Filed 8/15/17 In re D.E. CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.


IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION TWO



In re D.E. et al., Persons Coming Under the Juvenile Court Law.

RIVERSIDE COUNTY DEPARTMENT OF PUBLIC SOCIAL SERVICES,

Plaintiff and Respondent,

v.

V.A.,

Defendant and Appellant.


E067900

(Super.Ct.No. RIJ1400369)

O P I N I O N


APPEAL from the Superior Court of Riverside County. Jacqueline C. Jackson, Judge. Affirmed.
Megan Turkat Schirn, under appointment by the Court of Appeal, for Defendant and Appellant.
Gregory P. Priamos, County Counsel, and James E. Brown, Guy B. Pittman, and Carole Nunes Fong, Deputy County Counsel, for Plaintiff and Respondent.
I. INTRODUCTION
Defendant and appellant, V.A. (Mother), is the mother of three boys, Z.H., D.E., and Z.E., born in 2006, 2010, and 2015. Mother appeals from the January 25, 2017 orders terminating parental rights to D.E. and Z.E. and denying her petition to reinstate her services for Z.H. (Welf. & Inst. Code, §§ 366.26, 388.) Mother’s sole claim on appeal is that the juvenile court erroneously concluded that the Indian Child Welfare Act (ICWA) (25 U.S.C. § 1901 et seq.; see also Welf. & Inst. Code, § 224 et seq.) did not apply.
Mother claims the juvenile court failed to require plaintiff and respondent, Riverside County Department of Public Social Services (DPSS), to thoroughly investigate Mother’s possible Indian ancestry, and as a result the notices of the proceedings given by DPSS to the Bureau of Indian Affairs (the BIA) and to three Indian tribes were inadequate to allow the BIA or the tribes to determine whether Z.H., D.E., and Z.E. were Indian children. DPSS argues substantial evidence supports the court’s findings that ICWA did not apply, and any error was harmless.
We affirm. Mother has not shown that the court or DPSS failed to thoroughly investigate Mother’s possible Indian ancestry at any stage of the proceedings. Accordingly, Mother has not shown that the ICWA notices were deficient or lacked discoverable, material information concerning Mother’s Indian ancestry.
Mother did not raise her claim of ICWA noncompliance in the juvenile court. Had she done so, DPSS could have explained the efforts it made to elicit information concerning Mother’s possible Indian ancestry. But Mother did not raise the issue below and DPSS now lacks the opportunity to show it made a reasonable inquiry. Mother must “take the record as she finds it” and “the record reveals substantial evidence of ICWA compliance.” (In re Charlotte V. (2016) 6 Cal.App.5th 51, 58.)
II. BACKGROUND
On April 2, 2014, DPSS filed a dependency petition for Z.H. and D.E., alleging Mother and D.E., Sr., the father of D.E., engaged in domestic violence in the presence of the two boys, lived a transient lifestyle, failed to maintain a stable home environment, and abused controlled substances. (§ 300, subd. (b).) The petition further alleged that D.E., Sr. had an extensive criminal history, that W.H., the father of Z.H., was serving a 76-year state prison sentence, and that Mother and D.E., Sr. were currently incarcerated for domestic violence. The petition thus alleged all three parents were unable to care for or support Z.H. and D.E. (§ 300, subd. (g).)
Around March 30, 2014, Mother and D.E., Sr. denied any Indian ancestry to the social worker. On April 3, Mother and D.E., Sr. each completed “Parental Notification of Indian Status” or ICWA-020 forms. Mother checked the box stating she “may have Indian ancestry,” and indicated her ancestry was “Cherokee” and “maternal.” D.E., Sr. checked the box indicating he had no Indian ancestry as far as he knew. As of April 3, DPSS was unable to interview W.H. due to his incarceration in state prison.
On March 30, 2014, a social worker traveled to the home of the maternal aunt, S.R., who had D.E. in her care and was aware of Mother’s and D.E., Sr.’s incarceration. Z.H. was in the care of his paternal grandfather, W.H., Sr. Because the maternal grandmother, J.A., met DPSS’s criteria for emergency placement, D.E. and Z.H. were initially placed in J.A.’s care.
