In re Brianna G.

Filed 9/24/07 In re Brianna G. CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

Appeal from an order of the Superior Court of Orange County, Caryl Lee, Judge. Affirmed.

Jennifer Mack, under appointment by the Court of Appeal, for Defendant and Appellant Mother.

Leslie A. Barry for Defendant and Appellant Father.

Benjamin P. de Mayo, County Counsel, Karen L. Christensen and Paula A. Whaley, Deputy County Counsel, for Plaintiff and Respondent.

No appearance for the Minor.

Fausto G., and Brenda L., appeal from the order terminating their parental rights to their children, Brianna G., and Savannah G. (Welf. & Inst. Code, 366.26, 395.)[1] They contend the juvenile court failed to comply with the notice provisions of the Indian Child Welfare Act (ICWA). (25 U.S.C. 1902 et seq.) We reject their contention and affirm the order.

FACTS

The substantive facts are detailed in our prior unpublished opinion Brenda L. v. Superior Court (Jan. 23, 2007, G037751), in which we affirmed the order scheduling a permanency planning hearing for Brianna and Savannah.[2] We need not detail the familys history here. It suffices to say each child was taken into protective custody at birth and declared a dependent child due to Brendas 22‑year history of drug use (and attendant lengthy criminal record and frequent incarcerations), and refusal to properly treat and manage her own prenatal health problem with gestational diabetes. Both children had medical issues. Another of Brendas children, Michael (half-sibling of Brianna and Savannah), was declared a dependent child at age two in June 2004 and placed with an aunt. Three more of Brendas children were in the custody of various relatives. Brenda and Fausto failed in their efforts at reunification with Brianna and Savannah.

In the petition to declare Brianna a dependent child filed on December 23, 2004, a box was checked indicating, Child may be of Indian ancestry. (That same box was not checked on the petition to declare Savannah a dependent child filed almost one year later.) In its December 27 detention report concerning Brianna, the Orange County Social Services Agency (SSA) noted the following information obtained from an SSA report filed in Michaels dependency proceeding: In October 2004, Brenda told a social worker from SSAs ICWA unit that she initially thought that maybe, she had Indian heritage because the maternal great grandmother . . . was from Arizona. She added that she does not have American Indian heritage. The social worker telephoned the maternal grandmother who indicated the maternal great grandmother might have Indian heritage, she did not know the name of the possible tribe. The social worker then telephoned the maternal great grandmother who stated she does not have Indian heritage. [She] did not want to disclose personal or family information. SSA sent various ICWA notices concerning Michael to the Bureau of Indian Affairs (BIA). The record on appeal does not contain those notices or give any indication as to any response to them.

At Briannas detention hearing on December 27, 2004, Brenda and Fausto were both present. The court specifically asked both parents if they had any Native American heritage or relatives that belong to any [] . . . [] American Indian tribe[.] Both parents denied having any American Indian heritage, and the court found the ICWA did not apply.

In the December 7, 2005, detention report concerning Savannah, SSA noted the courts previous finding that the ICWA did not apply to Brianna and concluded that because the girls had the same biological parents, the ICWA did not apply to Savannah either. At Savannahs detention hearing on December 7, Brenda was present. The court again asked Brenda if she had any American Indian heritage and she said, not that I know of. The court found the ICWA did not apply, but told Brenda she should fill out the necessary paperwork. There is additional paperwork pertaining to the ICWA in the record.

At a June 19, 2006, hearing (that began as Briannas 12-month review and Savannahs six-month review), both parents were present and both stipulated to the courts finding that the ICWA did not apply. At the permanency planning hearing on February 27, 2007, the court terminated Brendas and Faustos parental rights.

DISCUSSION

The parents contend the juvenile court failed to comply with the notice requirements of the ICWA and, thus, the order terminating parental rights must be reversed.[3] We disagree.

The stated purpose of the ICWA is to protect the best interests of Indian children and to promote the stability and security of Indian tribes and families by the establishment of minimum Federal standards for the removal of Indian children from their families and the placement of such children in foster care or adoptive homes which will reflect the unique values of Indian culture, and by providing for assistance to Indian tribes in the operation of child and family service programs. [Citation.] [Citation.] (In re Suzanna L. (2002) 104 Cal.App.4th 223, 229; see also 25 U.S.C. 1902.) A violation of the ICWAs provisions can invalidate an order terminating parental rights. (25 U.S.C. 1914; see also Dwayne P. v. Superior Court (2002) 103 Cal.App.4th 247, 260 (Dwayne P.) [the ICWA renders voidable any action . . . taken without the requisite notice].)

