In re Isaiah M. CA2/3

Filed 5/13/16 In re Isaiah 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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 ISAIAH M. et al., Persons Coming B266626
Under the Juvenile Court Law.
_____________________________________ (Los Angeles County
Super. Ct. No. CK96086)
LOS ANGELES COUNTY DEPARTMENT
OF CHILDREN AND FAMILY SERVICES,
Plaintiff and Respondent,
v.
VICTORIA M.,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los Angeles County,
Zeke Zeidler, Judge. Affirmed.
William Hook, under appointment by the Court of Appeal, for Defendant and
Appellant.
Mary C. Wickham, County Counsel, Dawyn R. Harrison, Assistant County
Counsel, and Kimberly Roura, Deputy County Counsel for Plaintiff and Respondent.
_________________________
Victoria M. (mother) appeals an order of the juvenile court terminating her
parental rights to Isaiah M., born October 2012, and H.M., born December 2013.1
Mother’s sole contention on appeal is that the juvenile court erred in failing to order
compliance with the notice provisions of the Indian Child Welfare Act (ICWA),
25 United States Code section 1901 et seq. and Welfare and Institutions Code section
224.3.2 We find no error, and thus we affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Isaiah tested positive for cocaine exposure at birth and was immediately detained
by the Department of Children and Family Services (DCFS). DCFS filed a dependency
petition on October 22, 2012, alleging that Isaiah was a juvenile court dependent pursuant
to section 300, subdivision (b), because he was exposed to cocaine in utero, mother had a
twenty-two year history of drug use and was a current user of cocaine, and mother had
been diagnosed with bipolar disorder and failed to take her prescribed medication.
At the October 22, 2012 detention hearing, mother submitted a “Parental
Notification of Indian Status” in which she stated that she had no known Indian ancestry.
However, the maternal grandmother addressed the court and said that her mother and
father (i.e., the maternal great grandparents) were “part Cherokee.” She explained she
learned about the family’s heritage from her parents, who told her “we had a little
Cherokee [heritage] from my great grandparents, great great grandparents.” Maternal
grandmother said she did not know from which tribes her parents may have descended,
and neither she nor her parents were enrolled members of a tribe.
The court found a prima facie case for detaining Isaiah and ordered him placed in
foster care. The court further found that ICWA did not apply: “Based upon the Welfare
and Institutions Code . . . , four generations not being registered and the information
being from the great grandparents [that] they had a little Cherokee in them, the court does
1
The identities of the children’s fathers are unknown.
2
All subsequent undesignated statutory references are to the Welfare and
Institutions Code.
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not have reason to know or believe the child is an Indian child as defined by the Indian
Child Welfare Act. [The] Indian Child Welfare Act [ICWA] does not apply.” The court
ordered DCFS to investigate Isaiah’s Indian ancestry, however, and to detail its
investigation in its next report.
The jurisdiction/disposition report stated that a children’s social worker (CSW)
had interviewed the maternal grandmother, who indicated that neither her grandparents
nor her great-grandparents were enrolled members of a tribe. The maternal grandmother
said the members of her family considered themselves “white Americans.”
A contested jurisdiction/disposition hearing was held on December 11, 2012. The
court sustained the allegations of the petition and ordered reunification services for
mother.
On July 25, 2013, the court found that mother had not made progress in her court-
ordered treatment plan, and it ordered mother’s family reunification services terminated.
A section 366.26 hearing was set for November 25, 2013, and was later continued to
March 24, 2014.
Mother gave birth to H.M. in December 2013. Mother and H.M. tested
negative for drugs at the time of H.M.’s birth. On January 17, 2014, DCFS filed a
petition alleging that H.M. was a juvenile court dependent pursuant to section 300,
subdivisions (b) and (j) because mother had a lengthy history of drug abuse and was a
recent user of cocaine, and mother failed to reunify with Isaiah. However, DCFS allowed
H.M. to remain with mother, who was living in a residential drug rehabilitation program
for mothers and their children.
