In re R.R. CA4/2 ( 2014 )

Filed 1/16/14 In re R.R. CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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
FOURTH APPELLATE DISTRICT
DIVISION TWO
In re R.R., a Person Coming Under the
Juvenile Court Law.
RIVERSIDE COUNTY DEPARTMENT
OF PUBLIC AND SOCIAL SERVICES , E059109
Plaintiff and Respondent; (Super.Ct.No. RIJ113791)
v.
OPINION
RICHARD R.,
Defendant and Appellant.
APPEAL from the Superior Court of Riverside County. Tamara L. Wagner,
Judge. Affirmed.
Cristina Gabrielidis, under appointment by the Court of Appeal, for Defendant and
Appellant.
Pamela J. Walls, County Counsel and Julie Koons Jarvi, Deputy County Counsel,
for Plaintiff and Respondent.
1
Richard R., father of R. R., appeals from a judgment terminating his parental
rights after he failed to visit his child for six months and did not participate in
reunification services. On appeal, he argues that reversal is required because the
Riverside County Department of Public Social Services (DPSS) failed to adequately
investigate R.R.’s Indian heritage and to properly notify the Choctaw tribes, thereby
violating the Indian Child Welfare Act (25 U.S.C. §§ 1901 et seq. (ICWA)). We affirm.
BACKGROUND
R.R. was born in 2007, testing positive for methamphetamine at birth. A
dependency petition was filed alleging neglect (Welf. & Inst. Code1, § 300, subd. (b)),
and failure to provide support on the part of an alleged father.2 (§ 300, subd. (g).)
Mother denied having any Indian ancestry. The petition was sustained and R.R. was
adjudged a dependent. R.R. was placed in the home of her maternal grandmother and
mother was ordered to participate in reunification services.
At the six month status review hearing, R.R. was returned to her mother’s custody
under Family Maintenance Services upon the recommendation of DPSS, based on
mother’s cooperation with the case plan and her significant progress. On April 17, 2008,
the dependency was terminated. Up to this point, R.R. was reaching all developmental
milestones.
1All further statutory references are to the Welfare and Institutions Code unless
otherwise stated.
2
Mother initially identified another man as the father, and his whereabouts were
unknown.
2
On April 12, 2012, mother called 911, crying. When police arrived at the home,
they found puddles of blood outside the home. When they knocked, mother answered the
door carrying R.R., and informed the officers that she was home alone, and was going to
sleep. The police demanded entry because of the trail of blood outside, and found
mother’s then boyfriend on the couch with a puncture wound to his left arm.3
Mother admitted she had thrown glasses, plates and a knife at the boyfriend,
causing the wound. Mother appeared to be under the influence of methamphetamine,
having relapsed approximately six months before this incident. Mother attributed her
relapse to the stress of caring for R.R., who was diagnosed as autistic. Mother was
arrested for assault with a deadly weapon and being under the influence of
methamphetamine. She identified R.R.’s father as Richard R. and acknowledged a
history of domestic violence with him, which resulted in a restraining order against him
in 2010. A paternity judgment named Richard as father in July 2009. Father had not
visited R.R. because of the 2010 restraining order, which denied visitation, and because
he lived in Las Vegas.
A new dependency petition was filed, naming father along with two other alleged
fathers.4 R.R. was removed from her mother’s home and placed with her maternal
grandmother. Mother again denied having any Native American heritage, but father
3 The police report indicated the victim was found on a bed in the bedroom.
4 This petition was subsequently amended, but the particular allegations are
irrelevant to this appeal.
3
informed the social worker that he was one-sixteenth Choctaw through his mother, whose
great, great, great paternal grandfather had married a full blooded Choctaw woman.5 The
social worker contacted father’s mother who could not provide the names or dates of
birth of her Native American ancestors, although the ICWA notice includes the name of
her father.
Notice of the dependency proceedings was sent to the Bureau of Indian Affairs,
the Choctaw Nation of Oklahoma, the Jena Band of Choctaw Indians, and the Mississippi
Band of Choctaw Indians. The notice contained the paternal grandmother’s names
(maiden and married), address, birth date and place, as well as the paternal great
grandfather’s name and an incomplete birth date. Return receipts for the Choctaw Nation
of Oklahoma, the Jena Band of Choctaw Indians, and the Mississippi Band of Choctaw
Indians were filed. On May 29, 2012, the Choctaw Nation of Oklahoma wrote a letter
indicating that the child is not enrolled or eligible for enrollment.
