Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of Riverside County, Super.Ct.No. INJ015820. Christopher J. Sheldon, Judge.
Roni Keller, under appointment by the Court of Appeal, for Defendant and Appellant.
Joe S. Rank, County Counsel, and Carole A. Nunes Fong, Deputy County Counsel, for Plaintiff and Respondent.
Konrad S. Lee, under appointment by the Court of Appeal, for Minors.
OPINION
RAMIREZ, P.J.
Appellant A.T. (mother) is the mother of three minors, Marco R., J.T., and G.S. (the children). Mother appeals from the juvenile court’s decision at a hearing held under Welfare and Institutions Code section 366.26 to terminate her parental rights to the children. Specifically, mother argues that the court’s ruling should be reversed because the court erred when it found that the requirements of the Indian Child Welfare Act (25 U.S.C § 1901, et seq.) (ICWA), had been complied with. Specifically, the juvenile court should have required the children’s fathers to fill out a JV-130 form regarding any possible Native American heritage. As discussed below, we find that mother did not make the required showing of prejudice and thus affirm the juvenile court’s ruling terminating parental rights.
All further statutory references are to the Welfare and Institutions Code unless otherwise specified.
I
Statement of Facts and Procedure
A. Marco’s Initial Detention in 2004
On March 19, 2004, the juvenile court declared then one-year-old Marco R. a dependent of the court and placed him with his maternal grandmother. Mother had untreated substance abuse issues, was in a domestic violence relationship, and had left the child at home unsupervised. At the detention hearing held on March 1, 2004, the juvenile court found that Marco did not come within the provisions of ICWA. Marco’s father, J.R., never appeared at any of the hearings but was represented by counsel. J.R.’s whereabouts were unknown during all or most of this dependency. J.R. contacted the social worker by telephone on March 10, 2004 and agreed to come in for an interview, but failed to show. At the jurisdiction hearing held on March 19, 2004, the juvenile court found that J.R. did not rise to the level of presumed father and did not offer him reunification services. A year later, mother told the social worker that J.R. was residing in Mexico. After the six-month review hearing on September 16, 2004, Marco was returned to mother on family maintenance. Mother gave birth to the minor J.T. in October 2004. J.T.’s father is P.S. On March 10, 2005, the juvenile court ordered no visitation by J.R. with Marco pending further order of the court. The dependency regarding Marco was terminated on April 11, 2005.
The domestic violence relationship was not with Marco’s father but with P.S., with whom mother would later have two more children.
B. Marco and J.T.’s Detention in 2005
On August 9, 2005, the Department of Public Social Services (DPSS) filed a section 300 petition regarding Marco and J.T. The petition alleged several instances of domestic violence by P.S. against mother, one of which resulted in injury to Marco. The petition referred to J.R. as Marco’s alleged father, and stated that he was incarcerated. Both the petition and the detention report indicated that ICWA did not apply. Mother filed at form JV-130 in which she stated she was not aware that she had any Native American ancestry. At the detention hearing on August 10, 2005, the juvenile court found that the children did not come under the provisions of ICWA. Both fathers were represented by counsel but did not appear at the hearing. At the jurisdiction hearing on August 31, 2005, the court ordered that P.S. be offered reunification services but not J.R., again because J.R. was only an alleged father. Both fathers were represented by counsel, but were not present. J.R. was still in custody at that time and his counsel discussed with the court how to contact him. The six-month status review report stated that ICWA did not apply. The report also stated that P.S. had weekly supervised visits with the children until he was also incarcerated. P.S. had some contact with the social worker about obtaining services. P.S. was present at the February 27, 2006, six-month review hearing, in custody, and again at the contested six-month review hearing on March 16, 2006, out of custody. Both of these hearings were continued, and at both of these hearings J.R.’s counsel stated that his whereabouts were unknown. Both fathers were represented by counsel at the six-month review hearing finally held on April 17, 2006, but neither father was present. J.R.’s counsel stated he believed J.R. was “still in prison somewhere” according to mother, but did not yet know how to contact him. At that hearing the juvenile court terminated reunification services and set a section 366.26 selection and implementation hearing.
