Filed 12/14/18 In re J.H. 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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. Erin K. Alexander, Judge. Affirmed.

Daniel G. Rooney, under appointment by the Court of Appeal, for Defendant and Appellant.

Michelle D. Blakemore, County Counsel, Svetlana Kauper, Deputy County Counsel, for Plaintiff and Respondent.

The juvenile court terminated the parental rights of K.G. (Mother) and J.M.H. (Father) to their daughter, J.H. (Minor). (Welf. & Inst. Code, § 366.26.)[1] Father contends the juvenile court (1) failed to adequately inquire into Minor’s possible Native American Ancestry, and (2) failed to make a determination concerning the applicability of the Indian Child Welfare Act (ICWA). Further, Father contends San Bernardino County Children and Family Services (the Department) failed to satisfy its duties of inquiry and notice pursuant to ICWA. We affirm the judgment.

FACTUAL AND PROCEDURAL HISTORY

A. BACKGROUND

Minor’s siblings include (1) J.H.J., (2) A.H., (3) S.H., (4) J.H.1., and (5) J.H.2. Four of Minor’s siblings were the subjects of a dependency case in Los Angeles County: J.H.J., A.H., S.H., and J.H.1. A Los Angeles County detention report dated August 24, 2012, reflected Father’s grandmother might have Cherokee heritage. Father did not know if his grandmother was affiliated with a particular tribe. Father denied being affiliated with a tribe. On November 18, 2012, the Los Angeles County juvenile court found ICWA did not apply to Minor’s four siblings. Minor’s paternal aunt (Aunt) was the legal guardian for four of Minor’s siblings.

On September 4, 2014, in the dependency case of Minor’s fifth sibling, J.H.2, the juvenile court found that ICWA noticing had been initiated, and that ICWA did not apply. Mother’s and Father’s parental rights to J.H.2 were terminated on July 2, 2015. Adoption was selected as J.H.2’s permanent plan.

Minor’s maternal half sibling is J.B. On May 9, 2016, a court found that ICWA did not apply to Minor’s maternal half sibling. On January 9, 2017, Mother’s parental rights to J.B. were terminated. Adoption was selected as J.B.’s permanent plan.

B. DETENTION

Minor was born in August 2017 in Nevada. Minor weighed approximately three pounds and was born at a gestation of 31 weeks. Mother and Minor tested positive for methamphetamine and marijuana. A Clark County Department of Family Services (DFS) social worker spoke to Mother on August 24, and the social worker spoke with Aunt. On September 5, 2017, the Clark County DFS detained Minor due to Mother’s whereabouts being unknown. Mother had not visited Minor in the hospital. The Clark County DFS detention report reflected “parents [were] asked about possible ICWA affiliation,” and “ICWA does not apply” in this case. On September 28, a court ordered Minor be placed in the Department’s custody, i.e., the case was transferred to San Bernardino County.

Aunt said that Mother was “roaming the street[s],” and might be in Las Vegas, Barstow, or Adelanto. Father was on parole. Father resided in Adelanto. Father did not reside with Mother while Mother was pregnant with Minor, and Father is not named on Minor’s birth certificate. “Father stated he has Native American heritage through his grandfather but he does not know through what tribe.” Aunt said father had Native American ancestry through their grandfather, W.G., but was unsure of his tribal affiliation. On October 2, 2017, a Department social worker completed an “Indian Child Inquiry Attachment” form (ICWA-010(A)) (all caps. omitted), reflecting Father might have Native American ancestry through his grandfather, W.G., but his tribal affiliation was unknown.

At the detention hearing on October 3, the following exchange occurred:

The Court: “On behalf of the mother, ma’am, do you have any Native American or Indian heritage as far as you know?

“The Mother: No.

“The Court: And, sir, do you have any Native American or Indian heritage as far as you know?

“The Father: No.”

The juvenile court ordered Father to submit to a paternity test. The juvenile court ordered Mother and Father to complete a parental notification of Indian status form (ICWA-020).

