Opinion
E066634
02-21-2017
In re G.G. et al., Persons Coming Under the Juvenile Court Law. SAN BERNARDINO COUNTY CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent, v. S.G., Defendant and Appellant.
Suzanne F. Evans, by appointment of the Court of Appeal, for Defendant and Appellant. Jean-Rene Basle, County Counsel, and Kristina M. Robb, Deputy County Counsel, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super.Ct.Nos. J251708, J251709) OPINION APPEAL from the Superior Court of San Bernardino County. Erin K. Alexander, Judge. Affirmed. Suzanne F. Evans, by appointment of the Court of Appeal, for Defendant and Appellant. Jean-Rene Basle, County Counsel, and Kristina M. Robb, Deputy County Counsel, for Plaintiff and Respondent.
S.G. (mother) appeals from an order terminating parental rights to her two youngest children. Her sole appellate contention is that the notices that were given for purposes of the Indian Child Welfare Act (ICWA) (25 U.S.C. § 1901 et seq.) and related federal and state law were incomplete.
We will hold that, on this record, the mother cannot show that any of the information that was omitted from the notices was, in fact, available. Accordingly, we will affirm.
I
FACTUAL AND PROCEDURAL BACKGROUND
The mother worked as a long-haul truck driver. As of September 2013, she had six children in her care:
| Ga.G.-C. | (Ga.) | Boy | 17 |
| E.G.-C. | (E.) | Boy | 16 |
| A.G.-C. | (A.) | Girl | 14 |
| K.G.-C. | (K.) | Boy | 10 |
| S.G.-C. | (S.) | Girl | 8 |
| G.G. | (G.) | Girl | 5 |
The father did not live with the family, but the mother sometimes left the children with him when she was away. At other times, she left the two oldest boys in charge.
The father was the biological father of the five older children. The biological father of G., the youngest child, was unknown.
In September 2013, A., the 14-year-old girl, ran away from home and went to stay in a homeless shelter. Shortly afterward, Ga., the 17-year-old boy, and E., the 16-year-old boy, also ran away from home and went to stay in a different homeless shelter.
A. reported that Ga. was sexually molesting her and that the mother was aware of the molestation. A. sometimes cut herself; she said the mother was aware of this but had not done anything about it.
S., the 7-year-old girl, said that Ga. had molested both her and G., the 5-year-old girl. S. said she had disclosed the abuse to the parents; they had responded by beating not only Ga. but also A. with a belt until they bled. Several of the older children reported that the mother had "uncontrollable anger outbursts."
Ga. denied molesting A., adding, "I will slap that bitch for saying that . . . ." The mother denied all the allegations. She believed Ga.'s denial and called A. a "liar."
As a result, in October 2013, San Bernardino County Children and Family Services (CFS) filed petitions regarding all six children.
The two youngest children, S. and G., were detained and placed in a foster home.
The two middle children, A. and K., were also detained. Initially, they were placed together, although in a different foster home than S. and G., but later they were separated and moved to non-home placements.
CFS was recommending that the two oldest children, E. and Ga., remain with the mother. Instead, they went AWOL.
In further interviews, A. reported that both parents beat the children "mercilessly," including with a belt, hangers, extension cords, wires and sticks. S. reported similar beatings. The mother admitted that the father used drugs. According to A., the mother also used drugs.
Around December 2013, the police located Ga. and arrested him. Thereafter, they also arrested the mother. Both were charged with crimes arising out of the molestation of A. As of June 2016, when parental rights were terminated, the charges against them were still pending.
In February 2014, Ga. turned 18, so the juvenile court dismissed the petition as to him.
In March 2014, at the jurisdictional/dispositional hearing, the juvenile court found that it had jurisdiction based on serious physical harm (Welf. & Inst. Code, § 300, subd. (a)), failure to protect (id., § 300, subd. (b)), serious emotional damage (id., § 300, subd. (c)), sexual abuse (id., § 300, subd. (d)), and failure to support (id., § 300, subd. (g)). It formally removed the children from the parents' custody. It denied reunification services and set a hearing pursuant to Welfare and Institutions Code section 366.26 (section 366.26).
In December 2014, E. was located and detained. In February 2015, however, he turned 18 and was "emancipated."
Meanwhile, also in December 2014, at the section 336.26 hearing, the juvenile court ordered a permanent plan living arrangement (PPLA) for the four younger children.
In August 2015, CFS identified a prospective adoptive home for S. and G. and placed them there.
In January 2016, at a postpermanency review hearing, the juvenile court set a section 366.26 hearing for S. and G. In June 2016, at the section 366.26 hearing, the juvenile court terminated parental rights as to S. and G. At the same time, it also granted the prospective adoptive parents de facto parent status.
II
ICWA NOTICE
A. Additional Factual and Procedural Background.
The mother filed a "Parental Notification of Indian Status" (ICWA-020) form stating that her great-grandparents were members of the "Papago/Arizona" tribe. At the detention hearing, she said that she had Papago ancestry on her mother's side. Her mother (the maternal grandmother), who was also present in court, said that she had Indian heritage through her grandmother Suzanne; she was not sure of Suzanne's last name or date of birth.