On January 17, 2014, the court found DCFS had made a prima facie showing that
H.M. was a child described by section 300, but ordered her placed with mother,
contingent on mother’s continued residence at the drug rehabilitation facility and
continued clean drug tests. DCFS was ordered to provide mother with family
reunification services.
Mother submitted a “Parental Notification of Indian Status” in connection with
H.M.’s dependency proceeding in which she stated she had no known Indian ancestry.
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The court noted that the maternal grandmother had previously indicated she had some
Cherokee heritage, and that the court had found ICWA did not apply. The court then
asked the maternal grandmother whether she had any new information about the family’s
Indian heritage since the court’s last inquiry. The maternal grandmother said she did not
have any new information, and the court found it did not have reason to believe H.M. was
an Indian child within the meaning of ICWA.
On March 24, 2014, the court sustained the allegations of the petition as to H.M.,
continued the section 366.26 hearing as to Isaiah, and ordered DCFS to provide mother
with reunification services. On March 27, 2014, mother filed a section 388 petition
asking the court to reinstate her family reunification services as to Isaiah. The court
granted the section 388 petition on April 30, 2014, and ordered Isaiah placed with
mother.
Mother completed her drug rehabilitation program in April 2014. Mother and the
children lived briefly in a sober living facility, but mother was asked to leave the facility
in August due to an arrest for battery and a strained relationship with the house manager.
DCFS filed a supplemental petition for both children on November 17, 2014. It
alleged that mother failed to regularly participate in her substance abuse after-care
program, to submit to random drug testing, to follow up with her psychiatrist for
medication management, and to notify DCFS of her and the children’s whereabouts. On
November 17, 2014, the juvenile court issued protective custody warrants for the children
and an arrest warrant for mother. On December 1, 2014, mother was arrested and the
children were detained and placed in foster care. They subsequently were placed in a
prospective adoptive home.
The court sustained the allegation of the supplemental petition on January 14,
2015. On March 3, 2015, the court denied mother reunification services pursuant to
section 361.5, subd. (b)(10), and set a section 366.26 hearing for May 11, 2015.
On August 20, 2015, the court terminated mother’s parental rights to Isaiah and
H.M. Mother timely appealed.
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DISCUSSION
Mother’s sole contention on appeal is that the juvenile court erred by failing to
order compliance with the notice provisions of ICWA. She urges that because the
maternal grandmother told the court that the children may have Indian ancestry, the court
should have ordered DCFS to send ICWA notices to federally registered Cherokee tribes
and the Bureau of Indian Affairs (BIA). Mother contends that because such notices were
not provided, the order terminating parental rights should be reversed. For the reasons
that follow, we disagree and affirm.
ICWA is intended to protect Indian children and to promote the stability and
security of Indian tribes and families. (In re Karla C. (2003) 113 Cal.App.4th 166, 173-
174.) The statute reflects a Congressional determination that it is in the best interests of
Indian children to retain tribal ties, and in the interest of tribes to preserve their future
generations. (25 U.S.C. § 1902; see In re H.G. (2015) 234 Cal.App.4th 906, 909-910.)
ICWA provides that “where the court knows or has reason to know that an Indian
child is involved [in a dependency proceeding], the party seeking foster care placement
of, or termination of parental rights to, an Indian child shall notify the parent or Indian
custodian and the Indian child’s tribe” of the pending proceedings and its right to
intervene. (25 U.S.C. § 1912(a), italics added.) California law also requires notice to the
Indian custodian and the Indian child’s tribe if DCFS or the court knows or has reason to
know an Indian child is involved in the proceedings. (§ 224.3, subd. (d).)
For purposes of ICWA, an “Indian child” is a child who 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); § 224.1, subd. (a).) The
circumstances that provide reason to know the child is an Indian child “include, but are
not limited to, the following: . . . A person having an interest in the child, including . . .
a member of the child’s 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, grandparents, or great-grandparents are or were a member of a tribe.”
(§ 224.3, subd. (b)(1).)
