In re J.D. CA2/8 ( 2021 )


Menu:
  • Filed 10/8/21 In re J.D. CA2/8
    NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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    has not been certified for publication or ordered published for purposes of rule 8.1115.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
    SECOND APPELLATE DISTRICT
    DIVISION EIGHT
    In re J.D., A Person Coming                                     B310568
    Under the Juvenile Court Law.
    LOS ANGELES COUNTY                                              (Los Angeles County
    DEPARTMENT OF CHILDREN                                          Super. Ct. No. 19CCJP04645A)
    AND FAMILY SERVICES,
    Plaintiff and Respondent,
    v.
    R.P.,
    Defendant and Appellant.
    APPEAL from orders of the Superior Court of Los Angeles
    County, Philip L. Soto, Judge. Affirmed.
    Karen B. Stalter, under appointment by the Court of
    Appeal, for Defendant and Appellant.
    Rodrigo A. Castro-Silva, County Counsel, Kim Nemoy,
    Assistant County Counsel, and Jessica S. Mitchell, Deputy
    County Counsel, for Plaintiff and Respondent.
    **********
    Mother R.P. appeals the juvenile court’s order denying her
    Welfare and Institutions Code section 388 petition and
    terminating her parental rights, as to her now two-year-old son,
    J.D. Mother’s only contention on appeal is that the juvenile court
    failed to ensure compliance with the Indian Child Welfare Act
    (ICWA; 
    25 U.S.C. § 1901
     et seq.), because the record does not
    contain the return receipts for notices sent to the Bureau of
    Indian Affairs and Secretary of the Interior. Finding there was
    no reason to know J.D. is an Indian child, we affirm.
    FACTUAL AND PROCEDURAL BACKGROUND
    Mother has an extensive child welfare history, with
    dependency cases for five of J.D.’s older siblings in 2014 and
    2016, arising from mother’s substance abuse, inappropriate
    discipline of the children, and domestic violence in the home.
    Mother failed to reunify with J.D.’s siblings, and her parental
    rights to one sibling were terminated.
    The Los Angeles County Department of Children and
    Family Services (Department) received a general neglect referral
    leading to this case after mother tested positive for drugs while
    pregnant with J.D. He was removed in July 2019, when he was
    nearly five months old, and placed with maternal aunt and uncle,
    who had adopted one of his older siblings.
    When mother was interviewed by the Department in April
    2019, she denied any Indian heritage. In July 2019, she filed a
    parental notification of Indian status form (ICWA-020) indicating
    that she has no Indian ancestry. At the July 24, 2019 detention
    hearing, the juvenile court found there was no reason to know
    that J.D. was an Indian child, and that ICWA does not apply.
    2
    On August 29, 2019, J.D.’s father filed a parental
    notification of Indian status form indicating that he has no
    Indian ancestry.
    On August 20, 2019, mother told the Department “she was
    not sure[,] but she heard that someone [on] her father’s side
    might have [Indian ancestry].” Mother said that maternal
    grandmother could have more information. Maternal
    grandmother initially told the Department her husband
    (maternal grandfather) may have some Indian ancestry, but she
    did not know which tribe, and there was no one with any
    additional information, as paternal grandfather, and his entire
    family, were deceased. Later, maternal grandmother denied any
    Indian ancestry in the family; however, she told the Department
    she heard that her brother-in-law’s mother had married an
    Indian man. In the prior dependency cases, ICWA was found not
    to apply.
    In August 2019, the Department sent notices of the
    proceedings by certified mail to the Bureau of Indian Affairs and
    Secretary of the Interior. The return receipts are not included in
    the record. The Department’s reports consistently reported that
    ICWA does not apply.
    On October 24, 2019, the court sustained jurisdictional
    findings based on the history of domestic violence between
    mother and father, substance abuse by mother and father, and
    abuse and neglect of J.D.’s siblings. The court bypassed
    reunification services for mother and father.
    On February 4, 2020, mother filed a Welfare and
    Institutions Code section 388 petition, asking for J.D. to be
    returned to her care, or that she receive reunification services.
    The court set the petition for hearing. The Department opposed
    3
    the requested change in orders, and recommended that mother’s
    petition be denied, and that her parental rights be terminated.
    On January 22, 2021, the court terminated mother’s and
    father’s parental rights, and denied mother’s Welfare and
    Institutions Code section 388 petition. Mother filed a timely
    notice of appeal.
    DISCUSSION
    Congress enacted ICWA “ ‘to protect the best interests of
    Indian children and to promote the stability and security of
    Indian tribes and families.’ ” (In re Isaiah W. (2016) 
    1 Cal.5th 1
    ,
    8.) ICWA requires notice to Indian tribes “in any involuntary
    proceeding in state court to place a child in foster care or to
    terminate parental rights ‘where the court knows or has reason
    to know that an Indian child is involved.’ ” (In re Isaiah W., at
    p. 8.) The child’s tribe must receive “notice of the pending
    proceedings and its right to intervene.” (In re H.B. (2008)
    