At a detention hearing on April 3, Mother, D.E., Sr., the maternal aunt S.R., and the maternal grandmother J.A. were present. W.H. was not present, but counsel was appointed for W.H., Mother, and D.E., Sr. When the court asked who Mother’s Cherokee ancestry was “through,” Mother responded “Mother.” Mother’s counsel clarified that Mother’s Cherokee ancestry was on Mother’s “maternal side, her mother’s side.” The court ordered Z.H. and D.E. detained and ordered DPSS to notify “all identified tribes and/or [the BIA]” of the proceedings “as required by law . . . as ICWA may apply.” W.H. was also ordered to complete an ICWA-020 form.
On April 29, 2014, DPSS filed certificates of mailing and additional documentation showing that, on April 15, it had served ICWA-030 forms, titled, “Notice of Child Custody Proceeding for Indian Child” (the ICWA notices), along with copies of the petition, on the BIA and three tribes: the Cherokee Nation, the Eastern Band of Cherokee Indians, and the United Keetoowah Band of Cherokee Indians in Oklahoma. The filed documents included the ICWA notices, the petition, certificates of mailing, and signed certified mail receipts. The same ICWA notices and petition were served on Mother, W.H., and D.E., Sr. on April 15. The ICWA notices gave notice of a contested jurisdiction/disposition hearing on May 5, 2014.
The ICWA notices included (1) the names, dates of birth, and current addresses of Mother, W.H., D.E., Sr., and W.H., Sr. (the father of W.H.), and (2) the maternal grandmother, J.A.’s, name and date of birth. The ICWA notices also listed the three tribes under “Tribe or band, and location” for both Mother and J.A., but included no names or other information for the maternal grandfather, the maternal great-grandparents, or either boy’s paternal grandmother or paternal great-grandparents.
Along with the ICWA notices, DPSS filed two letters to DPSS, each dated April 2014 from the United Keetoowah Band of Cherokee Indians in Oklahoma, one letter referencing Z.H. and the other D.E. The letters stated that the tribe had searched its enrollment records with the information DPSS had provided, there was no evidence Z.H. or D.E. were descended from anyone on the Keetoowah roll, and the tribe, therefore, would not intervene in the case.
At the jurisdiction/disposition hearing on May 5, 2014, Mother, D.E., Sr. and W.H. were present with their respective counsel. The court found (1) there was reason to know an Indian child was involved, (2) DPSS had provided notice to all identified tribes and/or the BIA as required, and (3) the ICWA did not apply as to the United Keetoowah Band of Cherokee Indians. The court declared Z.H. and D.E. dependents of the court, ordered them removed from parental custody, and ordered reunification services for Mother and D.E., Sr. In August 2014, Z.H. and D.E. were placed with D.E.’s paternal grandmother.
On September 8, 2014, DPSS filed copies of letters it had received from the BIA (dated May 15, 2014), the Cherokee Nation (dated May 13, 2014), and the Cherokee Boys Club, Inc., representing the Eastern Band of Cherokee Indians (dated May 5, 2014). The letters from the tribes indicated Z.H. and D.E. were neither enrolled nor eligible to enroll as members of the tribes and did not meet ICWA’s definition of an Indian child. The letter from the Cherokee Nation also stated it was impossible to “validate or invalidate a claim of Cherokee heritage” without the full names, including maiden names, and dates of birth for the direct biological lineage linking the child to an enrolled member. The letters from the BIA (one for Z.H. and one for D.E.) noted that DPSS had provided tribal information and advised DPSS to “refer notice to the Tribe.”
At the November 5, 2014 six-month review hearing for Z.H. and D.E., Mother and D.E., Sr. were present with counsel. W.H. was not present but was represented by counsel. The maternal aunt S.R. was also present. DPSS asked the juvenile court to find, and the court found, that ICWA did not apply. Mother, D.E., Sr., and W.H. each submitted on DPSS’s November 5 review report and recommendations, which included a recommended finding that ICWA did not apply. Reunification services were continued for Mother and D.E., Sr., for both Z.H. and D.E.
