Persons Coming Under the Juvenile Court Law. L. A. Cnty. Dep't of Children v. R.N. (In re D.N.)
| Decision Date | 14 August 2013 |
| Docket Number | B245303 |
| Citation | 218 Cal.App.4th 1246,161 Cal.Rptr.3d 151 |
| Court | California Court of Appeals Court of Appeals |
| Parties | IN RE D.N. et al., Persons Coming Under the Juvenile Court Law. Los Angeles County Department of Children and Family Services, Plaintiff and Respondent, v. R.N., Defendant and Appellant. |
OPINION TEXT STARTS HERE
APPEAL from an order of the Superior Court of Los Angeles County, D. Zeke Zeidler, Judge. Affirmed. (Los Angeles County Super. Ct. No. CK13254)
Kate M. Chandler, under appointment by the Court of Appeal, for Defendant and Appellant Mother, R.N.
Matthew I. Thue, under appointment by the Court of Appeal, for Defendant and Appellant Father, E.T.
John F. Krattli, County Counsel, James M. Owens, Assistant County Counsel, Peter Ferrera, Deputy County Counsel, for Plaintiff and Respondent.
R.N. (mother) and E.T. (father) appeal from the order terminating their parental rights to daughters D.N. and A.T.1 The parents argue there is a lack of compliance with the notice requirements of the Indian Child Welfare Act, 25 U.S.C. section 1901 et seq. (ICWA). We affirm. Substantial evidence supports the juvenile court's determination that notice was proper and ICWA did not apply to this case. In the published portion of this opinion, we conclude, among other things, that this court cannot override the Choctaw Nation's determination that the children are not eligible for membership.
In June 2010, the Department of Children and Family Services (DCFS) filed a Welfare and Institutions Code section 3002 petition on behalf of D.N. (born in 2006) and A.T. (born in 2010). The petition alleged mother had a long history of substance abuse, and father had failed to provide for A.T.
Mother claimed she had Choctaw Indian ancestry. The court ordered DCFS to provide ICWA notices to the Choctaw tribes and the Bureau of Indian Affairs (BIA). In July 2010, DCFS sent notices to the Choctaw Nation of Oklahoma, the Mississippi Band of Choctaw Indians, the Jena Band of Choctaw Indians, as well as the BIA and the United States Department of the Interior. The notice identified mother's father (Richard N.) and paternal grandmother (Martha H.) as Choctaw.
Father claimed he may have Cherokee ancestry through his paternal great-grandfather, but no living relatives could provide information about it. The court ordered that notice be sent to the BIA and the Cherokee tribes. At the adjudication hearing in October 2010, DCFS complained father had not cooperated with its efforts to gather further ICWA-related information. In father's presence, his attorney stated on the record, “Dad says he's got no ICWA—” The court found ICWA did not apply to father, noting father had retracted his earlier claim of Cherokee ancestry. The court sustained an amended version of the section 300 petition, ordered the children placed with father, and ordered the case transferred to a different department.
In January 2011, DCFS filed a section 387 petition, alleging father could not provide for the children. The court detained the children and granted the parents monitored visitation. The new judicial officer to whose department the case had been transferred could not determine from the record whether the ICWA notice had been deemed complete as to both parents and ordered DCFS to file the Choctaw and Cherokee tribes' responses. DCFS reported that ICWA already had been found not to apply to father, and that the three Choctaw tribes had responded the children were not eligible for membership. The court nevertheless continued the matter for proper ICWA notices, adding in the minute order that the notices were incomplete and father's name was misspelled.
In March 2011, DCFS renoticed the BIA and the Choctaw tribes, and for the first time noticed the Eastern Band of Cherokee Indians, the United Keetowah Band of Cherokee Indians in Oklahoma, and the Cherokee Nation of Oklahoma. In April 2011, the court sustained the section 387 petition, removed the children, and ordered reunification services for the parents. The orders were stayed, awaiting the tribes' responses to the ICWA notices. DCFS re-sent all March notices in June. Between March and June 2011, it received responses from all noticed tribes that the children were not eligible for membership. The Cherokee Nation's response listed the names of additional ancestors on mother's side, including H.P. and L.P. as mother's paternal great-grandparents, as well as several birthdates that did not appear in the ICWA notices. The court found the notices incomplete because they did not include the names of any of father's ancestors, or the birth date of Martha H., mother's paternal grandmother. The court ordered DCFS to prepare new notices using the parents' birth certificates.
In September 2011, DCFS mailed out new ICWA notices that included the children's and parents' birth certificates. On mother's side, the notices added the birth date of mother's father, and alternative last names for her paternal grandmother (Martha H., Martha N., and Martha P.). The notices also included the names of father's parents. In response, the Cherokee Nation requested the date of birth and complete name of father's father, who was included in the notice by his first and last name. Other than arranging for a single visitation with the children in June 2011, father had not been in contact with DCFS since December 2010. The social worker advised the Cherokee Nation she could not provide any additional information. All tribes sent negative responses to the September 2011 ICWA notices.
