Filed 10/21/13 In re S.R. CA4/2

                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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.


             IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                   FOURTH APPELLATE DISTRICT

                                                 DIVISION TWO



In re S.R., a Person Coming Under the
Juvenile Court Law.

SAN BERNARDINO COUNTY
CHILDREN AND FAMILY SERVICES,                                            E058241

         Plaintiff and Respondent,                                       (Super.Ct.No. J239144)

v.                                                                       OPINION

R.D.,

         Defendant and Appellant.



         APPEAL from the Superior Court of San Bernardino County. Christopher B.

Marshall and Wilfred J. Schneider, Jr., Judges.1 Affirmed.

         Konrad S. Lee, under appointment by the Court of Appeal, for Defendant and

Appellant.



         1
         Judge Schneider presided over the detention hearing and Judge Marshall
presided over the Welfare and Institutions Code section 366.26 hearing.

                                                             1
       Jean-Rene Basle, County Counsel, and Dawn M. Messer, Deputy County Counsel,

for Plaintiff and Respondent.

       R.D. (Mother) appeals the order terminating her parental rights to S.R. pursuant to

Welfare and Institutions Code section 366.26.2 She contends San Bernardino County

Children and Family Services (CFS) failed to comply with the notice provision of the

Indian Child Welfare Act (ICWA).3

                   I. PROCEDURAL BACKGROUND AND FACTS4

       On May 27, 2011, CFS filed a petition pursuant to section 300, subdivisions (a)

(serious physical harm) and (b) (failure to protect) based on a nonaccidental injury to the

arm of S.R. (born April 2011) and the “extremely messy and cluttered” living conditions

of the home. The petition was amended on June 20, 2011, to add an allegation under

subdivision (e) that S.R. also suffered a “fracture to the left posterior 7th rib.” An Indian

Child Inquiry Attachment (ICWA-010(A) form) indicated S.R. may be eligible for

membership in “Choctaw, Cherokee, Blackfoot, unknown other tribe.” The form also

stated: “Mother was asked if she had any Native American Indian Ancestry in her family

and she stated [„]my dad had Choctaw in his family and my mother had Blackfoot and

Cherokee.[‟]”

       2 All further statutory references are to the Welfare and Institutions Code unless
otherwise indicated.

       3 On April 9, 2013, this court incorporated the record in case No. E054596 with
the record in this case, E058241.

       4  Because Mother is the sole appealing parent, our discussion of the facts is
limited to those facts pertaining to her and the issue she has raised.

                                              2
       At the May 31, 2011, detention hearing, the following discussion of Mother‟s

American-Indian heritage took place:

       “THE COURT: . . . [¶] Mother, do you have any American-Indian heritage in

your bloodline?

       “THE MOTHER: Yes, your Honor.

       “THE COURT: What tribe is that?

       “THE MOTHER: Blackfoot, Cherokee, and Kiowa, I believe.

       “THE COURT: She has so indicated on the ICWA 020.

       “[CFS COUNSEL]: I think—

       “THE COURT: She redid that.

       “[CFS COUNSEL]: There‟s a new one. Okay.

       “THE COURT: Kiowa. It looks like it is spelled correctly too. Good job.

       “Someone help you with that? Did someone look up and spell-check on that? I

will assume this other one is incorrect.

       “Cherokee, Blackfoot, and Kiowa. I‟ll put a line through this one.

       “[CFS COUNSEL]: It was the spelling that was an issue.”

       At the further detention hearing held on June 1, 2011, the court found a prima

facie case for detention out of the home. It ordered parents to complete “ICWA 020.”

Mother signed a Parental Notification of Indian Status (ICWA-020 form) 5 indicating she


       5Mother‟s signature on the undated Parental Notification of Indian Status
(ICWA-020 form) matches her signature on the May 31, 2011, Notification of Mailing
Address (JV-140 form).

                                            3
may have Indian ancestry in Cherokee, Blackfoot, and Cahuilla; however, the form does

not have a date or clerk‟s file stamp.

