In re Alissa A.

Filed 11/1/07 In re Alissa A. 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. Deborah Daniel, Temporary Judge. (Pursuant to Cal. Const., art. VI, 21.) Affirmed.

Valerie N. Lankford, under appointment by the Court of Appeal, for Defendant and Appellant.

Ruth E. Stringer, County Counsel, and Jeffrey L. Bryson, Deputy County Counsel, for Plaintiff and Respondent.

Suzanne F. Evans, under appointment by the Court of Appeal, for Minors.

Appellant J.A. (father) is the presumed father of Alissa A. and Giovanni A. (the children). Fathers parental rights were terminated. On appeal, his sole claim is that the juvenile court and the San Bernardino County Department of Childrens Services (the department) failed to inquire of him whether he had any Indian ancestry for purposes of the Indian Child Welfare Act. (25 U.S.C. 1901 et seq.; ICWA.) We affirm.^[1]

FACTUAL AND PROCEDURAL BACKGROUND

On February 7, 2006, the department filed Welfare and Institutions Code^[2]section 300 petitions on behalf of the children. The petitions alleged that the children came within the provisions of section 300, subdivisions (b) (failure to protect) and (g) (no provision for support). Specifically, the petition included the allegations that: 1) the childrens mother (mother)^[3]had substance abuse problems and had allowed criminal activity to occur in the home where she and the children lived; 2) father had substance abuse problems and was incarcerated on February 3, 2006, on drug charges; and 3) father negligently failed to supervise and protect the children from the conduct of the custodial parent (mother).

Detention

A detention hearing was held on February 8, 2006. The court appointed counsel for father, and ordered the department to locate father through the prison locator system. The court placed the children in the temporary custody of the department and detained them in foster care. The court also ordered father and mother to reveal any membership in an Indian tribe.

Jurisdiction/Disposition

The social worker prepared a jurisdiction/disposition report which stated that father was incarcerated at the California Mens Colony in San Luis Obispo. The social worker recommended that the court find father to be the presumed father; he was listed on the childrens birth certificates. The social worker indicated that ICWA may apply, since mother claimed Cherokee heritage.

Father appeared at a continued jurisdiction/disposition hearing, and the court declared him the presumed father. The court declared the children dependents of the court and ordered father (and mother) to participate in reunification services.

On March 15, 2006, the social worker filed a Declaration of Due Diligence, stating that he had completed efforts to notice all involved Indian tribes and that he had not received any confirmations of membership.

ICWA Notice Review Hearing

On May 22, 2006, the court held an ICWA Notice Review hearing. Father was present with his counsel. All three Cherokee tribes that received notice stated that the children were not registered or eligible to register as members of their tribes, and, thus, the tribes did not intend to intervene. The court found that ICWA did not apply and that the department had complied with the ICWA noticing requirements. Father did not object.

Six-Month Review Hearing

By the time of the six-month review hearing, father had failed to remain in contact with the department, and his whereabouts were unknown. The social worker attempted to contact fathers parole officer regarding fathers whereabouts, but did not receive a response.

The court terminated reunification services and set a section 366.26 hearing.

Section 366.26 Report and Hearing

Father was located at the West Valley Detention Center and, on December 13, 2006, was personally served notice of the section 366.26 hearing. At a continued section 366.26 hearing, father was present with counsel. The court terminated parental rights and ordered adoption as the childrens permanent plan.

ANALYSIS

No Reversal is Required

Father argues that the termination order must be reversed since the department and the court failed to inquire if he had any Indian ancestry. He specifically asserts that there is no indication in the record that he was asked about possible Indian heritage or that he was ever provided with a Form JV-130 (Parental Notification of Indian Status) to complete. We reject fathers claim of error.

Father cites California Rules of Court, rule 5.664(d) (rule 5.664), which 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. He also relies upon In re J.N. (2006) 138 Cal.App.4th 450 in support of his claim. In that case, the agency conceded that the record did not show that the ICWA inquiry requirements were complied with, but urged the court to find any error harmless, since there was nothing in the record to indicate that the mother had any Indian ancestry. The court, however, refuse[d] to speculate about what mothers response to any inquiry would be . . . . (Id. at p. 461.) Instead, the court made a limited reversal and remanded to the trial court to make the ICWA inquiry. (Id. at pp. 461-462.)

Father here essentially asks the same of us. However, we decline to follow the procedure set forth in In re J.N., pursuant to our reasoning in In re Rebecca R. (2006) 143 Cal.App.4th 1426 (Rebecca R.). In Rebecca R., we rejected the fathers request under In re J.N. for a limited remand since he had failed to show a miscarriage of justice, which is the fundamental requisite before an appellate court will reverse a trial courts judgment. [Citation.] (Id. at p. 1430.) We explained that [t]he sole reason an appellate court is put into a position of speculation on the matter is the parents failure or refusal to tell us [whether he/she has Indian heritage]. (Id. at p. 1431.) As in the instant case, the father in Rebecca R. also complained that he was not asked below whether the child had any Indian heritage.^[4]We concluded that there can be no prejudice unless, if he had been asked, father would have indicated that the child did (or may) have such ancestry. (Ibid.)

Here, as in Rebecca R., father has failed to show a miscarriage of justice. First, he was personally present at the ICWA Notice Review hearing and failed to disclose any tribal membership. Second, [t]here is nothing whatever which prevented [father], 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. (Rebecca R., supra, 143 Cal.App.4th at p. 1431.)

The burden on an appealing parent to make an affirmative representation of Indian heritage is de minimis. (Rebecca R., supra, 143 Cal.App.4th at p. 1431.) Here, father has merely stated that the children may have Indian heritage. Since father has failed to make any affirmative representation, there can be no prejudice and no miscarriage of justice requiring reversal. (Ibid.)

DISPOSITION

The order terminating fathers parental rights is affirmed.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

/s/ HOLLENHORST

Acting P.J.

We concur:

/s/ RICHLI

J.

/s/ KING

J.

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^[1] Counsel for the children filed a letter brief on September 5, 2007, urging us to affirm the courts orders.

^[2] All further statutory references will be to the Welfare and Institutions Code unless otherwise indicated.

^[3] Mother is not a party to this appeal.

^[4] As father points out, rule 5.664 was not yet in effect at the time Rebecca R. was decided. However, this is a distinction without a difference, since the inquiry requirement rule in effect at that time was California Rules of Court, rule 1439(d), which contained the same wording as rule 5.664.