Filed 1/27/16 In re S.W. CA2/2

                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
                                     SECOND APPELLATE DISTRICT
                                                  DIVISION TWO

In re S.W., a Person Coming Under the                                B263250
Juvenile Court Law.
                                                                     (Los Angeles County
                                                                     Super. Ct. No. DK01497)
LOS ANGELES COUNTY
DEPARTMENT OF CHILDREN AND
FAMILY SERVICES,

         Plaintiff and Respondent.

         v.

Sh.W.,

         Defendant and Appellant.



         APPEAL from an order of the Superior Court of Los Angeles County. Terry T.
Truong, Judge. Affirmed.


         Nicole Williams, under appointment by the Court of Appeal, for Defendant and
Appellant.


         Mary C. Wickham, Interim County Counsel, Dawyn R. Harrison, Assistant
County Counsel, and Stephen D. Watson, Deputy County Counsel for Plaintiff and
Respondent.
         A Welfare & Institutions Code section 300 petition was filed on behalf of S.W.
(born Jun. 2009) and his three siblings in September 2013.1 Sh.W. (mother), mother of
S.W., appeals from the juvenile court’s order terminating her reunification services as to
S.W.2 She argues that the order must be reversed and the matter remanded to the juvenile
court due to the juvenile court’s failure to comply with the notice provisions of the Indian
Child Welfare Act (25 U.S.C. § 1901 et seq.) (ICWA). We find no error and affirm the
order.
                    FACTUAL AND PROCEDURAL BACKGROUND
         S.W. is the biological child of mother and James B. (father).3
         On August 4, 2013, the Department of Children and Family Services (DCFS)
received a referral alleging an incident of domestic violence between mother and her
boyfriend Kendrick G. The children S.W., T.W., Harmony and Kristin were all present
in the home at the time of the dispute. Kristin called 911, and paramedics transported
mother to the hospital.
         During the investigation, DCFS received information suggesting that there had
been violence between mother and father as well. When interviewed, S.W.’s siblings
told the social worker that mother had been involved in violence with Kendrick but not


1        All further statutory references are to the Welfare & Institutions Code.

2       S.W.’s siblings, Kristin W. (born Sept. 1999), Harmony W. (born Aug. 2001), and
T.W. (born Jan. 2004) are not subjects of this appeal. While the notice of appeal filed by
mother on March 9, 2015, references all four children, as a matter of law the notice can
only apply to S.W.. The March 9, 2015 notice of appeal indicates that the appeal is from
the juvenile court’s January 8, 2015 orders terminating mother’s reunification services as
to all four children. However, at the January 8, 2015 hearing, section 366.26 permanency
planning hearings were scheduled for all three of S.W.’s siblings. A section 366.26
hearing was not set for S.W., because there existed a substantial probability that S.W.
could be returned to his father by the 18-month hearing. Pursuant to section 366.26,
subdivision (l), an order that a hearing pursuant to that section be held is not appealable.
Because a section 366.26 hearing was not set for S.W., the order terminating
reunification services made at the January 8, 2015 hearing is appealable as to S.W. only.

3        Father is not a party to this action.

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with father. Mother denied all allegations, stating that she had recently moved the family
from Chicago to California.
       On September 26, 2013, DCFS filed a section 300 petition on behalf of the
children, alleging that father physically abused them, that father and mother had a history
of domestic violence, that mother frequently left the children home alone at night, and
that mother had medically neglected Kristin by failing to obtain necessary medical
treatment. The accompanying detention report noted that on August 5, 2013, mother and
father both indicated that they had no ties with Indian ancestry.
       At the September 26, 2013 detention hearing, the juvenile court found a prima
facie case that the children were described by section 300, detained them from their
parents, granted mother monitored visits, and ordered DCFS to provide the parents family
reunification services.
       The court noted that mother had filed an ICWA-20 form indicating that she may
have Apache, Blackfoot, and Crete Indian ancestry. The court conducted the following
inquiry:
       “The Court: You’ve marked that you have some Indian heritage?
       “[Mother]: Yes.
       “The Court: Are you registered in any of those tribes?
       “[Mother]: We are not registered yet.
       “The Court: So the answer is, ‘No?’
       “[Mother]: No.
       “The Court: Are any of the children registered in any of those tribes?
       “[Mother]: No, we’re not.”
       After inquiring as to the possible Indian heritage of the children’s respective
fathers, the court found, “It’s not an ICWA case.”
       S.W. was placed with a foster parent, and the matter was continued for
adjudication. At the November 1, 2013 jurisdictional hearing, the juvenile court
sustained the petition.