On June 8, 2012, the court conducted the jurisdictional and dispositional hearing.
The court found the allegations of the petition were true and that ICWA did not apply to
the Choctaw Nation of Oklahoma, but may apply (to the other named tribes). Custody
was removed from the parents and services were ordered for mother and father. An
5 There is no blood quantum requirement for obtaining a Certificate of Degree of
Indian Blood Card for the Choctaw tribes. Tribal membership may be acquired as long
as one can establish he or she is a descendent of someone enrolled on the final Choctaw
Dawes Commission Rolls by blood.
(http://www.choctawnation.com/services/departments/enrollment-cdib-and-tribal-
membership/ [as of December 3, 2013].)
4
assessment of father’s home was ordered to be conducted through the Interstate Compact
for the Placement of Children (ICPC).
On June 20, 2012, the social worker submitted a tribal response letter from the
Mississippi Band of Choctaw Indians indicating that none of the named individuals was
enrolled in the tribe.
In the meantime, father seemed hesitant to proceed with the ICPC evaluation and
indicated he might be unable to participate in his case plan. For her part, R.R. was
functioning at the level of an 18-month old due to her autism. Her condition had been
diagnosed at the age of 22 months due to language regression. She had difficulty with
advance motor skills, such as walking backwards or jumping in place, had problems with
inattention and impulse control, and needed assistance to take care of individual needs, so
she continued to wear a diaper. R.R. received services from the Center for Autism and
Related Disorders.
During the first status review period, mother did not participate in her plan and
tested positive for methamphetamine on more than one occasion. In August 2012,
mother attempted to visit while under the influence of drugs. For this reason, mother was
informed that visits, which had taken place at the maternal grandmother’s home to this
point, would now take place at the Child Protective Services (CPS) office. The first visit
at CPS went well, but on August 21, 2012, the second visit was terminated early when
mother spanked R.R. for trying to eat her feces while mother changed her diaper. Mother
was informed that she would have to drug test prior to future visits, and no subsequent
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visits occurred. On December 7, 2012, DPSS filed an application to change the prior
court order (§ 388; Form JV-180), seeking to terminate mother’s reunification services.
Father did not participate in his plan, either, and he did not request visits. In an
addendum report submitted on December 14, 2012, the social worker recommended that
services be terminated as to both parents and that a section 366.26 hearing be ordered.
The mother was living with friends but had been in jail for two weeks prior to that. She
was now motivated to enter a rehabilitation program and had scheduled an appointment
with MFI Recovery. Neither parent had maintained regular contact with DPSS, nor had
they begun any component of their case plan. The maternal grandmother, with whom
R.R. remained placed, was interested in adopting the child. The social worker also
requested that the court find ICWA did not apply.
On January 29, 2013, the court conducted the contested six-month review hearing.
At the hearing, County Counsel requested a finding that ICWA did not apply in light of
the passage of time without a response indicating that R.R. is an Indian child. The court
made the finding that ICWA did not apply, and terminated father’s reunification services
because he had made no progress and because he had not had contact with R.R. for six
months. The court granted the section 388 petition filed by the county, terminating
mother’s reunification services for failing to participate regularly in the case plan.
On May 29, 2013, the court conducted the section 366.26 hearing. Mother filed a
section 388 petition on the day of the hearing, seeking reinstatement of reunification
services. The court denied the application, and proceeded to terminate parental rights,
freeing R.R. for adoption. Father timely appealed.
6
DISCUSSION
Father argues on appeal that the social worker failed to adequately investigate
father’s Indian heritage and failed to send proper notices to the Indian tribes. We
disagree.
ICWA was enacted to promote the stability and security of Indian tribes and
families by establishing minimum standards for removal of Indian children from their
families and placement of such children in foster or adoptive homes which will reflect the
unique values of Indian culture. (In re C.Y. (2012) 208 Cal. App. 4th 34, 39 (In re C.Y.);
In re Levi U. (2000) 78 Cal. App. 4th 191, 195.) In state court proceedings involving the
foster care placement of, or termination of parental rights to, an Indian child, the Indian
custodian of the child and the Indian child’s tribe have the right to intervene at any point
in the proceeding. (25 U.S.C. § 1911, subd. (c).)
