In re Amber F.

Filed 6/20/08 In re Amber F. CA1/4

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIRST APPELLATE DISTRICT

DIVISION FOUR

Veronica F. (mother) appeals from an order terminating her parental rights as to Amber F., age 12, and Danielle F., age 15. She contends that the trial court failed to comply with the Indian Child Welfare Act of 1978 (25 U.S.C.  1901) (ICWA). We affirm.

I. FACTUAL BACKGROUND

The children came to the attention of the Napa County Department of Health and Human Services (Department) on February 11, 2005, based on a report that mother had left Amber, then 8 years old, and Danielle, then 12 years old, at home alone with their 17-year-old brother since February 6, 2005, and that there was no food in the home. The Department investigated the incident, and found the brother at home with his girlfriend. The brother reported that his sisters were with friends. There was very little food in the home. The Department placed Amber and her brother in protective custody; it was initially unable to locate Danielle. On February 16, 2005, mother agreed to participate in the family preservation program. Mother, however, subsequently did not appear for appointments or return the Departments telephone calls. On April 13, 2005, mother reported that she had been in jail in San Francisco for a domestic dispute. On May 4, 2005, mother refused to sign the documents necessary to begin the family preservation program. On May 26, 2005, the Department, therefore, filed a petition pursuant to Welfare and Institutions Code[1] section 300.

On June 14, 2005, the court found that a prima facie showing had been made that the children were within the provisions of section 300, subdivision (b). The court ordered the children placed with their mother under a plan of family maintenance. The Departments report for the hearing indicated that the ICWA did not apply. The report also noted that the childrens brother told the social worker that the children were not of Native American descent.[2]

The jurisdictional hearing was held on July 7, 2005. Mother did not appear. The court sustained the allegations of the petition. The disposition hearing was held on July 21, 2005. Again, mother did not appear. The court declared the children dependents of the court, ordered family maintenance services for mother and set a six-month review hearing for January 19, 2006. The Departments report indicated that father provided an address but did not have a permanent home. The court did not order services for father who had not shown an interest in the proceedings. The Departments report also reflected that the social worker met with mother on July 8, 2005, and inquired about any possible Native American ancestry. Mother said that the children had no Native American heritage as they were of Irish and Mexican descent.

On October 20, 2005, the Department filed a section 387 supplemental petition alleging that the Department had made numerous attempts to contact mother to no avail. Mother had not signed her case plan or engaged in any services. The petition further alleged that the social worker conducted a home visit on October 10, 2005, and learned that mother was in jail. The Department, therefore, contacted father who said that the children were being cared for by a friend. He, however, refused to provide the Department with the whereabouts of the children. On October 12, 2005, the Department found the children at their respective schools and spoke with fathers friend who refused to provide the address where the children were staying. Over the next several days, the Department contacted fathers attorney and left several messages for father. On October 18, 2005, the Department placed the children into protective custody.

The detention hearing was held on October 24, 2005. The court ordered that the children be detained. Mother did not appear. The jurisdiction/disposition hearing was set for November 17, 2005. Mother appeared. The court ordered that she be drug tested immediately. Mother tested positive for methamphetamines and amphetamines. The court continued the matter for a contested jurisdiction/disposition hearing on December 9, 2005. The court sustained the allegations of the petition and ordered out-of-home placement. The court terminated mothers plan of family maintenance and ordered reunification services.

The six-month review hearing was held on May 18, 2006. The court continued reunification services for mother. The Departments report for the hearing indicated that the ICWA did not apply.

The 12-month review hearing was set for December 7, 2006. The Department recommended that reunification services be terminated and that the matter be set for a section 366.26 hearing. Parents appeared at the hearing. The court continued the matter for a contested review hearing to January 3, 2007.

On December 21, 2006, father filed a request for reunification services pursuant to section 388. He asserted that he was unaware of the case until September 2005 after which time he was on the road earning a living and that when he returned to the area in April 2006, he was arrested and incarcerated for nine months. On December 28, 2006, the court ordered that father receive reunification services until the 18-month review hearing date.

On January 3, 2007, the court held the 12-month review hearing as to mother. Mother did not appear. The court terminated mothers reunification services.

The 18-month review hearing was held on May 1, 2007. The Departments report for the hearing stated that father had not visited with the children since January 3, 2007, and had ceased all contact with the Department since January 10, 2007. The Department recommended that reunification services for father be terminated. The court adopted the Departments recommendation and ordered that a section 366.26 hearing be held.

