Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
Alameda County Super. Ct. No. HJ06005267
OPINION
SIMONS, J.
Maurice C. (Father) appeals a juvenile court order terminating his parental rights over his four-year-old son M.C. (Minor), and finding Minor likely to be adopted. (Welf. & Inst. Code, § 366.26.) Father contends the court erred in determining he was not entitled to presumed father status and in failing to comply with the notice requirements of the Indian Child Welfare Act of 1978 (ICWA) (25 U.S.C. § 1901 et seq.; Cal. Rules of Court, former rules 1439 and 5.664). We affirm.
All undesignated section references are to the Welfare and Institutions Code.
All further rule references are to the California Rules of Court.
BACKGROUND
On October 17, 2006, the Alameda County Social Services Agency (Agency) filed a dependency petition alleging Mother’s failure to protect Minor and his younger sibling Joshua M. (§ 300, subd. (b)) and no provision for support (§ 300, subd. (g).) The petition listed Minor’s father as unknown. The two boxes on the Judicial Council form dependency petition, JV-100 (Jan. 1, 2006 rev.) (hereafter JV-100), relevant to Minor’s Indian status were not checked. The October 18 detention report noted Minor was taken into protective custody on October 14, listed his father as unknown and stated, “Per investigation Narrative [by the emergency response unit worker], the minor(s) are not Indian children.” The detention report also stated that Mother, who is developmentally delayed, regularly hit Minor; and Mother’s aunt (MA), who lived with Mother and the minors, felt that Mother was incapable of caring for the minors without assistance.
Mother and Minor’s sibling are not parties to this appeal.
At the October 18, 2006 detention hearing at which Mother appeared, Mother’s counsel stated that the next day Mother would begin residing at the Regional Center, and requested that the minors be released to MA, MA be considered a de facto parent and counsel appointed for her. The court appointed MA de facto parent and appointed counsel for her. It also ordered the minors released to MA’s care and Mother to reside outside the minors’ and MA’s home. The court made no detention findings and set the matter for a jurisdiction hearing. No inquiry was made at the detention hearing as to the identity of Minor’s father.
Jurisdiction/Disposition Report
The Agency’s November 1, 2006 jurisdiction/disposition report stated Minor’s father’s identity and whereabouts were unknown and again stated that ICWA did not apply. Mother had never been married and told the Agency social worker she did not know the identity or whereabouts of Minor’s father. There were no grandparents whose whereabouts were known. Mother appeared with counsel at the November 1 jurisdiction hearing and submitted the matter. Minor was declared a dependent child of the court and his placement with MA was approved.
On December 14, 2006, a hearing was held on Mother’s request to waive reunification services. Mother requested that Minor be permanently placed with MA. The court found that a permanent plan of parental termination and adoption was appropriate and set a due diligence hearing for January 24, 2007, and a section 366.26 hearing (.26 hearing) for April 12, 2007.
Due Diligence
The Agency’s January 24, 2007 due diligence report stated that on December 19, 2006, Agency worker Belinda Shavers submitted a form search request for Father, but as of January 19, 2007, no results had been obtained. The report stated that at the December 14, 2006 hearing, Mother provided a birth date for Father, and told county counsel that she had not known the whereabouts of Father since 2003. On January 19, the Agency also asked MA if she had information regarding “the alleged father[],” but MA had no information. The Agency recommended that Father be provided notice of the .26 hearing by publication. The due diligence hearing was continued to February 21, 2007.
The Agency’s February 21, 2007 memorandum stated that at the time the December 21, 2006 search was initiated, the Agency did not have a birth date or birth certificate for Minor, and family members had identified Minor’s father as “Marcus Collins.” It also stated that the ICWA did not apply, and the Agency had obtained Minor’s birth certificate which identified Father as Minor’s father and gave Father’s birth date. The report recommended continuing the matter for new searches to be completed. At the February 21 hearing, the court continued the due diligence hearing to April 12 and the .26 hearing to June 21.
