In re J.T. CA4/3

Filed 12/12/14 In re J.T. CA4/3
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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 THREE
In re J.T., a Person Coming Under the
Juvenile Court Law.
ORANGE COUNTY SOCIAL SERVICES
AGENCY,
G050282
Plaintiff and Respondent,
(Super. Ct. No. DP024018)
v.
OPINION
K.K.,
Defendant and Appellant.
Appeal from an order of the Superior Court of Orange County, Caryl Lee,
Judge. Affirmed. Request for judicial notice or to take additional evidence. Denied.
Jesse McGowan, under appointment by the Court of Appeal, for Defendant
and Appellant.
Nicholas S. Chrisos, County Counsel, Karen L. Christensen and Jeannie Su,
Deputy County Counsel, for Plaintiff and Respondent.
No appearance for Minor.
* * *
I. Introduction
K.K. (Mother) is the mother of J.T, who was taken into protective custody
in July 2013 at the age of eight. Mother appeals from the juvenile court’s order under
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Welfare and Institutions Code section 366.26 terminating parental rights to J.T. Mother
argues the order terminating parental rights must be reversed because the juvenile court
failed to comply with the Indian Child Welfare Act of 1978, 25 United States Code
section 1901 et seq. (ICWA) with respect to J.T.’s father, D.T. (Father). There is no
dispute the juvenile court complied with ICWA as to Mother. Father has not appealed.
We affirm. We conclude any failure to comply with ICWA was harmless
because substantial evidence supported a finding that Father denied any Indian ancestry.
II. Facts and Procedural History
Because the appeal is limited to the issue of ICWA compliance as to Father,
we present an abridged statement of facts and procedural history.
In July 2013, police officers took eight-year-old J.T. into protective custody
after Mother reported she had been assaulted. The officers observed that Mother was
mentally disturbed or under the influence of drugs. The officers learned that Mother had
physically abused J.T. three days earlier. Mother was arrested for child cruelty. J.T.,
who had been living at various motels with Mother, had bug bites on his neck and arms.
He was placed with his maternal grandparents, with whom he remains.
On the day after J.T. was placed in protective custody, a social worker from
the Orange County Social Services Agency (SSA) interviewed Mother. During the
interview, Mother denied having any American Indian ancestry. The detention report,
dated July 24, 2013, states: “The [ICWA] does not apply. On July 22, 2013 the mother
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Further code references are to the Welfare and Institutions Code unless otherwise
indicated.
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informed Senior Social Worker Adame that child J[.T.] does not have American Indian
Heritage.”
On July 23, 2013, SSA filed a juvenile dependency petition alleging one
count of failure to protect (§ 300, subd. (b)) and one count of no provision for support
(§ 300, subd. (g)). The petition alleged Father, whose whereabouts were unknown, failed
to provide for J.T.
The juvenile court ordered J.T. detained and ordered reunification services.
On the day of the detention hearing, Mother completed a “Parental Notification of Indian
Status” form (Judicial Council form ICWA-020), on which she checked the box next to
“I have no Indian ancestry as far as I know.” At the detention hearing, Mother’s counsel
stated that Mother had no Indian ancestry. Father did not appear at the hearing. Mother
had had no contact with Father for several years and believed he was living in North
Carolina.
The jurisdiction/disposition report, dated August 22, 2013, stated the
juvenile court had not made an ICWA determination and that Father’s whereabouts were
still unknown. At the jurisdictional hearing on September 5, 2013, the juvenile court
sustained the petition on both counts alleged. In response to a request from J.T.’s
counsel, the juvenile court ordered Mother to undergo a psychiatric evaluation and a
psychological evaluation to determine whether she would benefit from reunification
services.
Over the next three months, however, Mother did not comply with the order
for evaluations, nor did she undergo mandatory drug testing or therapeutic visitation with
J.T. On December 18, 2013, the juvenile court ordered that J.T. be declared a dependent
child of the juvenile court and set a hearing under section 366.26.
In January 2014, SSA filed a declaration of due diligence, stating that a
search for Father had been unsuccessful. The juvenile court found SSA had exercised
due diligence in its efforts to locate Father and provide him notice.
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On April 2, 2014, senior social worker Stacey Metcalf brought an ex parte
application to inform the court that, on March 25, Father had called to tell her that he had
learned through Facebook that J.T. was in protective custody. Father informed Metcalf
he was living in Durham, North Carolina. The juvenile court appointed counsel for
Father.
