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In Re A. G., A Person Coming Under the Juvenile Court Law. v. v. S

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (San Joaquin)


September 13, 2011

IN RE A. G., A PERSON COMING UNDER THE JUVENILE COURT LAW. SAN JOAQUIN COUNTY HUMAN SERVICES AGENCY, PLAINTIFF AND RESPONDENT,
v.
V. S., DEFENDANT AND APPELLANT.

(Super. Ct. No. J05108)

The opinion of the court was delivered by: Blease , Acting P. J.

In re A.G.

CA3

NOT TO BE PUBLISHED

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

Appellant, the mother of the minor, appeals from the juvenile court's order terminating parental rights. (Welf. & Inst. Code, §§ 366.26, 395; further statutory references are to the Welfare and Institutions Code.) Appellant claims inquiry and notice under the Indian Child Welfare Act (ICWA) (25 U.S.C. § 1901 et seq.) were insufficient. We reject these claims.

FACTUAL AND PROCEDURAL BACKGROUND*fn1

In February 2009, a dependency petition was filed regarding the seven-month-old minor after appellant was arrested for child endangerment, based on her mental illness and methamphetamine use.

The minor's father initially filled out a form in which he denied Indian heritage. However, when the juvenile court inquired of him whether he had Indian ancestry, he stated: "I probably do because I have a lot of family. Pretty much we have a big family. My grandma, she had like ten kids and all them like branch off." The father offered to "look into that," and the court directed him to provide any information to his attorney. At a hearing several months later, after the father had waived reunification services and stopped appearing in the matter, his attorney again told the court that the father did not know whether he had Indian heritage and wanted an inquiry to be made of the paternal great-grandmother in this regard. The social worker subsequently made two attempts to contact this relative to no avail.

With regard to appellant's Indian heritage, she told the juvenile court at the jurisdictional hearing that she had no known Indian ancestry, but over a year later, the maternal grandmother reported she might have Indian ancestry with the "Apache, Blackfoot, [and] Nava[j]o" tribes. Notice of the proceedings was sent to these tribes, but it did not include information about paternal relatives other than the paternal grandmother's name.

After appellant's reunification services were terminated, she filed a petition for extraordinary writ in this court, arguing that two additional tribes should have been noticed of the proceedings. The petition was summarily denied pursuant to Joyce G. v. Superior Court (1995) 38 Cal.App.4th 1501, 1514.

Meanwhile, according to a status review report in September 2010, none of the responses received from the tribes indicated the minor was an Indian child. Notice continued to be sent to the tribes that had not responded.

At the section 366.26 hearing, the juvenile court terminated parental rights and ordered a permanent plan of adoption.

DISCUSSION

Appellant claims the social worker failed to make adequate inquiry into the father's possible Indian heritage and that the ICWA notice was deficient because it failed to contain information about the paternal great-grandmother.

We begin by noting that appellant did not object to the adequacy of ICWA inquiry or notice before the juvenile court, even though the alleged deficiencies occurred before she filed her petition for extraordinary writ in this court based on other ICWA notice complaints. Numerous cases have held that, where a matter has been remanded for ICWA notice error, the parties may not object to the adequacy of ICWA notice on a new appeal if they failed to raise a proper objection at the hearing after remand. The rationale offered for this conclusion is that allowing successive appeals on ICWA notice issues would amount to gamesmanship (In re Amber F. (2007) 150 Cal.App.4th 1152, 1156) and would further prolong the proceedings, to the detriment of the child. (In re X.V. (2005) 132 Cal.App.4th 794, 804; In re N.M. (2008) 161 Cal.App.4th 253, 269-270; but see, In re Alice M. (2008) 161 Cal.App.4th 1189, 1196-1197 [first appeal based on ICWA inquiry does not preclude subsequent appeal based on ICWA notice even absent an objection].) Our court recently reached the same conclusion, noting: "At some point, there must be finality to the ICWA noticing process." (In re Z.W. (2011) 194 Cal.App.4th 54, 67.)

