In re C.B.
Filed 9/4/13 In re C.B. CA2/6
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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opinion has not been certified for publication or ordered published for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.
IN THE COURT OF
APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE
DISTRICT
DIVISION SIX
In re C.B. et al., Persons Coming Under the Juvenile Court
Law.
2d Juv. Nos.
B242298, B246612
(Super. Ct.
No. JV50760)
(San
Luis Obispo County)
SAN LUIS OBISPO COUNTY DEPARTMENT OF SOCIAL SERVICES,
Plaintiff and
Respondent,
v.
D.B.,
Defendant and
Appellant.
D.B., the father of C.B.
and D.B., Jr., appeals jurisdiction and disposition orders of the juvenile
court following the sustaining of a
Obispo County Department of Social Services (DSS) juvenile dependency
petition. (Welf. & Inst. Code,
§ 300, subd. (b).)
name="_ftnref1" title="">[1] We conclude, among other things, that the
court's finding that DSS gave proper notice to Indian tribes under the Indian
Child Welfare Act (ICWA) (25 U.S.C.
§ 1901 et seq.) is supported by the record. We affirm.
FACTS
In March 2012, DSS
detained C.B., age 11, and D.B., Jr., age 8, because their parents, D.B. and
W.B. (the children's mother) were using methamphetamine and D.B. committed an
act of domestic violence against
W.B. The children told DSS that D.B.
"hits them, and has caused injuries."
On March 30, 2012,
DSS received test results indicating that W.B. and the children tested positive
for methamphetamine. The children were
placed in "a confidential emergency foster home."
At a
found "[c]ontinued residence in the home of the parent is contrary to the
minors' welfare and other detention is required to serve the best interests of
the minors . . . ."
At the May 11, 2012, jurisdiction hearing,
the trial court found "jurisdiction has been established" and it
sustained the juvenile dependency petition. (§ 300, subd. (b).) It found the children tested positive for
methamphetamine. It said, "Somebody
in this family knows where these kids got exposed to
methamphetamine . . . .
[B]oth the parents bear the responsibility for that." It noted that D.B. had been "using drugs
to the point where he goes to prison and is absent from [the children's] lives
[for] half of his son's life and a good portion of his daughter's
life . . . ."
D.B. recently was arrested for committing a parole violation. The court said, "I hope that [DSS] will
be very careful in how they transition the kids back home, but I'm not going to
do that today." The court set a
disposition hearing.
In a June 29, 2012, "Disposition
report," DSS recommended that the children be "returned to [their
mother's] care," and that W.B. receive family maintenance services. It noted that W.B. "is currently working
with Drug and Alcohol Services and is testing negative for all
substances." It said D.B. "is
currently incarcerated and is unable to care for the children at this
time."
On January 4, 2013, the trial court issued a final
judgment granting custody of the two children to their mother. It also terminated the court's jurisdiction
over the children.
D.B. told DSS that his
paternal grandmother had Cherokee ancestry and his paternal grandfather had
"Blackfoot" ancestry. W.B.
reported that she "does not have American Indian ancestry."
DSS sent a "Notice
of Child Custody Proceeding for an Indian Child" (ICWA-030) form to the
Blackfeet Tribe of Montana, the Cherokee Nation of Oklahoma, the United
Keetoowah Band of Cherokee Indians, the Eastern Band of Cherokee Indians, and
the Bureau of Indian Affairs. The trial
court found DSS gave proper ICWA notice to the tribes. The tribes determined the children were not
eligible for membership.
DISCUSSION
ICWA
Congress enacted ICWA
with the intent that the best interests of Indian children are served by
retaining their Indian tribal ties and cultural heritage. (In re
Desiree F. (2000) 83 Cal.App.4th
460, 469.) "'ICWA confers on tribes
the right to intervene at any point in state court dependency
proceedings.'" (
Cal.App.4th 166, 174.) Proper notice to
tribes is of critical importance, and courts strictly construe ICWA notice
requirements. (Ibid.) "Under the ICWA,
the tribe determines whether the child is an Indian child and its determination
is conclusive." (
Here the trial court
found: 1) DSS "complied with the
ICWA notice requirements," and 2) it gave proper notice to the three
Cherokee tribes and the Blackfeet tribe.
Each tribe reviewed its tribal records and determined that C.B. and
D.B., Jr., were not members or eligible for membership in the tribes and that
the tribes would not be intervening in this proceeding.
D.B. contends the
notices DSS sent were deficient because:
1) "the ICWA notices do not set forth the dates of birth or places
of birth of the paternal great- grandparents," and 2) they do not include "all
of their dates of death or their places of death." He claims the information was available to
DSS but it neglected to obtain it and include it in the ICWA notices.
DSS contends: 1) D.B. failed to raise these issues in the
trial court, 2) he presented no evidence to show DSS breached any duty, and 3)
he relies on speculation.
