Filed 3/17/15 In re K.P. CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication 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

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

In re K.P., a Person Coming Under the 

Juvenile Court Law.

S.D. COUNTY HEALTH AND HUMAN 

SERVICES AGENCY,

Plaintiff and Respondent,

v.

S.O.,

Defendant and Appellant.

 D066509

 (Super. Ct. No. J518806) 

APPEAL from an order of the Superior Court of San Diego County, Carol 

Isackson, Judge. Affirmed.

Mitchell Keiter, under appointment by the Court of Appeal, for Defendant and 

Appellant.

Thomas E. Montgomery, County Counsel, John E. Philips and Paula J. Roach, 

Deputy County Counsel, for Plaintiff and Respondent. 

Beth Ploesch, under appointment by the Court of Appeal, for Minor. 
2

S. O. (mother) appeals a juvenile court order granting sole legal custody of her 

daughter, K.P., to K.P's father, C. P. (father), contending the court did not comply with 

notice requirements under the Indian Child Welfare Act (ICWA), and it erred by granting 

father sole legal custody. We affirm the order.

FACTUAL AND PROCEDURAL BACKGROUND

On October 8, 2013, the San Diego County Health and Human Services Agency 

(the Agency) petitioned on K.P's behalf under Welfare and Institutions Code1 section 300 

subdivision (b), alleging that mother had failed to protect K.P., who was then 11 months 

old. Under a Fourth Amendment waiver search, mother was found to be under the 

influence of a controlled substance, and drug paraphernalia was found in the family room 

and on the outdoor porch. Mother admitted using methamphetamine and heroin, 

including at home while K.P. was asleep. K.P. tested presumptively positive for opiates 

when she was detained into protective custody at the Polinsky Children's Center.

Mother claimed she had Native American ancestry, but told the social worker "it's 

not enough." Mother's mother told the social worker that their ancestors were from the 

Winnebago Sioux tribe in Decorah, Iowa. Mother told the social worker she did not want 

father involved in this matter, and he had not seen K.P. since she was five months old. 

Mother did not provide the Agency any information about father's residence except that it 

was "in Carlsbad somewhere." 

 

1 Statutory references are to the Welfare and Institutions Code unless otherwise 

specified.
3

At a hearing held before the Agency had located father, Mother stated she had not 

received child support from father, despite a court order to that effect. Mother said she 

did not have a tribal number or anything identifying her as belonging to the Winnebago 

Sioux tribe. Mother's mother told the court that someone in her family was affiliated 

with the tribe in the 1700's. The court stated, "You don't need a tribal number, but we 

just need enough information to know if we have a reason to believe the child may be an 

Indian child. And both of you are shaking your heads 'no.' " The court asked mother's 

mother whether she had any information that any family member was "involved with the 

tribe? Got services? Spoke the language? Lived on a reservation?" Mother's mother 

replied, "All I know is somebody down the line married an Indian princess." The court 

ruled without prejudice that notice was not necessary and the ICWA did not apply. 

The court scheduled a settlement conference for November and trial for 

December. At the settlement conference, mother waived her right to a trial. The court 

found the allegations of the petition to be true, and set a contested disposition hearing for 

January 10, 2014.

In an addendum report, a social worker reported that on November 22, 2013, 

father contacted the social worker and stated he was unaware that K.P. was in custody. 

He had last tried to contact K.P. for her birthday in October 2013, but K.P. was with her 

maternal grandmother in Minnesota. He said that he and his fiancée were receptive to 

having K.P. placed with him. Moreover, mother had planned an informal meeting with 

him, mother and her mother to discuss permitting him to have partial custody of K.P. 

Father explained he had been in a serious motorcycle accident and was put on multiple 
4

pain medications that were highly addictive; therefore he was currently receiving

methadone treatment, which would end in two months.