The court terminated reunification services as to both parents in December 2011, but stayed the orders for resolution of ICWA notice issues since mother and another relative had provided additional documentation about mother's paternal grandmother. The documents pertained to the grandmother's efforts to enroll one of her sons in the Choctaw Nation. They suggested that the grandmother may have been enrolled as Martha or Mattie; that her parents, H.P. and L.P., may have been enrolled as well; and that H.P. was enrolled as a “freedman” rather than as a “citizen.” DCFS renoticed the Choctaw and Cherokee tribes, attaching the documents to the notice and listing them in a cover letter. The court acknowledged that DCFS had sent the documents to the tribes. All tribes sent negative responses to the December 2011 notices.
During the January 2012 hearing, mother provided the court with her aunt's enrollment number. DCFS provided this information to the Choctaw Nation by telephone and letter. The Choctaw Nation again responded that the children were not eligible for membership. The response stated: “The Choctaw Nation has exhausted all resources and we have determined ICWA will NOT and DOES NOT apply, the tribe feels that we have done a thorough job and sees no reason to continue any future inquiries.” In an e-mail correspondence in March 2012, the contact person at the Choctaw Nation confirmed the tribe “will not spend any more time on this case as it is futile” and reminded DCFS that eligibility for membership is determined by the tribe and is entitled to deference and full faith and credit.
The court found the ICWA notices to the Cherokee tribes complete in February 2012. At the April 2012 hearing, mother submitted evidence that H.P. and other ancestors were listed on the Choctaw Nation Freedmen Roll. The court initially indicated its intent to order that the Choctaw Nation be renoticed with this evidence. DCFS reminded the court that the tribe had made it clear it would not spend any more time on the case, and the court decided not to order a further notification. Over mother's objection, the court found that the ICWA notices to the Choctaw tribes were proper and complete, and that ICWA did not apply to the case.
At subsequent hearings, mother represented that she was attempting to gain enrollment in the Choctaw Nation. At the section 366.26 hearing in October 2012, she requested a continuance to obtain further ICWA-related information. The court denied the request, noting mother had not provided an enrollment card, and the tribe had discouraged further inquiries. It also denied mother's section 388 petition, which alleged mother recently had enrolled in a drug program. Father was not present at the hearing. The court terminated parental rights, freeing the children for adoption by their long-time foster parents.
The parents appealed.
ICWA furthers the federal policy (In re W.B. (2012) 55 Cal.4th 30, 48, 144 Cal.Rptr.3d 843, 281 P.3d 906.) It requires that notice of the dependency proceeding be given to the relevant tribe or tribes whenever “the court knows or has reason to know that an Indian child is involved....” (25 U.S.C. § 1912(a).) The notice must include the names (including maiden, married, and former names), current and former addresses, birthdates, and places of birth and death of the child's parents, grandparents, and great-grandparents, “if known.” (25 C.F.R. § 23.11(a), (d); see also § 224.2, subd. (a)(5).) The court and DCFS have a continuing duty to inquire about the possible Indian status of the child. (§ 224.3, subd. (a) & (c).)
We review the trial court's findings whether proper notice was given under ICWA and whether ICWA applies to the proceedings for substantial evidence. (In re Christian P. (2012) 208 Cal.App.4th 437, 451, 144 Cal.Rptr.3d 533.) Deficiencies in ICWA inquiry and notice may be deemed harmless error when, even if proper notice had been given, the child would not have been found to be an Indian child. (In re E.W. (2009) 170 Cal.App.4th 396, 402, 88 Cal.Rptr.3d 338; In re S.B. (2005) 130 Cal.App.4th 1148, 1162, 30 Cal.Rptr.3d 726.)
Mother argues the ICWA notices to the Choctaw tribes omitted crucial information about...
To continue reading
Request your trial
-
L. A. Cnty. Dep't of Children & Family Servs. v. Lydia O. (In re Breanna S.)
...would have been any different if the notices had included the additional information. (See, e.g., In re D.N . (2013) 218 Cal.App.4th 1246, 1251, 161 Cal.Rptr.3d 151 ["[d]eficiencies in ICWA inquiry and notice may be deemed harmless error when, even if proper notice had been given, the child......
-
L. A. Cnty. Dep't of Children & Family Servs. v. B.A. (In re S.J.)
...are reviewed de novo. (Jack C., supra, 192 Cal.App.4th at p. 977.) ICWA findings are reviewed for substantial evidence. (In re D.N. (2013) 218 Cal.App.4th 1246, 1251 [substantial evidence test applies to notice findings made under ICWA].) Having set forth the applicable law, we turn to the ......
-
L. A. Cnty. Dep't of Children & Family Servs. v. B.A. (In re S.J.)
...are reviewed de novo. (Jack C., supra, 192 Cal.App.4th at p. 977.) ICWA findings are reviewed for substantial evidence. (In re D.N. (2013) 218 Cal.App.4th 1246, 1251 [substantial evidence test applies to notice findings made under ICWA].) Having set forth the applicable law, we turn to the ......
-
San Francisco Human Servs. Agency v. M.R. (In re Josiah R.)
...harmless error when, even if proper notice had been given, the child would not have been found to be an Indian child." (In re D.N. (2013) 218 Cal.App.4th 1246, 1251.) The purpose of ICWA is "to protect the best interests of Indian children and to promote the stability and security of Indian......