In re M.M. CA2/3 ( 2014 )

Filed 9/29/14 In re M.M. CA2/3
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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 THREE
In re M.M., a Person Coming Under the B254074
Juvenile Court Law.
_____________________________________ (Los Angeles County
Super. Ct. No. CK75388)
LOS ANGELES COUNTY DEPARTMENT
OF CHILDREN AND FAMILY SERVICES,
Plaintiff and Respondent,
v.
M.S.,
Defendant and Appellant.
APPEAL from orders of the Superior Court of Los Angeles County,
Valerie Skeba, Referee. Affirmed.
Lori N. Siegel, under appointment by the Court of Appeal, for Defendant and
Appellant.
John F. Krattli, County Counsel, Dawyn R. Harrison, Assistant County Counsel,
Sarah Vesecky, Deputy County Counsel for Plaintiff and Respondent.
_________________________
M.S. (mother) appeals from the juvenile court’s orders of January 15, 2014,
terminating parental rights to M.M. and R.M. pursuant to Welfare and Institutions Code
1
section 366.26. She contends the Indian Child Welfare Act (25 U.S.C. § 1901 et seq.)
2
(ICWA) was not complied with. We affirm.
STATEMENT OF FACTS AND PROCEDURE
M.M., who was born in 2003, and R.M., who was born in 2004, (“children”) to
mother and the presumed father, R.M. (“father”), were detained from parental custody on
November 18, 2008, and a section 300 petition was filed by the Department of Children
3
and Family Services (“Department”). On February 5, 2009, children were declared
dependents of the court based on sustained allegations of drug abuse and domestic
4
violence by parents. On October 7, 2009, the court sustained a subsequent petition
based on additional findings of neglect and failure to protect. On November 4, 2009, no
reunification services were ordered. After five placements, the children were placed in
the care of foster parents who wanted to adopt them. On January 15, 2014, parental
rights were terminated. Mother did not contest the recommendation to terminate parental
rights.
1
All further statutory references are to the Welfare and Institutions Code, unless
otherwise indicated.
2
After filing respondent’s brief, the Department informed us of a recent decision, In
re Isaiah W. (2014) 228 Cal. App. 4th 981, 985-988, which held that a challenge to an
ICWA finding is waived if it is not timely appealed. No issue of waiver was raised in the
appeal. As the decision is not relevant to an issue already raised in the appeal, the
Department’s provision of the decision is not authorized and we do not address it. (See
Cal. Rules of Court, rule 8.254.)
3
The section 300 petition also alleged jurisdiction over the children’s half-sibling,
T.K. (“T.”), born to mother and W.T.
4
T. was made a dependent of the court at a subsequent hearing.
2
DISCUSSION
The ICWA was complied with.
Mother contends mother’s and father’s alleged Indian heritage was not sufficiently
investigated, notice to the tribe was inadequate, notice was not received by the designated
tribal agents, and the juvenile court failed to make an ICWA finding. We disagree with
the contentions.
1. Standard of review.
We review the juvenile court’s determination “whether proper notice was given
under ICWA and whether ICWA applies to the proceedings” for substantial evidence.
(In re E.W. (2009) 170 Cal. App. 4th 396, 403-404.) In determining whether substantial
evidence supports the factual findings, “all intendments are in favor of the judgment and
[we] must accept as true the evidence which tends to establish the correctness of the
findings as made, taking into account as well all inferences which might reasonably have
been drawn by the trial court.” (Crogan v. Metz (1956) 47 Cal. 2d 398, 403-404.)
2. Relevant facts and procedure.
On November 21, 2008, mother and father each claimed possible Cherokee
heritage. On the Judicial Counsel’s mandatory Parental Notification of Indian Status
form, they checked the boxes that would indicate they claimed they, or the children, were
or may be a member of, or eligible for, membership in a tribe. Mother told the court that
she, the children, maternal grandparents, and maternal great-grandparents were not
enrolled in a tribe. Mother stated that maternal grandmother told her maternal great
grandmother had Cherokee ancestry. Father stated no one in his family received tribal
benefits, and paternal grandmother had Cherokee heritage although she was not a
member of the tribe. The court ordered the Department to make efforts to investigate the
claims, stating notice need not be given to the tribes at that time.
On December 10, 2008, “mother stated [to the social worker] that she confirmed
with her mother (maternal grandmother) that there is no American Indian heritage in her
family.” Father stated he had Cherokee heritage through paternal grandmother’s side of
the family. A paternal aunt told the social worker paternal grandmother could not be
3
interviewed because she had had a stroke. Paternal aunt provided “as much information
regarding American Indian heritage as was available.” Paternal aunt stated paternal
grandmother knew only that there was Indian heritage through paternal great-great-
grandmother, but did not know which tribe.