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       On December 12, 2013, the court held a disposition hearing. It declared the
children dependents of the juvenile court, removed them from parental custody, granted
mother unmonitored visits, and ordered family reunification services.
       At the May 15, 2014 six-month review hearing, the juvenile court found that
returning the children to mother’s custody would create a substantial risk of harm to their
physical and emotional wellbeing. The court ordered the children to remain suitably
placed. The matter was continued for a 12-month review hearing.
       On October 24, 2014, DCFS requested the court issue an order requiring mother’s
visits to be monitored. The court set the matter for hearing at the 12-month review
hearing and ordered mother’s visits monitored in the interim.
       On November 12, 2014, mother filed a section 388 petition, asking the court to
terminate jurisdiction and return the children home. Mother indicated on the petition that
she had Cherokee, Apache, Blackfoot, and Crete heritage. The court summarily denied
mother’s request because it failed to state new evidence or a change of circumstances.
       At the November 13, 2014 review hearing, the juvenile court granted the request
of DCFS that mother’s visits be returned to monitored. The issue of termination of
family reunification services was set for hearing in January 2015.
       Mother filed a second section 388 petition on November 26, 2014, asking that the
juvenile court terminate its jurisdiction and return all four children to mother. On the
form, she again indicated her Cherokee, Apache, Blackfoot, and Crete ancestry. The
juvenile court again denied mother’s request, noting that there was no new evidence or
change of circumstances and that the proposed change was not in the best interests of the
children. Mother filed a third section 388 petition on January 7, 2015, which was denied
for the same reasons.
       Mother prepared a status review report response, which was not signed or dated.
The document included the following response regarding ICWA:
              “[Sh.W.] family tribes include Wellmen, Mitchell, Blassengame
       family are registered with the United Cherokee Nation. Originating from
       North Carolina, Michigan & California as well as Apache & Crete Tribes.
       [Sh.W.] has not yet registered.


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             “James [B.] Native American Crete family is registered in
       Chicago[.] James [B.] is not registered.”

       Mother and father were present for the January 8, 2015, contested 12-month
hearing. The court found by clear and convincing evidence that mother’s progress had
been “partial.” However, the court found that father was in substantial compliance and
therefore ordered continued reunification services for father and S.W. The court did not
believe that mother could complete her services within the remaining weeks before the
18-month date of March 25, 2015, so it terminated services for mother as to all her
children. The court then set a date for a section 366.26 hearing for S.W.’s three siblings.
The court did not mention the applicability of ICWA.
       On March 9, 2015, mother filed a notice of appeal from “[t]ermination of family
reunification services 1/8/2015.”
       On May 21, 2015, the juvenile court placed S.W. with father under the supervision
of DCFS, ordered family maintenance services, and granted mother monitored visitation.
A section 364 review hearing was set for November 12, 2015.4
                                      DISCUSSION
I. Standard of review
       Where, as here, the trial court has made a finding that ICWA is inapplicable, the
finding is reviewed under the substantial evidence standard. (In re Rebecca R. (2006)
143 Cal.App.4th 1426, 1430; In re Karla C. (2003) 113 Cal.App.4th 166, 178-179.)
Thus, we must uphold the court’s orders and findings if any substantial evidence,
contradicted or uncontradicted, supports them, and we must indulge all legitimate
inferences in favor of affirmance. (In re John V. (1992) 5 Cal.App.4th 1201, 1212.) A
juvenile court’s ICWA finding is also subject to harmless error analysis. (In re Alexis H.
(2005) 132 Cal.App.4th 11, 16.)



4      DCFS filed a motion to take judicial notice of postjudgment evidence, asking that
we take notice of the juvenile court’s order of May 21, 2015, pursuant to Evidence Code
sections 452 and 459. We granted that request.