The father filed an ICWA-020 form stating, "I may have Indian ancestry" and listing the tribe name as "unknown."
In January 2014, CFS served notices for the purpose of compliance with ICWA. The notices were sent to the Ak Chin Indian Community (Ak Chin Tribe) and the Tohono O'odham Nation (Tohono O'odham Tribe) as the mother's potential tribes, the Blackfeet Tribe as the father's potential tribe, the Bureau of Indian Affairs (BIA), and the mother.
These are the federally recognized Papago tribes. (<http://www.childsworld.ca.gov/Res/pdf/alphatribe.pdf>, as of Feb. 21, 2017.)
The notices included the following information:
Mother: Name, current address, former addresses, birthdate, tribe.
Maternal grandmother: Name, current address, birthdate, tribe.
Maternal grandfather: Name, current address, birthdate.
Maternal great-grandmother: Name, deceased, birthplace, tribe.
Maternal great-grandfather: Tribe.
Father: Name, current address, former addresses, birthdate, tribe.
Paternal grandfather: Name, deceased, approximate year of death.
Paternal grandmother: Name, deceased, former state of residence, date of death.
Other information was listed as "No information available" or "unknown." A social worker declared, under penalty of perjury, that she had set forth all of the information she had.
The Ak Chin Tribe responded that the children were not members of and were not eligible for membership in the tribe. The Tohono O'odham Tribe responded that the children and the parents were not members of the tribe. The Blackfeet Tribe responded that the children and the ancestors named in the notice were not members of the tribe.
In April 2014, the juvenile court found that ICWA did not apply and that no further notice was required.
B. Discussion.
"Congress enacted ICWA to further the federal policy '"that, where possible, an Indian child should remain in the Indian community . . . ."' [Citation.]" (In re W.B. (2012) 55 Cal.4th 30, 48.) California has adopted statutes and rules that "implement, interpret, and enlarge upon" ICWA. (In re S.B. (2005) 130 Cal.App.4th 1148, 1157.)
Under these provisions, whenever "the court knows or has reason to know that an Indian child is involved," notice of the proceedings must be given to the relevant tribe or tribes. (25 U.S.C. § 1912(a); accord, Welf. & Inst. Code, § 224.2, subd. (a); Cal. Rules of Court, rule 5.481(b)(1).) "[T]he juvenile court needs only a suggestion of Indian ancestry to trigger the notice requirement. [Citation.]" (In re Miguel S. (2016) 248 Cal.App.4th 164, 170, fn. 1.)
"Juvenile courts and child protective agencies have 'an affirmative and continuing duty to inquire' whether a dependent child is or may be an Indian child. [Citations.] This affirmative duty to inquire is triggered whenever the child protective agency or its social worker ' knows or has reason to know that an Indian child is or may be involved . . . .' [Citation.] At that point, the social worker is required, as soon as practicable, to interview the child's parents, extended family members, the Indian custodian, if any, and any other person who can reasonably be expected to have information concerning the child's membership status or eligibility. [Citations.]" (In re Michael V. (2016) 3 Cal.App.5th 225, 233.)
"The purpose of the ICWA notice provisions is to enable the tribe . . . to investigate and determine whether the child is in fact an Indian child. [Citation.] Notice given under ICWA must therefore contain enough information to permit the tribe to conduct a meaningful review of its records to determine the child's eligibility for membership. [Citations.]" (In re Cheyanne F. (2008) 164 Cal.App.4th 571, 576.) "It is essential to provide the Indian tribe with all available information about the child's ancestors, especially the one with the alleged Indian heritage. [Citation.]" (In re Francisco W. (2006) 139 Cal.App.4th 695, 703.)
Under federal law, an ICWA "[n]otice . . . shall include the following information, if known: [¶] . . . [¶] . . . All names . . . and current and former addresses of the Indian child's biological mother, biological father, maternal and paternal grandparents and great grandparents or Indian custodians, including maiden, married and former names or aliases; birthdates; places of birth and death; tribal enrollment numbers, and/or other identifying information." (25 C.F.R. § 23.11(d)(3), italics added.)
Similarly, under state law, an ICWA notice must include specified information regarding "the Indian child's biological parents, grandparents, and great-grandparents . . . if known." (Welf. & Inst. Code, § 224.2, subd. (a)(5)(C), italics added.)
"'We review the trial court's findings whether proper notice was given under ICWA and whether ICWA applies to the proceedings for substantial evidence. [Citation.]' [Citation.]" (In re Miguel S., supra, 248 Cal.App.4th at p. 170.) "'"On review of the sufficiency of the evidence, we presume in favor of the order, considering the evidence in the light most favorable to the prevailing party, giving the prevailing party the benefit of every reasonable inference and resolving all conflicts in support of the order." [Citation.]' [Citation.] 'Mere support for a contrary conclusion is not enough to defeat the finding [citation]; nor is the existence of evidence from which a different trier of fact might find otherwise in an exercise of discretion [citation].' [Citation.]" (In re Charlotte V. (2016) 6 Cal.App.5th 51, 57.)