    161 Cal.App.4th 115
    , 120.)
    Welfare and Institutions Code section 224.2 imposes on the
    juvenile court and the Department “an affirmative and
    continuing duty to inquire whether a child . . . is or may be an
    Indian child . . . .” (Id., subd. (a).) If there is “reason to believe
    [that an Indian child is] involved in a proceeding,” further inquiry
    regarding the possible Indian status of the child “shall” be made,
    including “[i]nterviewing . . . extended family members” to obtain
    the necessary information to notice the tribes. (Id., subd. (e)(1) &
    (2); see also Cal. Rules of Court, rule 5.481(a).)
    If there is reason to know a child might be an Indian child,
    the Department must provide notice to the Indian tribes. (In re
    Jennifer A. (2002) 
    103 Cal.App.4th 692
    , 705.) “[T]here is ‘reason
    to know’ a child is an Indian child if ‘(1) Any participant in the
    4
    proceeding, officer of the court involved in the proceeding, Indian
    Tribe, Indian organization, or agency informs the court that the
    child is an Indian child; [¶] (2) Any participant in the
    proceeding, officer of the court involved in the proceeding, Indian
    Tribe, Indian organization, or agency informs the court that it
    has discovered information indicating that the child is an Indian
    child; [¶] (3) The child who is the subject of the proceeding gives
    the court reason to know he or she is an Indian child; [¶]
    (4) The court is informed that the domicile or residence of the
    child, the child’s parent, or the child’s Indian custodian is on a
    reservation or in an Alaska Native village; [¶] (5) The court is
    informed that the child is or has been a ward of a Tribal court; or
    [¶] (6) The court is informed that either parent or the child
    possesses an identification card indicating membership in an
    Indian Tribe.’ (
    25 C.F.R. § 23.107
    (c) (2019).)” (In re A.M. (2020)
    
    47 Cal.App.5th 303
    , 315-316.)
    The Department must file with the juvenile court the
    ICWA notices, return receipts, and any responses to the notices.
    (Welf. & Inst. Code, § 224.3, subd. (c).) “ ‘The juvenile
    court must determine whether proper notice was given under
    ICWA and whether ICWA applies to the proceedings. [Citation.]’
    [Citation.] When . . . the facts are undisputed, we review
    independently whether the requirements of ICWA have been
    satisfied. [Citation.] However, we review the juvenile court’s
    ICWA findings under the substantial evidence test . . . .” (In re
    A.M., supra, 47 Cal.App.5th at p. 314.)
    Here, the information available to the Department and
    juvenile court did not trigger the notice requirements under
    ICWA. Mother’s and maternal grandmother’s statements to the
    effect that someone in the family might have Indian ancestry in
    5
    an unknown tribe, but there was no living family member with
    any additional information to provide, and that J.D.’s great
    uncle-in-law’s mother had married an Indian man, are too vague
    to give any reason to know J.D. is an Indian child. Accordingly,
    there was no error in finding that ICWA does not apply.
    DISPOSITION
    The orders are affirmed.
    GRIMES, Acting P. J.
    WE CONCUR:
    STRATTON, J.
    OHTA, J.*
    *     Judge of the Los Angeles Superior Court, assigned by the
    Chief Justice pursuant to article VI, section 6 of the California
    Constitution.
    6
    

Document Info

Docket Number: B310568

Filed Date: 10/8/2021

Precedential Status: Non-Precedential

Modified Date: 10/8/2021