C. JURISDICTION

On October 3, Mother completed a parental notification of Indian status form. Mother marked the box next to the line reading, “I have no Indian ancestry as far as I know.” On October 3, Father completed a parental notification of Indian status form. Father marked the box next to the line reading, “I have no Indian ancestry as far as I know.” The Department’s jurisdiction/disposition report reads, “The Indian Child Welfare Act does not apply. ICWA inquiry completed by the Court on 10/03/2017 and both parents denied.”

On December 1, a paternity test reflected a 99.99 percent probability that Father was Minor’s biological father. On January 25, 2018, the juvenile court found Father was Minor’s biological father. The juvenile court also found “[Minor] does not come under the provisions of the Indian Child Welfare Act.”

D. TERMINATION

The Department’s report for the termination hearing provides, “The Indian Child Welfare Act does not apply. ICWA inquiry completed by the Court on 10/03/2017 and both parents denied.” On September 13, 2018, the juvenile court terminated Mother’s and Father’s parental rights. The court selected adoption as Minor’s permanent plan.

DISCUSSION

A. LAW

“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].)

B. THE JUVENILE COURT

1. INQUIRY

Father contends the juvenile court erred by not inquiring into Minor’s possible Native American ancestry.[2]

The juvenile court verbally inquired into Minor’s Native American ancestry, and Father denied having any Native American ancestry. The juvenile court ordered Father to complete a written inquiry into any Native American ancestry Minor may have. On the form, Father again denied having any Native American ancestry. Given that the court inquired of Father both verbally and in writing concerning any Native American ancestry, and Father denied such ancestry both verbally and in writing, we conclude the juvenile court satisfied its duty of inquiry. (See In re C.A. (2018) 24 Cal.App.5th 511, 519 [ICWA duty satisfied after parent withdrew claim of Native American ancestry].)

2. FINDING

Father contends the juvenile court failed to make a determination as to whether ICWA applied to Minor.

“ ‘[T]he court must decide, one way or the other, whether the ICWA applies, so it can proceed in compliance therewith when appropriate.’ ” (In re Antoinette S. (2002) 104 Cal.App.4th 1401, 1413.) In the jurisdiction and disposition phase of the proceedings, the juvenile court found, “[Minor] does not come under the provisions of the Indian Child Welfare Act.” Accordingly, we conclude the juvenile court did not err because it made a finding concerning ICWA not applying in this case.

In Father’s appellant’s reply brief, he asserts the juvenile court’s finding “was a mere scrivener’s checkmark early in the proceeding.” The juvenile court’s finding is supported by Father’s and Mother’s verbal and written denials of Native American ancestry. Given that there is evidence supporting the juvenile court’s finding that ICWA does not apply, and the juvenile court spoke to Mother and Father about their ancestry, we are not persuaded that the court’s ICWA finding was “a mere scrivener’s checkmark.”

C. THE DEPARTMENT

Father contends the Department erred by not complying with its duties of inquiry and notice under ICWA.

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.)

In regard to inquiry, the record reflects the Department spoke to Father and Aunt about their grandfather’s possible Native American ancestry. On October 2, the Department completed an Indian child inquiry attachment form (ICWA-010(A)) to document its inquiry and Father’s and Aunt’s responses. Accordingly, there is substantial evidence reflecting the Department inquired into Minor’s possible Native American ancestry.

As to notice, on October 3, verbally and in writing, Father denied having any Native American ancestry. Given Father’s denial of Native American ancestry, the Department could reasonably conclude that it did not need to send ICWA notices to any tribes; and the juvenile court, in turn, could find the Department met its ICWA obligations. (See In re C.A., supra, 24 Cal.App.5th at p. 519 [ICWA obligations complete when parent withdraws claim of Native American ancestry]; see also In re A.B. (2008) 164 Cal.App.4th 832, 843 [when both parents deny Native American ancestry, ICWA notice need not be given to tribes].) In sum, 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.

RAPHAEL

J.