The mother argues that "[n]othing in the record suggests the social worker talked to family members in an attempt to gain available information." However, she cites no requirement that CFS must document its information-gathering process, much less that it must file such documentation.
Under the official duty presumption, Evidence Code section 664, "[i]t is presumed that official duty has been regularly performed." Thus, we are required to presume that CFS interviewed everyone whom it had a legal duty to interview. Moreover, in the absence of evidence conclusively rebutting that presumption, it supports the finding of compliance with ICWA. (See In re S.B. (2009) 174 Cal.App.4th 808, 812-813 [official duty presumption supports finding that notice was sent to all applicable tribes, not just to the tribes that responded].)
We note that the notices included the father's former addresses and his birthdate, the approximate year in which his father died, and his mother's state of residence and date of death; they also identified the Blackfeet Tribe as the father's tribe. This is affirmative evidence that CFS did interview the father in an effort to obtain the necessary information.
More generally, the mother argues that "too much information was missing . . . ." She asks us to infer that CFS failed to interview the people who logically could have supplied such information. For example, she notes that there is no information about the father's father's birthplace, birthdate, or place of death; his date of death is given only as "2000 or 2001." She asserts, "it is unlikely [the father] knew nothing important about his father's life or that the social worker asked him for this information."
One possible inference is that CFS never asked him, but another possible inference is that CFS did ask him, and he was either unable or unwilling to provide this information. Under the applicable standard of review, we must draw all possible inferences in favor of the prevailing party, even if they are "unlikely." "Under this standard, we do not pass on the credibility of witnesses, attempt to resolve conflicts in the evidence, or reweigh the evidence." (In re M.B. (2010) 182 Cal.App.4th 1496, 1506.)
Similarly, the mother notes that both parents' birthplaces are missing, and so are the birthplaces of the maternal grandmother and grandfather, even though all four of them were available to be interviewed. Again, however, it is not inconceivable that they did not know or chose not to share this information. (In re Charlotte V., supra, 6 Cal.App.5th at p. 58 ["It is also possible that the maternal grandfather was evasive or uncooperative about his wife's information."].)
The mother complains that CFS is trying to "shift the burden." However, she is confusing the existence of a duty with the burden of showing that the duty has been performed. As she correctly asserts, "[t]he burden is on the Agency to obtain all possible information about the minor's potential Indian background and provide that information to the relevant tribe . . . . [Citation.]" (In re Louis S. (2004) 117 Cal.App.4th 622, 630.) However, as already discussed, under the official duty presumption, we must assume that this duty has been performed, and the burden is on the mother to rebut the presumption. Moreover, on appeal, "[t]he juvenile court's judgment is presumed to be correct, and it is appellant's burden to affirmatively show error. [Citation.]" (In re S.C. (2006) 138 Cal.App.4th 396, 408; see also In re Kathy P. (1979) 25 Cal.3d 91, 102 [appellant failed to present adequate record to rebut official duty presumption].)
In the well-chosen words of Charlotte V.: "If Mother had raised the ICWA notice issue in the juvenile court, she could have subpoenaed [CFS] employees and questioned them about their efforts to elicit the required information . . . . In that event, [CFS] could have introduced additional evidence to show that it had made an adequate inquiry. However, Mother did not raise the issue below and [CFS] now lacks that opportunity. At this point, Mother must take the record as she finds it." (In re Charlotte V., supra, 6 Cal.App.5th at p. 58.)
The mother relies on In re Michael V., supra, 3 Cal.App.5th 225, which held that the social services agency did not adequately investigate the mother's claims of Indian ancestry because it did not contact other members of her family. (Id. at pp. 228, 234- 236.) There, however, the social worker's reports specifically set forth the steps that the agency did take to investigate the mother's Indian ancestry. (Id. at pp. 230-231.) Thus, there was affirmative evidence that those efforts were inadequate. (See also id. at p. 235.)
The mother also relies on In re A.G. (2012) 204 Cal.App.4th 1390. There, however, the social services agency "d[id] not dispute that it failed to comply with ICWA's inquiry and notice requirements." (Id. at p. 1395.) Instead, it raised "a battery of contentions" as to why compliance was not required and why the error was harmless. (Ibid.; see In re Charlotte V., supra, 6 Cal.App.5th at p. 58 [distinguishing A.G. on this ground].)
Last (and, perhaps, least), the mother complains because the social worker checked a box indicating that the children's birth certificates were "unavailable." This was not literally true, as S.'s birth certificate was filed with the court later in the proceeding. However, there is no reason to suppose that, if the birth certificates had been attached, they would have led to a different outcome. S.'s birth certificate contains no useful information that is not already included in the notices.
We therefore conclude that the mother has not shown that the juvenile court erred by finding that ICWA did not apply.
III
DISPOSITION
The order appealed from is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
RAMIREZ
P. J. We concur: McKINSTER
J. CODRINGTON
J.