Filed 8/30/18 In re A.R. CA3

NOT TO BE PUBLISHED

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE DISTRICT

(Sacramento)

----

Mother of the minor A.R. appeals the juvenile court’s order terminating parental rights. (Welf. & Inst. Code, §§ 366.26 & 395.)[1] Mother contends the juvenile court and the Sacramento County Department of Child, Family, and Adult Services (Department) failed to comply with the requirements of the Indian Child Welfare Act (the ICWA). (25 U.S.C. § 1901 et seq.) We affirm the juvenile court’s (order) judgment.

I. BACKGROUND[2]

On September 11, 2017, the Department filed a juvenile dependency petition pursuant to section 300, subdivision (b) alleging failure to protect due to the ongoing and untreated substance abuse problems of mother and the alleged father, N.R. (collectively referred to as parents), from which both parents failed or refused to rehabilitate placing the one-year-old minor at substantial risk of physical harm, abuse, and neglect. The petition alleged mother recently tested positive for illegal substances and N.R. was recently arrested and charged with endangering the life or health of the minor, possession of a knife in a public place, and possession of drug paraphernalia. The petition further alleged the parents failed to provide the minor with adequate care, supervision, and protection in that they allowed the minor to sleep inside a vehicle in which drugs were used and knives were concealed.

According to the September 2017 detention report, mother met with the social worker on August 24, 2017. Paternal grandmother and the minor were also present.[3] Mother denied having any Native American ancestry. She reported that she and N.R. were homeless after having moved out of their last known address. She further reported that, although N.R.’s name was not on the minor’s birth certificate, N.R. was present at the minor’s birth, helped deliver the minor, and signed a declaration of paternity. Since that August meeting, neither parent had contacted the Department.

The parents were not present at the September 13, 2017, detention hearing. Finding their absence prevented ICWA inquiry, the court ordered the minor detained, found N.R. to be an alleged father pending receipt of copies of the birth certificate and declaration of paternity, and ordered the Department to make a diligent search for both parents and inquire as to any potential Indian heritage. The court deemed the paternal grandmother a nonrelated extended family member (NREFM).

On September 22, 2017, the Department provided the court with notices of due diligence of mailing regarding both parents. The clerk of the juvenile court, in turn, sent notices of the dependency proceedings to mother and N.R. at all known mailing addresses. The Department filed declarations of due diligence regarding attempts to locate the parents, including attempted contacts with the paternal grandmother and several relatives and NREFMs, none of whom knew the whereabouts of, or had any contact information for, the parents.

The October 2017 jurisdiction/disposition report and a subsequent addendum report stated mother’s whereabouts had been unknown until October 4, 2017, when mother telephoned the social worker stating she was unaware the minor had been placed in protective custody. Mother was informed of the upcoming jurisdiction/disposition hearing and stated she intended to attend. Mother provided the social worker with a new cell phone number and agreed to meet with the social worker for a subsequent interview to provide additional information on October 10, 2017. However, mother failed to make herself available, leaving the Department unable to obtain any family background information from mother. N.R.’s whereabouts remained unknown.

According to the reports, the social worker spoke with N.R.’s father (paternal grandfather) and N.R.’s aunt (paternal great-aunt), neither of whom had seen the parents in two years or knew their whereabouts. The social worker also spoke with the maternal grandmother who lived in Arizona and wished to be considered for possible placement of the minor. The maternal grandmother stated she had been in contact with mother, who confirmed she was homeless but indicated she received notice of the upcoming jurisdiction/disposition hearing. The paternal grandmother stated she helped the parents by giving them food but not shelter or money. The jurisdiction/disposition report stated the ICWA “does not apply.”

The parents were not present at the jurisdiction/disposition hearing on October 6, 2017. The court sustained the allegations in the petition, finding the minor to be a dependent of the juvenile court. The court further found N.R. to be a presumed father.

Several days after the jurisdiction/disposition hearing, the social worker tried unsuccessfully to contact mother on the cell phone number provided by mother. In preparation for the upcoming selection and implementation hearing (§ 366.26), the Department again conducted due diligence searches for both parents, including service by mail to the parents’ last known addresses and service by publication as authorized by the court.

The relative placement hearing report stated several relatives were being considered for placement, including the paternal grandparents and the maternal grandmother. However, neither the parents nor any family members were present for the December 1, 2017, relative placement hearing. The court found placement with the paternal grandmother was not in the minor’s best interest. The hearing was continued for further consideration of placement with either the maternal grandmother or the paternal grandfather.

The February 2018 selection and implementation report stated the ICWA “does not apply” and recommended termination of parental rights. It was noted that the parents’ whereabouts were known to the Department, but neither parent had contacted the Department.

According to a relative placement hearing report, consideration of placement continued with the paternal grandfather as well as family with ties to the minor’s paternal uncle.