DSS is correct that D.B.
did not raise the specific ICWA notice omissions in the trial court. D.B. claims that at the January 4th hearing,
his counsel told the court that DSS "failed to interview the paternal
relatives in preparation of the notices."
But the transcript of that hearing reflects that his counsel only said
that D.B. "gave ICWA information to [DSS] that his grandmother had Indian
ancestry, and it is [D.B.'s] belief
that was not followed up upon by [DSS].
than that." (Italics
added.) He did not mention the ICWA
notices or claim DSS omitted available information regarding dates of birth or
death, or the places of birth and death.
But, even so, "the forfeiture doctrine does not bar consideration
of ICWA notice issues not raised in the
juvenile court." (
Z.W. (2011) 194 Cal.App.4th 54, 63.)
We proceed to the merits.
Here substantial
evidence supports a finding that DSS did not withhold known or available
information about the great-grandparents when it gave ICWA notices to the
tribes. The DSS worker signed a
declaration under penalty of perjury which is part of the ICWA-030 form
containing the information for the tribes.
The form reflects that DSS provided the full names of the children's
paternal great-grandfathers and their dates of death. For one of the great-grandfathers, his tribe is
listed as "Blackfeet." The
form reflects that DSS listed the full names of the children's paternal
great-grandmothers. It indicated that
one was deceased, the other was "not deceased," and one was a
"Cherokee." On the form the
DSS worker said DSS had "no information available" regarding the
birth date and place of birth for these paternal great-grandparents. She said one of the paternal
great-grandmothers was deceased, but the date and place of death were
"unknown." She declared,
"[I] have given all information [I]
have about the relatives" on the ICWA-030 form. (Italics added.)
The DSS has a duty to
complete the ICWA notice forms "to the extent such information
Karla C., supra, 113
Cal.App.4th at p. 179, italics added.)
It has "no duty to conduct an extensive independent investigation
for information." (
available was an issue of fact. The
trial court implicitly found against DB. on this issue. D.B. attempts to impeach the DSS worker's
declaration to the extent she claimed certain information was not available or
unknown. But he made no attempt to do so
in the trial court. He speculates that
the omitted information could have been obtained. But speculation does not suffice. (In re
D.W. (2011) 193 Cal.App.4th 413, 417.)
D.B. presented no evidence at any hearing that the missing information
was available.
D.B. claims DSS could
have obtained more complete information about his family history from other
relatives. He says, "The record
does not reveal who the department
interviewed . . . ."
But his assumption other relatives might have supplied more information
is insufficient. (In re Gerardo A. (2004) 119 Cal.App.4th 988, 995.) As stated in Gerardo A., "The fact that the record is silent regarding
whether the department spoke with anyone other than the children's mother and
maternal aunt does not necessarily mean the department failed to make an
adequate inquiry for Indian heritage information." (Ibid.) D.B. has not overcome the presumption that
DSS regularly performed its duties. (
Cal.App.4th 1426, 1430.)
D.B. suggests the trial
court could have asked for more information.
But D.B. did not attend the January 4th ICWA hearing and his counsel
made no offer of proof about any specific information his relatives
possessed. The court "could hardly
make inquiries of persons not parties to the
proceeding . . . ."
(In re C.Y.,
p. 42.)
DSS relied on
information D.B. provided regarding his family history. DSS's "initial inquiry . . .
need only be made to the parents."
(In re C.Y., supra, 208
Cal.App.4th at p. 42.) "[A]
parent has superior access to this information." (In re
S.B. (2005) 130 Cal.App.4th 1148, 1160.)
DSS claims "neither [D.B.] nor any other family member ever
presented additional ICWA information that might alter the tribes'
determination." In his reply brief,
D.B. makes no adequate showing to contest this claim. D.B. never requested the trial court to
correct the ICWA notices. His failure to
provide complete information is a factor in determining the reasonableness of
DSS's actions. (In re K.M. (2009) 172 Cal.App.4th 115, 119.) At the January 4th hearing, D.B.'s counsel
said, "I do not have any more
information . . . ." (Italics added.) "Reversal or remand here would exalt
form over substance because it is apparent father cannot provide any more
information." (In re Antoinette S.
(2002) 104 Cal.App.4th 1401, 1413.)
Moreover, D.B. has not
shown "how the supposed deficiencies [he] notes would have made a
difference given the information that was in the notices." (In re
I.W. (2009) 180 Cal.App.4th 1517, 1531.)
