San Diego Cnty. Health & Human Servs. Agency v. James G. (In re T.G.)

In re T.G., a Person Coming Under the Juvenile Court Law.

SAN DIEGO COUNTY HEALTH AND HUMAN SERVICES AGENCY, Plaintiff and Respondent, v. JAMES G., Defendant and Appellant.

D059959

COURT OF APPEAL, FOURTH APPELLATE DISTRICT DIVISION ONE STATE OF CALIFORNIA

Dated: March 8, 2012

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. No. J516899B)

APPEAL from an order of the Superior Court of San Diego County, Carol Isackson, Judge. Dismissed.

James G. (Father) appeals a postpermanency planning review hearing order concerning contact and visitation between Father and his minor son, T.G. Father alleges the court erred by failing to comply with Indian Child Welfare Act (ICWA) inquiry and notice requirements. (25 U.S.C. § 1901 et seq.) Father asks this court to remand thematter to the juvenile court for the limited purpose of ensuring compliance with ICWA. We dismiss the appeal.

FACTUAL AND PROCEDURAL BACKGROUND

T.G. and his biological sister, P.G.,¹ entered the dependency system in October 2007, after Father's arrest for molesting a minor.² T.G. and P.G. were released to their mother (Mother)³ under a voluntary services agreement, but in November 2007, P.G. was again taken into protective custody after she was physically abused by Mother's boyfriend. The San Diego County Health and Human Services Agency (the Agency) detained T.G. a second time in October 2009, also as a result of physical abuse by Mother's boyfriend.

In its detention report, the Agency requested the court find ICWA does not apply because there was no reason to know T.G. was or may be an Indian child. Mother stated her father may be of Cherokee descent, but she and T.G. both reported they were not enrolled or registered with any Indian tribe, did not have a tribal identification card, had not lived on a tribal reservation, and had not received services from any tribe. The juvenile court noted that ICWA was found not to apply in P.G.'s case, ordered Mother to complete the ICWA forms, and deferred findings on applicability of ICWA.

Mother's ICWA-020 Parental Notification of Indian Status form suggested she may have "Cherokee and/or Blackfoot" ancestry. Mother later reported her father was of Cherokee descent and members of her family had lived on tribal lands in Oklahoma and Arkansas. Mother did not know whether Father had American Indian heritage.

After further investigation, the Agency again asked the court to find notice under the ICWA was not necessary because T.G. and P.G. share biological parents, P.G. had been determined not to be an Indian child and, in addition to the information she had provided in P.G.'s dependency case, Mother could provide no information supporting her claim of Indian ancestry. The juvenile court continued the disposition hearing because Father's ICWA information had not been received, and ordered the Agency to file an addendum regarding the applicability of ICWA after contacting Father's prison counselor concerning any Indian heritage.

Father completed an ICWA-030 Notice of Child Custody Proceeding for Indian Child form in which he answered "unknown" to all questions regarding his Indian heritage. Father did not know whether T.G. was eligible for membership in an Indian tribe or whether Father's parents, grandparents or great-grandparents had Indian ancestry, and Father reported most of these relatives were either deceased or their whereabouts were unknown. Father provided no tribal names; was unable to provide any identifying information about his parents or grandparents, including their dates or places of birth; denied any family members had lived on tribal land; and denied T.G.'s paternal aunts had tribal affiliations. The court once again deferred a finding on the applicability of ICWA.

At the continued March 2010 disposition hearing, Father claimed heritage in the "Hawk" Tribe and the juvenile court ordered the Agency to investigate. In its June 2010 addendum report, the Agency reported the Hawk Tribe was not a federally recognized tribe. The court found the Agency had made a reasonable inquiry into whether ICWA notice was required, there was no reason to know T.G. was an Indian child, and ICWA did not apply. The court also ordered Mother to provide names and addresses for T.G.'s maternal and paternal relatives.⁴ T.G. was declared a dependent and placed in foster care.

At the 12-month review hearing in December 2010, the court terminated Mother's reunification services, found T.G. was not adoptable and ordered another planned permanent living arrangement at San Pasqual Academy. At T.G.'s June 2, 2011, postpermanency planning hearing,⁵ the court ordered the Agency to arrange for Father to send letters to T.G., and to explore the possibility of visitation between T.G. and Father.