The reporter’s transcript from the February 21 hearing is not contained in the appellate record.
April 12, 2007 .26 Hearing Report
The Agency’s April 12, 2007 .26 hearing report stated that subsequent to the February 21 hearing, Father was located at an address in Concord. He called the Agency social worker on March 20, confirmed the address, and said he opposed Minor’s adoption. He also said that Mother would not tell him “what was going on with [Minor].” The social worker sent Father the Agency’s prior reports, advised him to attend the April 12 hearing, and referred him to a different social worker regarding visitation and to the public defender for legal representation. As of March 29, Father had not contacted the worker to initiate visitation. The report stated that because Father is named on Minor’s birth certificate, he may be considered Minor’s presumed father. However, the report stated that reunification services to Father were not in Minor’s interest since Father had had no contact with Minor for over six months. The report again stated that the ICWA did not apply.
The .26 report stated that an adoption assessment found Minor adoptable. He had developmental delays, particularly in speech, had received services from the Regional Center and Easter Seals and was on a waiting list for a Head Start program. He was also diagnosed with compulsive control disorder for which he received professional counseling.
Father did not appear at the April 12, 2007 due diligence/.26 hearing when the matter was called. Minor’s public defender stated he had been in touch with Father several times and was told it was likely counsel would be appointed for him if he appeared. The court found notice had been given as legally required, and continued the .26 hearing to June 21. The matter was recalled later that day after Father appeared. He was appointed counsel and ordered to return on June 21.
June 21, 2007 .26 Report
The Agency’s June 21, 2007 .26 report again stated that the ICWA did not apply. It stated that Father first initiated arranging visitation with the social worker on April 3. Father had supervised visits with Minor on April 5, 19 and 26, which appeared to go well, although Minor acted out the evening after the first visit. A May 3 visit was cancelled because Minor was ill. Father arrived too late for the May 10 visit, but did successfully visit Minor on May 17. Father cancelled the May 24 visit and did not show up or cancel the May 31 and June 7 visits. Minor’s counselor noted that Minor became unusually agitated after visits with Father, or when visitation was mentioned. An attached April 21 letter from Minor’s treating psychologist stated that Minor had been “exhibiting severe symptoms of hyperarousal, disorganized behavior, obsessive compulsive behavior, and playing with his feces.” He had yelled out, “ ‘No daddy, no daddy!’ ” in response to visitations with Father. The psychologist opined that visitations may cause Minor to “deteriorate further.” The Agency again concluded that reunification was not in Minor’s best interests because he had not had contact with Minor for two years, missed four of eight scheduled visits, and Minor had a negative reaction to the visits.
On June 20, 2007, pursuant to section 388, Father filed a Judicial Council form request to change court order, JV-180 (Jan. 1, 2007 rev.) (hereafter section 388 motion), requesting that the court set aside any further .26 hearings and grant Father reunification services and visitation. It also stated that Father could provide Minor stability and a home and Father was willing to provide him care and support. It also stated that his attempts to secure a regular visitation schedule had been “frustrated.”
Father appeared late for the June 21, 2007 hearing. The Agency, Mother and MA objected to the untimely section 388 motion and asserted that Father had not established the presumed father status that would give him standing to make the motion. Father’s counsel stated that Father would testify that he signed Minor’s birth certificate and is Minor’s biological father. The court denied Father’s section 388 motion without prejudice and, pursuant to Minor’s counsel’s request, set the matter for a further hearing on August 2 on the issue of whether Father could establish presumed father status. Pursuant thereto, the court ordered Father to undergo paternity testing. The court also ordered Father’s visitation with Minor be in a therapeutic setting. On June 22, Father filed an identical section 388 motion.