He does not claim that the names of the great grandparents on the form,
the dates of death provided or the notations regarding their alleged tribal
affiliations are incorrect. DSS also
provided the names of the children's paternal grandparents and information
regarding the paternal grandmother's birth date, her place of birth (Alabama)
and her tribal affiliation ("Cherokee"). It provided information regarding the
paternal grandfather including his date of birth, place of birth (Memphis,
Tennessee) and his tribal affiliation ("Blackfeet"). It provided information regarding D.B., W.B.,
and the children, and listed the four tribes with which D.B. claims an
ancestral affiliation. Tribes have made
membership determinations with less information. (In re
K.M., supra, 172 Cal.App.4th 115,
119; see also In re Gerardo A.,
[department's ICWA compliance was not invalid simply because it listed
birthplaces and birthdates for relatives as "unknown"].) Here the tribes determined that none of the
individuals D.B. listed had any ancestral connection to these tribes.
D.B. suggests the tribes
should not have made these determinations because they had insufficient
information. But we must defer to their
expertise in determining tribal membership.
(In re Karla C.,
p. 174.) The tribes know the
information needed to make eligibility determinations. Given the information provided on the ICWA
forms, we presume that if they needed additional information they would have
asked for it (In re L.B. (2003) 110
Cal.App.4th 1420, 1426), or that they would have stated they lacked sufficient
information to make a determination (In
re Cheyanne F. (2008) 164 Cal.App.4th 571, 574-575).
Relying on
and In re Louis S. (2004) 117
Cal.App.4th 622, D.B. claims the missing information nevertheless requires a
remand. But, unlike the present case, in
In re S.M., the Cherokee tribe
informed the child welfare agency that it could not determine tribal membership
because of insufficient family information on the ICWA notice forms. The agency ignored the tribe's letter. A year later, the tribe again requested the
agency to provide specific information.
The agency did not respond. The
Court of Appeal noted that "[t]he social worker did not say this
information is unavailable." (
explanation for not responding to these requests for information" by the
tribe. (Id. at. p. 1118.) It
also noted the agency breached its duty to the court by not filing the tribe's
letters. It said, "Not filing the
tribes' responses aids neither the courts nor the parties and does not serve
the purpose of the ICWA." (
Consequently, a remand to provide additional information to the tribes
was appropriate. But none of DSS's
actions are even remotely comparable to the neglect and breach of duty found in
In re S.M.
D.B. correctly notes
that in In re Louis S., the
Court of Appeal reversed and mentioned that birthdates were omitted on ICWA
notices. But there serious deficiencies,
occasioned by the agency's neglect, impeded the tribe's ability to check tribal
records. The agency sent ICWA notices
containing "multiple errors."
(In re Louis
117 Cal.App.4th at p. 631.) The
names of relatives were misspelled. The
agency did not provide the tribe with the complete name of "the person
with the alleged Indian heritage."
(Ibid.) The agency knew the correct full name of that
person because the social worker listed it in her report. Certainly tribes cannot check their records
where the agency does not provide correct names. But that is not the case here. The finding that ICWA does not apply is
supported by the record.
DSS claims the relief
D.B. requests of requiring it to issue new ICWA notices is now moot and any
error is harmless. We agree. ICWA compliance is required "in all
dependency proceedings . . . if the child is at risk of entering
foster care or is in foster care."
(§ 224.3, subd. (a).) In
notice deficiencies are harmless where, as here, the child welfare agency does
not seek "permanent foster care."
It said ICWA "requires notice only when child welfare authorities
seek permanent foster care or termination of parental rights; it does not
require notice anytime a child of
possible or actual Native American descent is involved in a
at p. 14.)
In January of 2013, the
juvenile court granted custody of the children to their mother and terminated
its jurisdiction over the children in its final judgment. DSS claimed the children were not at risk of
entering foster care. It told the
juvenile court it complied with ICWA, but ICWA was not "technically"
"triggered" by its actions or goals.
Its goal was not foster care or "removal" of the
children. It selected "family
maintenance" and returning the children home to their mother. Moreover, all the tribes said they would not
intervene in this proceeding. D.B. has
not shown what interest would be served by issuing new ICWA notices for the
tribes at this time. Tribes have no
interest to intervene when the children are placed back in their home with
their mother as a result of the final judgment.
(See, e.g., In re J.B. (2009)
178 Cal.App.4th 751, 760, fn. 5; § 224.3, subd. (a).) We have reviewed D.B.'s remaining contentions
and we conclude he has not shown error.
The orders and judgment
are affirmed.
NOT TO BE PUBLISHED.
GILBERT,
P.J.
We concur:
YEGAN, J.
PERREN, J.
Linda
D. Hurst, Judge
Superior
Court County of San Luis Obispo
______________________________
Kate M. Chandler, under
appointment by the Court of Appeal, for Defendant and Appellant.
Rita L. Neal, County
Counsel, Leslie H. Kraut, Deputy County Counsel, for Plaintiff and Respondent.
name="_ftn1" title="">[1] All statutory references are to the Welfare
and Institutions Code.
