Filed 3/27/18 In re Nicholas F. CA5


NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

In re NICHOLAS F., a Person Coming Under the Juvenile Court Law.

THE PEOPLE,

Plaintiff and Respondent,

v.

NICHOLAS F.,

Defendant and Appellant.

F074955

(Super. Ct. No. JJD067500)


OPINION
THE COURT*
APPEAL from an order of the Superior Court of Tulare County. Juliet L. Boccone, Judge.
Candice L. Christensen, under appointment by the Court of Appeal, for Defendant and Appellant.
Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Carlos A. Martinez and Jeffrey D. Firestone, Deputy Attorneys General, for Plaintiff and Respondent.
-ooOoo-
 
INTRODUCTION
A Welfare and Institutions Code section 300 petition was filed on behalf of appellant Nicholas F. and he was placed in a foster home. Subsequently, Nicholas was the subject of a section 602 petition filed in December 2013; the section 602 petition was sustained. In October 2014, the dependency proceeding was terminated. After subsequent sustained section 602 petitions and multiple probation violations, the juvenile court committed Nicholas to the Department of Juvenile Justice (DJJ) in November 2016.
After the dependency was terminated, information indicated Nicholas may have Native American ancestry. Nicholas contends the juvenile court erred prejudicially because it failed to provide notice pursuant to the Indian Child Welfare Act (ICWA) 25 U.S.C. section 1901 et seq. to tribes and/or the Bureau of Indian Affairs (BIA), thus depriving him of due process. We disagree and affirm.
FACTUAL AND PROCEDURAL SUMMARY
A section 300 petition was sustained in April 2009, on the basis that conditions in the home, including physical abuse, placed Nicholas at risk. Apparently, no information was provided in the dependency proceeding that indicated ICWA would apply to Nicholas. Nicholas was placed in a foster home.
On December 3, 2013, a section 602 petition (petition) was filed. The petition alleged Nicholas committed two felonies; unlawful driving or taking of a vehicle and receiving stolen property. An Indian Child Inquiry Form (ICWA-010(A)) was attached stating that an ICWA inquiry had been made and ICWA did not apply.
On December 12, 2013, Nicholas admitted one count of the petition, unlawful driving or taking of a vehicle, in exchange for deferred entry of judgment (DEJ) and dismissal of the other count. The probation department prepared a report for the DEJ hearing. The recommendation was that DEJ be granted and Nicholas remain in the foster home, subject to terms and conditions.
At the January 13, 2014 disposition hearing, the juvenile court noted it had reviewed the probation department’s report. The juvenile court noted the “recommendation is that [Nicholas] remain in the 300 system on DEJ with regard to the 600.” The juvenile court informed Nicholas that if he did not comply with the terms and conditions of DEJ, it would “probably result in your terminating your 300 and being put in a custodial program in the Juvenile Hall.” The juvenile court granted DEJ.
In a review report filed April 9, 2014, the probation department recommended DEJ be terminated. Nicholas was using marijuana, had excessive absences from school, and was engaging in inappropriate behavior both at home and at school.
At the April 15, 2014 review hearing, counsel for Nicholas expressed concern over his placement in the foster home. The concern was not regarding the foster mother, but the area of Dinuba in which the home was located; Nicholas “started to affiliate” with a gang. The juvenile court noted that Nicholas was using drugs and alcohol, not attending school, and failing all but one class in school. The juvenile court found that DEJ was not working and terminated it. The matter was put over for a disposition.
On May 28, 2014, Nicholas was doing better and the juvenile court decided to give Nicholas “a chance to show [the court] you are going to continue on this good track.” Nicholas was placed on home supervision in July 2014.
In August 2014, Nicholas began skipping therapy sessions, left home and disappeared overnight, and articulated an interest in fire. On August 25, 2014, the foster mother called the probation officer and indicated she did not want Nicholas back in her home. She found marijuana and pills in his backpack. On August 26, 2014, Nicholas was transported to a group home.
On October 6, 2014, a status report was filed that indicated Nicholas had twice run away from the group home. The recommendation was that Nicholas be made a ward of the juvenile court and placed on formal probation.
