Filed 6/27/22 In re N.A. CA2/8

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION EIGHT

APPEAL from an order of the Superior Court of Los Angeles County, Daniel Zeke Zeidler, Judge. Affirmed.

Nancy R. Brucker, under appointment by the Court of Appeal, for Defendant and Appellant.

Dawyn R. Harrison, Acting County Counsel, Kim Nemoy, Assistant County Counsel, and Brian Mahler, Deputy County Counsel, for Plaintiff and Respondent.

____________________

N.L., the mother of N.A., challenges an order terminating her parental rights based on the Indian Child Welfare Act (25 U.S.C. § 1901 et seq.) (the Act) and related state law. On the maternal side, the Los Angeles County Department of Children and Family Services inquired of the maternal grandmother and attempted to communicate with other family members. Any deficient inquiry was harmless due to the Department’s other investigative efforts involving maternal family members. On the paternal side, under the facts of this case, the Department had no duty to inquire of an alleged father, R.A., who never appeared in the case and made no official action to prove a biological connection with N.A. Lastly, there was no reason to know N.A. was an Indian child, therefore there was no deficiency in formal notice. We affirm.

I

In December 2018, a court terminated the mother’s parental rights over four children, N.A.’s siblings or half siblings. In that case, the Department sent notices under the Act and the court found the Act did not apply.

In January 2019, the mother gave birth to N.A., who tested positive for methamphetamine. Soon after N.A.’s birth, the Department filed a Welfare and Institutions Code section 300 petition on her behalf.

The court removed N.A. from the mother’s custody. On May 10, 2021, the court terminated her parental rights.

The issue in this case is inquiry under the Act, and a related issue of paternity. Our factual recitation focuses on these two issues.

First, we recount the Department’s inquiry efforts.

On January 30, 2019, the mother said N.A. did not have Indian ancestry.

On February 5, 2019, the mother filed a Parental Notification of Indian Status form stating the mother may have ancestry in an Apache tribe. She listed “Texas” as the name of the tribal band. The court found reason to believe N.A. was an Indian child and ordered the Department to make further inquiry.

The Department spoke to the maternal grandmother, Nora L. Nora believed there was Apache “heritage” on her father’s side through N.A.’s great-great-great-grandmother. Nora did “not really have information” about this. She said, “[T]here’s no proof.” She thought her father would have information, but he had no phone. She would see her father and would ask for detailed information about this issue.

The Department followed up about a week later. Nora had not spoken to her father yet. She confirmed information about family members who had been on the notices in the case involving the mother’s other children. Nora also provided one date of death for a family member.

The Department followed up again a few weeks later. Nora gave the phone to the mother, who said Nora’s father, the great-grandfather, had no additional information except the name of the great-great-great-grandmother. The mother gave the Department this name.

The mother gave a phone number for a maternal great-uncle who might have more information. The Department called him twice and left detailed messages regarding the Act and requested he call back. He did not. Before these calls, another social worker had spoken to the great-uncle about N.A.’s placement. There is no evidence that social worker asked about Indian ancestry.

In April 2019, the Department sent notices to the Bureau of Indian Affairs, the Secretary of the Interior, and eight federally recognized Apache tribes. The notices included the names, birth dates, and some address information for the mother, two maternal grandparents and four maternal great-grandparents, as well as the name, former address, and birth date of R.A. and the name and current addresses of R.A.’s mother and father.

The Department received signed return receipts for each notice. By October 2019, seven of the eight tribes had responded and said N.A. was not eligible for tribal membership. The court found there was no reason to know N.A. was an Indian child and did not order formal notice. Later, the eighth tribe responded saying N.A. was not eligible for tribal membership.

We turn to paternity.

At the outset of the case, the mother filed a parentage questionnaire stating she believed R.A. was N.A.’s father, but the mother was never married to R.A., R.A. was not present at N.A.’s birth and did not sign N.A.’s birth certificate, R.A. never received N.A. in his home, and there was no paternity test. N.A.’s birth certificate does not name a father.

In February 2019, the court deferred a paternity finding until the father appeared in court. He never appeared.

Throughout the case, the mother reported she did not know the alleged father’s location or contact information.

The Department sent notices to a dozen potential addresses for the alleged father. It also attempted to contact him through Facebook. This was unsuccessful.

R.A. is involved with the Department in another case with a different mother. A social worker in that case spoke to him at least one time on the phone in July 2020. A social worker in the present case called and texted that number in August 2020 and sent a letter to an updated address but received no response.

In September 2020, the Department contacted someone it identified as R.A.’s girlfriend. She said she did not have contact with him. She did not have his contact information or know his location.

In September 2020, the court found R.A. was an alleged father, only.

The Department spoke to R.A.’s sister in October 2020. She did not have his contact information or know his location.

II

The Department’s inquiry was largely proper. Error in not asking a maternal aunt and uncle was harmless because of the Department’s other investigative efforts involving the maternal family.

We review findings under the Act for substantial evidence. (In re Josiah T. (2021) 71 Cal.App.5th 388, 401.)

The Department and the court have an affirmative and continuing duty to inquire whether children involved in proceedings may be Indian children. (Welf. & Inst. Code, § 224.2, subd. (a).) This continuing duty has three phases: the initial duty to inquire, the duty of further inquiry, and the duty to provide formal notice to tribes. (In re Dominic F. (2020) 55 Cal.App.5th 558, 566 (Dominic).)

