In re A.S.

Filed 4/23/07 In re A.S. CA3

NOT TO BE PUBLISHED

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE DISTRICT

(Calaveras)

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Appellant, the mother of A.S. and H.F. (the minors), appeals from the order of the juvenile court terminating her parental rights. (Welf. & Inst. Code,  366.26, 395.) Appellant contends the juvenile court and the Calaveras County Works and Human Services Agency (HSA) failed to comply with the Indian Child Welfare Act of 1978 (ICWA) (25 U.S.C.  1901 et seq.) by failing to adequately inquire into the minors Indian heritage. We shall affirm.

FACTUAL AND PROCEDURAL BACKGROUND

The facts underlying the dependency proceedings in this matter are not relevant to the issues raised by appellant. It suffices to say that the minors, who were four and five years old respectively when the petition was filed, had been exposed to drugs, alcohol and domestic violence prior to their removal from appellants care, and efforts to reunify the family were unsuccessful due to appellants failure to comply with services. The minors were placed with relatives who wanted to adopt them, and the court ultimately terminated parental rights.

The minors alleged father^[1]never appeared in these proceedings.^[2] At the detention hearing, the juvenile court inquired of appellant whether any of the children have any Native American heritage. Appellant replied, No. According to the dispositional report, the alleged father was Hispanic and there was no known American Indian Heritage for this family. Appellant submitted on this report at the dispositional hearing, at which reunification services were denied to the alleged father because he had not successfully completed reunification services in a previous dependency proceeding concerning the same minors (Welf. & Inst. Code,  361.5, subd. (b)(10)) and because he had a conviction for violation of Penal Code section 288 (lewd or lascivious acts on a child under 14) (Welf. & Inst. Code,  361.5, subd. (b)(12); see Pen. Code,  667.5, subd. (c)(6)). Subsequent reports reiterated that appellant had said there was no known Indian heritage and that the ICWA did not apply.

DISCUSSION

Appellant claims the juvenile court and HSA failed to make adequate inquiry regarding the alleged fathers Indian heritage, and that the court also erred by failing to require appellant to complete form JV‑130, a mandatory Judicial Council form for reporting information concerning Indian heritage.^[3] HSA maintains these arguments have been forfeited by appellants failure to raise them in the juvenile court and that she lacks standing regarding claims related to the lack of inquiry of the alleged father. Disagreeing that the claims have been forfeited, we nonetheless reject appellants first claim and conclude she was not prejudiced by the error set forth in the second claim.

I. Forfeiture

We begin by addressing HSAs argument that appellant has forfeited her claim. Both this court and others have held that the ICWA notice error is not subject to forfeiture. (See In re Nikki R. (2003) 106 Cal.App.4th 844, 849; In re Marinna J. (2001) 90 Cal.App.4th 731, 739; In re Desiree F. (2000) 83 Cal.App.4th 460, 471.) The Bureau of Indian Affairs (BIA), in its guidelines for state courts, recommends a procedure for implementing the notice provisions of the ICWA that includes making inquiry regarding the Indian status of children involved in child custody proceedings. (BIA, Guidelines for State Courts; Indian Child Custody Proceedings (Guidelines), Introduction and  B.5.a, 44 Fed.Reg. 67588 (Nov. 26, 1979).) Although the Guidelines are not binding on state courts, they represent the BIAs recommendations for assuring that the rights guaranteed by the ICWA are protected in state court proceedings involving Indian child custody matters. (Guidelines, Introduction.) California has adopted California Rules of Court, rule 5.664(d),^[4]which imposes a duty of inquiry as recommended in the Guidelines.

As implicitly recognized by the Guidelines, inquiry regarding Indian heritage is closely related to the ICWAs notice provisions because it is the means of obtaining the information that triggers the notice requirements. Accordingly, we conclude that issues related to the duty to inquire regarding Indian heritage are not forfeited by failing to raise them in the juvenile court.

HSAs reliance on In re S.B. (2005) 130 Cal.App.4th 1148 is misplaced. In that case, the appellate court held that a mother had waive[d] the supposed failure to inquire concerning [the childs] Indian ancestry by failing to raise this earlier in the proceedings. (Id. at p. 1160.) However, in In re S.B., the childs tribe intervened in the proceedings and did not seek to set aside the juvenile courts prior orders. The appellate court acknowledged that a parent does not necessarily waive an ICWA notice issue by failing to raise it below (id. at p. 1159), but noted the reason for this is that [t]he notice requirements serve the interests of the Indian tribes irrespective of the position of the parents. (Ibid.) The court concluded that [o]nce the childs tribe has appeared and has not asked, on its own behalf, that any prior actions be invalidated, this rationale does not apply, and the parents independent rights under the ICWA may be forfeited if not asserted before the juvenile court. (Ibid.) Thus, In re S.B. is distinguishable from the present matter, in which no tribe was ever noticed or appeared.

We also reject HSAs claim that appellant lacks standing to challenge the sufficiency of the ICWA inquiry of the alleged father. Although HSA is correct that a parent lacks standing to challenge the adequacy of the ICWA notice provided to another parent (In re Jeffrey A. (2002) 103 Cal.App.4th 1103, 1109), compliance with the duty of inquiry impacts whether notice to the tribe is required. Accordingly, a parent has standing to challenge the adequacy of inquiry into another parents Indian heritage. (Cf. In re Daniel M. (2003) 110 Cal.App.4th 703, 708.) 

