In re Katlin E.

Filed 10/2/07 In re Katlin 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

APPEAL from the Superior Court of San Bernardino County. James C. McGuire, Judge. Affirmed.

Michael D. Randall, under appointment by the Court of Appeal, for Defendant and Appellant.

Ruth E. Stringer, County Counsel, and Danielle E. Wuchenich, Deputy County Counsel, for Plaintiff and Respondent.

Konrad S. Lee, under appointment by the Court of Appeal, for Minor

Defendant and appellant Darrin G. (father) is the father of Katlin E. (the child), a dependent child of the juvenile court. The juvenile court terminated fathers parental rights. Fathers sole contention on appeal is that the termination order must be reversed because the juvenile court failed to perform its duty to inquire whether the child had any Indian heritage under the Indian Child Welfare Act (ICWA) (25 U.S.C. 1901 et seq.) Father has failed to demonstrate any reversible error, and we therefore affirm the termination order.

FACTS AND PROCEDURAL HISTORY

The child was born in early 1996, to a teenage mother. In March 1997, the San Bernardino County Department of Childrens Services (DCS) took both the mother and the child into custody; they were living with the maternal grandmother in a home that was filthy. The mother and the child were placed together in foster care, but the mother took the child and ran away.

Father was alleged to be the father of the child. Eventually, the mother brought the child to the paternal grandparents home.

DCS filed a juvenile dependency petition in March 1997. The petition alleged that the child came within Welfare and Institutions Code section 300, subdivision (b) (failure to protect). Father was incarcerated at the time and unable to care for the child himself. The juvenile court found that the child came within its jurisdiction and ordered family reunification services for the parents. The child was placed with the paternal grandparents.

After father was released from custody, he went to Northern California to pursue a job opportunity.

A six-month review hearing (Welf. & Inst. Code,  366.21, subd.(e)) was held in March 1998, nearly a year after the petition had been filed. Fathers move to Northern California had precluded regular visitation. The child was doing well in her placement with the paternal grandparents. The court found that father had not completed his court-ordered service plan.

At the 12-month review hearing (Welf. & Inst. Code,  366.21, subd.(f)), the social worker reported that father had not communicated with the social worker for eight months. The paternal grandfather told the social worker that father had called once to ask about the child. Father refused to give the paternal grandfather any specific information as to his whereabouts. Because the mother had reduced her erratic behavior, the social worker recommended that reunification services be extended an additional six months. The court agreed and ordered continued reunification services. The court also increased visitation for the mother.

An 18-month review hearing (Welf. & Inst. Code,  366.22) was ordered for September 1998. At that hearing, the social worker recommended terminating services for both parents but allowing continued visitation. The child was to continue living with the paternal grandparents. The child was closely bonded with the paternal grandparents. The family had visited father in Northern California, but father displayed only passive interest at best in his relationship with the child. Father provided no information or

documentation concerning his compliance with treatment. The social worker recommended a plan of long-term foster care for the child, placed with the paternal grandparents. The paternal grandparents were willing to be the childs guardians but did not want to adopt.

Father failed to appear at either the regularly scheduled 18-month hearing, or at a rescheduled 18-month hearing. The court did select long-term foster care as the permanent plan for the child.

Between 1998 and 2006, the court reviewed the matter at regular six-month intervals. The child remained in long-term foster care with the paternal grandparents. The child was doing well in the paternal grandparents home. She was well bonded to them. Father visited or contacted the child only infrequently during the eight-year period after the 18-month review hearing.

In September 2006, the social worker reported that the child was now nearly 11 years old. The recommendation was to change the childs permanent plan, as the paternal grandparents now wished to adopt her. Father had not visited the child since February 2006, when he saw her for less than one hour, and the mother did not visit at all during that year.

Notice of the proposal to set a hearing to terminate parental rights and select a permanent plan for the child was sent to fathers last known addresses, and notice of the selection and implementation hearing was otherwise achieved through notice to fathers attorney of record.

Father did not appear at the selection and implementation hearing. The mother did appear, and she informed the court that father was incarcerated. The hearing was continued.

At the continued hearing, father appeared in court for the first time in nearly 10 years. He contested the recommendation to terminate his parental rights. At the continued contested selection and implementation hearing, father was present, but he proffered no affirmative evidence. The court found that the child was adoptable and terminated fathers parental rights.

Father now appeals from the termination order.

ANALYSIS

The sole issue father raises on appeal is the courts asserted lack of compliance with a duty under ICWA to inquire whether the child may have any Indian ancestry.