A social worker and the maternal grandmother both stated that P.S. was present at the courthouse with mother during the detention hearing but did not enter the courtroom.
C. G.S.’s Detention in 2006
Mother and P.S. had another child, G.S., in June 2006. G.S. was detained shortly after birth, because of the parent’s history of domestic violence, and placed with the paternal aunt, P.S.’s sister, who was caring for the two other children. The section 300 petition for G.S. indicated that ICWA did not apply, as did the detention report. At the detention hearing held on June 27, 2006, the minute order indicates the juvenile court ordered P.S. to file a form JV-130 with the court. The record transcript does not reflect this, although the court stated that it had read and considered the detention report, which recommended the court order father to file a JV-130 with the court. At that hearing, P.S. was represented by counsel but not present, although he was present at a hearing on June 26, 2006, which was continued to the following day. An amended section 300 petition was filed, and it also indicated the child had no Indian ancestry.
At the jurisdiction and disposition hearing on July 18, 2006, G.S. was declared a dependent, and no reunification services were ordered. Again, P.S. was not present but represented by counsel. The court set a section 366.26 hearing.
D. Combined Section 366.26 Hearing
The section 366.26 hearing for all three children was eventually held on February 6, 2007. The social worker’s report stated that ICWA did not apply. Both fathers were not present but represented by counsel. The juvenile court terminated all parental rights and selected adoption by the paternal aunt and uncle as the permanent plan. This appeal by mother followed.
II
Discussion
A. Duty to Inquire
Mother argues the juvenile court erred when it found that ICWA did not apply to the children in the absence of sufficient inquiry by the court and DPSS into whether the children have Native American ancestry through their fathers.
In general, ICWA applies to any state court proceeding involving the foster care or adoptive placement of, or the termination of parental rights to, a Native American child. (25 U.S.C. §§ 1903(1), 1911(a)-(c), 1912-1918, 1920-1921.) Under the notice provision of ICWA, if “the court knows or has reason to know that an Indian child is involved,” the social services agency must “notify . . . the Indian child’s tribe . . . of the pending proceedings and of their right of intervention.” (25 U.S.C. § 1912(a).)
ICWA itself does not impose any duty of inquiry. In 1995, when the Judicial Council adopted rule 1439 of the California Rules of Court, it provided: “The court and the county welfare department have an affirmative duty to inquire whether a child for whom a petition under section 300 is to be, or has been, filed is or may be an Indian child.” (Former Cal. Rules of Court, rule 1439(d).)
Rule 1439(d), renumbered rule 5.664(d), as of January 1, 2007, now provides that the court and county welfare department have “an affirmative and continuing duty to inquire whether a child for whom a petition under section 300 . . . is to be, or has been filed, is or may be an Indian child.” Subdivisions (d)(2) and (d)(3) provide: “(2) In dependency cases, the social worker must ask . . . the parents . . . whether the child may be an Indian child or may have Indian ancestors. [¶] (3) At the first appearance by a parent . . . in any dependency case, . . . the parent . . . must be ordered to complete Parental Notification of Indian Status (Juvenile Court) (form JV-130).” (Italics original.)
On the record before us, DPSS failed in its duty of inquiry as to P.S., the father of J.T. and G.S. This is because DPSS was in contact with P.S. for at least a portion of the dependencies of these two children, and there is no indication at all that DPSS asked P.S. to fill out a JV-130 or otherwise inquired about whether he had any Native American heritage. P.S. was also present at court on several occasions. In addition, DPSS could have attempted to obtain information through P.S.’s sister, who cared for all three children and plans to adopt them.