At a hearing on October 9, 2014, Nicholas was present along with counsel on the sections 300 and 602 cases. Nicholas and his counsel requested that the section 300 case be terminated and his case proceed as a section 602 case, conditioned upon him remaining for the present in his current group home placement.
The juvenile court terminated the section 300 case, declared Nicholas a ward of the juvenile court, and proceeded with the section 602 case. Nicholas expressed an interest in returning to his mother once he was off probation, or when he turned 18 years old. The juvenile court allowed Nicholas to have telephone contact with his mother, if deemed appropriate by his therapist, but cautioned Nicholas that he should not “go away from the group home when [he was] not supposed to and be with [his] mom.”
About two weeks later, the probation department filed a section 777 notice stating Nicholas had absconded from his court-ordered placement. At a hearing on the probation violation on October 28, 2014, Nicholas admitted the violation, stating he left the group home to live with his grandmother. Nicholas asked that he be released to his grandmother’s custody with electronic monitoring, but the juvenile court deferred disposition.
An ICWA-010(A) form, dated October 25, 2014, indicated Nicholas might have Native American ancestry, specifically in the Cherokee tribe.
A supplemental probation report was filed November 7, 2014. Nicholas’s grandmother told the probation department she was unable to care for Nicholas in her home. After absconding from the group home, Nicholas admitted using marijuana, alcohol, and cocaine. Nicholas was associated with a gang. He informed probation that he would abscond from any out-of-home placement. The recommendation was that Nicholas be placed in the Tulare County Short-Term Program.
At the November 18, 2014 disposition hearing, defense counsel asked for a group home placement for Nicholas near his family. The People argued that Nicholas was in need of a custodial program in light of his substance abuse and gang involvement, and the fact that he was unsuccessful on DEJ and absconded from placements. The juvenile court continued Nicholas as a ward of the court and placed him in the short-term custodial program.
On February 19, 2015, a section 777 notice of probation violation was filed. It alleged Nicholas failed to follow the rules of his placement and had engaged in assaultive and gang behavior. At a hearing on February 20, 2015, Nicholas admitted the probation violations.
At the March 6, 2015 disposition hearing, Nicholas admitted getting into a recent fight, but claimed he was “just trying to do good” and get out and go back home. The People argued Nicholas needed to be in a custodial program. Probation reported that Nicholas had been involved in two fights while in the short-term program and had numerous consequences for not following instructions.
The juvenile court ordered Nicholas placed in the custodial mid-term program. Family counseling for Nicholas and his grandmother was also ordered.
On May 4, 2015, another section 602 petition was filed against Nicholas. This petition alleged that he had committed felony assault by means of force likely to produce great bodily injury, with a special allegation that the offense was committed for the benefit of a criminal street gang. The section 602 petition also alleged a second felony charge of the substantive offense of active participation in a criminal street gang. The ICWA-010(A) form attached to the petition stated Nicholas had no known Native American ancestry.
At the pretrial hearing on the petition held on May 14, 2015, Nicholas admitted the assault count and gang special allegation. The second count, alleging the substantive gang offense, was dismissed. At the June 5, 2015 disposition hearing, the juvenile court again committed Nicholas to the mid-term program and noted that the maximum period of confinement for all sustained offenses was eight years eight months.
About eight months later, on February 9, 2016, a section 777 probation violation notice was filed. It alleged that Nicholas violated probation by possessing a concealed dirk or dagger and that he resisted a peace officer attempting to perform his duties. After a contested hearing on March 4, 2016, the probation violations were found true.
At the March 22, 2016 disposition hearing, the juvenile court again placed Nicholas on probation and committed him to the long-term program for 240 to 365 days.
