In re E.R.
Filed 10/2/13
In re E.R. CA2/2
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opinion has not been certified for publication or ordered published for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
TWO
In re E. R., a Person Coming Under the Juvenile Court Law.
B245482
(Los
Angeles County
LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY
SERVICES,
Plaintiff
and Respondent.
v.
JULIE R.,
Defendant
and Appellant.
Super. Ct.
No. CK81640)
APPEAL
from an order of the Superior Court
of
County. Rudolph A.
Diaz, Judge. Affirmed.
Janette Freeman
Cochran, under appointment by the Court of Appeal, for Defendant and Appellant.
John
F. Krattli, County Counsel, James M. Owens, Assistant County Counsel, and
Aileen Wong, Deputy County Counsel for Plaintiff and Respondent.
Julie
R. (mother) appeals from the juvenile court’s order terminating her
(born August 2008).
title="">[1] Mother contends that the juvenile court
failed to comply with the requirements of the Indian Child Welfare Act (ICWA)
(25 U.S.C. § 1901 et seq.) before terminating her parental rights pursuant to
Welfare & Institutions Code section 366.26.
reversal of the judgment. We find mother
has failed to show reversible error
and affirm.
Initial detention and section 300 petition
On
March 24, 2010, DCFS received a referral alleging that at approximately
1:30 a.m., Deputy Villagran found E., then age two, and Robert, then age
eight months, alone and unattended. E.
was wandering around her mother’s car, and Robert was in the back seat of the
car alone. Mother was approximately 50
feet away. When the officer approached
mother, she initially denied owning the car.
However, she later admitted she owned the car and was the mother of the
children. Mother had an outstanding no
bail warrant for her arrest.
Methamphetamine and a glass pipe were found on her person. Mother was arrested, and the children were
taken into protective custody.
DCFS
placed the children with Robert’s paternal grandmother, Janet B.
Mother
informed the social worker that Robert’s father was Christopher K., who was
homeless. Mother named Ivory G. as E.’s
father, and advised that Ivory was incarcerated.
have any American Indian heritage.
On
March 26, 2010, DCFS filed a section 300 petition on behalf of E. and Robert,
alleging that mother placed the children in an endangering and detrimental
situation in that she left them alone in a vehicle at 1:20 a.m., without adult
supervision, that mother had a history of substance abuse, and that Robert’s
and E.’s respective fathers failed to provide them with the necessities of
life.
At
the March 26, 2010
detention hearing, the juvenile court asked Robert’s paternal grandmother if
Robert’s father had any Native American heritage. She replied that he did not. The juvenile court ordered the children
detained.
Paternity and ICWA information
On
April 2, 2010, mother filed
a Parental Notification of Indian Status form, indicating she had no American
Indian ancestry as far as she knew.
Mother also filed a parentage questionnaire for E., stating that E.’s
father was unknown, and a parentage questionnaire for Robert, stating that his
father was Christopher.
At
the April 2, 2010
arraignment hearing, mother’s counsel stated mother did not have any Native
American heritage, and that mother did not know the identity of E.’s father.
The
juvenile court found that Christopher was Robert’s presumed father. It ordered a due diligence on an identity
unknown father and Ivory. The court
found the children were not described by ICWA.
In
the April 20, 2010 jurisdiction/disposition report, the social worker reported
that she interviewed mother on April 14, 2010, at which time mother said E. had
never met Ivory, but that he wrote once a month. Ivory’s name was not on E.’s birth
certificate.
On
April 20, 2010, Christopher
filed a Parental Notification of Indian Status form, stating he had no Indian
ancestry as far as he knew.
name="_ftnref6" title="">[6]
On
August 5, 2010, the DCFS
social worker reported to the court that she made several attempts to contact
Ivory at his place of incarceration, but the telephone number for the
institution rang incessantly and she was unable to speak to anyone.
On
September 23, 2010, the
court appointed counsel to represent Ivory.
The juvenile court held in abeyance the allegations against the fathers
and sustained the allegations against mother concerning her leaving the
children unsupervised in her car at night and her history of substance abuse.
Ivory
waived his appearance at the November
19, 2010 hearing. The
juvenile court sustained an allegation against him that he was incarcerated and
unable to provide E. with the necessities of life.
The
August 4, 2011 status review
report contained the social worker’s report that the juvenile court found ICWA
did not apply to E. and Robert. Mother’s
counsel made no effort to change the record on this point.
The
social worker said she spoke with Ivory in February and May 2011 and informed
him of the juvenile court’s orders. The
social worker mailed Ivory a copy of the orders. Ivory was in partial compliance with the case
plan. In the December 6, 2011 interim
review report, the social worker reported a conversation with Ivory on December
2, 2011, wherein he said he did not want to attend the December 6, 2011 hearing
because he did not want to lose his lead job.
