Filed 4/1/22 In re Z.O. 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. Erin Alexander, Judge. Affirmed.

Konrad S. Lee, under appointment by the Court of Appeal, for Defendant and Appellant.

Tom Bunton, County Counsel, and Svetlana Kauper, Deputy County Counsel, for Plaintiff and Respondent.

I.

INTRODUCTION

H.E. (Mother) appeals following the termination of parental rights. Mother contends that the San Bernardino County Children and Family Services (CFS) and the juvenile court failed to comply with the duty of initial inquiry imposed by statutory provisions implementing the Indian Child Welfare Act (ICWA) of 1978 (25 U.S.C. § 1901 et seq.).

II.

FACTUAL AND PROCEDURAL BACKGROUND

On May 1, 2020, CFS filed a petition on behalf of then one-month old Z.O., who was born positive for amphetamines and had to remain in a Neonatal Intensive Care Unit on a ventilator as he was born preterm and exposed to syphilis. Mother had a history of abusing drugs, as well as an extensive history with child protective services involving her older children.^[1]

Throughout the dependency, Mother provided inconsistent contact information and CFS had difficulty locating Mother. Mother had informed hospital staff that she temporarily resided in California but intended to return to her permanent address in Nevada. When a CFS social worker made an unannounced visit to the address Mother had provided in San Bernardino County, that address did not exist. Likewise, when the Nevada child welfare agency made a check on Mother’s address in Nevada, the location appeared to be a dumpster site.

Hospital staff also had difficulties reaching Mother to obtain medical consents for treatment and surgeries for Z.O. Hospital staff was concerned about Mother’s ability to receive the appropriate medical care for Z.O. after his discharge, especially since the child required follow-ups with ophthalmology, neurology and Inland Regional Center. Hospital staff reported that Mother and the alleged father A.O.^[2] barely visited the child and had not seen Z.O. since March 31, 2020.

CFS’s social worker also attempted to contact Mother by phone several times but was unable to reach her. Despite numerous efforts, CFS was unable to locate Mother, the alleged father A.O., and the older children. As such, the social worker was unable to complete an inquiry regarding Z.O.’s Indian status.

Moreover, Mother and the alleged father did not appear at the May 4, 2020 detention hearing. The juvenile court therefore was unable to make an initial ICWA inquiry at that time. Z.O. was formally detained from parental custody and placed in a foster home.

By June 8, 2020, Mother’s whereabouts continued to remain unknown. The social worker, however, was able to interview the alleged father by phone on May 27. The alleged father denied having any Native American ancestry. He also denied having any contact information for Mother but offered to reach Mother by social media. The alleged father reported that he lived in Modesto and that he had last seen Z.O. a month before the interview.

At the initial jurisdictional/dispositional hearing on June 8, 2020, Mother and the alleged father appeared for the first time. The juvenile court conducted an initial ICWA inquiry at that time since it was the parents’ “first appearance.” When the court inquired of Mother whether she had any Native American heritage, Mother responded “No.” The alleged father also replied in the negative to the court’s query of whether he had any Native American ancestry.

Mother and the alleged father also filled out a “Parental Notification of Indian Status” form (ICWA-020 form), checking the box that stated, “I have no Indian ancestry as far as I know.” Mother and the alleged father also completed a “Family Find and ICWA Inquiry” form (CFS 030A form). Mother and the alleged father requested C.K., Z.O.’s alleged godmother, to be assessed for placement. In the section relating to the ICWA inquiry, Mother and the alleged father checked the “No” box to the question of whether they had Native American ancestry. The boxes with the relatives who may have any additional information regarding ICWA were left blank. Mother also completed the “Notification of Mailing Address” form (JV-140 form) identifying her current address in Sonora, California.^[3]

When the social worker contacted the individual whom Mother identified as the child’s godmother, C.K., the social worker learned that C.K. was a social worker at the Project RoomKey, a homeless shelter, in Sonora, California. C.K. reported that Mother and the alleged father resided at the homeless shelter and were working on their sobriety. However, by August 12, 2020, Mother and the alleged father’s whereabouts were unknown once again. Neither parent had participated in services, visited Z.O., or maintained contact with CFS.