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In In re Z.N. (2009) 181 Cal.App.4th 282, the mother told a social worker that
“ ‘ “her maternal grandmother was Cherokee and her paternal grandmother was part
Apache. [However, mother was] not registered with any tribe and [did] not believe [the
grandmother] established any affiliation.” ’ ” The mother urged on appeal that this
disclosure triggered a duty to provide notice of the dependency proceeding to the
Cherokee and Apache tribes. (Id. at p. 297.) The Court of Appeal disagreed and
affirmed orders terminating mother’s parental rights: “[B]ecause the ICWA applies only
to ‘Indian’ children, defined by Congress as those (1) who are members or (2) who are
eligible for membership and a child of a member (25 U.S.C. § 1903(4); In re O.K.
(2003) 106 Cal.App.4th 152, 155-156), the scant and general information available to the
court here did not require tribal notice. In re O.K. found information that a father ‘ “may
have Indian in him” . . . too vague and speculative to give the juvenile court any reason to
believe the minors might be Indian children.’ (Id. at p. 157.) Here, we additionally had
mother’s belief that one of her grandmothers ‘was Cherokee’ and another ‘part Apache’
(tribes unidentified), yet mother also reported that she herself was not registered and did
‘not believe her mother established any affiliation.’ Whatever the status of the
grandmothers, they were great grandmothers of the twins, and this information did not
suggest that the twins were members or eligible for membership as children of a member.
We agree with [the human services agency] that this did not trigger a duty to notify
tribes. Thus there was no error.” (Id. at p. 298.)
The present case is analogous. Here, the maternal grandmother told the court that
she “had a little Cherokee [heritage]” through her “great grandparents, great great
grandparents”—i.e., through Isaiah’s and H.M.’s great-great-great-grandparents and
great-great-great-great-grandparents. The maternal grandmother did not suggest,
however, that the children or their mother were tribal members or eligible for tribal
membership, and she specifically said that neither she (the grandmother) nor her parents
(the great-grandparents) were enrolled members of a tribe. Mother also disclaimed
Indian ancestry on behalf of herself and the children. Thus, since neither the children’s
“parents, grandparents, or great-parents are or were members of a tribe,” the juvenile
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court did not have reason to know that Isaiah and H.M. were Indian children within the
meaning of section 224.3, subd. (b)(1), and tribal notice therefore was not required.
In re Alice M. (2008) 161 Cal.App.4th 1189 (Alice M.), on which mother relies in
support of her claim that proper ICWA notice was not given, does not assist her. There, a
mother advised the court that her daughter, Alice, “ ‘is or may be a member of, or eligible
for membership in’ ” the Navajo or Apache tribes. (Id. at p. 1194.) The Court of Appeal
found that on these facts, notice to the tribes was required. It explained: “In completing
the JV-130 form, appellant stated that Alice is or may be a member of, or eligible for
membership in, an Apache and/or Navajo tribe. The ambiguity in the form and the
omission of more detailed information, such as specific tribal affiliation or tribal roll
number, do not negate [mother’s] stated belief that Alice may be a member of a tribe or
eligible for membership.” (Id. at p. 1198.)
The present case is distinguishable. In Alice M., the mother advised the court that
her child “ ‘is or may be a member of, or eligible for membership in’ ” particular Indian
tribes. (Alice M., supra, 161 Cal.App.4th at p. 1195.) Here, in contrast, mother twice
submitted forms to the court in which she stated she had no known Indian ancestry and
maternal grandmother made no representations about the children’s membership or
eligibility for membership in any Cherokee tribe—at most, the maternal grandmother
suggested that that the children’s great-great-great-grandparents or great-great-great-
great-grandparents may have been tribal members. Nothing in Alice M. suggests that
such an attenuated relationship to an Indian tribe triggers a duty of notice under ICWA.
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DISPOSITION
The order terminating parental rights is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
EDMON, P. J.
We concur:
LAVIN, J.
HOGUE, J.*
*
Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to
article VI, section 6 of the California Constitution.
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