He wanted his sister to adopt E. and indicated he would not be released
from prison for at least two years.
On
July 2, 2012, DCFS recommended that the juvenile court make a paternity finding
for E. The juvenile court found Ivory to
be E.’s presumed father.
Termination of parental rights
The
February 27, 2012 interim review report contained the social worker’s report
that E. remained placed in the home of her paternal aunt and was thriving. E. had been in the home since approximately
August 2011. Robert and Ciera remained
in the home of their paternal grandparents, who were willing to adopt them.
At
the March 5, 2012 six-month review hearing, the juvenile court found that none
of the parents had complied with the case plan and terminated reunification
services. The juvenile court set the
matter for a section 366.26 hearing.
In
the July 2, 2012 status review report, the social worker reported that the
adoption home study for E.’s paternal aunt was completed and approved on
October 14, 2011. The adoption home
study for Robert and Ciera’s paternal grandparents was completed on October 19,
2011. DCFS recommended that the juvenile
court terminate parental rights.
At
the September 11, 2012 section 366.26 hearing, the children’s counsel joined
with DCFS in requesting the juvenile court terminate parental rights. The juvenile court complied and terminated
parental rights over E., Robert and Ciera.
On
November 7, 2012, mother filed her notice
of appeal.
I. ICWA
ICWA
is federal legislation designed to protect American Indian people and their
culture. (25 U.S.C. § 1902;
655, 661.) ICWA applies to all
proceedings involving Indian children that may result in an involuntary foster
care placement; guardianship or conservatorship placement; custody placement
under Family Code section 3041; declaration freeing the child from the custody
and control of one or both parents; termination of parental rights; or adoptive
placement. (Cal. Rules of Court, rule
5.480.)
An
“Indian child†is defined as any unmarried person under the age of 18 who is
(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); Welf. & Inst. Code,
§ 224, subd. (c).)
If
the court, social worker, or probation officer knows or has reason to know that
an Indian child is involved in a dependency proceeding, the social worker or
probation officer is required to make further inquiry regarding the possible
Indian status of the child as soon as practicable. In a dependency proceeding, there is a
continuing duty of the court and DCFS to inquire whether the subject child may
be Indian. (See § 224.3, subd. (a),
(c).) The social worker or probation
officer must interview the parents and extended family members to gather the
information required, then contact the Bureau of Indian Affairs and State
Department of Social Services for assistance in identifying the tribes of which
the child may be a member or eligible for membership. (§ 224.3, subd. (c).)
II. Standard of review
Where,
as here, the trial court has made a finding that ICWA is inapplicable, the
finding is reviewed under the substantial evidence standard. (In re
Rebecca R. (2006) 143 Cal.App.4th 1426, 1430 (Rebecca R.); In re Karla C. (2003)
113 Cal.App.4th 166, 178-179.) Thus, we
must uphold the court’s orders and findings if any substantial evidence,
contradicted or uncontradicted, supports them, and we must indulge all
legitimate inferences in favor of affirmance.
(In re John V. (1992) 5
Cal.App.4th 1201, 1212.) A juvenile
court’s ICWA finding is also subject to harmless error analysis. (In re
Alexis H. (2005) 132 Cal.App.4th 11, 16.)
III. Mother has failed to show
reversible error
A. Mother’s argument
Mother’s
sole claim of error is that the juvenile court erred in failing to make an ICWA
inquiry as to E.’s presumed father, Ivory.
Mother argues that the petition for E. filed March 26, 2010, did not
include an Indian child inquiry, nor did the first amended petition filed May
18, 2010. Mother argues that DCFS
compounded the error by stating in its subsequent reports, from August 4, 2011
through July 2, 2012, that the court found on April 2, 2010, that ICWA did not
apply to E. and Robert. It was not until
July 2, 2012, that the court made a paternity finding as to E. and found that
Ivory was the presumed father.
Mother
points out that the juvenile court must order a parent to complete a Parental
Notification of Indian Status form upon the parent’s first appearance in a
dependency proceeding. (Cal. Rules of
Court, rule 5.481(a)(2); In re N.E. (2008)
160 Cal.App.4th 766, 769 (N.E.).) If the parent does not appear or is
unavailable, the court must order the agency with the inquiry duty to inform
the parent that the court has ordered the parent to complete the Parental
Notification of Indian Status form.
(Cal. Rules of Court, rule 5.481(a)(3).)
