Filed 12/17/18 In re A.A. CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION TWO

APPEAL from the Superior Court of San Bernardino County. Erin K. Alexander, Judge. Affirmed in part, dismissed in part.

Terence M. Chucas, by appointment of the Court of Appeal, for Defendant and Appellant C.V.

Elizabeth C. Alexander, by appointment of the Court of Appeal, for Defendant and Appellant J.A.

Michelle D. Blakemore, County Counsel, and Adam E. Ebright, Deputy County Counsel, for Plaintiff and Respondent.

The mother of three girls, and the father of one of the three, appeal from an order adopting a permanent planned living arrangement as the girls’ permanent plan.[1] They contend that there was a failure to inquire as to whether the father of the other two girls had Indian ancestry for purposes of the Indian Child Welfare Act (ICWA). (25 U.S.C. § 1901 et seq.)

We will hold that there was indeed a failure to inquire. However, the father who is appealing lacks standing to assert that there was a failure to inquire as to the other father. And the mother does not claim that the other father did have Indian ancestry; thus, she has not shown that the error was prejudicial.

I

FACTUAL AND PROCEDURAL BACKGROUND

The mother has three children, all girls. In May 2018, when the challenged order was entered, R.V. (R.) was 10, H.P. (H.) was eight, and A.A. (A.) was three.

S.P. (P. father) is the presumed father of the two older girls, R. and H. At all relevant times, he was in prison. He has not appealed. J.A. (A. father) is the presumed father of A., the youngest girl.[2]

As of April 2016, the mother and the A. father were living together with all three children. That month, San Bernardino County Children and Family Services (CFS) received a report that H. had bruised her ear and wrist by falling onto concrete, and that these injuries were possibly caused by “physical abuse[] in the home.”

When social workers responded, the mother had no explanation for H.’s bruises. The parents would not let the social workers interview the children alone. During their interview of H., the mother appeared to coach H., “suggest[ing]” that she hurt herself playing and then urging her to be “truthful” with the social workers. H. said she hurt herself by falling while playing, and that R. saw her fall. R., however, said she did not remember seeing H. fall and hurt her ear or wrist.

A physician “reported that the injuries were not consistent with the explanation of how the child sustained the injuries.” He therefore suspected child abuse.

As a result, CFS detained the children and filed dependency petitions concerning them. The children were placed in foster care.

Thereafter, H. disclosed that the mother caused the bruises on her ear, wrist, and legs. Both R. and H. said that the mother whipped them with electrical cords. She would tie them down, put socks in their mouths, and duct tape their mouths shut, so they would not scream. She would also duct tape their hands together. Sometimes the A. father also hit them with a cord or a belt. They were fed only leftover food from the parents’ plates.

H. said she did not want to go back to the mother. R. did want to go back, but only when the mother “doesn’t bruise them anymore.”

In September 2016, at the jurisdictional/dispositional hearing, the mother submitted on the social worker’s reports; the A. father pleaded no contest.

The juvenile court sustained jurisdiction over all three children based on serious physical harm (§ 300, subd. (a))[3] and failure to protect (id., subd. (b)). With respect to R. and H., it also sustained jurisdiction based on failure to support (as to the P. father only). (Id., subd. (g).) With respect to R. and A., it also sustained jurisdiction based on abuse of a sibling. (Id., subd. (j).) It formally removed the children from their parents’ custody and ordered reunification services for the parents.

The parents went to court-ordered therapy, but they never admitted that they hit the children with cords or stuffed socks in their mouths. They maintained that “they could not talk about incidents that never took place.” Eventually, they quit therapy.

In January 2018, at the 18-month review hearing, the juvenile court terminated reunification services and set a section 366.26 hearing.

In May 2018, at the section 366.26 hearing, the juvenile court selected a planned permanent living arrangement, with the goal of adoption, as the permanent plan for the children.

II

THE SUFFICIENCY OF CFS’S ICWA INQUIRY

The parents contend that the juvenile court and CFS failed to make the requisite inquiry as to whether R. and H. were or may have been Indian children, and thus the juvenile court erred by finding that ICWA did not apply.