Mother and the alleged father were not present at the contested jurisdictional/dispositional hearing held on September 23, 2020. The juvenile court dismissed the section 300, subdivision (g) (no provision for support) allegations, but found true the section 300, subdivision (b) (failure to protect) allegations and declared Z.O. a dependent of the court. The court also found that ICWA did not apply. The court further found that A.O. remained to be an alleged parent of Z.O., not entitled to reunification services. The court, however, granted CFS authority to conduct paternity testing if the alleged father made himself available for testing. Mother was granted reunification services and ordered to participate.

By March 2021, CFS recommended terminating Mother’s reunification services and setting a section 366.26 hearing. During the reunification period, Mother failed to maintain contact with CFS, failed to visit Z.O. regularly, and failed to participate in services. CFS thus was unable to conduct further inquiry as to any maternal or paternal relatives. Mother eventually contacted the social worker to report that she had been living in Nevada since July 2020 and that she was homeless. When asked about the whereabouts of her older children, Mother reported that the children were living with a relative in Arrowhead, California, and that they were well cared for, but failed to disclose any contact information for the relative. In March 2021, the social worker consulted with an eligibility worker in an attempt to identify Mother’s current address. Mother applied for Cash Aid benefits on February 25, 2021, but reported her residency status as homeless.

Mother was present at the six-month review hearing held on March 23, 2021. At that time, the juvenile court inquired of Mother of the older children’s whereabouts under oath. In response to the court’s questions, Mother disclosed that the older children resided at “their aunt’s house,” noting the aunt’s name as K.M. and providing her phone number. Mother denied knowing aunt K.M.’s specific address, but noted that she resided in Arrowhead. At Mother’s counsel’s request, the court thereafter set a contested six-month review.

On April 6, 2021, the social worker called aunt K.M. using the phone number Mother had provided in court. The aunt did not return the phone call. CFS also attempted to locate the aunt’s home by conducting a search through the school locator. The search, however, yielded no results because the children had never been enrolled in school in San Bernardino County. As a result of the aunt’s failure to cooperate with CFS, CFS was unable to conduct any inquiry or an investigation and the referral for Z.O.’s older siblings remained open.

The contested six-month review hearing was held on April 15, 2021. Neither Mother nor the alleged father were present. The juvenile court terminated Mother’s reunification services and set a section 366.26 hearing.

CFS recommended terminating parental rights and freeing Z.O. for adoption. Z.O. presented as an alert, happy, very active, and inquisitive child. He was receiving weekly services for his developmental delays and continued to have routine medical examinations given his numerous issues at birth. Mother had only one visit with Z.O. between April and August 2021, and had not called the child’s caregiver for any updates regarding his well-being. As to ICWA, Mother again denied any Native American ancestry when the social worker spoke with Mother on July 20, 2021. The alleged father had not been in contact with CFS and was unavailable for a further inquiry.

On September 2, 2021, Mother filed a section 388 petition seeking family maintenance or, in the alternative, reunification services and liberalization of visits. The juvenile court summarily denied Mother’s petition for failure to demonstrate changed circumstances and the best interest of the child. The contested section 366.26 hearing was held on November 10, 2021. Following testimony from Mother and arguments by the parties, the juvenile court terminated parental rights, found Z.O. adoptable, and freed Z.O. for adoption by his caregiver. Mother timely appealed.

III.

DISCUSSION

Mother contends the order terminating her parental rights must be reversed because CFS and the juvenile court failed to comply with their joint duty of initial inquiry imposed by state statutory provisions implementing ICWA.

In cases where “‘the facts are undisputed, we independently determine whether ICWA’s requirements have been satisfied.’” (In re D.F. (2020) 55 Cal.App.5th 558, 565; accord, In re A.M. (2020) 47 Cal.App.5th 303, 314.) We review the juvenile court’s ICWA findings under the substantial evidence test, “which requires us to determine if reasonable, credible evidence of solid value supports the court’s order.” (In re A.M., supra, at p. 314; accord, In re Austin J. (2020) 47 Cal.App.5th 870, 885.) “‘“We must uphold the court’s orders and findings if any substantial evidence, contradicted or uncontradicted, supports them, and we resolve all conflicts in favor of affirmance.”’” (In re Josiah T. (2021) 71 Cal.App.5th 388, 401; accord, In re A.M., supra, at p. 314; In re Austin J., supra, at p. 885.)