After the social worker informed mother about the Agency's interview with father, 

mother said she did not want him to have custody of K.P, because K.P. had no 

relationship with him. Mother also questioned father's sobriety, stating he had used drugs 

five years earlier when they first met, and he was on methadone for his heroin use. The 

social worker stated: "[Mother] was asked if that were the case why was she in contact 

and attempting to arrange custody and visitation on her own accord versus going through 

this Agency where he can be screened and tested. [Mother] did not have a reply."

The social worker concluded: "[Father] was unaware of the circumstances that 

brought [K.P.] to the attention of this Agency and the fact that she tested positive for 

morphine at the time of removal. [Father] reported that the mother had not provided him 

the full story as to what was going on and led him to believe that [K.P.] had been cared 

for by [K.P.'s] maternal grandmother." The Agency recommended completing its

assessment of father for consideration for K.P's placement with him.

At a special hearing held on December 5, 2013, the court made a finding that 

father did not have Native American heritage. Father testified he was present at the 

hospital when K.P. was born. Father stated that a home paternity test established his 

relationship to K.P., but he did not have the test results with him at the hearing. 

According to father, when K.P. was seven or eight months old, she started spending 

weekend days with father, but weekend nights with mother. Father said he and mother 

had a falling out, and the last time he saw K.P. was approximately a month and a half 
5

before the hearing date. Father said he had paid mother child support of $400 monthly 

for six months. A few weeks before the hearing date, his employer had started garnishing 

his pay check for child support payments. The court ordered that Father have liberal 

supervised visits with K.P. The Agency offered voluntary services to father.

An Agency addendum report noted that mother still denied knowing of a way to 

contact father even after she knew father had contacted the Agency. The social worker 

concluded that "upon further research it is apparent that [mother] did have 

communication with [father]. [Her] [F]acebook reveals 'tagging' [father] in photos dating 

back to February 14, 2013, and as recent as September 13, 2013." The social worker 

added that father provided text messages from mother dating back to November 19, 2013, 

in which "[mother] informed [father] that [K.P.] was in Minnesota with the maternal 

grandmother. [Mother] continued on in her text to explain that [K.P.] would be back on 

December 12, 2013[,] and that [father] would be able to visit with the child then. 

[Mother] also asks for rental assistance from [father] for 'my mom and I.' " In light of the 

above, the social worker concluded: "[I]t appears that [mother] has not been forthcoming 

with this Agency regarding her interactions and the level of involvement with [father] 

preventing him the opportunity to perfect paternity prior to this juncture. [¶] On 

[November 12, 2013], [mother] was asked to move out of the apartment with her mother 

completely due to her relapse in the house and the desire to have [K.P.] placed in the 

home. However on November 29, 2013, she was asking [father] for assistance to pay the 

rent on the apartment she shares with her mother. [¶] [Mother] continues to display 

manipulative behaviors, which appear to satisfy her own needs and desires."
6

At the December 12, 2013 settlement hearing, Mother agreed K.P. could be placed 

with father as early as the following week. Father was recognized as K.P.'s presumed 

father.

In another addendum report, the social worker reported she spoke with the treating 

clinic and confirmed father was enrolled in the methadone program to withdraw from 

prescription medications, and not heroin. The social worker stated: "At this time it 

appears that the statements [father] had previously provided to this worker are accurate. 

[Father] appears concerned and willing to provide safe and appropriate care for [K.P.] at 

this time. Placement with [father] with support services to the family appears appropriate 

at this time."

On December 20, 2013, the court accepted the Agency's recommendation and 

adjudged K.P. a dependent of the county, and found by clear and convincing evidence 

that K.P. faced substantial danger to her physical health if she were returned to mother. 

Therefore, K.P. was removed from mother and placed with father. Mother was offered 

reunification services and supervised visitation with K.P. 

At the six-month review hearing, father sought sole legal custody of K.P. At a 

pretrial status conference, mother sought joint legal custody and visitation.

At the July 31, 2014 trial regarding custody orders, mother was absent and the 

court denied mother's counsel's request for a continuance. The court granted the 

Agency's recommendation that father have legal, primary and physical custody of K.P, 

finding that mother came into the juvenile dependency system because of substance 
7

abuse; she subsequently dropped out of treatment, individual therapy, and did not 

participate in co-parenting classes.