The record as to J.R., father to Marco R., is not quite as clear. J.R. was not living with mother at the time Marco R. was first detained, and he cancelled a scheduled interview with the social worker shortly after Marco was detained. This record does not reveal that J.R. attended any of the hearings for Marco over the two separate dependencies, nor does it show that he ever met in person with any DPSS personnel. In other words, it would have been difficult for DPSS to inquire about J.R.’s Native American heritage if he had never made himself available for such an inquiry, and the court could not fulfill its obligation under California Rules of Court, Rule 5.664(d)(3) to order a parent to complete the JV-130 at their first appearance in a dependency case. Nevertheless, J.R. was incarcerated at the beginning of Marco’s second dependency in August 2005, and it appears that, as late as April 2006, his counsel believed he was still in custody. The record does not show that DPSS made any attempt to contact J.R. in jail or in prison to perform the required ICWA inquiry. This, despite the fact that DPSS located J.R. at the Riverside County Jail in Indio on August 5, 2005, and then at the Riverside County Jail in Riverside on August 8, 2005, where he was awaiting transfer to state prison, and twice faxed him notice of the August 10, 2005, detention hearing, which he did not attend. Thus, DPSS did not fulfill this duty to inquire of J.R. as to his and Marco’s Native American heritage.
Neither can we assume that DPSS fulfilled its obligation to “ask . . . the parents or legal guardians whether the child may be an Indian child or may have Indian ancestors” simply because the social worker did not check the boxes on any of the dependency petitions that would indicate the children may be of Indian ancestry and stated affirmatively in numerous reports that ICWA does not apply. (Cal. Rules of Ct, Rule 5.664(d)(2).)
We acknowledge that this Court has previously held in In re S.B. (2005) 130 Cal.App.4th 1148 (S.B.) that such affirmative statements in the social workers’ reports and the lack of check marks in the appropriate boxes in the dependency petitions are sufficient evidence that the social services agency did ask the parents about their Native American heritage. However, the case at hand is distinguishable on its facts, and in this respect resembles In re J.N. (2006) 138 Cal.App.4th 450 (J.N.). In this case, as in J.N., there is a form JV-130 on file for one parent, here the mother, but no such form on file for the other parent, here the two fathers J.R. and P.S. This difference in the record between the parents gives rise to an inference that the parent for whom there is no JV-130 on file was never asked whether they had any Native American ancestry. We thus conclude here, as did the appellate court in J.N., that the parents for whom the JV-130 is not on file were never asked whether they had any Native American ancestry. (Id. at pp. 460-461.)
B. Showing of Prejudice
We now reach the issue of prejudice. The source of the duty of inquiry is rule 5.664(d), not ICWA. “[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. [Citations.]” (S.B., supra, 130 Cal.App.4th at p. 1162.)
We recognized that J.N. holds that the harmless error analysis does not apply in cases where, as here, the error was a complete failure to inquire into the child’s Native American heritage. However, we note that the footnote in J.N., which distinguishes the leading cases employing harmless error as not involving a complete failure to inquire, does not mention S.B. (J.N., supra, at p. 461, fn.6.) S.B. is completely on point here, in that it involves a complete failure to inquire into the child’s Native American Heritage, and appears to us to apply to the facts set forth in J.N. as well. Therefore, we conclude that the harmless error analysis used in S.B. is appropriate for the case at hand.
Here, there is absolutely nothing in the record to suggest that, if the juvenile court or the social worker had inquired, either of the fathers would have reported any Indian ancestry. Accordingly, on this record, even if we were to reverse and remand with directions to make the requisite inquiry, there is no reason to suppose that the outcome would be any different. The only result would be waste and delay if we were to relieve the appellant mother of her burden to show a reasonable probability of a more favorable result in the absence of the error.
Mother's remedy, should she have some evidence that the children do indeed have some Native American heritage, is to file a concurrent petition for writ of habeas corpus, alleging (under penalty of perjury; see Pen. Code, §1475) facts sufficient to show prejudice. (See In re Darlice C. (2003) 105 Cal.App.4th 459, 464-466.)
III
Disposition
The juvenile court’s ruling terminating mother’s parental rights is affirmed.
We concur: McKINSTER, J., GAUT, J.