The parent who is appealing “‘has the burden to show that the evidence was not sufficient to support the findings and orders.’” (In re Austin J., supra, 47 Cal.App.5th at p. 885.) Where, as here, the juvenile court finds ICWA does not apply to a child, “[t]he finding implies that . . . social workers and the court did not know or have a reason to know the children were Indian children and that social workers had fulfilled their duty of inquiry.” (Ibid.)

ICWA “‘is a federal law giving Indian tribes concurrent jurisdiction over state court child custody proceedings that involve Indian children living off of a reservation. [Citations.] Congress enacted ICWA to further the federal policy “‘that, where possible, an Indian child should remain in the Indian community . . . .”’ [Citation.]’ [Citation.]” (In re Benjamin M. (2021) 70 Cal.App.5th 735, 740 (Benjamin M.).) ICWA’s purpose is thus to protect the interests of Indian children and promote the stability and security of Indian tribes by establishing minimum standards for, and permitting tribal participation in, dependency actions. (25 U.S.C. §§ 1901, 1902, 1903(1), 1911(c), 1912; In re Isaiah W. (2016) 1 Cal.5th 1, 7-8.) In ICWA, Congress established procedural rules applicable in dependency cases to ensure that if an Indian child is involved, they are properly identified. (In re Josiah T., supra, 71 Cal.App.5th at p. 401; 25 C.F.R § 23.107(a).)

The duties imposed by ICWA on the juvenile court and a county welfare agency can be separated into three phases: (1) a duty to initially inquire, (2) a duty of further inquiry, and (3) a duty to provide ICWA notice. (In re D.F., supra, 55 Cal.App.5th at pp. 565-567.) “The duty of initial inquiry arises, in part, from federal regulations under ICWA stating that ‘[s]tate courts must ask each participant in an . . . involuntary child-custody proceeding whether the participant knows or has reason to know that the child is an Indian child’ and that ‘[s]tate courts must instruct the parties to inform the court if they subsequently receive information that provides reason to know the child is an Indian child.’ (25 C.F.R § 23.107(a) (2020).) Thus, the federal regulation places a duty on only ‘courts’ to inquire or instruct ‘participants’ and ‘parties’ to a case.” (Benjamin M., supra, 70 Cal.App.5th at p. 741.)

“State law, however, more broadly imposes on social services agencies and juvenile courts (but not parents) an ‘affirmative and continuing duty to inquire’ whether a child in the dependency proceeding ‘is or may be an Indian child.’ (§ 224.2, subd. (a).)” (Benjamin M., supra, 70 Cal.App.5th at pp. 741-742; see § 224.2, subds. (a)-(c); In re Isaiah W., supra, 1 Cal.5th at p. 14.) The child welfare agency’s initial duty of inquiry includes “asking the child, parents, legal guardian, Indian custodian, extended family members, others who have an interest in the child, and the party reporting child abuse or neglect, whether the child is, or may be, an Indian child and where the child, the parents, or Indian custodian is domiciled.” (§ 224.2, subd. (b).) State law also expressly requires the juvenile court to ask the participants in a dependency proceeding upon each party’s first appearance “whether the participant knows or has reason to know that the child is an Indian child” (§ 224.2, subd. (c)), and “[o]rder the parent . . . to complete Parental Notification of Indian Status ([California Judicial Council] form ICWA-020).” (Cal. Rules of Court, rule 5.481(a)(2)(C), italics omitted.)