August 2, 2007 Memorandum
The Agency’s August 2, 2007 memorandum again stated that the ICWA did not apply. It stated that in July when paternity test arrangements were attempted, Father’s phone number was disconnected. It also noted that no declaration of paternity for Minor was on file with the Department of Child Support Services. The Agency recommended termination of Father’s parental rights.
On July 25, 2007, Father filed a third section 388 motion seeking to set aside any further .26 hearings and an order for reunification services and visitation. The request stated that, upon being properly noticed, Father (a non-offending parent) personally appeared and requested the opportunity to establish a relationship with Minor. It also stated that the court never received any information about Father’s ongoing relationship with Minor and the care Father’s parents gave Minor from birth until Father was “cut off” from contact with Minor. It also said it was not true that his whereabouts were unknown, and that Mother’s family did not give him or the Agency information about him or his family.
Also on July 25, 2007, Father filed a Judicial Council form statement regarding parentage, JV-505 (July 1, 2007 rev.), of Minor. It stated that Father had told his grandparents, uncles, aunt and five friends that Minor was his child. It also stated that Father had taken care of Minor, changed his diaper, bathed him, given him his asthma inhaler, played with him, taken him to the park and to Father’s friend’s house, visited him many times at Father’s parents’ house, and visited with him overnight. It said he had been unable to give money or things to Minor because he was unemployed and attending school, but his parents had purchased formula and diapers. It stated, after January 2006, Father was unable to participate in Minor’s life because Mother and her family would not disclose Minor’s whereabouts.
Paternity Hearing
Father appeared with counsel for the August 2, 2007 paternity hearing where evidence that Father is the biological father of Minor was presented. Testimony was presented as to whether Father was entitled to presumed father status. Father testified he was present at the hospital when Minor was born. Thereafter, Minor lived with Mother and Father lived with his parents. Within the first three months of Minor’s birth, Father visited him on a weekly basis at both Minor’s residence and Father’s residence. Sometimes Father stayed at Mother’s home for three or four days, or up to a week. Sometimes Mother and Minor spent a weekend at Father’s home. During Minor’s first year, Father attended Minor’s doctor’s appointments with Mother and MA. Father introduced Minor to his entire family as his son.
Father said that when Minor was about two years old, Father lost contact with him because Mother, Minor and MA moved away and did not tell him where they were going. In 2006, Mother called Father and said they had moved to Long Beach, but did not give a phone number.
On cross-examination, Father said he had not paid child support or bought Minor clothing, but had bought him a toy since discovering his whereabouts. Father clarified that he maintained contact with Minor through 2004 and stopped having contact with Minor in early 2005, when he was a year old, when Mother and MA moved away. Father said he signed a declaration of paternity at the hospital where Minor was born, but did not have a copy.
Mother confirmed that Father was at the hospital when Minor was born, and that for about a year Father maintained contact with Minor until Father and Mother’s relationship ended. Mother said she ended the relationship with Father because he was not interested in Minor. She said she lied when she told Father that she and Minor had moved to Long Beach, because she did not want Father to be with her if he was not there for Minor. In fact, she, Minor and MA did not move, and continued to reside in the same home. She said she called Father to let him know how Minor was, but did not provide her phone number. On cross-examination, Mother said Father refused her requests for money to support Minor. She said it would be a waste of time for Father to now have contact with Minor.
The court concluded that Father had not met his burden of establishing either statutory or Adoption of Kelsey S. (1992) 1 Cal.4th 816 (Kelsey S.) presumed father status. The court then proceeded with the .26 hearing and terminated the parental rights of both Father and Mother.
