Filed 12/19/17 In re K.L. CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION TWO

APPEAL from the Superior Court of San Bernardino County. Annemarie G. Pace, Judge. Affirmed.

Brent Riggs, under appointment by the Court of Appeal, for Defendant and Appellant.

Jean-Rene Basle, County Counsel, Danielle E. Wuchenich, Deputy County Counsel for Plaintiff and Respondent.

The juvenile court terminated the parental rights of defendant and appellant J.H. (Mother) to her son K.L.H. (Minor). (Welf. & Inst. Code, § 366.26, subd. (b)(1).)[1] Mother contends the juvenile court erred because a proper investigation was not conducted under the Indian Child Welfare Act of 1978 (ICWA). (25 U.S.C. § 1901 et seq.; § 224 et seq.) We affirm the judgment.

FACTUAL AND PROCEDURAL HISTORY

Minor was born in February 2013. On May 21, 2014, Mother went to a church to receive food. While at the church, a church member invited Mother to stay at her home because Mother did not have a home. Mother and Minor went to the woman’s home. Mother left the next day, leaving Minor at the home. Mother did not return. On May 25, plaintiff and appellant San Bernardino County Children and Family Services (the Department) detained Minor and placed him in foster care.

At the detention hearing on May 29 it was unclear if ICWA might apply because Mother’s whereabouts were unknown. Mother had a history of abusing methamphetamines.

Mother was present at the June 19 jurisdiction and disposition hearing. Three men were identified as possibly being Minor’s father, but ultimately none were proven to be Minor’s father. Prior to the hearing, Mother completed a “Parental Notification of Indian Status” form (ICWA-020). On the form, Mother marked the box indicating she may have Indian ancestry. Next to the box, Mother wrote, “On father[’s] side. Paternal grandmother.” Mother did not provide any further information, such as a possible tribe.

At the jurisdiction/disposition hearing, the following exchange took place:

“The Court: Ma’am, I have a form which is entitled Parental Notification of Indian Status and it says ‘I may have Indian ancestry on the father’s side.’ It’s his grandmother; is that correct?

“The Mother: No. It’s my dad. Well, my paternal grandmother, my father’s mother.

“The Court: On your father’s side?

“The Mother: Yeah.

“The Court: And what’s the paternal grandmother’s name?

“The Mother: [J.T.].

“The Court: Is she alive?

“The Mother: Yes.

“The Court: And you have information where she can be reached?

“The Mother: Currently not on me. I would have to look at my phone for a [sic] contact information.

“The Court: Sure. Do you have your phone with you?

“The Mother: No.

“The Court: Could you get that information where the social worker can contact the paternal grandmother?

“The Mother: Yes.

“The Court: Apparently she is the best source of any information as to American Indian ancestry, correct?

“The Mother: Yes.

“The Court: You don’t happen to understand what tribe?

“The Mother: I’m not exactly sure what tribe, but I just know that she comes from Corpus Christi, Texas.

“The Court: All right. So mother thinks she may have American Indian ancestry through the paternal grandmother and she has contact information for [J.T.], the maternal [sic] grandmother, and will provide that information as quickly as you can to the social worker so we can make appropriate further inquiry and notify any tribes if tribes are identified.”

In July, the Department mailed a “Notice of Child Custody Proceeding for an Indian Child” (ICWA-030) to (1) the Bureau of Indian Affairs in Sacramento; (2) the Bureau of Indian Affairs in Washington, D.C.; and (3) Mother. The form included Mother’s name, current address, former addresses, and date of birth. No possible tribal affiliations were given. The form included Mother’s mother’s name, current address, birthplace, and date of birth. The form included Mother’s father’s name, birthplace, and day and month of his birth. The form included Mother’s grandmother’s name, which was listed as J.V. The form included Mother’s grandfather’s name, country of birth, date of death, and place of death. The form included Mother’s other grandmother’s name, which was listed as G.Q.K.

On July 14, the Bureau of Indian Affairs, in Sacramento, wrote a letter to the Department. In the letter, the Bureau of Indian Affairs wrote, “The Bureau of Indian Affairs does not determine tribal eligibility nor do we maintain a comprehensive list of persons possessing Indian blood. This kind of information must be obtained from the tribe itself, if tribal affiliation can be determined. It is the responsibility of the person claiming Indian ancestry to establish tribal affiliation.” A Department office assistant wrote an ICWA declaration of due diligence. The office assistant declared, “Efforts to notice all involved Indian tribes completed. No confirmation of membership received to date.”

In August, the Department’s office assistant filed another ICWA declaration of due diligence. The office assistant declared, “Efforts to notice all involved Indian tribes completed. No confirmation of membership received to date. Original Track & Confirm attached.” Attached to the declaration was tracking information reflecting the ICWA-030, which was sent to Mother via certified mail, had never been claimed by Mother.

In August, at a further contested jurisdiction hearing, Mother was not present. At the hearing, the Department’s attorney remarked that an ICWA declaration of due diligence had been filed and that “ICWA noticing is underway.” The juvenile court found ICWA may apply in the case and that “noticing under the Indian Child Welfare Act has been initiated.”

On September 16, the Department submitted a final ICWA declaration of due diligence by the office assistant. In the final declaration, the office assistant declared, “The undersigned confirms the ICWA[-]030 and petition were sent on 06/30/2014 via certified mail, return receipt requested, to the BIA and Secretary of the Interior as identified by parents. [¶] The Department has received a response from the BIA indicating they are unable to determine Tribal affiliation. [¶] The undersigned requests the court to make the finding: That notice has been conducted as required by [the] Indian Child Welfare Act and the Secretary of the Interior have [sic] failed to respond after 65 days since notice was received. [¶] ICWA does not apply. No further notice is required.”