Neither the parents nor any family members appeared for the combined selection and implementation and continued relative placement hearing on February 9, 2018 (although just prior to the conclusion of the hearing, the court was informed that the paternal grandmother, who did not participate in the hearing, was present in the back of the courtroom). The court found placement with the maternal grandmother was not in the minor’s best interest. The court adopted the recommended findings and orders as modified, continued the minor as a dependent of the juvenile court, terminated the parental rights of both parents, and ordered a permanent plan of adoption.

Notice of appeal rights were sent to both parents at their last known address. Mother filed a timely notice of appeal.

II. DISCUSSION

Mother contends the court and the Department failed their continuing duty of ICWA inquiry despite the availability of extended family members, particularly those who were interested in placement of the minor.

The Department argues the duty of ICWA inquiry requires an initial inquiry of the biological parents and, if and only if the investigator knows or has reason to know that the minor may be an Indian child, that investigator must then make further inquiry. (Cal. Rules of Court, rule 5.481(a)(1) & (4).)[4] In particular, the Department asserts that neither parent ever appeared in court and, when inquiry was otherwise made of mother by a social worker, mother denied having Indian ancestry. The Department further asserts that N.R. was not found to be the minor’s biological father and his status as a presumed father did not trigger the duty of ICWA inquiry. In any event, the Department argues, any error was harmless as mother failed to provide any evidence that further inquiry would have resulted in confirmation of Indian heritage.

The ICWA’s purpose is to protect the interests of Indian children and promote the stability and security of Indian tribes by establishing minimum standards for, and permitting tribal participation in, dependency actions. (25 U.S.C. §§ 1901, 1902, 1903(1), 1911(c), 1912; In re Levi U. (2000) 78 Cal.App.4th 191, 195-196.) The juvenile court and the Department 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).) That is, if, after the petition is filed, the court “knows or has reason to know that an Indian child is involved,” notice of the pending proceeding and the right to intervene must be sent to the tribe or the Bureau of Indian Affairs (BIA) if the tribal affiliation is not known. (§ 224.2; see rule 5.481(b); 25 U.S.C. § 1912; In re Robert A. (2007) 147 Cal.App.4th 982, 988-989.) “Proof of notice filed with the court must include Notice of Child Custody Proceeding for Indian Child (form ICWA-030), return receipts, and any responses received from the Bureau of Indian Affairs and tribes.” (Rule 5.482(b).)

The function of the ICWA notice provisions is to enable the tribe or the BIA to investigate and determine whether a child is an Indian child. (In re Kahlen W. (1991) 233 Cal.App.3d 1414, 1422.) Notice must include all of the following information, if known: the child’s name, birthplace, and birth date; the name of the tribe in which the child is enrolled or may be eligible for enrollment; names and addresses of the child’s parents, grandparents, great-grandparents, and other identifying information, and a copy of the dependency petition. (§ 224.2, subd. (a)(5)(A)-(D); In re Mary G. (2007) 151 Cal.App.4th 184, 209.)

As a preliminary matter, mother contends, and the Department concedes, that mother’s ICWA claim is not forfeited for failure to object in the juvenile court. We agree. Because the ICWA’s primary purpose is to protect and preserve Indian tribes, a parent does not forfeit a claim of ICWA notice violation by failing to raise it in the juvenile court. (In re J.T. (2007) 154 Cal.App.4th 986, 991; Nicole K. v. Superior Court (2007) 146 Cal.App.4th 779, 783, fn. 1; In re Marinna J. (2001) 90 Cal.App.4th 731, 739.)

Turning to the merits of mother’s claim, we conclude there was no ICWA error. Mother properly concedes that she disclaimed any Indian ancestry on August 24, 2017. She nonetheless claims that the Department and the court had an obligation to interview both parents and the maternal and paternal family members, particularly when the extended family members wanted relative placement and were readily available for inquiry. We disagree.

The party seeking termination of parental rights “must ask the child, if the child is old enough, and the parents, Indian custodian, or legal guardians whether the child is or may be an Indian child.” (Rule 5.481(a)(1).) The affirmative duty to inquire is triggered whenever the child protective agency or its social worker “knows or has reason to know that an Indian child is or may be involved.” (Rule 5.481(a)(4)(A).) “At that point, the social worker is required, as soon as practicable, to interview the child’s parents, extended family members, the Indian custodian, if any, and any other person who can reasonably be expected to have information concerning the child’s membership status or eligibility.” (In re Michael V. (2016) 3 Cal.App.5th 225, 233; see rule 5.481(a)(4)(A).) Here, mother unequivocally denied having any Indian ancestry. Therefore, because neither the juvenile court nor the Department knew or had any reason to know that the minor had Indian ancestry on the maternal side, there was no continuing duty to further inquire of mother, or to make any inquiry of mother’s extended family members.