Thus, in any involuntary proceeding in a state court, where the court knows or has
reason to know that an Indian child is involved, the party seeking the foster care
placement of, or termination of parental rights to, an Indian child must notify the parent
or Indian custodian and the Indian child’s tribe of the pending proceedings. (25 U.S.C. §
1912, subd. (a).)
A social worker has an affirmative and continuing duty to inquire whether a child
in a section 300 proceeding is or may be an Indian child. (§ 224.3, subd. (a).) If a social
worker has reason to know that an Indian child is involved, the social worker is required
to make further inquiry regarding the possible Indian status of the child. (§ 224.3, subd.
(c).) However, neither the court nor DPSS is required to conduct a comprehensive
7
investigation into the minor’s Indian status. (In re C.Y, supra, 208 Cal.App.4th at p. 39;
In re S.B. (2005) 130 Cal. App. 4th 1148, 1161 (In re S.B.).)
Father argues that the social welfare agency and dependency court have a duty to
inquire about, and, if possible, obtain [italics in AOB] the information, citing In re Nikki
R. (2003) 106 Cal. App. 4th 844, 848. However, Nikki R. merely points to affirmative
duties of both the court and the county welfare department to inquire whether a
dependent child is or may be an Indian child. (Ibid.) None of father’s authorities, nor
any that we have found in our own research, support such an expansive interpretation of
the social worker’s or the court’s obligations. Our interpretation is also supported by the
Federal Guidelines: they require only that “the state court shall make inquiries to
determine if the child involved is a member of an Indian tribe or if a parent of the child is
a member of an Indian tribe and the child is eligible for membership in an Indian tribe.”
(Bureau of Indian Affairs Guidelines for State Courts, 44 Fed. Reg. 67584, 67588, (Nov.
26, 1979).)
Decisional authority is in accord. In In re C.Y., the mother, who had been
adopted, claimed Indian heritage, but did not know the name of the tribe, and had lost the
document that indicated her biological parents’ lineage. Subsequently discovered
paperwork reaffirmed that her biological father was “‘German and a little American
Indian,’” but did not provide the names, birth dates, or birthplaces of her parents or
grandparents, and did not name a particular tribe. (In re C.Y., supra, 208 Cal.App.4th at
p. 38.) On appeal, mother argued that the social services agency failed to adequately
investigate her Indian ancestry by failing to pursue avenues of inquiry which might have
8
revealed additional information about her heritage. The Court of Appeal disagreed,
holding that while the social worker has an affirmative and continuing duty to inquire
whether a child is or may be an Indian child, neither the court nor the social services
agency is required to conduct a comprehensive investigation. (Id., at p. 39.)
In In re S.B, the court observed that mother could argue that the social worker did
not make any inquiry of the maternal grandmother to follow up after mother had
indicated the child had no Indian heritage. (In re S.B., supra, 130 Cal.App.4th at pp.
1160-1161.) However, the court answered the rhetorical question in the negative, stating
that “as long as the social worker did inquire of the parents, and as long as the parents
failed to provide any information requiring followup, she had no further duty of inquiry.”
(Id., at p. 1161.)
Here, father provided information to the social worker that he may have Choctaw
ancestry. The social worker contacted the paternal grandmother to make further inquiry,
and apparently learned the name of the paternal great grandfather, along with incomplete
information about that relative’s date of birth. The paternal grandmother had no
additional information. The social worker provided all the information she had obtained
from both the father and the paternal grandmother to the Choctaw tribes. Two tribes
responded that father and R.R. were not members and not eligible for tribal membership,
and no other responses were received for more than 60 days.
The court made sufficient inquiry into R.R.’s possible Indian heritage. The social
worker conducted an adequate investigation and made sufficient inquiry of father and the
paternal grandmother. Father did not provide additional information requiring followup,
9
and did not indicate there were other relatives who might have provided additional
information to include in the ICWA notice. No further investigation was required.
Because the court and the social worker adequately discharged their duties of
inquiry, the court’s finding that ICWA did not apply was proper.
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
RAMIREZ
P. J.
We concur:
HOLLENHORST
J.
KING
J.
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