Opinion
NOT TO BE PUBLISHED
Alameda County Super. Ct. No. HJ06004049
RIVERA, J.
Stephanie B. (Mother) appeals after the juvenile court ordered a plan of legal guardianship for her son, Logan P., and terminated Logan’s dependency at a hearing pursuant to Welfare and Institutions Code section 366.26 (.26 hearing). She contends the Alameda County Social Services Agency (the agency) did not exercise due diligence in trying to find her, and that the juvenile court did not comply with the Indian Child Welfare Act (25 U.S.C. § 1901 et seq.) (ICWA). We affirm.
All undesignated statutory references are to the Welfare and Institutions Code.
I. Background
The agency filed a petition pursuant to section 300 on June 6, 2006, alleging Mother and Paul P., Logan’s father (Father), had failed to protect Logan, that Logan had been left without provision for support, and that Logan’s half siblings had been abused. According to the detention report, Mother was homeless and had been “living between California and Oregon.” She had left Logan with a friend in October 2005, indicating she would return in “a couple of weeks,” but she did not return; and aside from two visits to Logan’s school and a couple of phone calls, she had not provided for Logan’s care. Both parents had substance abuse problems, and Mother reportedly had “legal matters that ha[d] kept her traveling back and forth from Oregon.” The maternal grandmother (Grandmother) was not able to provide care for Logan. Logan was a resident student at a school for the deaf. When the school was closed during weekends and school recesses, he had no regular place to stay, although various friends took him in during those times.
Father is not a party to this appeal. We will recite the facts relating to Father only to the extent they are relevant to the issues on appeal.
Like Logan, Mother is deaf. Logan communicated with her by instant messaging, and he could only do so at times she was signed on to the messaging service. Logan did not know where Mother was living, and reported that she abused methamphetamines and marijuana.
The juvenile court sustained the allegations of the petition and ordered Logan detained on June 7, 2006. Mother did not appear at the detention hearing.
At the time of the jurisdiction/disposition report, prepared in June 2006, the social worker assigned to the case had spoken with Logan, Grandmother, and school officials in an effort to locate Mother. Grandmother reported that Mother traveled back and forth between Oregon and California and that Mother might occasionally stay with Father. She also reported that Mother might be in Hayward with an ex-girlfriend. Grandmother saw Mother periodically. Mother had no arrest record in Alameda County, although the report stated that she apparently had a record in another county. Efforts to get in touch with Father had also failed. The report stated that the ICWA did not apply.
An addendum report filed on July 10, 2006, indicated the agency had still had no contact with Mother. A social worker had spoken with Father, who provided an address and said he had been in contact with Mother recently. The report stated that the ICWA did not apply.
Mother appeared at the July 11, 2006, jurisdictional hearing, represented by counsel. The hearing was continued, and Mother was ordered to return to the courtroom. Mother appeared at the continued hearing on August 8, 2006. The juvenile court found that Mother had submitted to the allegations, that she had waived the right to a trial, to remain silent, and to confront, cross-examine, and subpoena witnesses, and that she understood the conduct alleged in the petition and the possible consequences of a submission. The juvenile court adjudged Logan a dependent child of the court, committed him to the custody of the agency, ordered reunification services for Mother, and ordered her to submit to drug testing as appropriate. Logan was later placed with foster parents.
The record does not contain reporter’s transcripts of the hearings at which Mother appeared. We rely instead on the court minutes.
A six-month status review report of January 2007 recommended that the dependency be maintained, that reunification services for Mother be terminated, and that a .26 hearing be set with a permanent plan of legal guardianship. According to the report, Mother’s whereabouts had been unknown throughout the reporting period. A social worker heard in October 2006 that Mother was incarcerated in Sonoma County, but when she called the jail, she learned that Mother had been released the previous day and the jail did not have forwarding information. Mother had not had any contact with Logan during the reporting period. The agency had called Grandmother numerous times, but she did not answer the phone and there was no answering machine. The report stated that the ICWA did not apply. Mother’s counsel was served with notice of the hearing.
Mother appeared by counsel at the January 29, 2007, status review hearing, although she was not personally present. The juvenile court found that notice had been given as required by law and that Mother had made no progress on alleviating the causes leading to the placement, and set a .26 hearing. The court ordered notice to be served on Mother by mail at her last known address, and set a due diligence hearing for March 12, 2007.
The agency filed a declaration of due diligence before the March 12 hearing. According to the declaration, Mother had not had any contact with either the agency, Logan, or Logan’s school, which “often serves as a focal point in the Deaf community,” during the reporting period. The agency had conducted a search for Mother, which included ascertaining that she was not in custody, as well as searching Department of Motor Vehicle records; Alameda County welfare, probation, and voting records; medical records; family support records; online telephone directories in the Alameda County area; child welfare records; and California Department of Correction records. Mother’s counsel appeared at the due diligence hearing.