DISCUSSION
I. The Court Correctly Determined Father Is Not a Presumed Father
Father contends the court erred in finding that he did not qualify as a presumed father under Family Code section 7611 and Kelsey S. He acknowledges that the court’s finding is reviewed for substantial evidence. (In re A.A. (2003) 114 Cal.App.4th 771, 782.) “In reviewing the sufficiency of the evidence on appeal, we look to the entire record for substantial evidence to support the findings of the juvenile court. [Citations.] Evidence sufficient to support the court’s finding must be reasonable in nature, credible, and of solid value; it must actually be substantial proof of the essentials that the law requires in a particular case. [Citation.]” (In re N.S. (2002) 97 Cal.App.4th 167, 172.) In conducting our review we do not weigh the evidence, consider the credibility of witnesses, or resolve conflicts in or make inferences or deductions from the evidence. (In re Sheila B. (1993) 19 Cal.App.4th 187, 199.)
“In dependency proceedings, fathers are divided into four categories: de facto fathers, alleged fathers, natural fathers and presumed fathers. A man, such as a stepfather, who has assumed the role of parent, is a ‘de facto father.’ A man who may be the father of the dependent child but has not been established to be the natural or presumed father is an ‘alleged father.’ A man who has been established to be the biological father is a ‘natural father.’ A man who has held the child out as his own and received the child into his home is a ‘presumed father.’ A ‘natural father’ can be, but is not necessarily, a ‘presumed father’ and a ‘presumed father’ can be, but is not necessarily, a ‘natural father.’ [¶] Presumed father status ranks highest. Only a ‘statutorily presumed father’ is entitled to reunification services under . . . section 361.5, subdivision (a) and custody of his child under . . . section 361.2.” (In re Jerry P. (2002) 95 Cal.App.4th 793, 801, fns. omitted.)
The Uniform Parentage Act (UPA) (Fam. Code § 7600 et seq.) provides a comprehensive scheme for judicial determination of paternity. (In re Kyle F. (2003) 112 Cal.App.4th 538, 542.) “An unwed father’s rights and duties under the UPA substantially depend on whether he is a ‘presumed father’ within the meaning of [Family Code] section 7611. [Citations.] Under Family Code section 7611, a man who has neither legally married nor attempted to legally marry the mother of his child cannot become a presumed father unless he both ‘receives the child into his home and openly holds out the child as his natural child.’ ” (Adoption of Michael H. (1995) 10 Cal.4th 1043, 1051, quoting Fam. Code, § 7611, subd. (d); accord, Glen C. v. Superior Court (2000) 78 Cal.App.4th 570, 584.) An unwed father cannot constructively receive the child; he must openly and publicly admit paternity and physically bring the child into his home. (In re Kyle F., at p. 542.)
Father had the burden of establishing presumed father status under Family Code section 7611, subdivision (d), by a preponderance of the evidence. (In re A.A., supra, 114 Cal.App.4th at p. 782.) “We consider [the father’s] conduct before and after the child’s birth, including whether he publicly acknowledged paternity, paid pregnancy and birth expenses commensurate with his ability to do so, and promptly took legal action to obtain custody of the child. [Citation.]” (In re Elijah V. (2005) 127 Cal.App.4th 576, 583.)
Father claims he is entitled to presumed father status under Family Code section 7611, subdivision (d), based on evidence that he was present at Minor’s birth, he visited Minor overnight and on weekends and accompanied Minor to doctor’s appointments during Minor’s first year of life, he signed a declaration of paternity, held Minor out as his child to his family and friends, and his parents financially supported Minor and Mother.
“In determining whether a man has ‘receiv[ed a] child into his home and openly h[eld] out the child’ as his own [citation], courts have looked to such factors as whether the man actively helped the mother in prenatal care; whether he paid pregnancy and birth expenses commensurate with his ability to do so; whether he promptly took legal action to obtain custody of the child; whether he sought to have his name placed on the birth certificate; whether and how long he cared for the child; whether there is unequivocal evidence that he had acknowledged the child; the number of people to whom he had acknowledged the child; whether he provided for the child after it no longer resided with him; whether, if the child needed public benefits, he had pursued completion of the requisite paperwork; and whether his care was merely incidental. [Citations.]” (In re T.R. (2005) 132 Cal.App.4th 1202, 1211.)
