Filed 3/14/14 In re Harmony B. CA2/3
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 THREE
In re HARMONY B., a Person Coming B251467
Under the Juvenile Court Law.
(Los Angeles County
Super. Ct. No. CK89251)
LOS ANGELES COUNTY
DEPARTMENT OF CHILDREN AND
FAMILY SERVICES,
Plaintiff and Respondent,
v.
ALIYAH B.,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los Angeles County,
Akemi Arakaki, Judge. Affirmed.
Michelle L. Jarvis, under appointment by the Court of Appeal, for Defendant and
Appellant.
John F. Krattli, County Counsel, James M. Owens, Assistant County Counsel, and
Kim Nemoy, Deputy County Counsel, for Plaintiff and Respondent.
_____________________
INTRODUCTION
Aliyah B. (mother) appeals from the order terminating parental rights to her two-
year-old daughter Harmony. Mother contends the juvenile court erred by finding the
Indian Child Welfare Act (ICWA) did not apply in this case and declining to order notice
pursuant to ICWA. Though mother initially indicated Harmony may have Indian
ancestry through the maternal grandmother, upon further inquiry by the juvenile court,
mother conceded she knew of no one in her family with such ancestry. Mother’s
repudiation of her initial claim is sufficient to sustain the court’s finding that ICWA did
not apply. We affirm.
FACTS AND PROCEDURAL BACKGROUND
1. Detention, Jurisdiction and Order Terminating Parental Rights
In August 2011, the Los Angeles County Department of Children and Family
Services (Department) filed a petition pursuant to Welfare and Institutions Code1 section
300 alleging mother and then-infant Harmony’s father engaged in a violent altercation in
which father struck mother, bruising her mouth, and mother brandished a box cutter at
father. At the time, mother, also a dependent minor, resided with Harmony in a foster
home.2 The juvenile court found the parents’ conduct endangered Harmony and ordered
the baby removed from father’s custody and released to mother at her foster home. On
September 2, 2011, the court declared Harmony a dependent and placed her in parental
custody, provided the parents lived separately and with services in place.
1
Unless otherwise indicated, statutory references are to the Welfare and Institutions
Code.
2
Mother was adjudicated a dependent of the juvenile court in 2009 based on the
physical and sexual abuse and neglect she endured at the hands of her father. Her
mother’s whereabouts were unknown.
2
On September 23, 2011, the Department filed a supplemental section 387 petition
to detain Harmony based on the parents’ ongoing domestic violence in the child’s
presence, mother’s diagnosed bipolar disorder, and mother’s failure to adhere to her
prescribed psychotropic medication regiment. The decision to detain Harmony was met
with an alarming outburst by the parents, both of whom had to be restrained by security
and escorted from the building. Mother punched three holes in the wall and father
threatened his gang “would handle everything.” The foster mother also reported
concerns about mother neglecting Harmony by not dressing her appropriately for the
weather and walking the streets at night with the baby. The court sustained the
supplemental petition, removed Harmony from the parents’ custody, and ordered further
reunification services. Harmony was placed with a new foster mother. Mother later
moved to a group home.
Despite initial progress with reunification services, the parents’ violent
confrontations continued, culminating in an altercation involving a box cutter in the
lobby of a domestic violence counseling center. Mother also reportedly engaged in
verbal abuse and threatened to harm other residents of her group home. In August 2012,
mother went absent without leave and stopped visiting Harmony. On December 17,
2012, the court terminated reunification efforts and referred the matter for a section
366.26 hearing to terminate parental rights in connection with a permanent plan for
adoption.
On August 26, 2013, the court held the section 366.26 hearing. Mother remained
absent without leave and, apart from a single visit in May, she had not visited Harmony.
An adoptive home study was approved for Harmony’s foster mother, who expressed a
strong desire to adopt Harmony and with whom Harmony had resided since May 2012.
With the concurrence of Harmony’s attorney and father, the juvenile court terminated
parental rights. Mother appealed.
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2. Facts Related to the Indian Child Welfare Act
Upon the initial detention, on August 5, 2011, the Department interviewed
Harmony’s maternal grandfather and paternal grandmother. Both stated their families
had no Indian heritage. However, on August 8, 2011, mother filed a Parental Notification
of Indian Status form, on which she checked a box indicating “I may have Indian
ancestry” and next to which she wrote “MGM,” presumably referring to the maternal
grandmother. Mother did not provide a name of tribe or any other information
concerning possible Indian heritage.
At the August 8, 2011 detention hearing, the juvenile court addressed the
applicability of ICWA, inquiring of mother as follows: “The mother states that she may
have Indian ancestry. Do you know who would know about that? Who do you know is
the member?” Mother responded, “I don’t know.” The court concluded, “the mother has
no reason to know . . . that the child would be eligible, and I will find that this is not an
I.C.W.A. case . . . .” Consistent with these proceedings, the court’s minute order states:
“Mother claims possible American Indian heritage. After further inquiry, the court does
not have a reason to know that this is an Indian child, as defined under ICWA. [¶]
Father claims no American Indian heritage. [¶] The court finds that this is not an ICWA
case as to the parents.” (Capitalization omitted.)
