In re J.S.
Filed 10/12/07 In re J.S. CA3
NOT TO BE PUBLISHED
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
THIRD APPELLATE DISTRICT
(San Joaquin)
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In re J.S., a Person Coming Under the Juvenile Court Law. | |
SAN JOAQUIN COUNTY HUMAN SERVICES AGENCY, Plaintiff and Respondent, v. S.B., Defendant and Appellant. | C055304 (Super. Ct. No. J04321) |
S.B. (appellant), the mother of J.S. (the minor), appeals from an order of the juvenile court terminating appellants parental rights. (Welf. & Inst. Code, 366.26, 395; further unspecified section references are to this code.) Appellant contends the juvenile court failed to ensure that Human Services Agency (HSA) conducted a proper inquiry into the possibility the minor was an Indian child within the meaning of the Indian Child Welfare Act of 1978 (ICWA). (25 U.S.C. 1901 et seq.) Disagreeing with that claim, we affirm.
FACTS AND PROCEEDINGS
On June 28, 2006, HSA filed an original juvenile dependency petition pursuant to section 300 on behalf of the days-old minor. That petition was based on multiple allegations of neglect of the minor by appellant and the father of the minor, including substance abuse. The petition did not allege that the minor might be an Indian child.
According to the detention and jurisdiction report, appellant had told HSA that she had no Indian heritage. She also indicated that, although the minors fathers family might have Indian heritage, she did not know the name of the tribe. Thereafter, at the July 18, 2006, jurisdiction hearing, the minors grandmother told the juvenile court there was Indian ancestry in the family. The court ordered the grandmother to complete JV Form 130, relating to Indian ancestry, and return it to the social worker.
The juvenile court sustained the petition and adjudged the minor a dependent child. The disposition report noted that, as appellant and the minors father previously had denied Indian heritage, ICWA did not apply. Thereafter, a report prepared by HSA for the section 366.26 hearing stated ICWA did not apply.
At the February 23, 2007, section 366.26 hearing, the juvenile court found it likely the minor would be adopted and terminated appellants parental rights.
DISCUSSION
Appellant contends the juvenile court failed to ensure that HSA conducted a proper inquiry into the possible Indian heritage of the minor. According to appellant, the record does not reflect that any further inquiry was made in response to the grandmothers comment about the existence of Indian ancestry in the minors family. Accordingly, appellant argues, reversal is required.
ICWA protects the interests of Indian children and promotes the stability and security of Indian children and Indian tribes by establishing minimum standards for, and permitting tribal participation in, dependency actions. (25 U.S.C. 1901, 1902, 1903(1), 1911(c), 1912.) The juvenile court and HSA have an affirmative and continuing duty to inquire whether a child who is subject to the proceedings is, or may be, an Indian child. (Cal. Rules of Court, rule 5.664(d) (hereafter rule 5.664).) If after the petition is filed, the court knows or has reason to know that an Indian child is involved, notice of the pending proceeding and the right to intervene must be sent to the tribe or to the Bureau of Indian Affairs (BIA) if the tribal affiliation is not known. (Rule 5.664(f); 25 U.S.C. 1912(a).)
The burden is on [HSA] to obtain all possible information about the minors potential Indian background and provide that information to the relevant tribe or, if the tribe is unknown, to the BIA. (In re Louis S. (2004) 117 Cal.App.4th 622, 630.) Failure to comply with the notice provisions and determine whether ICWA applies is prejudicial error. (In re Desiree F. (2000) 83 Cal.App.4th 460, 472; In re Kahlen W. (1991) 233 Cal.App.3d 1414, 1424.)
Rule 5.664(d)(3) states: At the first appearance by a parent or guardian in any dependency case, . . . the parent or guardian must be ordered to complete Parental Notification of Indian Status (Juvenile Court) (form JV-130). In this case, the juvenile court properly directed the individual who was the source of information relating to possible Indian ancestry, the minors grandmother, to complete that form. Thereafter, two social workers reports stated that ICWA did not apply.
The obligation of HSA and the juvenile court pertaining to a minors Indian ancestry is only one of inquiry and not an absolute duty to ascertain or refute Native American ancestry. (In re Antoinette S. (2002) 104 Cal.App.4th 1401, 1413.) Here, the social worker concluded ICWA was inapplicable. On this record, we presume that HSA made necessary inquiries and obtained information sufficient to support the statements contained in the reports that ICWA did not apply. (Evid. Code, 664; In re E.H. (2006) 141 Cal.App.4th 1330, 1334.)
In sum, we conclude the juvenile court discharged its duty properly to ascertain whether the minor might be an Indian child under ICWA, and that the courts implicit finding that ICWA did not apply is supported by the record. (In re E.H., supra, 141 Cal.App.4th at p. 1335; cf. In re Levi U. (2000) 78 Cal.App.4th 191, 199.) Although it made no explicit finding, the juvenile court proceeded to and conducted the section 366.26 hearing without applying ICWA.
DISPOSITION
The order terminating the parental rights of appellant is affirmed.
HULL, J.
We concur:
NICHOLSON , Acting P.J.
CANTIL-SAKAUYE_ , J.
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