       On June 15, 2011, CFS filed a Notice of Child Custody Proceeding for Indian

Child (ICWA-030 form) indicating that notice for S.R. was mailed to various Cherokee,

Cahuilla, and Blackfeet tribes, along with an ICWA Declaration of Due Diligence

declaring that notice was sent to: Morongo Band of Cahuilla Mission Indians; Blackfeet

Tribe of Montana; Torres-Martinez Desert Cahuilla Indians; Eastern Band of Cherokee

Indians; Cahuilla Band of Mission Indians; Soboba Band of Luiseno Indians; Cherokee

Nation of Oklahoma; Cabazon Band of Mission Indians; the Bureau of Indian Affairs;

Los Coyotes Band of Cahuilla & Cupeno Indians; Agua Caliente Band of Cahuilla

Indians; United Keetoowah Band of Cherokee Indians in Oklahoma; Ramona Band or

Village of Cahuilla Mission Indians; Santa Rosa Band of Mission Indians; and Augustine

Band of Cahuilla Indians. In the jurisdictional/dispositional report filed on June 16,

2011, CFS recommended that no reunification services be provided to Mother.

       On August 9, 2011, CFS filed an ICWA Declaration of Due Diligence that

included responses from various tribes, none of which indicated the child had Indian

heritage and stating the tribe would not be intervening. On August 25, 2011, at the

contested jurisdiction hearing, the court found true the allegations in the amended

petition.

       On September 23, 2011, at the contested dispositional hearing, the court declared

S.R. to be a dependent of the court, removed him from parents‟ custody, maintained him

in the home of the maternal great grandparents, and denied reunification services.

                                             4
Regarding ICWA, the court found that “S.R. may come under the provisions of the

Indian Child Welfare Act. I guess the packet will be forthcoming in that regard.

Noticing requirements under ICWA have been initiated.” Mother was present when the

court informed her of her right to file a petition for writ of extraordinary review and set

the 366.26 hearing.

       On September 26, 2011, Mother filed a Notice of Intent to File Writ Petition;

however, on October 21, she withdrew her notice for the reason there were no legal or

factual issues upon which to file such petition. The petition was dismissed on

October 28.

       Following several continuances, the section 366.26 hearing was held on

January 17, 2013. By that time, S.R. had been placed with a family in Missouri and had

been with them since October 5, 2012. CFS offered its section 366.26 report into

evidence, and the court received it, along with its addendum, into evidence with no

objection from Mother. According to that report and subsequent addendum, “The Indian

Child Welfare Act does not apply.” Also, the Adoptability Assessment filed on May 11,

2012, notes the “Indian Child Welfare Act does not apply.” Mother requested the court

not to terminate parental rights but to choose a lesser plan of guardianship. The court

terminated parental rights and ordered adoption as the permanent plan. According to the

court‟s orders filed on January 17, 2013, the boxes finding that S.R. was an Indian child

were not checked.




                                              5
                                     II. ICWA NOTICE

       Mother contends the notice requirements of ICWA were not met because CFS

failed to provide notice to the Choctaw Tribes. She further claims the trial court had a

duty to make further inquiry notice on this issue.

       A. Applicable Law

       ICWA was enacted “to protect the best interests of Indian children and to promote

the stability and security of Indian tribes and families . . . .” (25 U.S.C. § 1902.) In

general, ICWA applies to any state court proceeding involving the foster care or adoptive

placement of, or the termination of parental rights to, a Native American child. (25

U.S.C. §§ 1903(1), 1911(a)-(c), 1912-1918, 1920-1921.) Under the notice provision of

ICWA, if the court “knows or has reason to know that an Indian child is involved,” the

social services agency must “notify . . . the Indian child‟s tribe . . . of the pending

proceedings and of their right of intervention.” (25 U.S.C. § 1912(a).)

       California Rules of Court, rule 5.481(a), provides that the court and the county

welfare department have “an affirmative and continuing duty to inquire whether a child is

or may be an Indian child in all proceedings identified in rule 5.480 [(i.e., a petition under

Welfare and Institutions Code section 300)].” (Cal. Rules of Court, rule 5.481(a).)

California Rules of Court, rule 5.481(a)(1) provides that CFS “must ask . . . the parents

. . . whether the child is or may be an Indian child and must complete the Indian Child

Inquiry Attachment (form ICWA-010(A)) and attach it to the petition . . . .” California

Rules of Court, rule 5.481(a)(2) provides that “At the first appearance by a parent . . . in



                                               6
any dependency case . . . the court must order the parent . . . to complete Parental

Notification of Indian Status (form ICWA-020).”