DISCUSSION
Mother contends the juvenile court erred by finding ICWA did not apply in this
case and by not requiring the Department to serve notice pursuant to ICWA. We
conclude the court’s finding was supported by the evidence.
“Congress enacted ICWA in 1978 to protect Indian children and their tribes from
the erosion of tribal ties and cultural heritage and to preserve future Indian generations.
[Citations.] Because ‘ “the tribe has an interest in the child which is distinct from but on
a parity with the interest of the parents” ’ [citation], a tribe has the right to intervene in a
state court dependency proceeding at any time [citation].” (In re Nikki R. (2003)
106 Cal.App.4th 844, 848.)
4
“Under ICWA, a party seeking foster care or termination of parental rights must
notify an Indian child’s tribe of the pending proceedings and of its right to intervene.”
(In re J.D. (2010) 189 Cal.App.4th 118, 123.) ICWA provides: “In any involuntary
proceeding in a State court, where the court knows or has reason to know that an Indian
child is involved, the party seeking the foster care placement of, or termination of
parental rights to, an Indian child shall notify the parent or Indian custodian and the
Indian child’s tribe . . . of the pending proceedings and of their right of intervention.
If the identity or location of the parent or Indian custodian and the tribe cannot be
determined, such notice shall be given to the Secretary [of the Interior] in like
manner . . . .” (25 U.S.C. § 1912(a).) “ICWA does not require inquiry where no evidence
of Indian ancestry is presented.” (In re J.D., at p. 123.)
In 2007, the state legislature enacted section 224 in accordance with ICWA.
Section 224.3 provides: “If the court [or] social worker . . . knows or 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 . . . by interviewing the parents, Indian
custodian, and extended family members . . . , contacting the Bureau of Indian Affairs
and the State Department of Social Services for assistance in identifying the names and
contact information of the tribes in which the child may be a member or eligible for
membership in and contacting the tribes and any other person that reasonably can be
expected to have information regarding the child’s membership status or eligibility.”
(§ 224.3, subd. (c).) “The circumstances that may provide reason to know a child is an
Indian child include . . . the following: [¶] (1) A person having an interest in the child,
including the child . . . or a member of the child’s extended family provides information
suggesting the child is a member of a tribe or eligible for membership in a tribe or one or
more of the child’s biological parents, grandparents, or great-grandparents are or were a
member of a tribe.” (§ 224.3, subd. (b)(1); see also Cal. Rules of Court, rule
5.481(a)(5)(A).) “If the court [or] social worker . . . knows or has reason to know that an
Indian child is involved, the social worker . . . shall provide notice” in accordance with
ICWA. (§ 224.3, subd. (d); § 224.2, subd. (a).)
5
“ ‘The Indian status of the child need not be certain to invoke the notice
requirement. [Citation.] Because the question of membership rests with each Indian
tribe, when the juvenile court knows or has reason to believe the child may be an Indian
child, notice must be given to the particular tribe in question or the Secretary [of the
Interior].’ ” (In re O.K. (2003) 106 Cal.App.4th 152, 156.) “When it is shown that the
court or department knew or had reason to know the child was an Indian child but failed
to make an inquiry, we remand with instructions to ensure compliance with ICWA . . . .”
(In re Hunter W. (2011) 200 Cal.App.4th 1454, 1467.) “However, both the federal
regulations and the California Welfare and Institutions Code require more than a bare
suggestion that a child might be an Indian child.” (In re Jeremiah G. (2009)
172 Cal.App.4th 1514, 1520.) “We review a court’s ICWA findings for substantial
evidence.” (In re Hunter W., at p. 1467.)
Mother contends she provided information suggesting Harmony had Indian
heritage through her maternal grandmother sufficient to trigger ICWA’s notice
requirements. Because ICWA requires notice to the Secretary of the Interior where “the
identity or location of the parent or Indian custodian and the tribe cannot be determined”
(25 U.S.C. § 1912(a)), mother argues the information she provided was sufficient, even if
she could not identify the maternal grandmother’s tribe. Though we agree with the
premise that in the appropriate case ICWA’s notice requirement can be triggered without
identifying a specific tribe, we disagree with mother’s contention that notice in this case
was mandated by the information presented to the juvenile court.