A. Additional Factual and Procedural Background.

The detention report indicated that the P. father’s address was Calipatria State Prison.

In April 2016, at the detention hearing, the juvenile court ordered that any parent complete a “Parental Notification of Indian Status” (ICWA‑020) form. The P. father was not personally present at that hearing.

In May 2016, CFS filed a “Declaration of Due Diligence” regarding the P. father. It gave his address as Calipatria State Prison. However, it also stated: “Search efforts revealed that [the P. father] is currently in custody at California City Correctional Facility.” It then stated that the petition and other documents, including an ICWA‑020 form, had been served on the P. father on May 2, 2016, by certified mail. It was signed under penalty of perjury by a CFS employee.

Attached to the declaration was a “Notice of Hearing on Petition,” signed by the same CFS employee, along with a certified mail receipt showing that the notice was sent to the P. father at Calipatria State Prison on May 2, 2016.

The parents filed ICWA‑020’s stating that they had no Indian ancestry. The P. father, however, never filed an ICWA‑020.

The P. father was personally present at two hearings prior to the jurisdictional/ dispositional hearing. He was also personally present at the jurisdictional/dispositional hearing. However, as far as the record reflects, he was never asked whether he had any Indian ancestry.

In September 2016, at the jurisdictional/dispositional hearing, the juvenile court found that the children “do not come under the provisions of the Indian Child Welfare Act.”

B. The Appeal Regarding A.; the A. Father’s Standing.

It is undisputed that A. has no Indian ancestry. Accordingly, she is not a proper party to this appeal. Even if the parents were to prevail, we would not reverse the orders regarding her that were made at the section 366.26 hearing.

The A. father argues that, if R. and H. are found to be Indian children, that “could [a]ffect the sibling relationship as well as the ultimate permanent plan . . . .” He does not explain how. We disagree.

Even if we reversed the section 366.26 order as to R. and H., we would not reverse any earlier orders. (In re Jonathon S. (2005) 129 Cal.App.4th 334, 340.) Moreover, the parents do not assert any violation of ICWA itself; they assert only a violation of state law. (See part II.C., post.) Hence, there are no grounds for the parents — or for an Indian tribe — to invalidate any earlier orders under the enforcement provisions of ICWA. (See generally In re Jonathon S., supra, at p. 341.)

For the time being, all three children would remain placed together. The juvenile court would have to give notice to the relevant Indian tribe. If that tribe intervened, it could seek a change of placement — for example, it could seek to have R. and H. placed with a foster parent who is a tribe member. Also, at any new section 366.26 hearing, it could argue for a different permanent plan for R. and H., such as adoption by a tribe member. At that time, however, the juvenile court could consider whether to place A. together with R. and H. in any new placement. (§ 366.3, subds. (d), (e)(1).) It could also consider whether to change A.’s permanent plan; a “permanent plan,” other than adoption, is not necessarily literally permanent. (Id., subd. (h)(1).)

In sum, then, even if we were to reverse as to R. and H., we see no reason why we would reverse as to A.

Given this conclusion, it also follows that the A. father has no standing in this appeal. He does not assert any grounds for reversal of the order appealed from to the extent that it affects his own child. (See generally In re Jasmine J. (1996) 46 Cal.App.4th 1802, 1806 [“[A] parent is precluded from raising issues on appeal which did not affect his or her own rights.”].)

Accordingly, we will dismiss the A. father’s appeal. We will also dismiss the mother’s appeal as to A.

C. Discussion.

“Congress enacted ICWA to further the federal policy ‘“that, where possible, an Indian child should remain in the Indian community . . . .”’ [Citation.]” (In re W.B. (2012) 55 Cal.4th 30, 48.) California has adopted statutes and rules that “implement, interpret, and enlarge upon” ICWA. (In re S.B. (2005) 130 Cal.App.4th 1148, 1157.)