       B. Analysis

       According to the record before us, both CFS and the trial court fulfilled their

duties of inquiry as to the Mother. Initially, upon inquiry of Mother‟s Indian heritage, the

Choctaw Tribe was mentioned; however, at the time of Mother‟s first appearance on

May 31, 2011, the court not only ordered her to complete the Parental Notification of

Indian Status (form ICWA-020), but it also inquired as to her Indian heritage. Mother

responded, “Blackfoot, Cherokee, and Kiowa.” The court stated: “I will assume this

other one is incorrect. [¶] Cherokee, Blackfoot, and Kiowa. I‟ll put a line through this

one.” Mother did not object, nor did she reaffirm the Choctaw Tribe. In June 2011, CFS

filed documentation with the trial court, identifying the various tribes that had been

noticed. Later, on September 23, 2011, the court found that “[S.R.] may come under the

provisions of the Indian Child Welfare Act. I guess the packet will be forthcoming in

that regard. Noticing requirements under ICWA have been initiated.” While Mother was

present and represented by counsel at each appearance, she never informed anyone—her

counsel, CFS, or the court—that they had failed to notify the Choctaw Tribe. In

subsequent reports filed with the court, CFS noted that ICWA did not apply. By the time

of the section 366.26 hearing, the trial court acted as if ICWA did not apply. While there

is nothing in the record before this court showing the date upon which the trial court

stated on the record that ICWA did not apply, at the section 366.26 hearing in January

2013, the trial court accepted the section 366.26 report and its addendum into evidence

                                             7
without any objection by Mother. That report, and its addendum, noted that ICWA did

not apply. Further, the section 366.26 orders failed to check the box noting that S.R. was

an Indian child.

       Mother argues that the rule announced in In re Gabriel G. (2012) 206 Cal.App.4th

1160, pages 1167 through 1168 (Gabriel G.), applies here. In Gabriel G., the father‟s

attorney filed an ICWA-020 form stating that the “paternal grandfather, Gasper G., „is or

was a member‟ of a „Cherokee‟ tribe.” (Id. at p. 1163.) However, the form was

unsigned. (Ibid.) Later, the social worker reported that in an interview, the father had

stated he had no Indian heritage. (Id. at p. 1164.) Despite father‟s presence in the trial

court, the court failed to question him regarding his Indian heritage or make any ICWA

finding. (Gabriel G., supra, at p. 1164.) The appellate court stated: “[T]he social

worker[] . . . did not provide any specifics regarding the inquiry he made of father as to

his Indian heritage. For example, the social worker did not state whether he limited his

inquiry to father‟s registration in a federally recognized tribe or inquired about the

registration status of father's relatives. Nor did the social worker state whether he

specifically asked father to elaborate on the information provided in the ICWA-020 form

or to explain any discrepancy between its contents and father‟s statement to the social

worker. On the record before us, we cannot discern whether father meant to convey that

while he was not a registered member of a Cherokee tribe, his own father was

registered.” (Id. at p. 1167.)

       Here, in contrast to the facts in Gabriel G., while the initial ICWA-010(A) form

indicated Mother may have potential Choctaw heritage, the juvenile court specifically

                                              8
questioned her regarding her Indian heritage. Mother omitted a potential Choctaw

heritage, identifying only Cherokee, Blackfoot and Kiowa. Further, she did not correct

the trial court when it indicated that it was assuming the Choctaw heritage was incorrect.

Thus, Mother‟s recantation of possible Indian heritage with the Choctaw Tribe allowed

CFS and the trial court to proceed without providing notice to that tribe. (In re

Jeremiah G. (2009) 172 Cal.App.4th 1514, 1516, 1518-1519 [recantation of claim of

Indian ancestry allows a dependency case to proceed without ICWA notice].)

                                      III. DISPOSITION

       The juvenile court‟s order terminating Mother‟s parental rights is affirmed.

       NOT TO BE PUBLISHED IN OFFICIAL REPORTS



                                                                HOLLENHORST
                                                                         Acting P. J.
We concur:

       KING
                                 J.

       CODRINGTON
                                 J.




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