Here, although the evidence before us establishes that Father was present at Minor’s birth in January 2004, and had regular access to Minor during Minor’s first year, nothing in the record before us indicates that Father provided financial support for Minor or took legal action to obtain custody of Minor. Father’s first legal action to obtain custody of Minor occurred in June 2007, when Father filed his first section 388 motion. Although Father’s parents may have provided financial support to Minor, there is no evidence that Father himself paid any pregnancy and birth expenses commensurate with his ability to do so, or provided any financial support to Minor.
The listing of Father on Minor’s birth certificate may offer proof that Father is Minor’s biological father, but not that he received Minor into his home for purposes of establishing presumed father status under Family Code section 7611, subdivision (d). Moreover, despite Father’s claim that he filed a voluntary declaration of paternity, he provided no evidence thereof, and no such declaration was on file with the Department of Child Support Services. (See Fam. Code, § 7570 et seq.; Cal. Rules of Court, rule 5.635(c) [a man is presumed to be the father of a child under Fam. Code, § 7611, where voluntary declaration of paternity properly executed and filed with Department of Child Support Services].)
We conclude the record contains substantial evidence supporting the juvenile court’s decision refusing to elevate Father’s status from biological father to presumed father under Family Code section 7611.
B. Kelsey S.
Alternatively, Father contends that Mother hid Minor’s whereabouts from Father, and thereby interfered with Father’s ability to establish presumed father status under a strict application of Family Code section 7611. He asserts that under Kelsey S., such interference excuses his performance under Family Code section 7611. He also argues that the juvenile court’s narrow application of Kelsey S. violated his rights to due process and equal protection.
“A biological father may be accorded parental rights and become a Kelsey S. father when his attempt to achieve presumed parent status under [Family Code] section 7611, subdivision (d) is thwarted by a third party and he made ‘a full commitment to his parental responsibilities—emotional, financial, and otherwise.’ [Citations.]” (In re Elijah V., supra, 127 Cal.App.4th at p. 583.) The factors considered in determining whether a man is a Kelsey S. father are “his conduct before and after the child’s birth, including whether he publicly acknowledged paternity, paid pregnancy and birth expenses commensurate with his ability to do so, and promptly took legal action to obtain custody of the child. [Citation.] He must demonstrate a full commitment to his parental responsibility within a short time after he learned that the biological mother was pregnant with his child. [Citation.] He must also demonstrate a willingness to assume full custody [Citation.].” (Ibid.)
We conclude that substantial evidence supports the juvenile court’s finding that the Kelsey S. factors were not established. Even assuming that Mother’s conduct caused Father to lose contact with Minor when Minor was about one year old, Father did not utilize that year to provide financial support for Minor or to take legal action to obtain custody of Minor. Moreover, after Father became aware of the dependency proceeding on March 20, 2007, his conduct toward Minor was ambivalent. He first contacted the Agency social worker to initiate visitation with Minor on April 3. After the first three visits, Father arrived too late to the next visit, had one visit, then cancelled one visit and did not show up or cancel the next two visits. His claim that his attempts to secure a regular visitation schedule had been frustrated was unsupported by any evidence. Moreover, after resuming contact with Minor, Father’s only financial support to Minor was the purchase of a toy.
We also reject Father’s contention that the court’s narrow application of Kelsey S. denied him a parental fitness hearing and violated his rights to due process and equal protection. Father relies on the following statement from Kelsey S.: “If an unwed father promptly comes forward and demonstrates a full commitment to his parental responsibilities—emotional, financial, and otherwise—his federal constitutional right to due process prohibits the termination of his parental relationship absent a showing of his unfitness as a parent. Absent such a showing, the child’s well-being is presumptively best served by continuation of the father’s parental relationship. Similarly, when the father has come forward to grasp his parental responsibilities, his parental rights are entitled to equal protection as those of the mother.” (In re Kelsey S., supra, 1 Cal.4th at p. 849.) As we noted previously, the evidence establishes that Father failed to promptly come forward and demonstrate a full commitment to his parental responsibilities during the first year of Minor’s life and after resuming contact with Minor. Consequently, no constitutional violation or denial of the right to a parental fitness hearing is shown.