The juvenile court continued the hearing to allow the search for Mother to be extended to the State of Oregon. A declaration of search efforts dated May 31, 2007, reported that the agency had not been able to locate Mother. In addition to searching Alameda County and California records, the agency had searched Oregon online telephone directories and records of the Oregon Department of Motor Vehicles, and had sent letters to Mother at five possible addresses in Oregon and additional addresses in California, including one in Santa Rosa, without success. The agency had also sent a letter to Father, but the letter was returned as undeliverable. After several continuances, the juvenile court on June 4, 2007, found the agency had exercised due diligence in attempting to find Mother.
A .26 hearing took place on June 11, 2007. Mother’s counsel received notice and appeared at the hearing. A report prepared for the hearing indicated that the ICWA did not apply, that the agency had been unable to locate Mother, and that she had had no contact with Logan during the reporting period. The juvenile court found notice had been given as required by law, ordered a plan of legal guardianship with Logan’s foster parents as guardians, and dismissed the dependency. Mother appealed from the orders of June 4, 2006, and June 11, 2006.
II. Discussion
A. Due Diligence
Mother contends the juvenile court erred in finding the agency had exercised due diligence in searching for her and that as a result she was deprived of due process. According to Mother, the search was inadequate because it focused on Alameda County and because it did not use the resources of the deaf community.
“Since the interest of a parent in the companionship, care, custody, and management of [her] children is a compelling one, ranked among the most basic of civil rights [citations], the state, before depriving a parent of this interest, must afford [her] adequate notice and an opportunity to be heard.” (In re B. G. (1974) 11 Cal.3d 679, 688-689.) “ ‘The means employed to give notice “must be such as one, desirous of actually informing the absentee, might reasonably adopt to accomplish it.” ’ [Citation.] ‘The term “reasonable diligence” as used to justify service by publication “denotes a thorough, systematic investigation and inquiry conducted in good faith . . . .” [Citation.] Where the party conducting the investigation ignores the most likely means of finding the defendant, the service is invalid even if the affidavit of diligence is sufficient. [Citations.]’ [Citation.]” (In re Arlyne A. (2000) 85 Cal.App.4th 591, 598 (Arlyne A.).)
Mother relies on Arlyne A., in which the Court of Appeal concluded the juvenile court did not have personal jurisdiction over a mother who had not been notified of a dependency proceeding. Although the department of children and family services there had tried to find the mother, it had ignored information it had received about where the mother’s parents were living, had “failed to take the simple and most direct step of calling directory assistance to find the parents’ number in [the city in which they lived],” instead limiting its directory assistance search to a city in which records indicted the mother had lived five years previously—although it knew that her last known address was in another city—and had not followed up on a tip that a police department knew the mother’s addresses. (Arlyne A., supra, 85 Cal.App.4th at pp. 598-599.) Similarly, the court in David B. v. Superior Court (1994) 21 Cal.App.4th 1010, 1014-1016 (David B.), concluded that the juvenile court lacked jurisdiction over a father who had not appeared in a dependency action because the children’s services department had not made reasonable efforts to find him in light of the information it possessed. There, the child’s birth certificate indicated the father was in the United States Marine Corps, and the department had not tried to get the father’s whereabouts from the Marines. As the court stated, “Where the party conducting the investigation ignores the most likely means of finding the defendant, the service is invalid even if the affidavit of diligence is sufficient.” (Id. at p. 1016; see also In re Antonio F. (1978) 78 Cal.App.3d 440, 447-449, disapproved on other grounds in In re Laura F. (1983) 33 Cal.3d 826, 830-831 [department had not sent notice to mother’s last known address during prior dependency proceedings].)
This case is fundamentally different from the cases on which Mother relies. In those cases, the parent had not received notice of the dependency proceedings at all. Here, as we have discussed, Mother appeared at the jurisdictional hearing on two separate dates, and she submitted to the allegations of the petition. She was ordered to appear at the next court date, but she did not do so, and did not contact the agency again. “Once jurisdiction of the subject matter and of the person is obtained in a particular case, that jurisdiction continues throughout the action and in proceedings incidental thereto.” (In re Larry P. (1988) 201 Cal.App.3d 888, 895 (Larry P.) [rejecting due process challenge based on lack of notice of permanency planning hearing where mother had appeared at earlier hearing].) In those circumstances, the parent has “some burden to remain in contact thereafter.” (Id. at pp. 892, 895; see also In re Raymond R. (1994) 26 Cal.App.4th 436, 441 [“[o]nce a parent has been located, it becomes the obligation of the parent to communicate with the Department and participate in the reunification process”].) Mother failed to remain in contact with the agency. We conclude that here, as in Larry P., the court had jurisdiction and there was no due process violation.
In any case, the agency’s efforts to locate Mother appear to have been more than adequate. Mother was known to spend time with both a former girlfriend and Father in Alameda County, Logan was enrolled in school in Alameda County, and Mother had left him with the family of one of the teachers there. Not only did the agency search in multiple California and Alameda County sources, it tried to contact Grandmother without success, checked motor vehicle and telephone records in Oregon, and wrote to Mother at several possible addresses in Oregon, again without success. Mother contends that the unique circumstance of her being deaf required the agency to use resources used by those in the deaf community. But this is not a case such as Arlyne A. or David B., in which the agency ignored specific information in its possession about a parent’s likely whereabouts. Whether or not it would have been possible to make a more comprehensive search, the record supports the finding that the agency had exercised due diligence.
