In re K.G. CA2/8 ( 2015 )


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  • Filed 7/17/15 In re K.G. 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    NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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 K.G. et al., Persons Coming Under the                          B259547
    Juvenile Court Law.                                                  (Los Angeles County
    Super. Ct. No. DK01946)
    LOS ANGELES COUNTY
    DEPARTMENT OF CHILDREN AND
    FAMILY SERVICES,
    Plaintiff and Respondent,
    v.
    R.G.,
    Defendant and Appellant.
    APPEAL from orders of the Superior Court of Los Angeles County, Marilyn
    Kading Martinez, Juvenile Court Referee. Affirmed.
    Rich Pfeiffer, under appointment by the Court of Appeal, for Defendant and
    Appellant.
    Mark J. Saladino, County Counsel, Dawyn R. Harrison, Assistant County Counsel,
    and Jeanette Cauble, Deputy County Counsel, for Plaintiff and Respondent.
    ******
    The juvenile court in this case exercised dependency jurisdiction over four
    children—K.G., born in 2005; D.G., born in 2006; H.G., born in 2007; and R.G., Jr., born
    in 2008—after sustaining allegations that R.G., Sr. (father) repeatedly sexually abused
    K.G., and that father and G.G. (mother) physically abused H.G. by striking him with a
    belt, leaving bruises.1 At disposition, the court removed the children from father’s
    custody, and, based on the recommendation of the Los Angeles County Department of
    Children and Family Services (DCFS), placed them with mother, ordering family
    maintenance services for mother and the children. It refused to order visitation or
    reunification services for father pursuant to Welfare and Institutions Code section 361.5,
    subdivision (b)(6) (reunification services may be withheld from parent based on sexual
    abuse of child or sibling).
    Father appeals the court’s jurisdiction and disposition orders, contending only that
    the court erred in refusing to order notice under the Indian Child Welfare Act (ICWA)
    (25 U.S.C. § 1901 et seq.). Mother never claimed any Indian heritage, father initially
    denied any heritage, and the court concluded at times during the proceedings that the
    ICWA did not apply. But prior to his arraignment hearing, father submitted an ICWA-
    020 form claiming Choctaw heritage through his paternal great, great, great
    grandmother.2 At the hearing, the court asked father what other information he had and
    he responded, “That’s all. My mom just telling me.” The court refused to order notice,
    stating, “We do not need to go back to great-great-great-relatives and it appears there’s
    just—it’s just speculation that there may be heritage.” When the court asked if there
    were any objections to this finding, all counsel, including father’s, said no.
    1       The juvenile court sustained a prior petition naming only mother and finding D.G.
    and R.G., Jr., at risk because D.G. had been diagnosed with a failure to thrive and mother
    failed to give him his prescribed food supplement and failed to take him to medical
    appointments. Initially, the children were not removed from either parent and the court
    ordered family maintenance services for them and the children.
    2       This was inconsistent with DCFS’s statement in an earlier detention report that
    father had reported his paternal great grandfather was from the Choctaw tribe, not his
    great, great, great grandmother.
    2
    We find no error in this case because notice was not required under the ICWA or
    state law. (See In re Alexis H. (2005) 
    132 Cal. App. 4th 11
    , 14 (Alexis H.).) The ICWA
    requires a child welfare agency to notify the parents and the Indian child’s tribe if the
    juvenile court “knows or has reason to know that an Indian child is involved” in the
    proceeding, but the statute expressly requires the agency to send notice only when it is
    “seeking the foster care placement of, or termination of parental rights to, an Indian
    child.” (25 U.S.C. § 1912(a).) The ICWA defines “foster care placement” as “any action
    removing an Indian child from its parent or Indian custodian for temporary placement in
    a foster home or institution or the home of a guardian or conservator where the parent or
    Indian custodian cannot have the child returned upon demand, but where parental rights
    have not been terminated,” and defines “termination of parental rights” as “any action
    resulting in the termination of the parent-child relationship.” (Id. § 1903(1)(i)-(ii).) State
    law likewise requires notice if the court, a social worker, or probation officer “knows or
    has reason to know that an Indian child is involved” in an “Indian child custody
    proceeding” (Welf. & Inst. Code, § 224.2, subd. (a)), which is defined the same as federal
    law, as well as “a proceeding for temporary or long-term foster care or guardianship
    placement, termination of parental rights, preadoptive placement after termination of
    parental rights, or adoptive placement” (id. § 224.1, subd. (d)).
    In this case, DCFS sought neither foster care placement nor termination of
    parental rights; instead, it recommended, and the juvenile court ordered, the children
    placed with mother with family maintenance services. Our decision in Alexis H. is
    therefore on point. In that case, the juvenile court declared the children dependents,
    placed them with the mother, and ordered family maintenance services for her. It also
    granted monitored visitation and reunification services for father. (Alexis 
    H., supra
    , 132
    Cal.App.4th at p. 14.) We rejected father’s argument that DCFS failed to comply with
    the ICWA notice requirements because “[b]y its own terms, the act requires notice only
    when child welfare authorities seek permanent foster care or termination of parental
    rights; it does not require notice anytime a child of possible or actual Native American
    descent is involved in a dependency proceeding.” (Alexis H., at p. 14.)
    3
    Father cites In re Jennifer A. (2002) 
    103 Cal. App. 4th 692
    to argue the potential for
    removal from mother to foster care remained here, even if DCFS did not pursue a foster
    care placement at this stage. As we explained in Alexis H., however, Jennifer A. was
    confined to its facts because the child welfare authorities recommended foster care for the
    child, but the court rejected that recommendation and placed the child with her father.
    (Alexis 
    H., supra
    , 132 Cal.App.4th at p. 15.) Here, as in Alexis H. and unlike in
    Jennifer A., DCFS did not recommend foster placement and there is no indication DCFS
    will do so absent some change in circumstances. If DCFS does recommend foster
    placement or termination of parental rights in future proceedings, ICWA notice may be
    required. But at this stage, the court did not err in refusing to order notice under the
    ICWA and state law.
    DISPOSITION
    The juvenile court’s jurisdiction and disposition orders are affirmed.
    FLIER, J.
    WE CONCUR:
    BIGELOW, P. 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.
    4
    

Document Info

Docket Number: B259547

Filed Date: 7/17/2015

Precedential Status: Non-Precedential

Modified Date: 4/17/2021