5
Notice of the proceedings was sent to the three Cherokee tribes on December
11, 2008. The notice contained: M.M.’s name, birthdate, and birthplace; R.M.’s name,
birthdate, and birthplace; father’s name, address, birthdate, and birthplace; paternal
grandmother’s married and maiden names, current address, city of former residence,
birthdate, and birthplace; name of paternal grandfather and city of residence; name of
paternal great-grandmother, the fact she was deceased, city of former residence,
birthdate, and birthplace; and statement by paternal grandmother that paternal great-
great-grandmother was born “on a tribe” but moved to Little Rock. The notice also
reflected that father stated there was Cherokee heritage on paternal grandmother’s side
and paternal grandmother stated there was heritage in an unknown tribe through the
paternal great-great-grandmother. The notice stated father and paternal grandmother
6
were not registered with a tribe.
The certified mail receipt for each notice was signed by an individual who was not
the addressee, at the address the notice was addressed to. The Cherokee Nation
responded on December 18, 2008 that the children were not Indian children.
Without objection to or challenge by mother, her statement that she confirmed
there was no Indian heritage in her family was reported to the court at the jurisdiction
hearing on January 5, 2009.
On February 5, 2009, when the children were declared dependents, the court stated
that it could not make ICWA findings yet, because not enough time had elapsed after the
notices were received by the tribes. The court put the ICWA finding in the children’s
5
The three tribes are United Keetoowah Band of Cherokee Indians, Eastern Band of
Cherokee Indians, and Cherokee Nation of Oklahoma.
6
The notice also contained information concerning mother and mother’s family.
4
case over to March 5, the date scheduled for a jurisdiction/disposition hearing in T.’s
case.
On March 5, 2009, the court received the returned receipts for the ICWA notices
and the response from the Cherokee Nation. The court admitted into evidence mother’s
statement that there was no Indian heritage and the report of the Department’s
investigations concerning each parent’s ancestry. The court found ICWA did not apply
7
to children.
3. The ICWA.
“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.)
The substantive provisions of the ICWA apply to the minor’s placement in adoption and
foster care and to other hearings, such as termination of parental rights, which affect the
minor’s status.” (In re Holly B. (2009) 172 Cal. App. 4th 1261, 1266.)
The court and the Department have an affirmative duty to inquire whether a child
in a dependency proceeding is an Indian child. (§ 224.3, subd. (a).) When the juvenile
court knows or has reason to know that an Indian child is involved, notice of the
dependency proceeding must be given to the tribe. (25 U.S.C. § 1912(a).)
Circumstances that may provide reason to know the child is an Indian child include:
“(1) A person having an interest in the child, including . . . a member of the child’s
8
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 child’s biological parents,
7
The court stated: “I will now find that this is not an ICWA case. Now, the mother
stated that there was no Native American Indian heritage. [The claim of Indian heritage]
was as to the . . . father [of the children].”
8
The term “extended family” is “as defined by the law or custom of the Indian
child’s tribe or, in the absence of such law or custom, shall be a person who has reached
the age of eighteen and who is the Indian child’s grandparent, aunt or uncle, brother or
sister, brother-in-law or sister-in-law, niece or nephew, first or second cousin, or
stepparent.” (25 U.S.C. § 1903(2).)
5
grandparents, or great-grandparents are or were a member of a tribe.” (§ 224.3,
subd. (b)(1).)
An Indian child is defined in the ICWA as “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(4).) “A determination by an Indian tribe that a child is or is not a
member of or eligible for membership in that tribe, . . . shall be conclusive.” (§ 224.3,
subd. (e)(1).)
4. ICWA finding.
Mother contends the court failed to make an ICWA finding. We disagree. On
February 5, 2009, the court put the ICWA finding in the children’s case over to March 5.
The court made an express finding on March 5 the ICWA did not apply to the children.
Mother did not object to the express finding. Subsequent court reports recited that on
March 5 the court found this is not an ICWA case, with no objection by mother. We
conclude the court did not fail to make an ICWA finding applicable to the children.
5. Investigation of mother’s alleged Cherokee heritage.
Mother contends that, as her statements concerning the children’s Indian heritage
were in conflict, the juvenile court had a duty to inquire further. Mother mischaracterizes
the record. Her statements did not conflict with one another.
Initially, mother stated maternal grandmother taught her the family had Indian
heritage. When the Department subsequently followed up, mother stated she had spoken
to maternal grandmother and maternal grandmother confirmed the family had no Indian
heritage. The two statements are entirely consistent. Mother believed maternal
grandmother claimed Indian heritage in the family, until mother checked with maternal
grandmother and learned the family had no Indian heritage. No issue existed which
required further investigation. (Compare In re Damian C. (2009) 178 Cal. App. 4th 192,
199 [a family member’s statements he had heard conflicting stories concerning whether
the family had Indian heritage triggered a duty to further investigate and provide notice to
the tribes].)
6
6. Investigation of father’s alleged Indian heritage.
Mother contends the investigation of father’s alleged Indian heritage was
insufficient. We disagree with the contention.