With regard to N.R., mother’s claim of ICWA inquiry error also lacks merit. There was no evidence, and mother presents none on appeal, that N.R. is a biological father of the minor. The ICWA makes the necessity of a biological connection clear in defining the terms relevant to the act. Under the ICWA, “(4) ‘Indian child’ means 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; [and] [¶] . . . [¶] (9) ‘parent’ means any biological parent or parents of an Indian child . . . . It does not include the unwed father where paternity has not been acknowledged or established.” (25 U.S.C. § 1903(4) & (9), italics added.) Here, the record shows that the evidence on the question of biological paternity was unsettled. Mother reported that N.R. was present at the minor’s birth and helped deliver the minor, and that he signed a declaration of paternity. However, N.R.’s name was not on the minor’s birth certificate. The court received the declaration of paternity signed by N.R. and, at the request of counsel for the Department and for the minor, found N.R. to be a presumed father. The question of biological paternity was never litigated.

Next, neither N.R. nor mother ever asserted N.R. was the minor’s biological or adoptive father. While N.R. did sign a declaration of paternity, that document established his presumed father status, but did not establish a biological relationship between him and the minor. (Fam. Code, §§ 7570 et seq., 7611.) Again, the juvenile court was presented with the declaration of paternity and found N.R. to be the minor’s presumed father; no finding of paternity was made. Because the status of presumed father may, but need not, be based on biology, the finding that N.R. was the minor’s presumed father cannot support the conclusion of biological paternity. (In re Nicholas H. (2002) 28 Cal.4th 56, 63; In re Zacharia D. (1993) 6 Cal.4th 435, 450, fn. 18.) “ ‘ “[T]he extent to which a father may participate in dependency proceedings and his rights in those proceedings are dependent on his paternal status.” ’ [Citation.] The highest status a father can obtain is ‘presumed’ father, which entitles the father to receive reunification services and is based on the state’s interest in ‘ “preserving the integrity of the family and legitimate concern for the welfare of the child.” ’ [Citation.] This status, however, is not equivalent to the status of a biological or adoptive parent.” (In re C.A. (2018) 24 Cal.App.5th 511, 521.) While the record contains indications that further inquiry might have produced better information regarding N.R.’s Indian ancestry, that information is of no importance unless and until a biological connection between N.R. and the minor is established. Until then, the provisions of the ICWA and related state statutes and rules simply do not apply to N.R. (In re E.G. (2009) 170 Cal.App.4th 1530, 1532.)

Finally, N.R. never appeared in court and was absent throughout the entire proceedings. Consequently, the juvenile court had no opportunity to inquire of N.R. regarding potential Indian ancestry or paternity. Similarly, N.R. is not a party to this appeal and, other than mother’s claims, we have not been presented with an affirmative representation or offer of proof from N.R. that he is the minor’s biological or adoptive father.

Apparently relying on nothing more than her first claim, mother further contends the juvenile court failed to ensure ICWA compliance before finding the ICWA did not apply. For the reasons previously discussed at length, we conclude the claim lacks merit.

We similarly reject mother’s final contention that deficient ICWA inquiry and notice require limited reversal for further proceedings. “[E]rrors in an ICWA notice are subject to review under a harmless error analysis. [Citation.]” (In re Brandon T. (2008) 164 Cal.App.4th 1400, 1415.) If we conclude the juvenile court did not comply with the ICWA provisions, we “reverse only if the error is prejudicial.” (In re A.L. (2015) 243 Cal.App.4th 628, 639.) However, error is not presumed. It is mother’s obligation to present a record that affirmatively demonstrates error. (In re D.W. (2011) 193 Cal.App.4th 413, 417-418.) Mother has not met her burden. As previously discussed at length, neither mother nor N.R. ever made an appearance in court. Thus, the court never had an opportunity to make a direct inquiry of either of them regarding Indian ancestry. The court was presented with evidence that the ICWA did not apply to mother based on her denial of Indian heritage. Given the court’s finding that N.R. was the minor’s presumed father, absent an appearance by N.R. or new information suggesting the ICWA may apply, the court’s duty of inquiry was fulfilled. (See In re Aaliyah G. (2003) 109 Cal.App.4th 939, 942.) Similarly, the Department’s duty of inquiry was fulfilled based on mother’s disclaimer of Indian ancestry, N.R.’s complete absence from the dependency proceedings despite the Department’s best efforts to locate him, and the dearth of evidence demonstrating a biological connection between N.R. and the minor.

We conclude the record does not support mother’s claim that either the Department or the juvenile court failed its duties under the ICWA.

III. DISPOSITION

The juvenile court’s (order) judgment is affirmed.

/S/

RENNER, J.

We concur:

/S/

ROBIE, Acting P. J.

/S/

BUTZ, J.