Here, mother argues, the court never ordered Ivory to complete a
Parental Notification of Indian Status form, and DCFS provided no proof of its
inquiry to Ivory as to Indian status.
B. Harmless error
DCFS
argues that any notice defect regarding Ivory was harmless error because mother
has failed to show a miscarriage of justice, as required by the California
Constitution, article VI, section 13.
DCFS likens this case to Rebecca
R. In Rebecca R., the child’s father argued that termination of his
parental rights should be set aside because the San Bernardino County
Department of Children’s Services (DCS) failed to inquire whether he had any
American Indian ancestry, despite the juvenile court’s order that DCS do
so. (Rebecca
R., supra, 143 Cal.App.4th at p. 1428.)
No documentation existed in the case showing that DCS had inquired of
father as to his Indian ancestry.
The
Court of Appeal concluded that reversal was not required. First, father’s claim was based in part on a
provision that was not in force when the dependency proceeding began. The rule requiring form JV-130 (Parental Notification
of Indian Status) had not yet gone into effect.
(Rebecca R., supra, 143
Cal.App.4th at p. 1420.) Because the
rule requiring the form did not exist at the commencement of the dependency
proceedings, compliance with the rule was not required.
The
court also noted that no evidence suggested that the duty of inquiry was not
satisfied. Among other things, the
social worker’s reports consistently indicated that ICWA did not apply. (Rebecca
R., supra, 143 Cal.App.4th at p. 1430.)
In addition, the court rejected the father’s claim because he “failed to
show a miscarriage of justice, which is the fundamental requisite before an
appellate court will reverse a trial court’s judgment. [Citation.]â€
(Ibid.) The court explained:
“Father
is here, now, before this court. There
is nothing whatever which prevented him, 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.
“In the absence of
such a representation, the matter amounts to nothing more than trifling with
the courts. [Citation.]â€
(
1431.)
The
“The ICWA is not a
‘get out of jail free’ card dealt to the 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.â€
(
1431.)
DCFS argues that
the matter before us presents a scenario similar to the one under consideration
in Rebecca R. DCFS points out that mother says nothing,
even now, regarding what information about Ivory might exist that could
implicate ICWA.
Similarly, in
of his parental rights, arguing that the social services agency had failed to
comply with its inquiry duties under ICWA.
The court admitted it was not clear that the agency had complied with
its inquiry obligations, but stated:
“Even if the juvenile
court and SSA failed in their inquiry responsibilities, we cannot disturb the
juvenile court’s order without a showing Andre was prejudiced by the claimed
error. (Cal. Const., art. VI,
§ 13.) And in this case, where
there is absolutely no suggestion by Andre that he in fact has any Indian
heritage, he has failed to demonstrate the requisite prejudice.â€
(
Other courts have
agreed that a parent must make an affirmative showing that a miscarriage of
justice would result in order to obtain a reversal for noncompliance with
ICWA. In In re S.B. (2005) 130 Cal.App.4th 1148 (S.B.), the court expressed the view that “[a]n ICWA notice
violation may be held harmless when the child’s tribe has actually participated
in the proceedings [citation] or when, even if notice had been given, the child
would not have been found to be an Indian child, and hence the substantive provisions
of the ICWA would not have applied.
[Citations.]†(
re Miracle M. (2008) 160 Cal.App.4th 834, 847 [“Mother has not demonstrated
how giving the parents further notice would generate additional informationâ€].)
We adopt the
rationale of these cases in holding that in this case, mother has failed to
show reversible error. We reject
mother’s argument that DCFS carries the burden in this appeal to show
compliance with ICWA. Instead, as
appellant, it is mother’s burden to show prejudicial error. (Cal. Const., art. VI, § 13.)
DISPOSITION
The order is affirmed.
NOT TO BE PUBLISHED IN THE
OFFICIAL REPORTS.
_______________________,
J.
CHAVEZ
We concur:
________________________, P. J.
BOREN
________________________, J.*
FERNS
________________________________________________________________________
* Judge of the Los Angeles Superior Court, assigned by the
Chief Justice pursuant to article VI, section 6 of the California Constitution.
name="_ftn1" title="">[1] Mother initially appealed the orders terminating her
parental rights as to E. and her two siblings, Robert (born July 2009) and Ciera (born June
2010). However, the Department of
Children and Family Services (DCFS) filed a motion to dismiss the appeal as to
Robert and Ciera, since the appeal contained no claims of error as to them. We granted the motion to dismiss, and will
discuss Robert and Ciera only as necessary to completely set forth the
pertinent facts.
name="_ftn2" title="">[2] All further statutory references are to the Welfare &
Institutions Code unless otherwise noted.