If the initial inquiry gives the juvenile court or the agency “reason to believe” that an Indian child is involved, then the juvenile court and the agency have a duty to conduct “further inquiry,” and if the court or the agency has “reason to know” an Indian child is involved, ICWA notices must be sent to the relevant tribes. (§§ 224.2, subd. (e), 224.3, subd. (a); 25 U.S.C. § 1912(a); Cal. Rules of Court, rule 5.481(b); In re Robert A. (2007) 147 Cal.App.4th 982, 989; In re Isaiah W., supra, supra, 1 Cal.5th at p. 8.) “[A]fter notice has been given, the child’s tribe has ‘a right to intervene at any point in the proceeding.’” (In re W.B. (2012) 55 Cal.4th 30, 48.)

Here, neither the duty of further inquiry nor ICWA’s notice provisions are at issue because no one has claimed there is “reason to believe” Z.O. is an Indian child. Rather, Mother’s contention involves the effect of CFS’s alleged failures during its initial inquiry to gather information that could have triggered additional duties and “heightened requirements.” (In re Jonathon S. (2005) 129 Cal.App.4th 334, 339.) “Because the failure here concerned the agency’s duty of initial inquiry, only state law is involved. Where a violation is of only state law, we may not reverse unless we find that the error was prejudicial. (Cal. Const., art. VI, § 13 [‘No judgment shall be set aside . . . unless, after an examination of the entire cause, including the evidence, the court shall be of the opinion that the error complained of has resulted in a miscarriage of justice’]; People v. Watson (1956) 46 Cal.2d 818, 836, 299 P.2d 243 [‘a “miscarriage of justice” should be declared only when the court, “after an examination of the entire cause, including the evidence,” is of the “opinion” that it is reasonably probable that a result more favorable to the appealing party would have been reached in the absence of the error’].).” (Benjamin M., supra, 70 Cal.App.5th at p. 742.)

Initially, we reject Mother’s claim involving the alleged father. The alleged father was an alleged parent and failed to undergo paternity testing to establish whether he was Z.O.’s biological father. Because the alleged father never established a biological connection to Z.O., the child could not derive his ancestry from the alleged parent’s natural or adoptive lineage.^[4] (See In re E.G. (2009) 170 Cal.App.4th 1530, 1533 [“The necessity of a biological tie to the tribe is underlined by the ICWA definition of a ‘parent’ as ‘any biological parent or parents of an Indian child. . . .’ (25 U.S.C. § 1903(9).].) An alleged father may or may not have any biological connection to the child. Until biological paternity is established, an alleged father’s claims of Indian heritage do not trigger any ICWA notice requirement because, absent a biological connection, the child cannot claim Indian heritage through the alleged father. . . . Recent additions to the Welfare and Institutions Code do not alter this result; until biological paternity is established for an alleged father who claims Indian heritage, neither the court nor the social worker knows or has reason to know that an Indian child is involved and notice requirements are not activated. (§ 224.2, subd. (a).).” (In re E.G., supra, at p. 1533.)

We also observe Mother does not argue the juvenile court erred in failing to question her or the alleged father about potential Indian ancestry. We also note the social worker interviewed Mother and the alleged father, and both denied any Native American ancestry. Indeed, Mother acknowledges that she and the alleged father filled out the required ICWA-020 form denying Indian ancestry and that both had denied Indian heritage. Thus, there is no asserted error as to initial ICWA inquiry as to Mother or the alleged father.

Mother contends that even if CFS satisfied its duty of inquiry as to herself, the social worker failed to ask extended family members about the child’s potential Indian ancestry. (§ 224.2, subd. (b); Cal. Rules of Court, rule 5.481(a)(1); see 25 U.S.C. § 1903(2).) “‘“[E]xtended family member[s]”’ includes the child’s ‘grandparent, aunt or uncle, brother or sister, brother-in-law or sister-in-law, niece or nephew, first or second cousin, or stepparent.’ (25 U.S.C. § 1903(2); Welf. & Inst. Code, § 224.1, subd. (c).).” (In re D.S. (2020) 46 Cal.App.5th 1041, 1053.) The only extended family member identified by Mother was aunt K.M. The social worker, however, attempted to contact the aunt with no avail. Even if CFS failed to fulfill its duty of inquiry with respect to the aunt, Mother has failed to show that the failure is prejudicial.