DISCUSSSION

Father appeals the juvenile court's June 2, 2011, order (June 2 order) but does not challenge the court's order to arrange for Father to send letters to T.G. and to explore the possibility of visitation between T.G. and Father. Instead, Father contends this mattermust be remanded to the juvenile court solely because the Agency did not comply with ICWA notice provisions.⁶

"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 Shane G. (2008) 166 Cal.App.4th 1532, 1538.) An Indian child is defined as "any unmarried person who is under age eighteen and is either (a) a member of an Indian tribe or (b) is eligible for membership in an Indian tribe and is the biological child of a member of an Indian tribe." (25 U.S.C. § 1903(4).)

Whenever the court "knows or has reason to know that an Indian child is involved" in a child custody proceeding, ICWA imposes a duty to give the Indian child's tribe notice of the pending proceedings and provides the tribe a right to intervene. (25 U.S.C. § 1912(a); Welf. & Inst. Code,⁷ §§ 224.2, subd. (a), 224.3, subd. (d).) ICWA notice requirements are meant to ensure the child's Indian tribe will have the opportunity to intervene and assert its rights in the proceedings. (In re Kahlen W. (1991) 233 Cal.App.3d 1414, 1421.)

A. The June 2 Order Is Not Cognizable on Appeal

This court does not have appellate jurisdiction to consider Father's appeal because the June 2 order did not affect T.G.'s status. A parent from whose custody a child was removed⁸ may challenge the lack of ICWA compliance. (25 U.S.C. § 1914; Cal. Rules of Court, rule⁹ 5.486(a).) ICWA issues cannot be waived by an untimely appeal (In re B.R. (2009) 176 Cal.App.4th 773, 779); may be raised for the first time on appeal (In re Z.N. (2009) 181 Cal.App.4th 282, 296-297; In re A.B. (2008) 164 Cal.App.4th 832, 839, fn. 4); and may be based on an order other than the order in which ICWA was addressed. (In re I.G. (2005) 133 Cal.App.4th 1246, 1251; Dwayne P. v. Superior Court (2002) 103 Cal.App.4th 247, 252, 259-260.)

However, ICWA's substantive provisions apply only to proceedings "which affect the minor's status," such as "the minor's placement in adoption and foster care and . . . termination of parental rights . . . ." (In re Holly B. (2009) 172 Cal.App.4th 1261, 1266; 25 U.S.C. §§ 1903(1), 1912(a); see generally In re Z.W. (2011) 194 Cal.App.4th 54, 56, 63-64 [termination of parental rights]; In re B.R., supra,176 Cal.App.4th at pp. 778-779[termination of parental rights]; In re I.G., supra, 133 Cal.App.4th at pp. 1248, 1251 [order denying rehearing of placement order]; Dwayne P. v. Superior Court, supra, 103 Cal.App.4th at pp. 251, 258-260 [writ petition from termination of services and setting § 366.26 hearing]; In re Samuel P. (2002) 99 Cal.App.4th 1259, 1262, 1267 [placing child in out-of-home care].)

Father appeals an order directing the Agency to explore contact and visitation between T.G. and Father. In In re Holly B., supra, 172 Cal.App.4th 1261, the Third District Court of Appeal concluded an ICWA notice issue was not cognizable on a parent's appeal from an order modifying an earlier order for a psychological evaluation, because "failure to comply with the ICWA notice provisions has no impact upon" the order the parent appealed, and ICWA notice requirements apply only to orders affecting the dependent's status. (In re Holly B., supra, at pp. 1266-1267.)

The only issue before this court is the propriety of the June 2 order exploring the possibility of communication and visitation. The ICWA issue therefore is not cognizable on this appeal because the June 2 order was not an Indian child custody proceeding within the meaning of ICWA.

B. There Was No Reason to Know T.G. Is an Indian Child

Even if the June 2 order were appealable, there was no reason to know T.G. is an Indian child. The Agency and court have "an affirmative and continuing duty to inquire whether a child . . . is or may be an Indian child." (§ 224.3, subd. (a); rule 5.481(a).) If circumstances indicate a child may be an Indian child, the Agency has a duty to further inquire regarding the child's possible Indian status. (Rule 5.481(a); § 224.3, subd. (c).)The duty to notice arises only when there is a reason to know an Indian child is involved in proceedings "affecting the status of the Indian child." (Rules 5.480(1), 5.481(b); § 224.3, subd. (d).) Thus, the duty to notice is triggered by a higher "standard of certainty" than is the duty to inquire. (In re Alice M. (2008) 161 Cal.App.4th 1189, 1200.) The duty to notice requires the Indian child's tribe be given notice of the pending proceedings and provided a right to intervene. (In re Shane G., supra, 166 Cal.App.4th at p. 1538; §§ 224.2, subd. (a), 224.3, subd. (d).)¹⁰

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