I. No Reversal Is Required

Father complains that the record below fails to show affirmatively that the juvenile court and DCS complied with their duty under ICWA to inquire of the parents whether the dependent child is or may be an Indian child. (Citing In re Karla C. (2003) 113 Cal.App.4th 166, 174; In re H. A. (2002) 103 Cal.App.4th 1206, 1212.) He argues that no Parental Notification of Indian Status forms (Judicial Counsel Forms, form JV-130) appear in the record. There is also no explicit indication that the juvenile court ever asked father if he had an Indian heritage.

The record does show, however, that this dependency began in 1996. At that time, the juvenile petition on its face included a box to be checked if DCS was aware that the child might come within ICWA. The box on the face of the petition here was not checked. Consistent with that datum, the reports and the court orders for many years recited affirmatively that ICWA did not apply. This was sufficient under procedures in effect at the time. (See In re S.B. (2005) 130 Cal.App.4th 1148, 1161-1162; In re Aaliyah G. (2003) 109 Cal.App.4th 939, 942-943.)

Father makes much of the absence of JV-130 forms, relying on In re J.N. (2006) 138 Cal.App.4th 450. [F]athers complaint is based in part on a provision that was not in force when the dependency began. [California Rules of Court, r]ule 1439(d) was amended effective January 1, 2005, [several years] after the parties first appearance in this case, to provide an affirmative and continuing duty to inquire into a childs Indian ancestry. (Italics added.) Likewise, no JV-130 form appears in the record, because the provision for such a form did not exist in the court rules at the time this dependency began. There simply was no form JV-130 at that time, [many years] before the amended rule took effect. (In re Rebecca R. (2006) 143 Cal.App.4th 1426, 1429.)

Further, in In re J.N., supra, 138 Cal.App.4th 450, there were inconsistencies in the documentary record. A JV-130 form had been filed for one parent, but not for the other. There was also a discrepancy between the minute orders and the reporters transcript as to whether an oral inquiry had been made. There are no such inconsistencies here. The record consistently indicated that ICWA did not apply.

[F]inally, we reject fathers claim because father has failed to show a miscarriage of justice, which is the fundamental requisite before an appellate court will reverse a trial courts judgment. (Cal. Const., art. VI, 13.)

In In re J.N., supra, 138 Cal.App.4th 450, at page 461, the agency conceded that the record does not show these rules were complied with, but urges us to find any error harmless since there is nothing in the record to indicate mother has any Indian ancestry. The court, however, refuse[d] to speculate about what mothers response to any inquiry would be . . . . (Ibid.) The court therefore made a limited reversal and remanded to the trial court to make the inquiry. Father essentially asks the same of us, to overlook his failure to demonstrate a miscarriage of justice. This we decline to do.

The sole reason an appellate court is put into a position of speculation on the matter is the parents failure or refusal to tell us. Father complains that he was not asked below whether the child had any Indian heritage. Fair enough. But, there can be no prejudice unless, if he had been asked, father would have indicated that the child did (or may) have such ancestry.

Father is here, now, before this court. There is nothing whatever which prevented him, in his briefing or otherwise, from removing any doubt or speculation. He should have made an offer of proof or other affirmative representation that, had he been asked, he would have been able to proffer some Indian connection sufficient to invoke the ICWA. He did not.

In the absence of such a representation, the matter amounts to nothing more than trifling with the courts. (People v. Beebe (1989) 216 Cal.App.3d 927, 932.) The knowledge of any Indian connection is a matter wholly within the appealing parents

knowledge and disclosure is a matter entirely within the parents present control. The ICWA is not a get out of jail free card dealt to parents of non-Indian children, allowing them to avoid a termination order by withholding secret knowledge, keeping an extra ace up their sleeves. Parents cannot spring the matter for the first time on appeal without at least showing their hands. Parents unable to reunify with their children have already caused the children serious harm; the rules do not permit them to cause additional unwarranted delay and hardship, without any showing whatsoever that the interests protected by the ICWA are implicated in any way.

The burden on an appealing parent to make an affirmative representation of Indian heritage is de minimis. In the absence of such a representation, there can be no prejudice and no miscarriage of justice requiring reversal. (In re Rebecca R., supra, 143 Cal.App.4th at pp. 1430-1431.)

Fathers briefing here is devoid of a scintilla of a suggestion that, had he been asked, he could honestly have stated that the child had, or may have had, any Indian ancestry. In re Mary G. (2007) 151 Cal.App.4th 184, is distinguishable on that basis. There, the parents did disclose some Indian ancestry to the agency. (Id. at p. 212.) No representations have been made here.

DISPOSITION

Father has shown no miscarriage of justice or prejudice resulting from the trial courts order. The order terminating fathers parental rights is affirmed.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

/s/ McKinster

Acting P.J.

We concur:

/s/ Gaut

J.

/s/ King

J.

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