In the section 366.26 report, dated April 17, 2014, SSA stated: “[F]ather
has not availed himself to the [SSA] or the Court; therefore, a determination of paternity
or . . . ICWA . . . status cannot be found at this time.”
The section 366.26 hearing was conducted on April 17, May 7, and June 3
and 11, 2014. Father did not appear in person but his counsel appeared on his behalf. On
May 7, Father, through his counsel, filed a form request to change court order pursuant to
section 388. Attached were declarations from Father and his counsel. Line 5.d. of the
form request asked for information about “Child’s Indian tribe (if applicable and
known).” The response given by Father on the form was “none known.” The juvenile
court granted the request in part by finding Father to be J.T.’s presumed father.
In June 2014, Father’s counsel declared Father no longer wished to pursue
reunification services and asked to withdraw his request to change a court order. The
juvenile court granted the request.
In an order issued on June 11, 2014, the juvenile court terminated parental
rights as to both Mother and Father, found J.T. to be adoptable, and found adoption and
termination of parental rights to be in J.T.’s best interest. Mother timely filed a notice of
appeal from the order terminating parental rights. Father did not appeal.
III. Discussion
Mother argues the order terminating parental rights must be reversed
because the juvenile court did not satisfy the ICWA requirement of inquiring into
whether Father has Indian ancestry. On appeal, Mother may assert noncompliance with
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ICWA even though she is not of Indian ancestry and did not raise the ICWA issue in the
juvenile court. (In re B.R. (2009) 176 Cal.App.4th 773, 779-780.)
“Welfare and Institutions Code section 224.3, subdivision (a), and
California Rules of Court, rule 5.481(a), impose upon both the juvenile court and SSA
‘an affirmative and continuing duty to inquire’ whether a dependent child is or may be an
Indian child. The social worker must ask the parents if the child has Indian heritage (Cal.
Rules of Court, rule 5.481(a)(1)), and upon a parent’s first appearance in a dependency
proceeding, the juvenile court must order the parent to complete a Parental Notification
of Indian Status form (Cal. Rules of Court, rule 5.481(a)(2)).” (In re N.E. (2008) 160
Cal.App.4th 766, 769, fn. omitted.)
The record in this case includes no evidence showing that the social worker
asked Father whether he had any Indian ancestry or that the juvenile court ordered Father
to complete a Parental Notification of Indian Status form. But, “[e]ven if the juvenile
court and SSA failed in their inquiry responsibilities, we cannot disturb the juvenile
court’s order without a showing [Mother] was prejudiced by the claimed error.” (In re
N.E., supra, 160 Cal.App.4th at p. 769.)
Mother suffered no prejudice. Father was not located until he contacted the
social worker on March 25, 2014. Soon thereafter, on May 7, Father filed his request to
change a court order pursuant to section 388. Line 5.d. of the form request asked for
information about “Child’s Indian tribe (if applicable and known).” Father’s response,
“none known,” was tantamount to checking the box next to “I have no Indian ancestry as
far as I know” on a Parental Notification of Indian Status form.
Notice under ICWA need not be given if there is insufficient reason to
believe a child is an Indian child. (In re Shane G. (2008) 166 Cal.App.4th 1532, 1538.)
Father represented that J.T. had no known Indian ancestry. Mother told the social worker
she had no Indian ancestry. No other circumstances were present that would give
probable cause for SSA or the juvenile court to believe J.T. had Indian ancestry. (See id.5
at pp. 1537-1538.) Since the record does not disclose that Mother suffered prejudice
from any failure to comply with ICWA, we must affirm. (In re N.E., supra, 160
Cal.App.4th at p. 771.)
SSA has requested we take judicial notice of two documents filed after the
order terminating parental rights: (1) the juvenile court’s minute order dated August 13,
2014, and (2) SSA’s interim review report dated August 13, 2014 and filed on August 11,
2014. In the alternative, SSA requests we consider these documents as additional
evidence under Code of Civil Procedure section 909. SSA argues this evidence renders
the appeal moot because the interim review report, which the juvenile court received in
evidence on August 13, stated that “[o]n August 8, 2014, the child’s father denied any
American Indian Heritage.” In light of our conclusion that any ICWA error was
harmless, we deny SSA’s request for judicial notice or to consider additional evidence.
IV. Disposition
The order terminating parental rights is affirmed.
FYBEL, J.
WE CONCUR:
ARONSON, ACTING P. J.
THOMPSON, J.
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