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II. ICWA
       ICWA is federal legislation designed to protect American Indian people and their
culture. (25 U.S.C. § 1902; In re Crystal K. (1990) 226 Cal.App.3d 655, 661.) ICWA
applies to all proceedings involving Indian children that may result in an involuntary
foster care placement; guardianship or conservatorship placement; custody placement
under Family Code section 3041; declaration freeing the child from the custody and
control of one or both parents; termination of parental rights; or adoptive placement.
(Cal. Rules of Court, rule 5.480.)
       An “Indian child” is defined as any unmarried person under the age of 18 who is
(1) a member of an Indian tribe; or (2) eligible for membership in an Indian tribe and the
biological child of a member of an Indian tribe. (25 U.S.C. § 1903(4); § 224, subd. (c).)
       If the court, social worker, or probation officer knows or has reason to know that
an Indian child is involved in a dependency proceeding, the social worker or probation
officer is required to make further inquiry regarding the possible Indian status of the child
as soon as practicable. In a dependency proceeding, there is a continuing duty of the
court and DCFS to inquire whether the subject child may be Indian. (See § 224.3, subds.
(a), (c).) The social worker or probation officer must interview the parents and extended
family members to gather the information required, then contact the Bureau of Indian
Affairs and State Department of Social Services for assistance in identifying the tribes of
which the child may be a member or eligible for membership. (§ 224.3, subd. (c).) The
ICWA’s notice provisions are strictly construed because the failure to give proper notice
of a dependency proceeding to a tribe forecloses participation by the tribe. (In re G.S.R.
(2008) 159 Cal.App.4th 1202, 1216; In re Samuel P. (2002) 99 Cal.App.4th 1259, 1267.)
Thus the failure to provide proper notice is prejudicial error requiring reversal and
remand. (Samuel P., at p. 1267.)
       In order for the ICWA requirements to be triggered, there must be “more than a
bare suggestion that a child might be an Indian child.” (In re Jeremiah G. (2009) 172
Cal.App.4th 1514, 1520.)



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III. Mother’s failure to appeal the ICWA finding
       DCFS argues that because mother did not reference the ICWA ruling in her notice
of appeal filed on March 9, 2015, her appeal should be dismissed.
       Appellate court jurisdiction is limited in scope to the notice of appeal and the
judgment or order appealed from. (Soldate v. Fidelity National Financial, Inc. (1998) 62
Cal.App.4th 1069, 1073.) A notice of appeal that specifically designates a judgment or
order from which the appeal has been taken is limited to that judgment or order.
(Norman I. Krug Real Estate Investments, Inc. v. Praszker (1990) 220 Cal.App.3d 35, 46-
47.) However, a notice of appeal must be liberally construed, and should be considered
sufficient if it identifies the particular judgment or order being appealed from. (Cal.
Rules Court, rule 8.100(a)(2).)
       Here, mother’s notice of appeal dated March 9, 2015, indicates only that mother
was challenging the juvenile court’s January 8, 2015 termination of her reunification
services. Because the notice omits any reference to ICWA, DCFS argues, we lack
jurisdiction to review the issue and the appeal should be dismissed.
       Courts of appeal will generally liberally construe notices of appeal from an order
terminating parental rights to encompass the denial of a parent’s section 388 petition
made within 60 days of when the parent filed the notice of appeal. (In re Madison W.
(2006) 141 Cal.App.4th 1447, 1450-1451.) 5 The same general rule can be applied here,
where mother has appealed from an order terminating reunification services. While the
juvenile court did not make an ICWA order on January 8, 2015, mother’s November
2014 and January 2015 section 388 petitions made reference to possible American Indian
heritage. We may interpret the trial court’s denial of those section 388 petitions as an

5      DCFS included in its opening brief an argument that, because the ICWA ruling
was made in 2013, mother’s March 9, 2015 notice of appeal is not timely as to the ICWA
ruling. The issue of whether a parent may raise a challenge to a juvenile court’s ICWA
ruling made more than 60 days prior to the filing of the appeal is currently under review
in the California Supreme Court. (In re Isaiah W. (2014) 228 Cal.App.4th 981, 983-988,
review granted Oct. 29, 2014.) Because this case should be resolved in an expeditious
fashion, DCFS filed a motion to strike this argument from its opening brief. We granted
DCFS’s motion, therefore we do not address this argument.

