In re D.W.

Filed 10/11/07 In re D.W. CA6

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SIXTH APPELLATE DISTRICT

Veronica C., the mother of D.W., appeals from an order terminating her reunification services after the six-month review hearing. Appellant contends that reversal is required, because the Santa Cruz County Human Resources Agency (Agency) failed to comply with the notice requirements of the Indian Child Welfare Act (ICWA). We find no error and affirm.

I. Statement of Facts

On May 25, 2006, the Agency filed a petition pursuant to Welfare and Institutions Code section 300, subdivisions (b) [failure to protect] and (g) [no provision for support].[1] The petition alleged that appellant left two-month-old D. with no appropriate provision for support when she was arrested for a probation violation after testing positive for heroin. The petition further alleged that appellant had an extensive history of substance abuse and criminal conduct, and that D.s father had a criminal history and was currently incarcerated. The boxes on the petition relating to the ICWA were not checked.

On May 26, 2006, the juvenile court ordered that D. be detained. It also found that the ICWA did not apply to appellant. Appellant had previously indicated that she did not have Indian heritage.

Following the jurisdictional hearing on July 20, 2006, the juvenile court declared D. a dependent of the court and ordered reunification services for appellant.

On July 27, 2006, Anthony W., the alleged father, requested that the juvenile court enter a judgment of paternity in his name. On August 24, 2006, the juvenile court found that Mr. W. was D.s presumed father.

On January 26, 2007, the Agency filed the six-month review report in which it recommended that reunification services be terminated for both parents. The report also stated that the ICWA might apply. Though Mr. W. had previously stated that he had no Indian heritage, he told an Agency supervisor on January 11, 2007, that he had a cousin on his fathers side of the family who is of Nava[j]o descent.

On March 7, 2007, the Agency filed an ICWA Attachment to Social Workers Report. According to this report, the social worker contacted a paternal relative for additional information about Mr. W.s ancestry. The social worker was informed that the paternal grandfather may have been of Native American descent. However, his name and tribal affiliation are unknown to the family. The social worker also stated that the Bureau of Indian Affairs (BIA) had been given notice of the proceedings. A copy of the notices, which had been sent by certified mail with return receipt requested to appellant, Mr. W., and the BIA, was attached to the report. It indicated that the paternal grandfathers name, birth date, address, and tribe were unknown. Under additional information, the form stated: The paternal grandfather reportedly had ancestry but the family does not know his name or tribe. There was no reference to the Navajo tribe. The form referred to two maternal grandmothers, Teresa S. and Joanne P.[2] With the exception of the birth date for Teresa S., no information was provided for the maternal grandmothers. The notice also identified the paternal great-grandmother as Lupe S.[3] No contact information was provided for the paternal great-grandmother. Though Mr. W. had previously told the Agency that his mother resided in Minnesota, there was no information regarding the paternal grandmother. The Agency also indicated that it was unknown whether the birth father was named on the birth certificate, he had acknowledged paternity, and there had been a judicial declaration of paternity. A copy of the return receipt from the BIA was also attached to the Agencys report.

On March 7, 2007, the six-month review hearing was held. The juvenile court then terminated reunification services for appellant, and continued them for Mr. W. The juvenile court also found that notice had properly been given under the ICWA.

II. Discussion

Appellant contends that the Agency failed to comply with the notice requirements of the ICWA.

The ICWA applies to juvenile dependency proceedings when an Indian child is the subject of those proceedings. (See e.g., In re Pedro N. (1995) 35 Cal.App.4th 183, 186‑188.) As defined by the ICWA, an Indian child is any unmarried person who is under age eighteen and is either (a) a member of an Indian tribe or (b) is eligible for membership in an Indian tribe and is the biological child of a member of an Indian tribe. (25 U.S.C. 1903, subd. (4).) The Agency shall provide notice to an identified tribe or the BIA whenever it is known or there is reason to know that an Indian child is involved, and for every hearing thereafter, . . . unless it is determined that the Indian Child Welfare Act (25 U.S.C. Sec. 1901 et seq.) does not apply . . . . ( 224.2, subd. (b).) If no tribe can be identified, the BIAs determination as to membership is definitive. (Cal. Rules of Court, rule 5.664, subd.(e)(3)(B).)

The Agency must inquire as to any possible Indian ancestry and act on any information that it receives. (In re Levi U. (2000) 78 Cal.App.4th 191, 199 (Levi U.).) The burden is on the Agency 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.) However, there is no duty to conduct an extensive independent investigation for information. (Levi U., at pp. 198-199.)

Appellant claims that the notice in the present case was flawed, because it did not include relevant information regarding D.s tribal heritage. She points out that the notice did not identify the paternal grandmother by name, referred to the paternal great-grandmother as Lupe S. when she was identified in court as Lupe W., and provided no additional information about them, such as their addresses, birth dates, and places of birth. However, there is no indication in the record that these individuals were of Indian ancestry. More importantly, when the social worker inquired, she was advised that the paternal grandfather may have been of Native American descent[,] but his name and tribal affiliation [were] unknown to the family. Contrary to appellants claim, the social worker was not required to document her interviews with family members. Appellant appears to be challenging the social workers statement that the paternal relatives, including Mr. W., did not know the paternal grandfathers name. However, there is no evidence that the Agency failed to include any ancestor information that appellant, Mr. W., or their relatives did or could provide. The ICWA requires only that the Agency make relevant inquiries about Indian ancestry and provide the information to either the identified tribe or tribes or the BIA. Given the lack of information, the Agency fulfilled its statutory duty in the present case.[4] Accordingly, we find no error requiring reversal.

III. Disposition

The order is affirmed.

_______________________________

Mihara, J.

WE CONCUR:

_____________________________

Bamattre-Manoukian, Acting P.J.

_____________________________

McAdams, J.

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

[2] One of the maternal grandmothers was present at the March 7, 2007 hearing, and identified as Teresa S. A.

[3] The paternal great-grandmother was present at the March 7, 2007 hearing, and identified herself as Lupe W. The paternal great-aunt was also present and identified as Martha S.

[4] Appellant also suggests that the fathers memory of a Navajo affiliation should have been noted on the form, and the Navajo tribes should have been noticed. On January 11, 2007, Mr. W. stated that he had a cousin on his father side who was of Navajo descent. The social worker then inquired further, and the notices sent in February 2007 reflect the more current information.