The Department’s investigation of father’s claim of Indian heritage through
paternal grandmother included the following. The social worker interviewed father. An
interview with paternal grandmother was precluded by paternal grandmother’s medical
condition. However, a paternal aunt stated she had all the information that was available
concerning the claim. The worker then interviewed the aunt, who provided all the
information the family had, including the information that, according to paternal
grandmother, the only Indian heritage that existed was through paternal great-great-
grandmother in a tribe paternal grandmother could not identify. A sufficient
investigation did not require the worker to interview paternal grandfather, because there
was no claim of Indian heritage on his side, or the other paternal aunt, because there was
no additional information she could provide concerning father’s maternal side. We
conclude the investigation of father’s alleged Indian heritage was sufficient.
7. Adequacy of notice to tribes of alleged Cherokee heritage through father.
Mother contends the notice sent to the tribes was inadequate because it was
incomplete. We disagree with the contention.
“[A]ny failure to comply with a higher state standard, above and beyond what the
ICWA itself requires, must be held harmless unless the appellant can show a reasonable
probability that he or she would have enjoyed a more favorable result in the absence of
the error. (Cal. Const., art. VI, § 13; People v. Watson (1956) 46 Cal. 2d 818, 836
[299 P.2d 243].)” (In re S.B. (2005) 130 Cal. App. 4th 1148, 1162; accord, Nicole K. v.
Superior Court (2007) 146 Cal. App. 4th 779, 783-784 [the adequacy of ICWA notice is
reviewed for harmless error].)
“The object of tribal notice is to enable a review of tribal records to ascertain a
child’s status under ICWA. . . . The notices ‘must contain enough information to be
meaningful. [Citation.] The notice must include: if known, (1) the Indian child’s name,
birthplace, and birth date; (2) the name of the tribe in which the Indian child is enrolled or
7
may be eligible for enrollment; (3) names and addresses of the child’s parents,
9
grandparents, great grandparents, and other identifying information; and (4) a copy of
the dependency petition.’ [Citation.] ‘It is essential to provide the Indian tribe with all
available information about the child’s ancestors, especially the ones with the alleged
Indian heritage. [Citation.]’ ” (In re K.M. (2009) 172 Cal. App. 4th 115, 119.)
Mother contends the notice should have included the children’s birth certificates,
father’s middle name, and father’s former address. While some or all of these items may
have been available, their omission did not render the notice lacking in enough available
information to enable the tribe to review its records to ascertain the children’s status
under the ICWA. The notice contained the information that would be supplied on a birth
certificate: each child’s name, birthdate, birthplace, and names of parents. The notice
contained information identifying father: his name, address, birthdate, and birthplace;
names and information identifying his parents; his mother’s current address and city of
former residence; and name of paternal grandmother.
Mother contends the notice could have contained additional information
identifying mother. As no Indian heritage was claimed through mother’s side, the
omission of additional information concerning mother did not result in the notice lacking
enough information to be meaningful.
Concerning mother’s contention the notice should have contained information
identifying paternal great-great-grandparents and paternal grandfather’s street address,
we disagree with the contention. Notice is not required to contain information about
great-great-grandparents. (See §§ 224.2, subd. (a)(5)(C), 224.3, subd. (b)(1).) Moreover,
any lack of information about paternal great-great-grandfather did not render the notice
insufficient to enable the tribe to ascertain the children’s ICWA status, because Indian
9
Under section 224.2, subdivision (a)(5)(C), “other identifying information”
includes: “All names known of the Indian child’s biological parents, grandparents, and
great-grandparents, . . . married and former names or aliases, as well as their current and
former addresses, birthdates, places of birth and death, tribal enrollment numbers, . . . if
known.” Under section 224.2, subdivision (a)(5)(E), notice shall also include the child’s
birth certificate, if available.
8
heritage was not claimed through him. As to paternal grandfather and paternal great-
great-grandmother, it is reasonable to infer, from paternal aunt’s statement she supplied
the worker with all available information, that the notice included all available
information, and no further identifying information was available.
We conclude any omission of available, required information specified by mother
was harmless error, and the other omissions specified by mother concerned information
that was not available. Notice to the tribes of alleged Indian heritage through father was
sufficient.
8. Service of notice to the tribes.
Mother contends the court failed to insure that notice was received by agents
designated to receive service, as the delivery receipts were signed by individuals who
were not the addressees. We disagree with the premise of the contention. All that is
required is that notice be addressed to the tribal chairperson or designated agent; receipt
of the notice by the tribal chairperson or designated agent is not required. (§ 224.2, subd.
(a)(2) [“[n]otice to the tribe shall be to the tribal chairperson, unless the tribe has
designated another agent for service”].) Mother does not contend the notices were not
addressed to the correct person. The fact the delivery receipts were signed by individuals
10
who were not the addressees does not render the notice insufficient. (Compare In re
J.T., supra, 154 Cal.App.4th at p. 994 [failure to address the notice to any specific
individual was error, and, where the tribe did not respond to the notice, the error was not
harmless].)
10
In any event, as to the Cherokee Nation of Oklahoma, the tribe responded,
rendering any alleged error harmless. (In re J.T. (2007) 154 Cal. App. 4th 986, 994.)
9
DISPOSITION
The orders are affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
KLEIN, P. J.
We concur:
KITCHING, J.
*
EDMON, J.
*
Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to
article VI, section 6 of the California Constitution.
10