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implicit denial of any request that the court revisit its prior ICWA ruling. We will
therefore liberally construe mother’s notice of appeal to include the denial of her section
388 petitions and the ICWA issues raised therein.
IV. Substantial evidence supported the juvenile court’s finding that it had no
reason to know that ICWA applied
       In this case, the evidence supported the court’s determination that it had no reason
to know that S.W. was an Indian child. The California Rules of Court provide the
circumstances under which a court has “reason to know” that the child is an Indian child.
Those circumstances include:
               “(A) The child or a person having an interest in the child, including
       an Indian tribe, an Indian organization, an officer of the court, a public or
       private agency, or a member of the child’s extended family, informs or
       otherwise provides information suggesting that the child is an Indian child
       to the court . . . ;

              “(B) The residence or domicile of the child, the child’s parents, or
       an Indian custodian is or was in a predominantly Indian community; or

              “(C) The child or the child’s family has received services or benefits
       from a tribe or services that are available to Indians from tribes or the
       federal government . . . .”

(Cal. Rules Court, rule 5.481(a)(5).)

       None of these circumstances was present here. Mother initially informed DCFS
that she had no ties with Indian ancestry. She then submitted a form to the juvenile court
suggesting that she may have Apache, Blackfoot, and Crete Indian ancestry. When the
juvenile court inquired about mother’s Indian heritage at the September 26, 2013
detention hearing, she admitted that neither she, nor the children, nor the children’s
respective fathers, were registered members of any Indian tribe. Mother provided no
names of any family members who might provide further information. This information
was insufficient to trigger ICWA notice requirements. Under the circumstances, the
court properly concluded it had no reason to believe that S.W. was an Indian child.



                                             8
       Mother’s subsequent section 388 petitions provided no further specific family
information. Her unsigned status review report response did provide some family names
as well as tribal information, but did not provide the complete name of any ancestor who
was a member of a specific tribe. Nor did she provide any information suggesting that
any specific relative ever lived in Indian territory or received benefits from any tribe.
Thus, this supplemental information was still insufficient to trigger ICWA notice
requirements.
       Courts have recognized that the requirements of ICWA are not implicated when
the possibility that a child has Indian ancestry is based on vague information. For
example, in In re O.K. (2003) 106 Cal.App.4th 152, ICWA notice was sent to the Bureau
of Indian Affairs based on the mother’s statement that she “‘may be of Native American
[h]eritage.’” (Id. at p. 154.) The notice was returned because it contained “‘[i]nsufficient
identifying tribal information.’” (Ibid.) At the section 366.26 hearing, the paternal
grandmother further informed the court, “‘the young man may have Indian in him. I
don’t know my family history that much, but where were [sic] from it is that section so I
don’t know about checking that.’” (Id. at p. 155.) Under these circumstances, the trial
court’s finding that there was no reason to believe the child was Indian was affirmed on
appeal.
       Similarly, in In re Z.N. (2009) 181 Cal.App.4th 282 (Z.N.), mother had stated her
belief that one of her grandmothers was Cherokee and another part Apache. The specific
tribes were unidentified. Mother reported that she was not registered and did not believe
her mother established any tribal affiliation. In affirming the trial court’s determination
that tribal notice was not necessary, the court stated:
              “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 . . . that this did not trigger a duty to notify tribes. Thus there was
       no error.”

(Z.N., supra, 181 Cal.App.4th at p. 298.)



                                              9
       The facts of Z.N. are analogous to the matter before us. Mother believed she may
have Cherokee, Apache and Crete ancestry, but had no specific information regarding
eligibility for membership in any tribe. As in Z.N., this did not trigger a duty to notify
any tribes. (See also In re J.D. (2010) 189 Cal.App.4th 118, 125 [paternal grandmother’s
belief that she had Native American ancestry was “too vague, attenuated and speculative
to give the dependency court any reason to believe the children might be Indian
children”].) We find that the juvenile court’s finding is supported by the record, and no
error occurred.
                                      DISPOSITION
       The order is affirmed.
       NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.



                                                  ____________________________, J.
                                                  CHAVEZ

We concur:



__________________________, P. J.
BOREN



__________________________, J.
ASHMANN-GERST




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