Los Angeles County Department of Children & Family Services v. Robert G.

[941]Opinion

MOSK, J. Introduction

Robert G. (father) appeals from an order terminating his parental rights to Aaliyah. He contends that his parental rights should not have been terminated because there was insufficient evidence to establish that the adoptive parents are capable of meeting Aaliyah’s needs and that they have no prior referrals for child abuse or neglect. He also contends that there was insufficient evidence to support the juvenile court’s finding that the Welfare and Institutions Code section 366.26, subdivision (c)(1)(A) exception did not apply.1 In addition, father argues that the termination order must be reversed because the legally required affirmative inquiry was not made as to whether Aaliyah has Indian heritage. We affirm the order terminating father’s parental rights. In the published portion of this opinion we discuss whether a sufficient inquiry was made as to whether or not the child has Indian heritage.

Factual and Procedural Background*

Discussion

*

Indian Child Welfare Act

Los Angeles County Department of Children and Family Services (DCFS) stated in its petition application that Aaliyah did not have Indian heritage, and it continued to state in its reports throughout the proceedings that the Indian Child Welfare Act (25 U.S.C. § 1901 et seq. (ICWA)) did not apply. Father, however, contends that the juvenile court and DCFS failed to satisfy their affirmative duty to inquire as to ICWA’s applicability. We do not agree.

ICWA requires a court, if it “knows or has reason to know that an Indian child is involved” in any involuntary proceeding, to give notice to the Indian child’s tribe of the pending proceedings and its right to intervene. (25 U.S.C. § 1912(a).) California Rules of Court, rule 1439 implements ICWA’s notice [942]provisions in California courts. It provides that the court and DCFS have an “affirmative duty to inquire whether a child for whom a petition under section 300 is to be, or has been, filed is or may be an Indian child.” (Cal. Rules of Court, rule 1439(d) (rule 1439(d).) Thus, the juvenile dependency petition form must be checked “if there is reason to know” the child is a member of or may be eligible for membership in an .Indian tribe or “if there is reason to believe the child may be of Indian ancestry.” (Rule 1439(d)(1).) Circumstances that may give rise to probable cause to believe a child is an Indian child include a party or welfare agency so informing the court or providing information suggesting the child is an Indian child, and if the child or its parents reside in a predominately Indian community. (Rule 1439(d)(2)(A), (B).) If proper notice under ICWA is not given, the Indian child, the child’s parent or Indian custodian, or the child’s tribe may petition the court to invalidate the proceeding. (25 U.S.C. § 1914.)