In April 2015, Mother gave birth to Z.E. D.E., Sr. is the father of Z.E. In July 2015, DPSS filed a dependency petition for Z.E., alleging Z.E. was at risk of abuse or neglect because Mother had not completed her case plan and D.E., Sr.’s whereabouts were unknown. The petition also alleged that an Indian child inquiry had been made and Z.E. had no known Indian ancestry.
In a July 16, 2015 detention report, DPSS claimed ICWA did not apply to Z.E. and that, on July 14, both Mother and D.E., Sr. had denied any Indian heritage. Z.E. was detained from D.E., Sr. but remained with Mother under a family maintenance plan. As of July 2015, Mother and Z.E. were living with the maternal aunt, S.R. In December 2015, Z.H. and D.E. were returned to Mother under a family maintenance plan, and Z.E. remained with Mother. Reunification services were terminated for D.E., Sr.
In February 2016, Z.H., D.E., and Z.E. were detained from Mother and placed with the paternal grandmother of D.E. and Z.E. In March 2016, Z.H. was placed in foster care due to his “on-going negative behaviors” in the home of D.E. and Z.E.’s paternal grandmother. In May 2016, Mother’s reunification services were terminated.
On January 25, 2017, the court terminated parental rights for D.E. and Z.E. (§ 366.26) and denied Mother’s section 388 petition to reinstate her services for Z.H. The paternal grandmother of D.E. and Z.E. was committed to adopting D.E. and Z.E. The section 366.26 hearing for Z.H. was continued. As of January 25, Z.H. remained in foster care.
Mother timely appealed from the January 25, 2017 orders terminating her parental rights to D.E. and Z.E., and denying her section 388 petition to reinstate her services for Z.H. Neither W.H. nor D.E., Sr. are parties to this appeal.
III. DISCUSSION
A. ICWA
ICWA provides: “In any involuntary proceeding in a State court, where the court knows or has reason to know that an Indian child is involved, the party seeking the foster care placement of, or termination of parental rights to, an Indian child shall notify the parent or Indian custodian and the Indian child’s tribe, by registered mail with return receipt requested, of the pending proceedings and of their right of intervention.” (25 U.S.C. § 1912(a).) ICWA’s notice requirement, which is also codified in section 224.2, enables an Indian tribe or the BIA to determine whether the child is an Indian child and, if so, whether to intervene in or exercise jurisdiction over the proceeding. No foster care placement or termination of parental rights proceeding may be held until at least 10 days after the tribe receives the required notice. (25 U.S.C. § 1912(a); see Welf. & Inst. Code, § 224.2, subd. (d); see In re Cheyanne F. (2008) 164 Cal.App.4th 571, 576.) “ICWA furthers the federal policy ‘“‘that, where possible, an Indian child should remain in the Indian community. . . .’”’” (In re D.N. (2013) 218 Cal.App.4th 1246, 1250-1251.)
As indicated, ICWA’s notice provision is triggered if “the court knows or has reason to know that an Indian child is involved . . . .” (25 U.S.C. § 1912(a); Cal. Rules of Court, rule 5.481(a)(5)(A).) “‘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 . . . .” (25 U.S.C. § 1903(4).) An ICWA notice must include “[a]ll names known of the Indian child’s biological parents, grandparents, and great-grandparents, or Indian custodians, including maiden, married and former names or aliases, as well as their current and former addresses, birthdates, places of birth and death, tribal enrollment numbers, and any other identifying information, if known.” (Welf. & Inst. Code, § 224.2, subd. (a)(5)(C); 25 C.F.R. § 23.111(d) (2017); see 25 U.S.C. § 1912(a).)