For this appeal, the critical question is whether the evidence was sufficient to
sustain the juvenile court’s finding that it had no reason to know an Indian child was
involved. (25 U.S.C. § 1912(a); §§ 224.2, 224.3.) We conclude it was. The juvenile
court recognized mother’s claim of possible Indian ancestry triggered a duty to inquire
about what mother knew and whether any other person reasonably could be expected to
have information about Harmony’s possible membership status or eligibility under
ICWA. (See § 224.3.) However, when the court questioned mother at the detention
hearing, she retreated from the vague assertion made on the Parental Notification of
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Indian Status form and conceded she knew of no one who was a member nor of anyone
who would have information about her family’s claimed Indian ancestry. Based on
mother’s response, the court reasonably concluded mother had no reason to know
Harmony had Indian ancestry. Because the maternal grandfather, the paternal
grandmother and father also denied Indian heritage, the court found it had no reason to
know ICWA would apply. The finding was supported by substantial evidence. (See
In re Hunter W., supra, 200 Cal.App.4th at p. 1467.)
Our holding is consistent with the conclusions reached by other courts on similar
records. In Hunter W., the mother indicated she may have Indian heritage through her
father and deceased paternal grandmother. (In re Hunter W., supra, 200 Cal.App.4th at
p. 1468.) However, she could not identify the tribe or nation, did not know of any
relative who was a member, and she could neither provide contact information for her
father nor identify any other relative with more information. Based on this record, the
court concluded the assertion of possible Indian heritage was “too speculative” to require
further inquiry under section 224.3, let alone notice under ICWA. (Id. at pp. 1468-1469.)
Similarly, in J.D., the paternal grandmother told the Department she may have Indian
ancestry, but she conceded she had no information about a possible tribal affiliation nor
living relatives who could provide additional information. (In re J.D., supra,
189 Cal.App.4th at p. 125.) The J.D. court concluded the information was “too vague,
attenuated and speculative to give the dependency court any reason to believe the
children might be Indian children.” (Ibid.; see also In re Jeremiah G., supra,
172 Cal.App.4th at p. 1521 [juvenile court properly proceeded without ICWA notice after
father retracted claim that great-grandfather may have been Indian].) As in Hunter W.
and J.D., mother’s vague assertion of Indian heritage through the maternal grandmother,
which she later retracted by her admission that she knew of no one with such heritage nor
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of anyone with information about her family’s claimed Indian ancestry, was too
speculative to mandate a finding that ICWA applied.3
The fact mother retracted her claim that the maternal grandmother had Indian
ancestry distinguishes this case from those mother cites where courts found the
information sufficient to trigger ICWA’s notice requirements. In Antoinette S., the
dependency petition indicated the child may be of Indian heritage; however, at the
detention hearing, the mother denied she or the father had such heritage and the court
proceeded as if ICWA did not apply. (In re Antoinette S. (2002) 104 Cal.App.4th 1401,
1404.) Later, the father, who was incarcerated when the child was detained, told a social
worker his deceased maternal grandparents had Indian ancestry, though he did not know
whether they were members of a tribe. The father never retracted the claim, which the
Antoinette S. court held was sufficient to trigger ICWA’s notice requirements.4 (Id. at
pp. 1406-1408.) In Damian C., though the maternal grandfather reported “he had heard
his father . . . was Yaqui or Navajo, then heard the family had no Indian heritage,” he
never retracted the claim and only acknowledged there were conflicting reports. (In re
Damian C. (2009) 178 Cal.App.4th 192, 199.) The court held this was sufficient to
trigger ICWA’s notice requirements, particularly with respect to the “federally
recognized Navajo and Yaqui tribes because . . . the question of membership in the tribe
rests with the tribe itself.” (Ibid.)
3
Mother argues the fact she was removed as a minor from her mother, who she
claims had Indian ancestry, distinguishes her case from the cases in which courts found
the information too speculative to require ICWA notice. This is a distinction without
difference. As we explained, the critical question for this appeal is whether the evidence
was sufficient to sustain the juvenile court’s finding that it had no reason to know
Harmony was an Indian child. The fact that mother was removed from the maternal
grandmother at an early age did not give the juvenile court any greater reason to know
that the grandmother had Indian heritage.
4
Though the dependency petition indicated there may be Indian ancestry,
Antoinette S. does not suggest ICWA notice was required after mother denied such
ancestry. On the contrary, it was only after the father later claimed his grandparents were
Indian that the court found the notice requirements were triggered. (In re Antoinette S.,
supra, 104 Cal.App.4th at pp. 1407-1408.)
8
Unlike these cases, mother affirmatively disavowed any knowledge of Indian
heritage or tribal membership in response to inquiries made by the juvenile court about
her vague claim on the Parental Notification of Indian Status form. Mother also
conceded she knew of no one who could provide information about possible Indian
ancestry. The evidence was sufficient to sustain the juvenile court’s finding that ICWA
did not apply.
DISPOSITION
The juvenile court’s order terminating mother’s parental rights is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
KITCHING, J.
We concur:
KLEIN, P. J.
ALDRICH, J.
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