The People filed another section 602 petition against Nicholas, the third such petition, on March 29, 2016. This petition alleged that he committed assault by means of force likely to produce great bodily injury. Nicholas was now 17 years old. The petition stated the intent of the People to aggregate all the previously sustained petitions and increase the maximum term of confinement. A contested hearing on the petition was held on July 14, 2016, and the juvenile court found the allegation true.
At the disposition hearing held on September 8, 2016, defense counsel informed the juvenile court that Nicholas may have Native American ancestry. Defense counsel told the juvenile court that Nicholas’s mother (mother) stated his “great grandfather is Indian out of Arizona. Was born on a reservation.” Mother gave the name of the great-grandfather, but did not provide his registration or enrolled number.
Nicholas was not a registered member of any tribe. He told the juvenile court his great-grandfather’s name was Adam Bello Avila and “It says I’m Cherokee [] Indian.” The juvenile court replied that the Cherokee reservation was in Oklahoma. The juvenile court indicated Nicholas’s mother needed to contact the probation department to provide them with ancestry information. Nicholas had a letter from his mother about his Native American heritage, which he was going to provide to the probation department.
At a hearing on September 22, 2016, Nicholas’s grandmother reported that her father was a registered member of a tribe in Arizona. Grandmother was not clear on when her father was born or when he died. Nicholas’s grandmother claimed her father had a Native American mother and a Mexican father, making Nicholas’s great-grandfather 50 percent Native American. Grandmother also claimed her father might be Cherokee.
On October 20, 2016, Nicholas’s mother and grandmother both were present at the hearing. Mother stated she needed “to get a birth certificate in regard to [her] grandfather, who was born in Arizona.” The probation officer had called to try to verify information, but indicated a roll number or identification number would be helpful.
At the November 17, 2016 contested disposition hearing, defense counsel asked that the matter be continued because “ICWA [had] still not followed up.” The probation department was still seeking more information. The juvenile court declined to continue the matter stating, “[Nicholas is] not going anywhere for a little while, anyway. We need to do the disposition now. ICWA is not going to affect that.” At the time of the disposition hearing, Nicholas was 18 years old.
The juvenile court committed Nicholas to the DJJ and set the maximum period of confinement on all sustained petitions as nine years eight months, less 759 days of credit. DJJ accepted the commitment. Nicholas filed a notice of appeal on January 3, 2017.
DISCUSSION
Nicholas contends the juvenile court erred prejudicially when it committed him to DJJ without first assuring that ICWA notice of the proceedings was given to the Cherokee tribe. His contention is without merit.
Here, Nicholas was in foster care because of a section 300 dependency case when the initial section 602 petition was filed, at which time there had been no indication Nicholas may have Native American ancestry. The section 602 petition alleged conduct that was criminal, the unlawful taking of a vehicle and receiving stolen property. When the dependency proceeding was terminated, the juvenile court placed Nicholas in the custody of the probation department on formal probation. At this time, there was no indication of Native American ancestry.
Information about Nicolas’s possible Native American heritage became known after the dependency proceeding was dismissed and Nicholas was a ward of the juvenile court based upon conduct that was criminal.
ICWA does not apply in most juvenile delinquency cases. (In re W.B. (2012) 55 Cal.4th 30, 47 (W.B.).) When applicable, ICWA imposes notice, procedural rules, and enforcement requirements. (W.B., supra, at p. 48.) With respect to notice, if the identity or location of a minor’s tribe cannot be determined, then notice is to be given to the Bureau of Indian Affairs (BIA). (Ibid.) After notice has been given, a minor’s tribe has the right to intervene in proceedings. (Id. at pp. 48-49.) ICWA imposes various procedural and substantive requirements on state court proceedings. (Id. at p. 49.)
The guidelines published by the BIA to assist state courts in properly implementing ICWA provide that “‘most juvenile delinquency proceedings are not covered’” by ICWA. (W.B., supra, 55 Cal.4th at p. 50.) There are exceptions, however, and, according to ICWA guidelines, ICWA applies to “‘status offenses, such as truancy and incorrigibility, which can only be committed by children, and to any juvenile delinquency proceeding that results in the termination of a parental relationship.’” (W.B., supra, at p. 50.)
