In re Jonathan B.

Filed 3/14/07 In re Jonathan B. CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FOURTH APPELLATE DISTRICT

DIVISION TWO

APPEAL from the Superior Court of San Bernardino County. James C. McGuire, Judge. Affirmed.

Konrad S. Lee, under appointment by the Court of Appeal, for Defendant and Appellant.

Dennis E. Wagner, Interim County Counsel, and Ramona E. Verduzco, Deputy County Counsel, for Plaintiff and Respondent.

Michael D. Randall, under appointment by the Court of Appeal, for Minor.

1. Introduction

Objector and appellant Steven Michael B. (father) is the natural father of Jonathan B., a dependent child of the juvenile court. The juvenile court entered orders terminating fathers parental rights and selecting adoption as the permanent plan for the child. Fathers sole ground of appeal is that the juvenile court failed to ensure proper notices were given under the Indian Child Welfare Act (ICWA). We affirm.

2. Factual and Procedural History

The San Bernardino County Department of Childrens Services (DCS) took custody of Jonathan when he was only seven weeks old. Father and mother, Jaime S., were arrested for child endangerment. They appeared to be under the influence of alcohol or drugs and they had been physically fighting with one another. Father was interviewed at the jail, and at that time, said that there may have been some Native American heritage on a grandparents side of his family but he wasnt sure. The detention report indicated that ICWA did not apply.

The detention report also detailed the circumstances of Jonathans older sibling and half siblings, all of whom had been removed from parental custody and with whom the parents had failed to reunify.

The detention hearing for Jonathan was held on September 1, 2005. Among other things, the parents were ordered to disclose membership in any Indian tribe. The court directly asked the parents, Do you know of any American Indian [h]eritage of your child? to which father replied, I couldnt say right now, and mother said, no. The minutes recorded that both parents had affirmatively indicated there is no Indian heritage.

The record contains a Parental Notification of Indian Status form for mother, indicating no known Indian ancestry. No similar form is included in the record for father.

At the jurisdictional and dispositional hearing, the social workers report indicated that the parents had each pled guilty to a misdemeanor child endangerment offense and had been sentenced to 90 days in jail. In addition, the parents had received significant services for the other children, but had failed to reunify with any of them. M.B. (Jonathans full sibling) and Jonathans three half siblings had all been removed from fathers custody. Fathers reunification services as to these children had been terminated in July 2005.

Jonathans other three half siblings had been removed from mothers custody; her reunification services had been terminated; and a selection and implementation hearing under Welfare and Institutions Code section 366.26^[1]was scheduled for September 2005. (Father was not the biological father of the other three half siblings.)

The social worker pointed out that the parents had failed to benefit from previously provided services and recommended that no reunification services be offered with respect to Jonathan.

The juvenile court found true the allegation that the parents had failed to protect Jonathan from harm because of their substance abuse and domestic violence, and found that Jonathans siblings had been subjected to abuse through the parents drug use and ongoing neglect. The court found Jonathan to be a dependent child of the juvenile court.

As to disposition, the court ordered that no reunification services were to be provided, pursuant to section 361.5, subdivision (b)(10), (11) and (13). The court then set a selection and implementation hearing.

The social workers report recommended terminating parental rights and placing Jonathan for adoption. He had been placed with prospective adoptive parents and was doing well. Father had failed to visit with Jonathan.

Father filed a petition under section 388, alleging changed circumstances, based largely on programs and certificates he had completed while incarcerated. The juvenile court denied the petition. The court then proceeded to the selection and implementation hearing. It found that the child was likely to be adopted and terminated fathers parental rights.

3. Analysis

The sole ground of appeal is that DCS failed to give the notices required under the ICWA to any possible interested Indian tribes.

The ICWA provides that in dependency proceedings where the court knows or has reason to know that an Indian child is involved, then the dependency agency must give notice of the dependency proceedings to any tribe to which the child might belong. (25 U.S.C.A.  1912(a).) California Rules of Court, rule 5.664, which implements ICWAs notice provisions in California courts, similarly provides for notice whenever there is reason to believe the child may be an Indian child . . . . (Rule 5.664(f)(5).) The rule defines an Indian child as a person who (A) [i]s a member of an Indian tribe; or [] (B) [i]s eligible for membership in an Indian tribe and is the biological child of a member of an Indian tribe. (Rule 5.664(a)(1)(A) & (B).) The term Indian tribe in turn is defined to mean those organized groups eligible for services provided to Indians by the Secretary of the Interior . . . . (Rule 5.664(a)(6); see also In re Marinna J. (2001) 90 Cal.App.4th 731, 738.)

The threshold question is whether there is any reason to believe that Jonathan is or may be an Indian child. At his initial interview in the jail, father told the social worker that he may have some Indian ancestry through his grandparents. Upon direct inquiry of the court at the detention hearing, father couldnt say right now whether he had any Indian ancestry. Father argues that these statements were not an unequivocal denial of Indian ancestry. [T]he juvenile court needs only a suggestion of Indian ancestry to trigger the notice requirement. (In re Nikki R. (2003) 106 Cal.App.4th 844, 848.) Father contends that his remarks provided that suggestion.

DCS has asked this court to take judicial notice of its own records in In re M.B. (June 28, 2006, E040036), a nonpublished opinion, involving fathers appeal from termination of his parental rights as to M.B., Jonathans sibling. We grant the motion to take judicial notice. (Evid. Code, 452, subd. (d).) On the record in that case, the following exchanges took place:

The Court: . . . . [] May I inquire of mother: Does the child have any Native American heritage, Indian heritage that youre aware of?

The Mother: No.

The Court: Sir, you know of any?

The Father: No. I couldnt tell you. (Capitalization omitted.)

The court immediately found, All right. Parents indicate no known Indian heritage . . . .

At another hearing, the court inquired again:

The Court: . . . . Mom doesnt have any Indian heritage that youre aware of?

The Mother: No.

The Court: Father?

The Father: Not that I know of. (Capitalization omitted.)

Again, the court made an immediate oral finding on the record in open court: All right. Parents indicate no Native American heritage.

On neither occasion did father indicate any disagreement with the courts express findings that ICWA did not apply. Under these circumstances, when father has made statements indicating, and has acquiesced in express findings, that he has no Indian heritage, the supposed ambiguity in his statements here vanishes. There was thus no suggestion of Indian ancestry sufficient to trigger a duty of inquiry.

A county welfare department is deemed to have satisfied its affirmative duty of inquiry when information in the record suggests that inquiry was made, there is no objection by the parents, and there is no evidence to the contrary. Such was the case both in the prior dependency of the sibling and this case. The court therefore had no obligation to make any further inquiry in the absence of any new evidence or information on the issue of Indian ancestry. (In re Aaliyah G. (2003) 109 Cal.App.4th 939, 942.)

4. Disposition

The order terminating fathers parental rights is affirmed.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

McKINSTER

Acting P.J.

We concur:

KING

J.

MILLER

J.

Publication Courtesy of California attorney directory.

Analysis and review provided by Oceanside Property line attorney.

^[1] All further statutory references will be to the Welfare and Institutions Code unless otherwise indicated.