C. Equitable Estoppel
Father argues that Mother’s conduct in “intentionally sequester[ing]” Minor, falsely representing to Father that Mother and Minor moved to Long Beach to deter him from having a relationship with Minor, and falsely representing to the Agency and the court that she did not know Father’s whereabouts invokes principles of equitable estoppel set out in Evidence Code section 623. Thus, he argues that the court should have found that Mother was estopped from testifying in opposition to Father’s request to be considered a Kelsey S. father.
Evidence Code section 623 provides: “Whenever a party has, by his own statement or conduct, intentionally and deliberately led another to believe a particular thing true and to act upon such belief, he is not, in any litigation arising out of such statement or conduct, permitted to contradict it.”
The short answer to Father’s equitable estoppel argument is that his failure to raise it below as an evidentiary objection constitutes a waiver of the issue on appeal. (Evid. Code, § 353; see In re Joy M. (2002) 99 Cal.App.4th 11, 17.)
D. Subject Matter Jurisdiction
Finally, in reliance on In re S.D. (2002) 99 Cal.App.4th 1068, Father argues that the juvenile court did not have subject matter jurisdiction. He asserts that since the subdivision (g) allegations of the section 300 petition were founded on Mother’s misrepresentations that his whereabouts were unknown, the court’s subject matter jurisdiction was based solely on Mother’s misrepresentations.
In In re S. D., both parents appealed the juvenile court’s jurisdictional findings, contending the jurisdictional allegations as to both parents were erroneous. The appellate court held that the juvenile court erred in sustaining the section 300, subdivision (g) findings because they were not supported by substantial evidence. (In re S.D., supra, 99 Cal.App.4th at p. 1071.) In re S.D. is inapposite. Here, the trial court made a finding against Mother, Mother did not appeal and Father did not contest the jurisdictional findings against her. Thus, subject matter jurisdiction exists. “[A jurisdictional] finding against one parent is a finding against both in terms of the child being adjudged a dependent.” (In re Janet T. (2001) 93 Cal.App.4th 377, 392, fn. omitted; accord, In re Joshua G. (2005) 129 Cal.App.4th 189, 202.)
II. ICWA Notice
Father also contends the court failed to sufficiently comply with the inquiry and notice provisions of ICWA. In particular, Father argues that there is no indication in the record that either the juvenile court or the Agency ever inquired as to whether he had Native American heritage after he appeared in the proceedings in June 2007, and the court never made a finding as to whether ICWA applied.
A. Waiver
The Agency argues that Father has forfeited the issue by failing to object to the adequacy of the inquiry below. The Agency concedes that usually, ICWA notice cannot be waived by the conduct of the parents. (In re H. A. (2002) 103 Cal.App.4th 1206, 1211.) It relies on In re S.B. (2005) 130 Cal.App.4th 1148, which concluded the mother waived the supposed failure to inquire concerning her child’s Indian ancestry. (Id. at p. 1160.) That case is, however, distinguishable. In In re S.B., the court found that the mother had, by dilatory conduct, waived her procedural protections under ICWA. (In re S.B., at pp. 1159-1160.) Because the tribe had appeared in the matter, the appellate court found the rationale precluding waiver of the tribe’s interests by the parent’s conduct did not apply. (Id. at pp. 1155, 1159.) We reject the application of the waiver rule here and address the ICWA notice issue on the merits.