Under both state and federal law, whenever “the court knows or has reason to know that an Indian child is involved,” notice of the proceedings must be given to the relevant tribe or tribes. (25 U.S.C. § 1912(a); accord, Welf. & Inst. Code, § 224.2, subd. (a); Cal. Rules of Court, rule 5.481(b)(1).) “The Indian status of a child need not be certain or conclusive to trigger ICWA’s notice requirements. [Citation.]” (Nicole K. v. Superior Court (2007) 146 Cal.App.4th 779, 783.) “Whether the minor is in fact an Indian child is an issue for the tribe or, alternatively, the Bureau of Indian Affairs (BIA) to determine. [Citation.]” (In re Pedro N. (1995) 35 Cal.App.4th 183, 186, disapproved on other grounds in In re Isaiah W. (2016) 1 Cal.5th 1, 14.)

In addition, under state law, the juvenile court and the social services agency “have an affirmative and continuing duty to inquire whether a child . . . is or may be an Indian child in all dependency proceedings . . . if the child is at risk of entering foster care or is in foster care.” (§ 224.3, subd. (a).) This duty includes, at a minimum, asking the parents whether they have Indian ancestry (Cal. Rules of Court, rule 5.481(a)(1)) and ordering them to fill out an ICWA‑020 (id., rule 5.481(a)(2), (3)). If that inquiry (or any other information known to the social services agency) provides a reason to know that the child may be an Indian child, the social services agency must make a further inquiry to obtain the information that must be included in an ICWA notice. (Id., rule 5.481(a)(4).) Otherwise, however, the duty of inquiry has been satisfied, and the juvenile court may properly find that ICWA does not apply. (In re J.L. (2017) 10 Cal.App.5th 913, 924; In re Aaliyah G. (2003) 109 Cal.App.4th 939, 942.)

Here, CFS never asked the P. father about his Indian ancestry, and the P. father never filed an ICWA‑020. CFS argues that it satisfied its duty of inquiry by serving him with a blank ICWA‑020. The parents respond that it is not clear whether the blank ICWA‑020 was sent to the A. father at Calipatria State Prison or at the California City Correctional Facility, plus it is not clear which institution he was actually in. We may assume, without deciding, that it was sent to the correct address. But even if so, that fulfilled, at most, the duty to order the parent to complete an ICWA-020.[4] CFS never fulfilled its duty to ask the P. father about his Indian ancestry. It was not hard to do, as he was personally present at several hearings. In the absence of the requisite inquiry, the trial court did not have sufficient evidence to support its finding that ICWA did not apply.

We turn, then, to whether the error was prejudicial. “[A]ny failure to comply with a higher state standard, above and beyond what . . . ICWA itself requires, must be held harmless unless the appellant can show a reasonable probability that he or she would have enjoyed a more favorable result in the absence of the error. [Citations.]” (In re S.B., supra, 130 Cal.App.4th at p. 1162.) This means the parents must show — at a minimum — that, if asked, the P. father would have said he has some kind of Indian ancestry. (In re N.E. (2008) 160 Cal.App.4th 766, 769-771 [failure to ask the father whether he had Indian ancestry was harmless where the father “does not assert on appeal that he in fact has any Indian heritage.”]; In re Rebecca R. (2006) 143 Cal.App.4th 1426, 1430-1431 [asserted failure to ask the father whether he had Indian ancestry was harmless where the father did not “make an affirmative representation of Indian heritage” on appeal]; but see In re J.N. (2006) 138 Cal.App.4th 450, 461.)[5]

The parents also have not shown that this information was not available to them. The mother had been in a relationship with the P. father long enough to have two children by him, born two years apart; if she did not already know whether he had Indian ancestry, presumably she could have contacted him in prison and asked him. Thus, we need not decide whether, if the information were shown to be unavailable, that would affect our prejudice analysis.

We therefore conclude that the error was harmless.

III

DISPOSITION

The father’s appeal is dismissed. The mother’s appeal with respect to A. is dismissed. In the mother’s appeal with respect to R. and H., the order appealed from is affirmed.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

RAMIREZ

P. J.

We concur:

CODRINGTON

J.

RAPHAEL

J.