DISCUSSION

I.

Mother contends she provided the juvenile court sufficient information regarding 

her affiliation with the Winnebago Sioux tribe to invoke the ICWA notice requirement; 

therefore, the court erred by not providing notice. 

"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 

(Shane G.).) An Indian child is defined as any unmarried person who is under age 18 and 

is either (a) a member of an Indian tribe, or (b) eligible for membership in an Indian tribe 

and the biological child of a member of an Indian tribe. (25 U.S.C. § 1903(4).)

ICWA imposes a duty to give the child's tribe notice of the pending proceedings 

and provides the tribe a right to intervene "[w]hen a court 'knows or has reason to know 

that an Indian child is involved' in a juvenile dependency proceeding." (Shane G., supra, 

166 Cal.App.4th at p. 1538; § 224.2, subd. (a).) "Alternatively, if there is insufficient 

reason to believe a child is an Indian child, notice need not be given." (Shane G., at 

p. 1538.) Notice requirements are meant to ensure that 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.)
8

Section 224.3, subdivision (a) imposes an "affirmative and continuing duty" on the 

court and the Agency "to inquire whether a child for whom a petition . . . is to be, or has 

been, filed is or may be an Indian child in all dependency proceedings." Subdivision (b) 

states circumstances that may provide reason to know the child is a Native American 

child include the following: "(1) A person having an interest in the child . . . 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. (2) The residence or domicile of the child, the child's 

parents, or Indian custodian is in a predominantly Indian community. (3) 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 government, such as the Indian Health 

Service." (See also Cal. Rules of Court, rule 5.481(a)(5).)

If these or other circumstances indicate a child may be a Native American child, 

the social worker must further inquire regarding the child's status, including by 

interviewing the parents, extended family members or any other person who can 

reasonably be expected to have information concerning the child's membership status or 

eligibility. (§ 224.3, subd. (c).) If the inquiry leads the social worker or the court to 

know or have reason to know a Native American child is involved, the social worker 

must provide notice to the tribe and the Bureau of Indian Affairs. (Id., subd. (d); Shane 

G., supra, 166 Cal.App.4th at pp. 1538-1539.) More than a bare suggestion of Native 

American ancestry is needed before notice is required. (In re Jeremiah G. (2009) 172 

Cal.App.4th 1514, 1520.)
9

We conclude that proper inquiry was conducted to determine whether K.P. was a 

Native American child within the meaning of ICWA. The court questioned mother and 

her mother concerning the family's Native American heritage. According to these 

relatives, no family members had ever been registered or eligible for enrollment with a 

tribe and the court was not required to give notice. The evidence in this case is akin to 

that which this court found insufficient to invoke the notice requirement in Shane G.: 

"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-greatgrandmother 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." (Shane G, supra, 166 Cal.App.4th at p. 1539.)

On this record, the court was not required to provide ICWA notice. (§ 224.3, 

subd. (d); Shane G., supra, 166 Cal.App.4th at p. 1539 [an attenuated, speculative or 

vague claim of Indian heritage is insufficient to trigger notice requirements under 

ICWA].) "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 . . . rather than further the 

important goals of and ensure the procedural safeguards intended by ICWA." (Shane G., 

at p. 1539.)

II.

Mother claims the juvenile court erred by granting father sole legal custody of 

K.P. We disagree.
10

Under section 362.4, when the juvenile court terminates jurisdiction over a minor 

who has been adjudged a dependent, and proceedings for dissolution of marriage are 

pending in the superior court, the juvenile court, on its own motion, may issue an order 

determining the legal custody of the minor child. (See also In re Chantal S. (1996) 13 

Cal.4th 196, 206 (Chantal S.).) A custody order under section 362.4 is commonly 

referred to as an "exit order." (See, e.g., In re John W. (1996) 41 Cal.App.4th 961, 970.)

