. (d), 290.1, subd. (f), 290.2, subd. (e), 291,
subd. (g), 292, subd. (f), 293, subd. (g), 294, subd. (i), 295, subd. (g), 297,
subd. (d); In
re Aaliyah G.
(2003) 109 Cal.App.4th 939, 941, 135 Cal.Rptr.2d 680.) Alternatively, if there
is insufficient reason to believe a child is an Indian child, notice need not be
given. (In
re O.K.
(2003) 106 Cal.App.4th 152, 157, **517
130 Cal.Rptr.2d 276; In
re Aaron R.
(2005) 130 Cal.App.4th 697, 707, 29 Cal.Rptr.3d 921.)
?The
circumstances that may provide probable cause for the court to believe the child
is an Indian child include, but are not limited to, the following: [?] (A) A
person having an interest in the child ... informs the court or the county
welfare agency ... or provides information suggesting that the child is an
Indian child; [?] (B) The residence of the child, the child's parents, or an
Indian custodian is in a predominantly Indian community; or [?] (C) 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 *1539
government, such as the Indian Health Service.? (Cal. Rules of Court, rule
5.664(d)(4); ? 224.3, subd. (b)(2) & (3).) 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), 224.2,
subd. (a)(5)(A)-(G).)
B
[2]
Here, Agency's inquiry produced no information Shane was an Indian child. The
social worker interviewed the maternal grandmother who indicated Shane's
great-great-great-grandmother was a Comanche princess. However, no one in the
family ever lived on a reservation, attended an Indian school, participated in
Indian ceremonies or received services from an Indian health clinic. Most
significantly, the evidence before the court showed the Comanche tribe requires
a minimum blood quantum for membership that excludes Shane.FN4
Thus, notice to the Comanche tribe was not required. (? 224.3, subd.
(d).)
FN4.
Agency received a letter from the Comanche tribe concerning Shane's half-sibling
Danica. The letter confirmed the required blood quantum for membership in the
tribe and stated Danica was not eligible for membership. Because Comanche
heritage was asserted through L.K., who is the mother of both Danica and Shane,
the letter supports a finding Shane would be ineligible for membership in the
Comanche tribe.
[3]
Although there was some confusion regarding ICWA notices sent to the Comanche
tribe as to Shane, and no notices or return receipts could be found, Agency
performed a reasonable ICWA inquiry and determined there was no reason to
believe Shane was an Indian child. Where, as here, the record is devoid of any
evidence a child is an Indian child, reversing the judgment terminating parental
rights for the sole purpose of sending notice to the tribe would serve only to
delay permanency for a child such as Shane rather than further the important
goals and ensure the procedural safeguards intended by ICWA. Reversal is not
required. In
re Rebecca R.
(2006) 143 Cal.App.4th 1426, 1431, 49 Cal.Rptr.3d 951 [parents of non-Indian
children should not be permitted to cause additional unwarranted delay and
hardship without any showing the interests of ICWA are
implicated].)
*1540
DISPOSITION
The
judgment is affirmed.
WE
CONCUR: McDONALD and IRION, JJ.