Juvenile courts and child protective agencies also have “‘a continuing duty’ to inquire whether the child before it is an Indian child ‘in all dependency proceedings, including a proceeding to terminate parental rights.’” (In re Michael V. (2016) 3 Cal.App.5th 225, 234-235, second italics added; In re Isaiah W., supra, 1 Cal.5th at p. 10.) “[T]he duty to inquire is triggered by a lesser standard of certainty regarding the minor’s Indian child status (‘is or may be involved’) than is the duty to send formal notice to the Indian tribes (‘is involved’).” (In re Alice M. (2008) 161 Cal.App.4th 1189, 1200; see Cal. Rules of Court, rules 5.481(a) [inquiry], 5.481(b) [notice].) When the duty of inquiry is triggered, DPSS “is required to make further inquiry regarding the possible Indian status of the child, and to do so as soon as practicable, by interviewing the parents, Indian custodian, and extended family members . . . and any other person that reasonably can be expected to have information regarding the child’s membership status or eligibility.” (§ 224.3, subd. (c); In re Michael V., supra, at p. 235.)
Because the juvenile court has a continuing duty to inquire whether a child is or may be an Indian child, the court necessarily makes implied if not express findings, at each stage of a dependency proceeding, that there either is or is not reason to know the child is an Indian child. (In re Isaiah W., supra, 1 Cal.5th at p. 10.) Thus, properly understood, Mother’s appeal challenges the court’s implied findings, at the January 25, 2017 section 366.26 hearings for D.E. and Z.E., and the section 388 hearing for Z.H., that there was no reason to believe Z.H., D.E., or Z.E. were Indian children. (Ibid.; In re Michael, V., supra, 3 Cal.App.5th at p. 234.)
We review the court’s ICWA findings for substantial evidence. (In re Charlotte V., supra, 6 Cal.App.5th at p. 57.) “‘On review of the sufficiency of the evidence, we presume in favor of the order, considering the evidence in the light most favorable to the prevailing party, giving the prevailing party the benefit of every reasonable inference and resolving all conflicts in support of the order.’ [Citation.]” (In re I.W. (2009) 180 Cal.App.4th 1517, 1525.) “Deficiencies or errors in an ICWA notice are subject to harmless error review.” (In re Charlotte V., supra, at p. 57.)
B. Analysis
Mother claims the court erroneously concluded, on July 14, 2015, that ICWA did not apply. She argues the court made this finding without requiring DPSS to thoroughly investigate the possible Indian ancestry of Z.H. and D.E. Thus, she argues, the court also failed to require DPSS to provide adequate notice under ICWA. She claims the court’s error should be corrected by remanding the matter with directions requiring DPSS “to fully investigate [her] claim of Cherokee ancestry with all available maternal relatives . . . .” We conclude substantial evidence supports the court’s July 14, 2015 findings that ICWA did not apply.
Mother argues the ICWA notices given to the BIA and to the three tribes in April 2014 were inadequate because they did not include: (1) the maiden name or former address of the maternal grandmother, J.A.; (2) any name or other identifying information for the maternal grandfather; and (3) any names or other identifying information for the maternal great-grandparents. Mother points out that the social worker’s reports “did not explain what efforts were taken to conduct an ICWA inquiry.” Mother also points out that the maternal grandmother, J.A., and maternal aunt, S.R., were present at the April 3, 2014 detention hearing and “could reasonably be assumed to have the missing information” concerning the maternal grandmother, maternal grandfather, and great-grandparents.
Mother thus presumes that DPSS never spoke to J.A. or S.R. in order to acquire “the missing information” or to otherwise thoroughly investigate Mother’s lineal ancestry and claims of Cherokee heritage through the maternal grandmother. But Mother has not shown that an inadequate inquiry was made—merely because the ICWA notices failed to include (1) J.A.’s maiden name or former address, and (2) the names or any other information concerning the maternal grandfather or great-grandparents.
To be sure, once Mother claimed in April 2014 that she may have Cherokee ancestry through the maternal grandmother, DPSS was required to “make further inquiry regarding the possible Indian status” of Z.H. and D.E. by interviewing the maternal relatives, J.A. and S.R., and any other persons who reasonably could have been expected to have information concerning the boys’ Indian ancestry. (Welf. & Inst. Code, § 224.3, subd. (c); Cal. Rules of Court, rule 5.481(a)(5)(A).) But Evidence Code section 664 provides, “It is presumed that official duty has been regularly performed[,]” and the presumption is conclusive in the absence of evidence that the official duty was not performed. (In re Angelina E. (2015) 233 Cal.App.4th 583, 588.)
