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In re D.N.

California Court of Appeals, Second District, Fourth Division

August 14, 2013

In re D.N. et al., Persons Coming Under the Juvenile Court Law.
v.
R.N., Defendant and Appellant. LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent,

APPEAL from an order of the Superior Court of Los Angeles County, No. CK13254 D. Zeke Zeidler, Judge.

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.

EPSTEIN, P. J.

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.

FACTUAL AND PROCEDURAL SUMMARY

In June 2010, the Department of Children and Family Services (DCFS) filed a Welfare and Institutions Code section 300[2] 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 ...


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