Section 224.3, subdivision (a) provides that a juvenile court and the probation department have an affirmative and continuing duty to inquire whether a minor subject to a section 601 or 602 petition and under a juvenile wardship is an Indian child if that minor is at risk of entering foster care or is in foster care. (W.B., supra, 55 Cal.4th at p. 53.) Reading section 224.3, subdivision (a), together with ICWA provisions, it follows that there is “no duty of notice, or any other ICWA procedures, in most delinquency cases alleging adult criminal conduct.” (W.B., supra, at p. 54.) “A narrow exception applies when the court decides to place a delinquent ward outside the home for reasons other than the ward’s criminal conduct.” (Ibid.) As the California Supreme Court summarized in W.B.:
“In all juvenile delinquency proceedings, including those alleging adult criminal conduct, the court and the probation department have a duty to inquire about Indian status as soon as they determine that the child is in foster care or is at risk of entering foster care due to conditions in the child’s home. [Citation.] Notice pursuant to ICWA is generally not required in a delinquency proceeding premised on conduct that would be criminal if committed by an adult. However, if at the disposition stage or at any point in the proceedings, the court contemplates removing an Indian child from the parental home based on concerns about harmful conditions in the home, and not based on the need for rehabilitation or other concerns related to the child’s criminal conduct, notice is required and all other ICWA procedures must be followed.” (W.B., supra, 55 Cal.4th at p. 55.)
After information became known that Nicholas might have Native American ancestry, the juvenile court in the context of the section 602 dispositions was addressing criminal behavior – a stolen vehicle, assault by means of force likely to produce great bodily injury, with a gang enhancement, and a second assault by means of force likely to produce great bodily injury. Although Nicholas contends W.B. should not be applied to his case and the “full range of ICWA procedures, including notice” should apply, we decline to extend the holding of that case or the provisions of ICWA.
At the time of the disposition from which Nicholas appeals, this was a straightforward juvenile delinquency case; Nicholas was not a dual status minor; and the juvenile court did not contemplate a termination of parental rights. These facts place Nicholas’s case squarely within the holding of W.B. (W.B., supra, 55 Cal.4th at p. 60.) Furthermore, ICWA expressly excludes application of its provisions in proceedings based upon an act which would be deemed a crime if committed by an adult. (25 U.S.C. § 1903(1).)
Additionally, at disposition Nicholas was no longer a minor, but an adult at 18 years of age. ICWA specifies that it applies to an unmarried person under the age of 18 who is a member of an Indian tribe, or eligible for membership. (25 U.S.C. § 1903(4).) Even if we were to assume Nicholas was eligible for membership in an Indian tribe, the provisions of ICWA do not apply to him as an adult.
Moreover, as the juvenile court noted at disposition, whether ICWA applied to Nicholas would not have affected the disposition. Establishing tribal membership for Nicholas possibly would affect benefits to which he might be entitled, such as access to Tribal Temporary Assistance for Needy Families and Indian Health Services. (In re Abbigail A. (2016) 1 Cal.5th 83, 96-97.) Nothing precludes Nicholas as an adult from pursuing tribal membership, if he is eligible.
While Nicholas was a ward of the juvenile court and on probation, he had contact with both his mother and grandmother, through whom Native American ancestry is claimed. He will be able to maintain that contact, if he so chooses, and presumably his family members can assist him in establishing tribal membership, and maintaining cultural and social ties with the tribe. (In re Abbigail A., supra, 1 Cal.5th at p. 97.)
Because ICWA did not apply to Nicholas’s delinquency proceedings under section 602, the juvenile court did not err in proceeding to disposition without first providing notice under ICWA to the Cherokee tribes, or the BIA, and there was no due process violation.
DISPOSITION
The juvenile court’s November 17, 2016 order is affirmed.