Although it is the department’s duty to interview extended family members, here CFS satisfied its duty to inquire, under section 224.2, subdivision (b), whether Z.O. is or may be Indian child, because the record indicates it did make meaningful efforts to locate and interview the aunt and Mother. Mother initially had identified no relatives whom CFS could contact to make further inquiries. In fact, throughout the proceedings, Mother maintained virtually no contact with CFS and failed to disclose her whereabouts. Mother only disclosed the aunt’s contact information under oath by the juvenile court. The social worker thereafter attempted to contact the aunt with the phone number provided by Mother. The aunt, however, never returned the social worker’s phone call. The social worker also attempted to obtain the aunt’s address to no avail.

Mother does not identify what more CFS or the social worker could have done to inquire of the aunt or any other purported extended family members. She does not provide any additional relative that she named during the proceedings and merely suggests that she “or her sister, Katie, would know some information about their parents or other relatives.” But Mother, at all times, denied Native American ancestry and only identified her sister, aunt K.M., whom the social worker attempted to locate and contact. (See In re S.B. (2005) 130 Cal.App.4th 1148, 1160 [“While the social worker and the trial court have a duty to inquire into the child’s Indian ancestry, a parent has superior access to this information.”].) Under these circumstances, there was no need for further inquiry and find CFS fulfilled its duty of inquiry. The record affirmatively shows the court’s and CFS’s efforts to comply with ICWA’s inquiry requirements and conclude that substantial evidence supports the court’s finding that ICWA did not apply.

As we explained in In re A.M., supra, 47 Cal.App.5th 303: “ICWA does not obligate the court or DPSS ‘to cast about’ for investigative leads. [Citation.] There is no need for further inquiry if no one has offered information that would give the court or DPSS reason to believe that a child might be an Indian child. This includes circumstances where parents “fail[] to provide any information requiring follow[-]up’ [citations], or if the persons who might have additional information are deceased [citation], or refuse to talk to DPSS. [Citation.]” (Id. at p. 323; italics added.)

Furthermore, we find any alleged error by CFS or the social worker in failing to make further efforts to contact the aunt harmless. Preliminarily, an agency or social workers have no duty under federal law, as opposed to state law, to ask extended family members about possible Native American ancestry. (In re A.C. (2021) 65 Cal.App.5th 1060, 1069.) The error, if any, is an error of state law. (Ibid.; accord, Benjamin M., supra, 70 Cal.App.5th at p. 742.) In Benjamin M., supra, 70 Cal.App.5th 735, this court considered various means of reviewing the prejudice analysis and concluded “that in ICWA cases, a court must reverse where the record demonstrates that the agency has not only failed in its duty of initial inquiry, but where the record indicates that there was readily obtainable information that was likely to bear meaningfully upon whether the child is an Indian child.” (Id. at p. 744; accord, In re S.S. (2022) 75 Cal.App.5th 575, 581.)

Here, CFS did not fail in its duty of initial inquiry. In addition, the record does not show that there was readily “obtainable information that was likely to bear meaningfully upon whether [Z.O.] is an Indian child.” (Benjamin M., supra, 70 Cal.App.5th at p. 744.) Mother repeatedly denied having Indian ancestry, and the social worker attempted to contact the aunt on several occasions. The aunt failed to return the social worker’s call, and Mother was not forthcoming with the aunt’s address. Mother also does not assert that there were additional family members for CFS to contact and/or that any person would have claimed Indian ancestry. There is no evidence in the record to demonstrate that CFS would have gathered information from the aunt that was likely to bear upon whether Z.O. was an Indian child.

IV.

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

CODRINGTON

J.

We concur:

RAMIREZ

P. J.

FIELDS

J.

^[1] Mother’s older children are not subjects of this appeal.

^[2] The alleged father is not a party to this appeal.

^[3] However, by April 30, 2021, the process server reported that “[t]he main office and facilities [were] closed. There were no signs of occupants at the address. This address [was] visibly vacant.”

^[4] The record indicates the alleged father was adopted by a family friend of his father.