We are concerned here with the notice provision of the ICWA, 25 United States Code section 1912(a), which states: In any involuntary proceeding in a State court, where the court knows or has reason to know that an Indian child is involved, the party seeking the foster care placement of, or termination of parental rights to, an Indian child shall notify . . . the Indian childs tribe, by registered mail with return receipt requested, of the pending proceedings and of their right of intervention. If the identity or location of . . . the tribe cannot be determined, such notice shall be given to the Secretary [of the Interior] in like manner, who shall have [15] days after receipt to provide the requisite notice to . . . the tribe. No foster care placement or termination of parental rights proceeding shall be held until at least [10] days after receipt of notice by . . . the tribe or the Secretary. . . . (Ibid.; see also 25 U.S.C. 1903(11).)

Provisions of the Welfare and Institutions Code that became effective on January 1, 2007, are designed to ensure compliance with the ICWAs notice provisions before each significant hearing in a dependency case. (See  290.1, subd. (f); 290.2, subd. (e); 291, subd. (g); 292, subd. (f); 293, subd. (g); 294, subd. (h); 295, subd. (g); 297, subd. (d).) The requisite notice must be given whenever the court or social worker knows or has reason to know an Indian child is involved . . . . ( 224.2, subd. (a).) The court and the social worker have an affirmative and continuing duty to inquire whether a [dependent] child . . . is or may be an Indian child . . . . ( 224.3, subd. (a).) Section 224.3, subdivision (b), provides, The circumstances that may provide reason to know the child is an Indian child include, but are not limited to, the following: [] (1) A person having an interest in the child, including the child, an officer of the court, a tribe, an Indian organization, a public or private agency, or a member of the childs extended family provides information suggesting the child is a member of a tribe or eligible for membership in a tribe or one or more of the childs biological parents, grandparents, or great-grandparents are or were a member of a tribe. [] (2) The residence or domicile of the child, the childs parents, or Indian custodian is in a predominantly Indian community. [] (3) The child or the childs family has received services or benefits from a tribe or services that are available to Indians from tribes or the federal government, such as the Indian Health Service.

The ICWA defines an Indian child as a child who is either (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).) But, neither the child nor the parents need to be enrolled members of a tribe to trigger the ICWA notice requirements since [d]etermination of tribal membership or eligibility for membership is made exclusively by the tribe. (Cal. Rules of Court, rule 5.664(g); See Dwayne P., supra, 103 Cal.App.4th at p. 254.)

The parents contend Brendas statement to a social worker in connection with Michaels dependency proceeding that maybe she had Indian heritage because her grandmother was from Arizona, combined with Brendas mothers statement that Brendas grandmother might have Indian heritage was sufficient to invoke the notice requirements of the ICWA. We disagree. The statements prompted further inquiry by the social worker. The social worker contacted Brendas grandmother, who specifically denied having any Indian heritage. Thereafter, Brenda made no further assertions of possible Indian heritage. Fausto denied he had any Indian heritage.

In re O.K. (2003) 106 Cal.App.4th 152, is instructive. There, at the permanency planning hearing, the paternal grandmother said the father may have Indian in him[,] but she was unable to identify a tribe and apparently based her comments on the fact her family was from an area where Native Americans lived. (Id. at pp. 154-155.) The Court of Appeal held the paternal grandmothers statement, which was not based on any known Indian ancestors but on the nebulous assertion her family was from an area where Native Americans lived, was too vague and speculative to give the juvenile court any reason to believe the minors might be Indian children. (Id. at p. 157.) [I]t was not the paternal grandmothers failure to specify a tribal affiliation that rendered the information insufficient but her failure to assert any information that would reasonably suggest that the minors had any known Indian heritage. (Id. at p. 158.)

Similarly, here, in another childs dependency proceeding, Brenda (and later her mother) speculated Brenda maybe had Indian heritage because Brendas grandmother was from Arizona. But when contacted, Brendas grandmother denied any Indian heritage. Thereafter, Brenda denied Indian heritage. There was no other basis for suspecting the children might be Indian children. Thus, the trial court had no reason to know the children might be Indian children within the meaning of the ICWA. [T]he obligation is only one of inquiry and not an absolute duty to ascertain or refute Native American ancestry. (Antoinette S., supra, 104 Cal.App.4th at p. 1413.) Accordingly, the juvenile court could properly proceed even though no ICWA notice had been given.

DISPOSITION

The order is affirmed.

OLEARY, J.

WE CONCUR:

RYLAARSDAM, ACTING P. J.

BEDSWORTH, J.

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[1] All further statutory references are to the Welfare and Institutions Code, unless otherwise indicated.

[2] Fausto did not challenge the referral order.

[3] The parents failure to raise the ICWAs notice requirement below did not waive the issue on appeal. Because the notice requirement is intended, in part, to protect the interests of Indian tribes, it cannot be waived by the parents failure to raise it. [Citation.] (In re Antoinette S. (2002) 104 Cal.App.4th 1401, 1408 (Antoinette S.).)