The situation here is even more compelling in favor of forfeiture. Appellant's current claims stem from events that had already occurred at the time she filed her petition for extraordinary writ. Yet, while arguing another ICWA notice issue in that petition, she did not raise her current claims. The same reasoning that precludes a second appeal on ICWA notice issues when a party fails to object on this basis after remand applies to preclude appellant from raising ICWA inquiry and notice issues here.

In any event, appellant's claims lack substantive merit.

Congress passed the ICWA "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 Levi U. (2000) 78 Cal.App.4th 191, 195; 25 U.S.C. § 1902; Mississippi Choctaw Indian Band v. Holyfield (1989) 490 U.S. 30 [104 L.Ed.2d 29].)

A social worker has "an affirmative and continuing duty to inquire whether a child [in a § 300 proceeding] is or may be an Indian child . . . ." (§ 224.3, subd. (a).) Furthermore, if the 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, and to do so as soon as practicable, by interviewing the parents, Indian custodian, and extended family members to gather the information" required to be provided in the ICWA notice. (§ 224.3, subd. (c).)

The ICWA also includes a provision for notice to the child's tribe in any involuntary state court proceeding in which "the court knows or has reason to know that an Indian child is involved . . . ." (25 U.S.C. § 1912(a).) The Indian status of a child need not be certain or conclusive to trigger the ICWA's notice requirements. (In re Desiree F. (2000) 83 Cal.App.4th 460, 471.)

Appellant claims the social worker's duty of inquiry was not satisfied by her two unsuccessful attempts to contact the paternal great-grandmother. But, based on the information provided by the father, the social worker had no reason to know the minor was an Indian child. The father's claim of possible Indian heritage was not based on known Indian ancestors but, instead, on the fact that he has a big family and the paternal great-grandmother had 10 children. However, unless the great-grandparents are of Indian descent, the fact that they had 10 children has no bearing on whether the minor is an Indian child, regardless of whether the great-grandparents' children "branch[ed] off," as claimed by the father. The social worker was not required to cast about for Indian connections on such a flimsy basis. Nonetheless, she made two attempts to contact the relative identified by the father and his attorney for information on the subject. This was more than was required under the circumstances.

On a similar basis, we reject appellant's claim as to the deficiency of the ICWA notice provided. The law "require[s] more than a bare suggestion that a child might be an Indian child" for ICWA notice requirements to be triggered. (In re Jeremiah G. (2009) 172 Cal.App.4th 1514, 1520-1521.) For example, in In re O.K. (2003) 106 Cal.App.4th 152, this court held information was insufficient to trigger the requirement where the paternal grandmother stated she did not know her family history very well but the child "may have Indian in him" because they were from "that section." (Id. at pp. 155, 157.)

Here, the information provided by the father was even less compelling. His claim to possible Indian heritage "was not based on any known Indian ancestors" (In re O.K., supra, 106 Cal.App.4th at p. 157) but, instead, on the fact that he has a large family. Even if we accept that "the bar is . . . very low to trigger ICWA notice" (In re Antoinette S. (2002) 104 Cal.App.4th 1401, 1408), it is not this low.

It is true that ICWA notice is required to include information such as the names, birthdates, maiden names and current and former addresses of certain relatives (including great-grandparents). (25 C.F.R. § 23.11; § 224.2, subd. (a)(5)(C).) However, errors relating to ICWA notice are subject to harmless error review. (In re Alexis H. (2005) 132 Cal.App.4th 11, 16.) Here, there is no information in the record to suggest that the paternal great-grandmother had Indian heritage, let alone heritage with the tribes that were noticed of the proceedings based on the maternal grandmother's claim of possible Indian heritage. Accordingly, we deem the error harmless.

DISPOSITION

The juvenile court's order is affirmed.

We concur: HULL , J. MAURO , J.


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