The initial duty to inquire begins when a referring party reports abuse or neglect and the Department starts an investigation. (Welf. & Inst. Code, § 224.2, subd. (a); Dominic, supra, 55 Cal.App.5th at p. 566.) This duty includes asking the child, parents, legal guardian, extended family members, and others who have an interest in the child whether the child is, or may be, an Indian child. (§ 224.2, subd. (b); Dominic, at p. 566.)

Assembly Bill No. 3176 (2017–2018 Reg. Sess.) repealed and reenacted Welfare and Institutions Code section 224.2 and added the extended family initial inquiry, effective January 1, 2019. (Stats. 2018, ch. 833, §§ 4–5.)

In the second phase, if there is reason to believe an Indian child is involved, the Department must make further inquiry. (Welf. & Inst. Code, § 224.2, subd. (e).)

In the third phase, if there is reason to know an Indian child is involved, the Department must follow formal notice requirements. (Welf. & Inst. Code, § 224.3.)

There is substantial evidence the Department complied with its inquiry duties as to certain relatives and to tribes. There is substantial evidence it inquired of the mother, the maternal grandmother, and the Apache tribes. There is also evidence the Department attempted to inquire of two other maternal relatives.

The mother contends the Department’s inquiry of maternal family members was deficient. She identifies four people: the great-grandfather, a great-uncle, an uncle, and an aunt. The Department attempted to inquire of two of these family members and any error was harmless.

The great-grandfather lacked a phone, the maternal grandmother agreed to speak to him, and the mother relayed all the information he had about Indian ancestry. This was not error.

The Department called the great-uncle twice, left two detailed messages asking about the family’s possible Indian ancestry, and did not hear back. This was not error.

As extended family members, the Department should have inquired of the aunt and uncle, but this was harmless. The mother claimed Apache ancestry on her mother’s side and the maternal grandmother confirmed information about her family. There is no evidence to suggest the mother’s two siblings had information the mother and the maternal grandmother lacked. The Department’s other extensive inquiry efforts involving the maternal family make its failure to inquire of the aunt and uncle harmless.

The Department did not need to inquire of the alleged father and his family.

We summarize some terminology about paternity. There are three types of fathers in juvenile dependency law: presumed, biological, and alleged. The categories elevate the rights of fathers who have entered a familial relationship with the mother and child. (In re P.A. (2011) 198 Cal.App.4th 974, 979–980 (P.A.).) We delineate these three categories of presumed, biological, and alleged fathers.

Presumed is the highest status. (P.A., supra, 198 Cal.App.4th at p. 980.) Marriage to the mother can confer this status. (Fam. Code, § 7611, subd. (a).) So can receiving a child into one’s home and openly holding out the child as one’s own. (Id., subd. (d).) Presumed status carries certain rights, including rights to appointed counsel, child custody, and reunification services. (P.A., at p. 980.)

Biological status means the father has established paternity but has not established he is a presumed father. (P.A., supra, 198 Cal.App.4th at p. 979.)

Alleged status is the lowest of the three. It means the person may be the father but has not established biological paternity or has not achieved presumed status. (In re Zacharia D. (1993) 6 Cal.4th 435, 449, fn. 15.) Alleged status typically does not confer many of the rights of a presumed father. (In re Paul H. (2003) 111 Cal.App.4th 753, 760; see Welf. & Inst. Code, § 316.2 [alleged fathers have right to notice].)

Turning to the Act, an Indian child either is (1) a member of a tribe or (2) eligible for membership and is the biological child of a member. (25 U.S.C. § 1903(4).) The Act excludes from its definition of a parent an “unwed father where paternity has not been acknowledged or established.” (25 U.S.C. § 1903(9).) Thus, a child with an alleged father who has not acknowledged or established paternity could not be an Indian child through the alleged father and inquiry is unnecessary. (Cf. In re E.G. (2009) 170 Cal.App.4th 1530, 1533 [notice requirements not activated unless alleged father establishes biological paternity]; In re Daniel M. (2003) 110 Cal.App.4th 703, 709 [alleged father lacks standing to challenge violation of the Act’s notice provisions].)

There is no evidence the father acknowledged or established he was N.A.’s parent. He did not undergo paternity testing, he was not present when N.A. was born, and he did not sign N.A.’s birth certificate. Nor did he receive N.A. into his home or have a familial connection such as marriage to the mother. Despite the Department’s attempts to contact R.A., he never appeared in the case. On these facts, N.A. could not meet the definition of an Indian child by virtue of her relationship with the alleged father.

The Department may be wise to inquire of alleged fathers and their families at the outset of cases, for alleged fathers sometimes may establish paternity. This is not such a case. The Department did not need to inquire of R.A. or his family.

In her opening brief, the mother challenged the notices the Department sent to the tribes. As to the maternal relatives, the mother primarily identified missing current or former address information. In her reply brief, however, the mother said the case “does not concern a ‘reason to know’ that triggers an obligation to notify tribes.” The position stated in the reply brief is correct. Given the tribes’ responses that N.A was neither a member nor eligible for membership, there was no reason for the Department to know N.A. was an Indian child. Nothing triggered the formal notice requirement. There was no error.

• DISPOSITION

The order is affirmed.

WILEY, J.

We concur:

GRIMES, Acting P. J. HARUTUNIAN, J.*

* Judge of the San Diego Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.