B. The Merits
The ICWA protects the interests of Indian children and promotes the stability and security of Indian tribes and families by establishing certain minimum federal standards in juvenile dependency actions. (In re D.T. (2003) 113 Cal.App.4th 1449, 1453-1454; see 25 U.S.C. §§ 1902; Mississippi Choctaw Indian Band v. Holyfield (1989) 490 U.S. 30.) When the social services agency has reason to know the proceeding involves an Indian child, the agency must notify the Indian child’s tribe or the Bureau of Indian Affairs (if the tribe’s identity cannot be determined) of the pending proceedings and of the right to intervene. (In re Marinna J. (2001) 90 Cal.App.4th 731, 739-740, fn. 4.) A duty is imposed on the agency to inquire into the possibility of the child’s Indian ancestry and to act upon the information the family provides. However, the department is not required to conduct an extensive independent investigation or to “cast about, attempting to learn the names of possible tribal units to which to send notices.” (In re Levi U. (2000) 78 Cal.App.4th 191, 199.)
Section 224.2, subdivision (a), provides in relevant part: “If the court, a social worker, or probation officer knows or has reason to know that an Indian child is involved, any notice sent in an Indian child custody proceeding under this code shall be sent to” “the minor’s tribe.” Section 224.2, subdivision (a)(3), provides that notice must be sent to all tribes of which the child may be a member or eligible for membership, until the court makes a determination as to which tribe is the child’s tribe. (See also In re Louis S. (2004) 117 Cal.App.4th 622, 632-633.) The notice must include the names of the child’s ancestors and other identifying information, if known, and be sent registered or certified mail, return receipt requested. (§ 224.2, subds. (a)(1) & (5); In re Karla C. (2003) 113 Cal.App.4th 166, 175-176.) The agency providing notice is required to file with the court “a copy of the notice sent and the return receipt, as well as any correspondence received from the Indian entity relevant to the minor’s status.” (In re Marinna J., supra, 90 Cal.App.4th at pp. 739-740, fn. 4; accord, In re Karla C., at pp. 175-176.)
Section 224.3, subdivision (a), provides that “The court, county welfare department, and the probation department have an affirmative and continuing duty to inquire whether a [dependent child of the court] is or may be an Indian child in all dependency proceedings . . . .” Former rules 1439(d)(2) and 5.664(d)(2), operative in this case, state: “In dependency cases, the social worker must ask . . . the parents . . . whether the child may be an Indian child or may have Indian ancestors.” Former rules 1439(d)(3) and 5.664(d)(3) provide that at the first appearance by a parent in a dependency case, the parent must be ordered to complete a Judicial Council form parental notification of Indian status, JV-130 (Jan. 1, 2005 rev.) (hereafter JV-130).
The trial court impliedly found that sufficient inquiry had been made when it concluded there had been sufficient compliance with the ICWA notice requirements. We review the juvenile court’s findings in the light most favorable to the court’s order. (In re Rebecca R. (2006) 143 Cal.App.4th 1426, 1430.) If substantial evidence supports the order, our duty ends and the order must be affirmed. (See In re Misako R. (1991) 2 Cal.App.4th 538, 545.) A judgment or order based on unreasonable inferences, speculation or conjecture is not supported by substantial evidence. (Cf. People v. Anderson (1968) 70 Cal.2d 15, 23-24.)
Substantial evidence exists. The form petition and amended petition each contain two boxes, which, if checked, mean that Minor may be of Indian ancestry. None of the boxes was checked. The Agency’s detention report stated that pursuant to an investigation by the emergency response worker, Minor was not an Indian child. Thereafter, the Agency stated consistently in its reports that the ICWA did not apply. At no time after June 2007, when Father first appeared in the proceedings and was appointed counsel, did he or counsel suggest that Minor might have Indian heritage or object to the Agency statements that ICWA did not apply.
