In re Michael M.

Filed 9/14/07 In re Michael M. 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. Miriam Morton, Temporary Judge. (Pursuant to Cal. Const., art. VI, 21.) Affirmed.

Linda Rehm, under appointment by the Court of Appeal, for Defendant and Appellant.

Ruth E. Stringer, County Counsel, and Phebe W. Chu, Deputy County Counsel, for Respondent.

Leslie A. Barry, under appointment by the Court of Appeal, for Minor.

Objector and appellant Veronica D. (mother) is the natural mother of Michael M. (the child), a dependent child of the juvenile court. Mothers parental rights were terminated. Mother appeals contending that the juvenile court failed in its duty to ensure she was asked whether the child had any Indian ancestry for purposes of the Indian Child Welfare Act (ICWA). We affirm.

FACTS AND PROCEDURAL HISTORY

In November 2004, the San Bernardino County Department of Childrens Services (DCS) detained the child, then about 11 months old, in protective custody when mother was arrested for a drug offense. The child was placed with the maternal grandmother. At the detention hearing, the juvenile court ordered both parents to reveal any membership in an Indian tribe. Neither mother nor the childs father was present at the detention hearing. The maternal grandmother was present, however, and the following exchange took place:

THE COURT: Maam, are you aware of any Indian heritage either the mother or father has?

THE GRANDMOTHER: Not that I know of, no.

THE COURT: You never heard [of] any? None in your family?

THE GRANDMOTHER: No.

The social worker wrote a report for the jurisdictional and dispositional hearing, indicating that the ICWA does not apply. Mother was not present at the jurisdictional and dispositional hearing. The court again ordered the parents to reveal any membership in an Indian tribe.

At the six-month review (Welf. & Inst. Code,  366.21, subd. (e)), the social worker reported that mother had not maintained contact with her from March to July 2006. Mother had made no progress on her case plan, and her whereabouts were unknown. According to the maternal grandmother, mother was living a transient lifestyle. Her drug problems remained unaddressed.

The court found that mother had failed to participate in her case plan and terminated reunification services. Again, mother was not present at the six-month hearing. The court set a selection and implementation hearing, and ordered the clerk of the court to notify the parents that their parental rights could be terminated at that hearing.

Mother made her first appearance in the case at the selection and implementation hearing. The juvenile court appointed counsel for mother at that time. The court found that the child was adoptable and terminated mothers parental rights. Mother filed a notice of appeal.

ANALYSIS

I. The Court Erred in Failing to Inquire of Mother Whether She Had Any Indian Ancestry

As mother points out, the record fails to show that the juvenile court ever inquired directly of mother whether she had any Indian ancestry for purposes of the ICWA. Neither does the record contain a completed form JV-130, Parental Notification of Indian Status. The court also made no explicit finding on the record that the child was not an Indian child, or that the ICWA did not apply.

The ICWA provides that, [i]n any involuntary proceeding in a State court, where the court knows or has reason to know that an Indian child is involved, the party seeking the foster care placement of, or termination of parental rights to, an Indian child shall notify the parent or Indian custodian and the Indian childs tribe, by registered mail with return receipt requested, of the pending proceedings and of their right to intervention. (25 U.S.C.A.  1912(a).)

The notice provision is triggered whenever there is evidence the child may be an Indian child. (In re Nikki R. (2003) 106 Cal.App.4th 844, 848.) California Rules of Court, former rule 1439(d) (now see Cal. Rules of Court, rule 5.664, amended eff. Jan. 1, 2007), provides that the juvenile court and the childrens welfare agency have an affirmative duty to inquire whether a child is or may be an Indian child. Further, at the first appearance by the parent in a dependency case, the juvenile court must order the parent to complete a form JV-130. (Cal. Rules of Court, former rule 1439(d)(3).)

It was error for the juvenile court not to have ensured that a proper inquiry was made of mother regarding the childs Indian heritage.

II. The Error Was Harmless

In reliance on In re J.N. (2006) 138 Cal.App.4th 450, mother argues that the failure to inquire requires reversal. (Id. at p. 461.) We disagree. We conclude that, under the circumstances, any error was harmless.

ICWA is not the source of a duty of continuing inquiry; rather, the source, to the extent there is one, is former rule 1439(d). [A]ny failure to comply with a higher state standard, above and beyond what the ICWA itself requires must be held harmless unless the appellant can show a reasonable probability that he or she would have enjoyed a more favorable result in the absence of the error. (Cal. Const., art. VI, 13; People v. Watson (1956) 46 Cal.2d 818, 836.) (In re S.B. (2005) 130 Cal.App.4th 1148, 1162.)

Here, there is no reason to believe that, had a proper inquiry been made, more or different information would have been proffered to show that the child was an Indian child. At the initial stages of the proceedings, mother was not present; but the maternal grandmother was present. Even though the court may have failed to inquire of mother herself, the court did expressly inquire of the maternal grandmother, on the record in open court. The maternal grandmother, mothers direct ancestor, denied any Indian heritage in her (and presumptively also in mothers) own family.

In In re Rebecca R. (2006) 143 Cal.App.4th 1426, we rejected a similar claim of error in failing to inquire of a parent about a childs Indian ancestry:

[W]e reject [the parents] claim because [the parent] 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.) (In re Rebecca R., supra, 143 Cal.App.4th 1426, 1430.) We declined to follow In re J.N., in requiring reversal based on a refusal to speculate what the parents answer might be had such an inquiry been made. Rather, we noted 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. (In re Rebecca R., supra, 143 Cal.App.4th 1426, 1431.) We admonished that, there can be no prejudice unless, if [the parent] had been asked, [the parent] would have indicated that the child did (or may) have such ancestry. (Ibid.)

Mother here has failed to heed the instruction of In Rebecca R. She has made no offer of proof or other affirmative representation that, had [she] been asked, [she] would have been able to proffer some Indian connection sufficient to invoke the ICWA. (In re Rebecca R., supra, 143 Cal.App.4th 1426, 1431.)

We meant what we said in In re Rebecca R.: In the absence of such a representation, the matter amounts to nothing more than trifling with the courts. (People v. Beebe (1989) 216 Cal.App.3d 927, 932.) 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. (In re Rebecca R., supra, 143 Cal.App.4th 1426, 1431.)

DISPOSITION

Any error in failing to inquire of mother about the childs Indian heritage was harmless. The order terminating mothers parental rights is affirmed.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

/s/ McKinster

J.

We concur:

/s/ Hollenhorst

Acting P.J.

/s/ Richli

J.

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