On September 17, the juvenile court issued a written finding reflecting, “Notice has been conducted as required by the Indian Child Welfare Act (ICWA). The required 65 day period of time since noticing was received by the Bureau of Indian Affairs, the Secretary of the Interior and indicated tribes [See attached Final Declaration of Due Diligence dated 09/16/2014] has passed with no affirmative response of tribal membership received.” The juvenile court “ordered that ICWA does not apply in the above-referenced case, and no further notice is required.”

Mother stopped visiting Minor and communicating with the Department in September 2014. In December 2014, a Department social worker spoke with Mother’s mother (Grandmother), via telephone, about possibly placing Minor in Grandmother’s home. Grandmother did not believe she could care for Minor due to a variety of other relatives already living in Grandmother’s home. In September 2015, Grandmother contacted the Department and requested guardianship of Minor. In January 2016, the Department spoke with Grandmother. Grandmother explained that she had room in her home for Minor and wanted him to be raised with his five-year-old brother, who resided in Grandmother’s home. In September, the Department reported that Grandmother had “regular phone contact” with Minor. Ultimately, Minor’s foster family was identified as a prospective adoptive home for Minor. The juvenile court terminated Mother’s parental rights to Minor.

DISCUSSION

Mother contends the juvenile court erred by terminating her parental rights because the record is silent as to any ICWA investigation conducted by the Department.

“Juvenile courts and child protective agencies have ‘an affirmative and continuing duty to inquire’ whether a dependent child is or may be an Indian child. [Citations.] This affirmative duty to inquire is triggered whenever the child protective agency or its social worker ‘knows or has reason to know that an Indian child is or may be involved . . . .’ [Citation.] At that point, the social worker is required, as soon as practicable, to interview the child’s parents, extended family members, the Indian custodian, if any, and any other person who can reasonably be expected to have information concerning the child’s membership status or eligibility.” (In re Michael V. (2016) 3 Cal.App.5th 225, 233.) There is no obligation for the Department to record all of its investigative efforts. (See In re Gerardo A. (2004) 119 Cal.App.4th 988, 995 [a silent record does not mean the department failed to make an adequate ICWA inquiry].)

We apply the substantial evidence standard of review. (In re E.W. (2009) 170 Cal.App.4th 396, 403-404.) Under this standard, we view the record in the light most favorable to the juvenile court’s finding that the Department complied with ICWA and make all reasonable inferences in favor of the juvenile court’s finding. (In re H.B. (2008) 161 Cal.App.4th 115, 119-120.)

When Mother completed the Parental Notification of Indian Status form (ICWA-020), she indicated that she may have Indian ancestry. Mother wrote, “On father[’s] side. Paternal grandmother.” In court, Mother said her paternal grandmother is J.T., and that Mother would need to look at her telephone in order to provide J.T.’s contact information but that she did not have her telephone with her in court.

When the Department completed the ICWA-030, it included information concerning Grandmother, Mother’s father, both of Mother’s grandmothers, and one of Mother’s grandfathers. Mother’s grandmothers were listed as J.V. and G.Q.K. Given that (1) the Department had information about many more family members compared to the information provided by Mother; (2) the Department corrected the last name of Mother’s grandmother from T. to V.; and (3) the Department had ongoing communication with Mother’s mother, i.e., Grandmother, it can reasonably be inferred that the Department investigated Mother’s claim of possible Indian heritage.

In order for the Department to obtain the names, birthdates, contact information, and places of birth for Mother’s relatives, it would have needed to investigate Mother’s ancestry. Thus, the investigation is implied in the record. The Department then contacted the Bureau of Indian Affairs in Washington, D.C. and Sacramento, which is the proper course of conduct when no specific tribal affiliation has been identified. (In re Michael V., supra, 3 Cal.App.5th at p. 232.)

From the record, a reasonable inference is as follows: Mother did not have current contact information for her paternal grandmother. This inference is drawn from Mother providing an incorrect last name for her paternal grandmother, and from no contact information for the paternal grandmother being included in the notice, despite contact information for other relatives being included in the notice. Because Mother did not have current contact information for her paternal grandmother, the Department spoke with Grandmother, i.e., Mother’s mother, who provided information about the relatives, but who had no information about possible tribal affiliations on Mother’s father’s side of the family.

Although there is information about Mother’s father’s side of the family in the notice, such as names and places of birth, there is no contact information. It can reasonably be inferred that the Department inquired into Mother’s ancestry, and when its inquiry ended without contact information for Mother’s father’s side of the family, the Department sent the information it had to the Bureau of Indian Affairs. Thus, it can reasonably be inferred from the record that the Department adequately investigated Mother’s claim of Indian heritage because the Department followed up on Mother’s claim and gathered as much information as was available. (See In re C.Y. (2012) 208 Cal.App.4th 34, 39 [the Department must follow-up on information concerning Indian heritage but need not “conduct a comprehensive investigation”]; see also In re Levi U. (2000) 78 Cal.App.4th 191, 199 [department and juvenile court do not have to “cast about” for information related to possible tribal affiliation].)

Mother contends the ICWA investigation was inadequate because the record does not explicitly reflect that the Department tried to contact Mother’s paternal grandmother, J.V., or that it asked Mother for J.V.’s contact information. Given that the Department corrected Mother’s paternal grandmother’s last name from T. to V., it can reasonably be inferred that the Department made an effort to gather contact information about J.V. It appears, however, that the Department was unsuccessful in gathering anything but a corrected last name. The Department’s lack of success does not equate with a failure to investigate. In sum, we conclude the juvenile court did not err.

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

MILLER

J.

We concur:

McKINSTER

Acting P. J.

FIELDS

J.