In re SHANE G., a Person Coming Under the Juvenile Court Law. SAN DIEGO COUNTY HEALTH AND HUMAN SERVICES AGENCY, Plaintiff and Respondent, v. L.K. et al., Defendants and Appellants.
No. D052632.
Court of Appeals of California, Fourth District, Division One.
August 26, 2008.
166 Cal.App.4th 1532
CERTIFIED FOR PARTIAL PUBLICATION
Appellate Defenders, Inc., and Kathleen Murphy Mallinger for Defendant and Appellant Shane G., Sr.
John J. Sansone, County Counsel, John E. Philips, Chief Deputy County Counsel, and Dana C. Shoffner, Deputy County Counsel, for Plaintiff and Respondent.
Carl Fabian, under appointment by the Court of Appeal, for Minor.
OPINION
McCONNELL, P. J.
L.K. and Shane G., Sr. (together the parents), appeal a juvenile court judgment terminating their parental rights to their minor son Shane G. under
In January 2006 five-year-old Shane became a dependent of the juvenile court under
Shane and his siblings visited L.K. at the jail, and after her release, at a park. Shane and his brother Anthony had been living in separate foster homes, but were later placed together. The parents had not complied with reunification services and stopped visiting the minors. L.K. was arrested again. At a 12-month hearing, the court terminated services and set a
The social worker assessed Shane as adoptable and recommended adoption as his permanent plan. L.K. remained incarcerated. Neither parent had had much contact with Shane for the past year. Shane and Anthony were moved to the foster home of Lisa U., who was interested in adopting them.
The San Diego County Health and Human Services Agency (Agency) filed a petition for modification under
According to an addendum report, Anthony was moved to a new foster home because the social worker believed it was in Shane‘s best interests to
The social worker again recommended adoption for Shane as he had no current relationship with his parents and terminating parental rights would not greatly harm him. Also, Shane had never lived with Anthony other than the 18 months they were placed in the same foster home. The social worker noted Shane experienced anxiety from prolonged contact with Anthony, and Shane deserved the opportunity to be raised in an environment where he felt safe and protected. Lisa was willing to maintain sibling contact.
At a contested selection and implementation hearing, social worker Deena Larks testified the parents had not seen Shane for seven months. Shane and Anthony continued to visit each other and Lisa was committed to continuing their contact. In Larks‘s opinion, Shane‘s anxiety and fear of living with Anthony adversely affected their bond. Larks believed the permanence, stability and sense of safety that adoption offered Shane outweighed any detriment caused by losing contact with Anthony. In any event, Lisa had already arranged for regular visits and telephone contact between Shane and Anthony. Similarly, the benefit of adoption for Shane outweighed the benefits of maintaining contact with his sisters, with whom he had never lived. Lisa was willing to foster contact between Shane and his sisters.
The parties stipulated to Shane‘s testimony as follows: Shane would be sad if he could no longer see Anthony. He wanted to see Anthony but not live with him. He would be sad if he could no longer see his sisters. The last time he remembered seeing them was when he was six years old. Shane wanted to see L.K. but “only a little bit until she goes to college.” He had not seen Shane, Sr., in a long time. Shane wanted to see him, but only sometimes, until Shane, Sr., went to college.
The court addressed the applicability of ICWA. L.K. initially indicated she had no Native American heritage, but she later claimed she may have some
Agency argued ICWA notice was not required because there was no reason to believe, based on L.K.‘s information, that Shane was a member of a tribe or eligible for membership in a tribe. The court continued the matter for Agency to provide copies of ICWA notices.
Several days later, Agency filed an addendum report with additional ICWA inquiry information. The social worker interviewed the maternal grandmother, who stated Shane‘s great-great-great-grandmother was a Comanche princess. The maternal grandmother said she never saw any ceremonial costumes and no one in the family ever participated in Indian ceremonies, lived on a reservation, attended an Indian school or received services from an Indian health clinic. Agency told the court the ICWA notices in the file concerned one of L.K.‘s older children, but Agency had no ICWA notices that were sent as to Shane.
The parties stipulated to the testimony of Amber Robinson from the Comanche enrollment office, who would say the Comanche tribe requires any member to be at least one-eighth Comanche. The parties also stipulated the maternal grandmother would testify Shane has 1 sixty-fourth Comanche heritage.
The court found Agency performed a reasonable ICWA inquiry and there was no reason to believe Shane was an Indian child as defined by federal law. Based on the addendum report, stipulated testimony and letter from the Comanche tribe, ICWA did not apply. The court further found Shane was adoptable and none of the exceptions to adoption applied to preclude terminating parental rights.
I, II*
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III
L.K. contends the court erred by failing to ensure sufficient ICWA notice was sent to the Comanche tribe. Shane, Sr., joins in this argument.
A
(1) ICWA protects the interests of Indian children and promotes the stability and security of Indian tribes and families by establishing certain minimum federal standards in juvenile dependency cases. (In re Kahlen W. (1991) 233 Cal.App.3d 1414, 1421; In re Jullian B. (2000) 82 Cal.App.4th 1337, 1344.) ICWA defines an Indian child as any unmarried person who is under age 18 and is either (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. (
(2) When a court “knows or has reason to know that an Indian child is involved” in a juvenile dependency proceeding, a duty arises under ICWA to give the Indian child‘s tribe notice of the pending proceedings and its right to intervene. (
(3) “The circumstances that may provide probable cause for the court to believe the child is an Indian child include, but are not limited to, the following: [\u00B6] (A) A person having an interest in the child . . . informs the court or the county welfare agency . . . or provides information suggesting that the child is an Indian child; [\u00B6] (B) The residence of the child, the child‘s parents, or an Indian custodian is in a predominantly Indian community; or [\u00B6] (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
B
Here, Agency‘s inquiry produced no information Shane was an Indian child. The social worker interviewed the maternal grandmother who indicated Shane‘s great-great-great-grandmother was a Comanche princess. However, no one in the family ever lived on a reservation, attended an Indian school, participated in Indian ceremonies or received services from an Indian health clinic. Most significantly, the evidence before the court showed the Comanche tribe requires a minimum blood quantum for membership that excludes Shane.4 Thus, notice to the Comanche tribe was not required. (
(4) Although there was some confusion regarding ICWA notices sent to the Comanche tribe as to Shane, and no notices or return receipts could be found, Agency performed a reasonable ICWA inquiry and determined there was no reason to believe Shane was an Indian child. Where, as here, the record is devoid of any evidence a child is an Indian child, reversing the judgment terminating parental rights for the sole purpose of sending notice to the tribe would serve only to delay permanency for a child such as Shane rather than further the important goals and ensure the procedural safeguards intended by ICWA. Reversal is not required. (In re Rebecca R. (2006) 143 Cal.App.4th 1426, 1431 [parents of non-Indian children should not be permitted to cause additional unwarranted delay and hardship without any showing the interests of ICWA are implicated].)
The judgment is affirmed.
McDonald, J., and Irion, J., concurred.