In re Isaac S.

Filed 7/23/07 In re Isaac S. 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 Riverside County. Becky Dugan, Judge. Affirmed.

Robert McLaughlin, under appointment by the Court of Appeal, for Defendant and Appellant.

Joe S. Rank, County Counsel, and Anna M. Deckert, Deputy County Counsel, for Plaintiff and Respondent.

Michael D. Randall, under appointment by the Court of Appeal, for Minor.

I. INTRODUCTION

Defendant and appellant Alexxis^[1] S. (mother) appeals from an order of the juvenile court terminating her parental rights to Isaac S. (minor) under Welfare and Institutions Code^[2] section 366.26. Mothers sole contention on appeal is that the Riverside County Department of Public Social Services (Department) did not comply with the inquiry provisions of the Indian Child Welfare Act (25 U.S.C. 1901 et seq.) (ICWA).^[3] We conclude that any error was harmless, and we affirm.

II. FACTS AND PROCEDURAL BACKGROUND

In December 2005, the Department detained minor, then six months old. Mother had left minor with her sister, and a domestic disturbance had occurred at the sisters home. The Department filed a petition alleging minor came within the provisions of section 300, subdivisions (b) and (g).

In the detention report filed on December 5, 2005, the Department concluded that ICWA did or might apply because the Department wasnt able to ascertain if mother has Indian ancestry because the mother didnt make herself available so that [the social worker] could interview her. However, the Department reported a social worker had spoken to mother before the detention hearing on December 2, 2005, although the report did not indicate whether the social worker had inquired into mothers Indian heritage. The Department did not check either box l (Child may be a member of, or eligible for, membership in a federally recognized Indian tribe) or m (Child may be of Indian ancestry) on the dependency petition. Mother did not appear at the detention hearing. The juvenile court detained minor and removed him from mothers custody. The juvenile court did not make any findings relating to the applicability of ICWA at the detention hearing.

In the December 29, 2005, jurisdiction/disposition report, the Department again stated that ICWA did or might apply because mother didnt make herself available for an interview. In January 2006, the juvenile court sustained the petition and declared minor a dependent of the juvenile court. The court granted mother visitation and ordered six months of reunification services. Mother did not attend the jurisdiction/disposition hearing. The juvenile court did not make any findings relating to the applicability of ICWA at the jurisdiction/disposition hearing.

In June 2006, the Department filed a six-month status review report. The Department stated it had been unable to locate mother during the first month of the case, but had eventually determined she was incarcerated. Mother was scheduled to be released on April 27, 2006, but she was rearrested on May 5, 2006, and was subsequently sentenced to one year four months in prison. Mother was able to visit minor during her incarceration, and the visits were very positive for mother, but minor had not developed a bond with her. In the report, the Department stated that ICWA did not apply, although the report did not indicate whether the Department had inquired into minors possible Indian ancestry.

Mother did not appear at the status review hearing on July 3, 2006. The juvenile court terminated mothers reunification services and scheduled a section 366.26 hearing. The juvenile court did not make any findings relating to the applicability of ICWA at the status review hearing.

In the section 366.26 report, the Department stated that ICWA did not apply. Mother was incarcerated and she waived her appearance at the section 366.26 hearing. The trial court denied mothers request for a continuance of the hearing and terminated mothers parental rights. The juvenile court did not make any findings relating to the applicability of ICWA at the section 366.26 hearing.

III. DISCUSSION

Mother contends that California Rules of Court,^[4] rule 5.664(d),^[5] which implements the ICWAs inquiry provisions in California, provides that both the juvenile court and the Department have an affirmative and continuing duty to inquire whether a [dependent] child . . . is or may be an Indian child. Rule 5.664(d)(2) requires the social worker to ask the childs parents or legal guardians whether the child may be an Indian child or may have Indian ancestors. (Rule 5.6664(d)(2).)

In addition, [a]t the first appearance by a parent . . . in any dependency case . . . the parent . . . must be ordered to complete Parental Notification of Indian Status (Juvenile Court) (form JV-130). (Rule 5.664(d)(3).) Mother complains that no form JV-130 is in the record and there is no evidence in that record that the Department fulfilled its duty of inquiry. As noted above, in the detention report and jurisdiction/disposition report, the Department had stated that the ICWA did or might apply because mother had not made herself available for an interview. However, in the June 2006 status review report, the social worker indicated that she had communicated with mother. In that report, for the first time, the Department stated affirmatively that the ICWA does not apply. Mother never objected to that statement.

In the absence of evidence to the contrary, we presume that official duty has been complied with. (Evid. Code, 664; In re Rebecca R. (2006) 143 Cal.App.4th 1426, 1430 (Rebecca R.) [stating that there was no reason to think the social services agency had failed to carry out the courts order to make an inquiry of the parents concerning Indian ancestry].) Similarly, in In re S.B. (2005) 130 Cal.App.4th 1148, 1161, the court stated, From the affirmative representation that the ICWA did not apply, it is fairly inferable that the social worker did make the necessary inquiry.

With regard to mothers argument that the juvenile court erred in failing to require her to complete form JV-130 in accordance with rule 5.664(d)(3), we note that mother never appeared at any hearing, and thus the court did not have any opportunity to make such an order.

Furthermore, any error was harmless because mother 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.) (Rebecca R., supra, 143 Cal.App.4th at p. 1430.) As we held in Rebecca R., a parent who claims error in the ICWA inquiry must demonstrate on appeal that there is some indication that the child has Indian ancestry. (Id. at pp. 1430-1432.) We explained: 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. [Citation.] 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. (Rebecca R., supra, 143 Cal.App.4th at pp. 1431-1432.)

Although mother attempts to distinguish Rebecca R. on the underlying facts, she has made no attempt to distinguish the holding in Rebecca R., supra, 143 Cal.App.4th 1426,that we will not recognize claims of failure to comply with ICWA inquiry requirements unless the parent makes an offer of proof in this court that the interests protected by the ICWA were implicated in some way.

Mother also relies on In re J.N. (2006) 138 Cal.App.4th 450, 461, in which the court found a failure to comply with ICWA inquiry requirements and remanded for the limited purpose of conduct a proper inquiry. However, this courts view, as we held in Rebecca R., supra,143 Cal.App.4th 1426, is that an assertion of error without a showing of prejudice is insufficient. Mother has failed to demonstrate prejudice, and we therefore reject her claim of error.

IV. DISPOSITION

For the reasons stated, mothers claim that the termination order should be reversed is without merit. The order terminating her parental rights is affirmed.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

HOLLENHORST

J.

We concur:

RAMIREZ

P.J.

KING

J.

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^[1] Mothers name also appears in the record as Alexis and Allexxis.

^[2] All further statutory references are to the Welfare and Institutions Code unless otherwise specified.

^[3] Counsel for minor has joined in the arguments made in the Departments brief and requests this court to affirm the juvenile courts orders.

^[4] All further references to rules are to the California Rules of Court.

^[5] On January 1, 2007, former rule 1439 was renumbered as rule 5.664.