Here, nothing in the record indicates that DPSS did not discharge its official duty to thoroughly investigate the boys’ possible Cherokee ancestry by interviewing J.A. and S.R. (§ 224.3, subd. (c).) Thus, we presume that DPSS discharged its official duty of inquiry, and interviewed J.A. and S.R. concerning Mother’s lineal ancestry. Further, error is never presumed on appeal but must be affirmatively shown, and Mother, as the appellant, has the burden of affirmatively showing error. (In re D.W. (2011) 193 Cal.App.4th 413, 417-418.) On this record, Mother has not shown that DPSS failed to interview J.A. and S.R. or otherwise failed to investigate Mother’s claim of Cherokee Indian ancestry through J.A. (§ 224.3, subd. (c).)
Mother did not raise her claim of ICWA error in the juvenile court. Had she done so, the record might reveal whether DPSS failed to interview J.A. or S.R. or otherwise failed to investigate Mother’s claim of Cherokee ancestry through J.A. As explained in In re Charlotte V.: “If Mother had raised the ICWA notice issue in the juvenile court, she could have subpoenaed [DPSS] employees and questioned them about their efforts to elicit the required information from Charlotte’s family. In that event, [DPSS] could have introduced additional evidence to show that it had made an adequate inquiry. However, Mother did not raise the issue below and [DPSS] now lacks that opportunity. At this point, Mother must take the record as she finds it.” (In re Charlotte V., supra, 6 Cal.App.5th at p. 58.) Mother must also take the record as she finds it, and the record does not show that DPSS failed to adequately investigate Mother’s claim of Cherokee ancestry through J.A., by failing to interview J.A. or S.R. Indeed, the failure of the ICWA notices to include J.A.’s maiden name and former address, or any of the other “missing information” concerning the maternal relatives, could have been because neither J.A. nor S.R. were willing to provide the information. (See ibid. [“It is also possible that the maternal grandfather was evasive or uncooperative about his wife’s information.”].)
Accordingly, Mother’s reliance on In re A.G. (2012) 204 Cal.App.4th 1390 is misplaced. There, the child protective services agency admitted it violated ICWA’s inquiry and notice requirements. (Id. at p. 1395.) But here, DPSS makes no such admission, and Mother has not shown that DPSS failed to discharge its continuing duty of inquiry by interviewing Mother’s relatives concerning the boys’ possible Indian ancestry. In addition, in July 2015, after Z.E. was born in April 2015, Mother denied she had any Indian heritage.
Furthermore, there is no indication that the maternal grandfather, or his parents, had any Indian ancestry. Thus, Mother has not shown that the failure of the ICWA notices to include information concerning the maternal grandfather or his parents was prejudicial, or would have resulted in any tribe finding the boys were Indian children. (See In re S.B. (2005) 130 Cal.App.4th 1148, 1162.)
Lastly, Mother notes that W.H. did not complete or file the Parental Notification of Indian Status form, or ICWA-020 form, indicating whether he had any Indian ancestry, though the court ordered him to do so. On this basis, Mother argues DPSS must not have adequately inquired of W.H. or of Z.H.’s other paternal relatives whether W.H. and thus Z.H. had any Indian ancestry. But W.H.’s failure to complete the ICWA-020 form does not support an inference that W.H. claimed he had any Indian ancestry, or that DPSS failed to adequately investigate any such claim.
Again, Mother did not raise any claim of ICWA error in the juvenile court, and the record does not support her claims of ICWA error on appeal. (In re Charlotte V., supra, 6 Cal.App.5th at pp. 57-58.)
IV. DISPOSITION
The juvenile court’s January 25, 2017 orders are affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS

FIELDS
J.


We concur:

RAMIREZ
P. J.

McKINSTER
J.