In re L.C. CA3 ( 2014 )

Filed 6/5/14 In re L.C. CA3
NOT TO BE PUBLISHED
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 This opinion has not been certified for publication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
THIRD APPELLATE DISTRICT
(Sacramento)
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In re L.C. et al., Persons Coming Under the C075200
Juvenile Court Law.
(Super. Ct. Nos.
SACRAMENTO COUNTY DEPARTMENT JD231681, JD231682)
OF HEALTH AND HUMAN SERVICES,
Plaintiff and Respondent,
v.
ANDREA B.,
Defendant and Appellant.
Andrea B., mother of the two minors, appeals from orders of the juvenile court
terminating her parental rights. (Welf. & Inst. Code, §§ 366.26, 395.)1 Mother contends
the Sacramento County Department of Health and Human Services (the Department)
1 Undesignated statutory references are to the Welfare and Institutions Code.
1
failed to comply with the inquiry and notice provisions of the Indian Child Welfare Act
(ICWA). (25 U.S.C. § 1901 et seq.) We shall affirm.
FACTUAL AND PROCEDURAL BACKGROUND
The minors, one-year-old L.C. and two-year-old K.C, were removed from parental
custody in June 2011 due to petitions alleging they were at risk of harm from serious
domestic violence in the home that had not been alleviated by voluntary services. The
detention report stated that father claimed Cherokee heritage through his paternal
relatives and mother claimed no Indian heritage. However, at the detention hearing both
parents filed “Parental Notification of Indian Status” forms in which father again claimed
Cherokee heritage and mother now claimed “Blackfoot” heritage.2 At the detention
hearing the court confirmed that mother claimed Indian ancestry in the Blackfoot tribe
and directed that both parents be provided with a questionnaire that would provide the
Department with relevant noticing information. The court ordered the Department to
give notice to all federally recognized tribes.
The paralegal assigned to provide the ICWA notice and report to the court on the
results filed a declaration in July 2011. The declaration stated that the paralegal called
father on July 1, 2011, and received limited information from father, which was
incorporated in the notice sent to the Cherokee tribes. The paralegal had not received any
completed questionnaire or family tree diagram. The declaration does not state that the
paralegal made or attempted to make contact with mother or inquire about her claimed
Blackfoot heritage. Attached to the paralegal’s declaration was a copy of the “Notice of
Child Custody Proceeding for Indian Child” that the paralegal sent to the Cherokee tribes.
2 The federally recognized tribe is the Blackfeet Tribe of Montana. (79 Fed.Reg. 4749
(Jan. 29, 2014) Notices.) However, the Blackfeet Tribe is frequently confused with the
“Blackfoot” tribe (which is a related tribe in Canada) and both terms are used, sometimes
interchangeably.
2
Information about mother and her relatives was limited to mother’s name and address and
the statement “No Indian Ancestry.”
The jurisdiction/disposition report stated that the ICWA notice was sent to the
Cherokee tribes based on father’s claim of Indian heritage. The report did not contain
any indication that anyone made any inquiry of mother about her claim of Indian
heritage. At the jurisdictional/dispositional hearing, the court sustained the petitions and
ordered reunification services for the parents.
The court held an ICWA compliance hearing in September 2011. Both parents
were present. At the hearing, the court asked each counsel to go over the notice form
with each parent “to make certain that the information that was provided to the tribes is
accurate and does not need to be amended.” Father’s counsel stated that the information
was correct and that father had no additional information. Mother’s attorney told the
court that “The information is correct for the mother.” The court subsequently found that
the ICWA did not apply to the case.
The parents failed to reunify with the minors. In September 2013, the court
terminated parental rights and selected a permanent plan of adoption.
DISCUSSION
Mother contends the Department failed to comply with the ICWA by failing to
send notice of the proceedings to the tribe she identified.3
The ICWA protects the interests of Indian children and promotes the stability and
security of Indian tribes by establishing minimum standards for, and permitting tribal
participation in, dependency actions. (25 U.S.C. §§ 1901, 1902, 1903(1), 1911(c), 1912.)
3 On appeal mother concedes that the appropriate federally recognized tribe is the
Blackfeet Tribe.
3
The juvenile court and the Department have an affirmative duty to inquire at the outset of
the proceedings whether a child who is subject to the proceedings is, or may be, an Indian
child. (Cal. Rules of Court, rule 5.481(a).) After the initial inquiry, if there is reason to
know an Indian child is or may be involved, the Department is required to make further
inquiry by interviewing the minor’s parents and extended family, if known, concerning
the child’s membership status or eligibility. (§ 224.3, subd. (c); Cal. Rules of Court,
rule 5.481(a)(4).) Where, after inquiry, the court “knows or has reason to know that an
Indian child is involved,” notice of the pending proceeding and the right to intervene
must be sent to the tribe or the Bureau of Indian Affairs (BIA) if the tribal affiliation is
not known. (25 U.S.C. § 1912(a); § 224.2; Cal. Rules of Court, rule 5.481(b).) Failure to
comply with the inquiry and notice provisions and determine whether the ICWA applies
is prejudicial error. (In re Desiree F. (2000) 83 Cal. App. 4th 460, 472; In re Kahlen W.
(1991) 233 Cal. App. 3d 1414, 1424.)
Here, mother stated that she may have Blackfoot ancestry. In light of the well-
known confusion between the Blackfoot and Blackfeet tribes, rather than simply
concluding mother had identified a tribe that is not federally recognized, as respondent
suggests, the Department had a duty of inquiry to ascertain not only whether mother was
confused about the name of the tribe, but also any information that might bear on the
minors’ membership or eligibility. The record is clear that, after initial contact prior to
the dispositional hearing, the Department made no inquiry of mother whatsoever
regarding her claim of Indian heritage. Further, despite mother’s claim of Blackfoot
heritage, the notice form sent to the Cherokee tribes stated mother had “No Indian
Ancestry.” Thus the obligatory inquiry did not occur and the Department misrepresented
mother’s claimed status. Normally, a limited reversal for further inquiry would be
necessary.
4
However, following the noticing of the Cherokee tribes, the court held an ICWA
compliance hearing. At the hearing, the court specifically directed counsel for each
parent to review the notice form for any errors. Mother was present with counsel at the
hearing. Counsel represented the information in the notice form as to mother was correct.
The reasonable inference is that mother withdrew her claim of Indian heritage and
reasserted the position she had initially claimed prior to the dispositional hearing.
Mother’s withdrawal of her claim of Indian heritage relieved the Department of any duty
to inquire or give notice to any tribe or to the BIA pursuant to the ICWA.
Given our resolution of the issue, we need not address the several points raised by
respondent in the reply brief.
DISPOSITION
The orders of the juvenile court are affirmed.
BUTZ , J.
We concur:
NICHOLSON , Acting P. J.
MURRAY , J.
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