Father’s reliance on In re J.T. (2007) 154 Cal.App.4th 986 and In re Louis S. (2004) 117 Cal.App.4th 622 is misplaced as those cases concern ICWA notice, not ICWA inquiry. He also relies on In re J.N. (2006) 138 Cal.App.4th 450 to attack the sufficiency of the evidence. In In re J.N., the two boxes on the petition form regarding Indian ancestry under the ICWA were not checked, the father indicated on the JV-130 that he had no known Indian ancestry, but there was no JV-130 for the mother. The question of Native American heritage was not raised at the jurisdiction/disposition hearing, and mother was not asked about her heritage, although it was her first appearance before the court. The social study prepared for disposition stated that mother is of “ ‘Caucasian descent’ ” and father “ ‘is of Caucasian descent with no known American Indian heritage,’ ” but none of the social study reports stated that mother was asked whether she had any Indian ancestry. In addition, the minutes from the detention hearing stated that the court had inquired of the father concerning the child’s Indian heritage, but no such inquiry was included in the reporter’s transcript. Similarly, the minutes stated that ICWA did not apply, but no such finding was included in the reporter’s transcript from the detention hearing. (In re J.N., at pp. 460-461.) From the record, the court concluded it was apparent mother was never asked if she had any Indian ancestry. (Id. at p. 461.)
In re J.N. is distinguishable. Among other reasons, there was inadequate support in the record in that case that the trial court had concluded ICWA did not apply; and, apparently, the agency did not consistently state in numerous reports that ICWA did not apply. We believe that In re Aaliyah G. (2003) 109 Cal.App.4th 939 and In re S.B., supra, 130 Cal.App.4th 1148 are more apt. In In re Aaliyah G., the petition application was marked “No” to show that the child did not have Indian heritage, the department thereafter consistently reported that ICWA did not apply, neither the father nor any of the child’s relatives ever suggested the child may have Indian heritage, and there was no indication in the record that the child had Indian heritage. The appellate court concluded that the trial court had no obligation to make a further or additional inquiry absent any information or suggestion that the child might have Indian heritage. (In re Aaliyah G., at p. 942.) In In re S.B., as here, the two boxes on the JV-100 indicating the minor’s possible Indian heritage were unchecked, the hearing reports stated that the ICWA did not apply, and the mother did not object to those statements when she appeared with counsel at the hearing. The appellate court concluded substantial evidence supported the finding that the necessary ICWA inquiry was made: “From the affirmative representation that the ICWA did not apply, it is fairly inferable that the social worker did make the necessary inquiry.” (In re S.B., at p. 1161.)
The unchecked boxes indicating the minors’ possible Indian heritage, the investigation prior to the detention report, the Agency’s consistent statements in its reports that the ICWA did not apply, the numerous contacts between the social worker and Father, and Father’s counsel’s failure to assert the minors’ possible Indian heritage or the Father’s Indian heritage establish substantial evidence that the requisite ICWA inquiry was made. Moreover, in each of his three section 388 motions, Father states that the children had no Indian ancestry. Finally, there are no inconsistencies in the evidence to rebut the presumption that the Agency properly carried out its duties. (Evid. Code, § 664; see In re Rebecca R., supra, 143 Cal.App.4th at p. 1430.)
We also reject Father’s contention that the trial court was required to make an express finding that ICWA did not apply. “While the record must reflect that the court considered the issue and decided whether ICWA applies, its finding may be either express or implied. [Citations.]” (In re Asia L. (2003) 107 Cal.App.4th 498, 506.) Here, the trial court expressly found that notice had been given as required by law prior to terminating Father’s parental rights. Thus, the court implicitly found that ICWA was not applicable.
DISPOSITION
The order is affirmed.
We concur. JONES, P.J., NEEDHAM, J.
Effective January 1, 2007, former rule 1439 was renumbered rule 5.664. Moreover, effective that date, certain Welfare and Institutions Code sections became part of the ICWA notice framework, most notably sections 224.2 and 224.3. Effective January 1, 2008, rule 5.664 was repealed, and the rules pertaining to the ICWA are now found at rule 5.480 et seq.