The section 366.26 hearing was held on September 5, 2007. The Department reported that the maternal aunt and uncle who live in El Paso, Texas, were identified as prospective adoptive parents, and that they received conditional approval as a relative placement via the Interstate Compact Agreement for the Placement of a Child. The court ordered adoption as the permanent plan, and terminated the parental rights of parents.

II. DISCUSSION

Mother contends that the juvenile court erred because it failed to ask father whether he had any Native American heritage. The Attorney General argues that mother waived the issue because she failed to raise it below.

While mother failed to object on ICWA grounds below, the issue of whether there was a failure to inquire concerning the childrens Indian ancestry was not waived. It is well settled that   [t]he notice requirements [of the ICWA] serve the interests of the Indian tribes irrespective of the position of the parents and cannot be waived by the parent. . . .  [Citations.] (In re S.B. (2005) 130 Cal.App.4th 1148, 1159.)

The juvenile court and the county welfare department have an affirmative and continuing duty to inquire whether a [dependent] child . . . is or may be an Indian child. (Cal. Rules of Court, former rule 1439(d).)[3] Rule 1439(d)(2) provided that the social worker must ask . . . the parents . . . whether the child may be an Indian child or may have Indian ancestors. Rule 1439(d)(3) provided that [a]t the first appearance by a parent . . . in any dependency case, . . . the parent . . . must be ordered to complete form JV-130, Parental Notification of Indian Status.[4]

Mother concedes that the Department asked her whether her children had any Indian heritage but argues that no inquiry was made of father. Mother has standing to raise the issue. (In re Riva M. (1991) 235 Cal.App.3d 403, 411, fn. 6 [any parent may petition to invalidate a termination of parental rights based on noncompliance with ICWA].)

The Department concedes that form JV-130 was not completed and that no inquiry was made of father concerning any Indian heritage. The error, however, was harmless.

In re Rebecca R. (2006) 143 Cal.App.4th 1426 is instructive. There, on appeal, the father failed to make an offer of proof or an affirmative representation that if asked, he would be able to show an Indian connection to invoke the ICWA. (Id. at p. 1431.) The court held that the burden is on the appealing parent to make an affirmative representation of Indian heritage. 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. (Ibid.)

We agree with the reasoning of Rebecca R. Here, there is nothing in the record to indicate that the children have any Indian heritage. Mother raises the issue for the first time on appeal and has not submitted a declaration or provided any other evidence to reflect that her children have an Indian connection. Moreover, the record reflects that mother, upon the Departments inquiry, maintained that the children were of Mexican and Irish descent, and that mothers 17-year-old son told the Department at the inception of the dependency that the children had no Indian ancestry. Finally, parents were represented by counsel who were provided with the Departments reports for review hearings, all of which stated that the ICWA did not apply. At no point did either parent object to the Departments statements that the ICWA did not apply. There is no reason to think that an inquiry might have revealed Indian ancestry, and there is evidence to the contrary.[5] In these circumstances, any error was harmless.

III. DISPOSITION

The order is affirmed.

________________________

RIVERA, J.

We concur:

___________________________

RUVOLO, P.J.

___________________________

REARDON, J.

Publication courtesy of San Diego pro bono legal advice.

Analysis and review provided by Poway Property line attorney.

San Diego Case Information provided by www.fearnotlaw.com

[1] All further statutory references are to the Welfare and Institutions Code.

[2] The Department recommended that brother not be detained given his age.

[3] The California Rules of Court have been renumbered twice since the original petition was filed May 26, 2005. Former rule 1439 was renumbered as rule 5.664 effective January 1, 2007. Effective January 1, 2008, former rule 5.664s directives are found in rule 5.480 et seq. All further rule references are to the California Rules of Court.

[4] Form JV-130 is no longer in existence. Rule 5.481(a)(1) now requires that the Department attach the Indian Child Inquiry Attachment (form ICWA-010(A)) to the petition.

[5] For these reasons, we decline to follow In re J.N. (2006) 138 Cal.App.4th 450, upon which mother relies. There, the court refused to speculate about how the mother would respond to an inquiry about her Indian ancestry and rejected the contention that the lack of inquiry was harmless error, noting that the record contained a form JV-130 for the father but not one for the mother. (Id. at pp. 460-461.)