Custody determinations in an exit order are committed to the sound discretion of 

the juvenile court. (In re Stephanie M. (1994) 7 Cal.4th 295, 318.) " '[T]he juvenile 

court, which has been intimately involved in the protection of the child, is best situated to 

make custody determinations based on the best interests of the child.' " (Chantal S.,

supra, 13 Cal.4th at p. 206.) "[W]hen a court has made a custody determination in a 

dependency proceeding, ' "a reviewing court will not disturb that decision unless the trial 

court has exceeded the limits of legal discretion by making an arbitrary, capricious, or 

patently absurd determination." ' " (Stephanie M., at p. 318.)

" 'Sole legal custody' means that one parent shall have the right and the 

responsibility to make the decisions relating to the health, education, and welfare of a 

child." (Fam. Code, § 3006.) " 'Joint legal custody' "means that both parents share the 

right and responsibility to make these decisions. (Fam. Code, § 3003.) To be workable, 

joint legal custody requires the parents' willingness to cooperate in making medical, 

educational, and psychological decisions. (See In re Marriage of McLoren (1988) 202 

Cal.App.3d 108, 115-116 [observing, in most circumstances, children's best interests are 
11

served by joint legal custody, but where there is acrimony "the reality of their parents'

conflicts unavoidably hampers the realization of that goal"].)

Based on the evidence in the record and the juvenile court's factual findings, the 

court did not abuse its discretion by awarding father sole custody of K.P. The record 

contains substantial evidence that father provided mother with money to care for K.P., 

and he spent time with K.P. As soon as father became aware of K.P.'s placement in 

foster care, he took the necessary steps to restore his relationship with her. He was 

receptive to the Agency's suggestions for making sure he was a good parent, and the 

agency approved him and his fiancée for placement of K.P. The Agency considered that 

he took good care of K.P. 

By contrast, the court's finding denying mother legal custody is supported by the 

record, and mother concedes that "[her] failure to make progress in her drug treatment 

and her self-reported April relapse may have precluded her physical custody." Mother 

merely protests that her situation was not as dire as that of the mother in a case the court 

cited, In re Jennifer R. (1993) 14 Cal.App.4th 704, 712-713. We need not discuss the 

facts of that case because father's counsel had cited to it in the juvenile court for the 

proposition that the court could properly grant father sole legal custody. Rather, under 

the deferential abuse of discretion test applicable to custody and visitation orders, the 

precise issue is whether the trial court could have reasonably concluded that the order in 

question advanced the "best interest" of the child. We are required to uphold the ruling if 

it is correct on any basis, regardless of whether such basis was actually invoked.
12

We also conclude a proper basis for the court's grant of sole legal custody was the 

acrimony mother demonstrated toward father. (In re Marriage of McLoren, supra, 202 

Cal.App.3d at pp. 115-116.) Mother did not disclose her contacts with father to the social 

worker, and maintained in the juvenile court that father should not be granted custody of 

K.P., in part because he lacked a relationship with K.P. However, mother herself denied 

him opportunities to see K.P. and hindered his ability to take care of his daughter by 

refusing to inform the Agency and the court of ways to contact him. Mother herself 

concedes "[her] only fault was in not volunteering advice as to how to reach father." 

Mother's damaging claim that father was getting methadone treatment for a heroin 

addiction was disproven by the clinic that stated he in fact was treated because he had 

been prescribed addictive medications. Mother also told the social worker that father did 

not support K.P. financially, when in fact he did. 

In short, the record amply shows that the court did not abuse its discretion. 

Rather, it reasonably found that mother did not show sufficient ability to care for K.P. 

given mother's substance abuse difficulties, which endangered K.P., who tested positive 

for opiates. Further, the Agency had sufficient basis for concluding father was able to 

care for K.P. and the conflict between mother and father made joint legal custody

inadvisable. Therefore, the court did not abuse its discretion because it reasonably 

concluded it was in K.P.'s best interest that father have sole legal custody.
13

DISPOSITION

The order is affirmed.

O'ROURKE, J.

WE CONCUR:

BENKE, Acting P. J.

HALLER, J.