We turn to the merits of appellants claims.

II. Inquiry into Fathers Indian Heritage

Appellant maintains both the court and the social worker failed to make the mandated inquiry regarding Indian heritage as to the [minors] father. We disagree that the court and HSA failed to meet their obligations in this regard.^[5]

Rule 5.664(d) imposes on the court and the social services agency an affirmative and continuing duty to inquire whether a child for whom a [dependency] petition . . . has been[] filed is or may be an Indian child. Here, at appellants first appearance, the juvenile court asked her whether the minors had any Indian heritage. Appellant replied that they did not. Appellant was the only parent that ever appeared in this matter on behalf of the minors. Thus, the court never had an opportunity to make a direct inquiry of the alleged father regarding Indian ancestry.^[6] Consequently, once the court was informed by appellant that the minors did not have any Indian heritage, its duty of inquiry was fulfilled, absent an appearance by the alleged father or new information suggesting the ICWA may apply. (See In re Aaliyah G. (2003) 109 Cal.App.4th 939, 942.)

The social worker also was required to make inquiry of the parents regarding the minors Indian ancestry. (Rule 5.664(d)(2).) The record is silent as to the efforts made by the social worker to ascertain this information from the alleged father or whether she was able to establish any contact with him. We will not assume from a silent record that the social worker failed to make adequate inquiry. (In re Gerardo A. (2004) 119 Cal.App.4th 988, 994-995.) In any event, the minors had been the subject of previous dependency proceedings and, presumably, the social worker had access to information concerning the alleged father from those files. The alleged fathers racial background was described in one of the reports prepared by the social worker, supporting the inference that, at some point, inquiry had been made regarding his heritage.

In sum, the record does not support appellants claim that there was an inadequate inquiry into the alleged fathers Indian heritage.

III. Form JV‑130

Appellant also complains that the juvenile court erred by not requiring her to complete form JV‑130, a Judicial Council form which directs a parent to indicate whether he or she may have Indian ancestry and whether the child or parent may be a member or eligible for membership in an Indian tribe. Rule 5.664(d)(3) requires the juvenile court to order a parent to complete this form at the first appearance in a dependency proceeding.

Appellant is correct that the juvenile court erred by failing to have her complete form JV‑130. However, appellant suffered no prejudice from the error. Appellants negative response to the juvenile courts query regarding whether the minors had any Indian heritage provided the same information as would have been provided on the form. As compliance with rule 5.664(d)(3) would not have disclosed a possibility that the minors were Indian children, the courts error was harmless.

Appellant argues that form JV‑130 does more than collect information about a childs Indian status, that it also provides notice to the parent of the reason for notification of Indian status and the need to bring new information to the attorney and the social worker. (Italics omitted.) Appellant is incorrect that the form provides any type of notice concerning the reason why the information regarding Indian status is being sought. And although the form directs the parent to provide any new information concerning Indian ancestry, again, there is no reason to suspect that appellant was prejudiced by the failure to be so advised.

Appellant argues that her situation is very similar to the facts in In re J.N. (2006) 138 Cal.App.4th 450, 460-461, in which the matter was remanded for inquiry of the mother regarding Indian status because the mother had not completed a JV‑130 form and the record did not indicate that any other inquiry was made of her regarding Indian heritage. In In re J.N., the appellate court was unwilling to speculate regarding the mothers Indian ancestry when the record reflected no effort on the part of the court or the social worker to ascertain this information. Here, on the other hand, appellant was asked about the minors Indian ancestry and informed the court they had none, making it unnecessary to speculate in this regard.

DISPOSITION

The juvenile courts order is affirmed.

BUTZ , J.

We concur:

MORRISON , Acting P.J.

________ROBIE____________, J.

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^[1] HSA referred to the alleged father as the presumed father in reports filed in the juvenile court. However, appellant was never married to the alleged father, and there is no evidence in the record before us that he received the minors into his home or completed a voluntary declaration of paternity, which are alternatives for establishing presumed father status. (Fam. Code,  7570 et seq., 7611.) Nor had the alleged father completed paternity testing to establish that he was the minors biological father.

^[2] Appellant mistakenly asserts that the alleged father was present at the detention hearing, based on a minute order from that date that lists his name. In fact, all of the minute orders list the alleged fathers name. However, the transcript from the detention hearing does not reflect that the father was present at that hearing, and the minute order from that and other hearings reflect a handwritten letter p (presumably designating present) next to the names of individuals who attended the hearings. None of the minute orders have this designation next to the name of the alleged father.

^[3] Pursuant to HSAs request, we take judicial notice of form JV‑130. (Evid. Code,  452, subd. (h), 459.)

^[4] Further rule references are to the California Rules of Court.

^[5] We note that an unwed father whose paternity has not been acknowledged or established is not considered a parent for purposes of the ICWA. (25 U.S.C.  1903(9).) We conclude, however, that the alleged fathers Indian heritage remains relevant because the social worker has a duty to inquire regarding whether the child may be an Indian child or may have Indian ancestors.  (Rule 5.664(d)(2), italics added.)

^[6] Appellants trial attorney reported that the alleged father contacted him the day before the six-month review hearing, stating that he was unable to attend the hearing but wanted to appear at some time and wanted counsel appointed to represent him.