In the absence of a due process violation, we will not reverse unless Mother was prejudiced by the absence of more vigorous efforts to locate her. (Larry P., supra, 201 Cal.App.3d at p. 896; see also In re Sabrina H. (1990) 217 Cal.App.3d 702, 713.) No prejudice is shown here. Mother had effectively disappeared from Logan’s life more than a year and a half before the .26 hearing, did not have a stable home, had shown no ability to care for Logan, and had not participated in the reunification services and drug testing that had been ordered for her. Rather than terminating her parental rights, the juvenile court ordered a plan of guardianship. We see no likelihood of a result more favorable to Mother even if she had been located and had appeared at the hearing.
B. ICWA Compliance
Mother contends the juvenile court failed to make findings regarding whether the ICWA was applicable and that it failed to ensure that the agency complied with the ICWA’s inquiry requirements.
As Mother points out, the juvenile court is required to make a determination as to whether the ICWA applies. (See In re Asia L. (2003) 107 Cal.App.4th 498, 506.) However, “[w]hile the record must reflect that the court considered the issue and decided whether ICWA applies, its finding may be either express or implied.” (Ibid.; see also In re Jennifer A. (2002) 103 Cal.App.4th 692, 705-706 & fn. 5; In re Levi U. (2000) 78 Cal.App.4th 191, 199.) Here, the reports submitted to the court indicated that the ICWA did not apply. The juvenile court indicated it had read and considered the reports. Even in the absence of explicit findings, the record supports the conclusion that the juvenile court considered whether the ICWA applied and determined it did not.
Mother argues, however, that the record contains no evidence that the agency and the court fulfilled their duty of inquiry under the ICWA. “ICWA requires a court, if it ‘knows or has reason to know that an Indian child is involved’ in any involuntary proceeding, to give notice to the Indian child’s tribe of the pending proceedings and its right to intervene. (25 U.S.C. § 1912(a).)” (In re Aaliyah G. (2003) 109 Cal.App.4th 939, 941 (Aaliyah G.).) At the time the petition was filed, California Rules of Court, rule 1439(d), provided in pertinent part: “The court, the county welfare department, and the probation department have an affirmative and continuing duty to inquire whether a child for whom a petition under section 300, 601, or 602 is to be, or has been, filed is or may be an Indian child. [¶] . . . [¶] (2) In dependency cases, the social worker must ask the child, if the child is old enough, and the parents or legal guardians whether the child may be an Indian child or may have Indian ancestors. [¶] (3) At the first appearance by a parent or guardian in any dependency case, or in juvenile wardship proceedings in which the child is at risk of entering foster care or is in foster care, the parent or guardian must be ordered to complete form JV-130, Parental Notification of Indian Status.” Rule 1439(e) provided that the applicable boxes on the form dependency petition used here must be checked if the county welfare department knew or had reason to know the child might be of Indian ancestry, a member of an Indian tribe, or eligible for membership.
The California Rules of Court have been renumbered. Former rule 1439’s directives are now contained in California Rules of Court, rule 5.481. All further rule references are to the California Rules of Court.
Here, the agency did not check either box on the petition indicating possible Indian heritage. It stated consistently in its reports that the ICWA did not apply. Mother appeared at two hearings, represented by counsel, and there is no indication she—or anyone else—suggested Logan might have Indian heritage. In similar circumstances, the court in Aaliyah G. concluded there was sufficient evidence that an inquiry was made into whether a child was an Indian child. There, the petition was marked “No” to show that the child did not have Indian heritage, the agency consistently reported that the ICWA did not apply, and neither the father nor any other relative had ever suggested to the contrary. In the circumstances, “[t]he court had no obligation to make a further or additional inquiry absent any information or suggestion that the child might have Indian heritage.” (Aaliyah G., supra, 109 Cal.App.4th at p. 942.) Similarly, in In re S. B. (2005) 130 Cal.App.4th 1148, 1161, the boxes on the form petition indicating Indian heritage were not checked, the report for the detention and jurisdictional/dispositional hearings indicated the ICWA did not apply, and the mother did not object to the statements when she appeared in court with counsel. In the circumstances, the court concluded there was sufficient evidence the juvenile court and the department had met their duty of inquiry. (Id. at p. 1162.)
Mother contends, however, that we should not follow Aaliyah G. because it was decided before the provision for form JV-130, parental notification of Indian status, went into effect. Logan’s dependency began after the requirement for form JV-130 became effective, and no such completed form appears in the record here. (Rule 1439(d)(3); see also In re Rebecca R. (2006) 143 Cal.App.4th 1426, 1429 (Rebecca R.).) Nor do the minutes of the hearings Mother attended indicate the juvenile court asked her to complete the form.
We doubt that the absence of a form JV-130 in the record establishes that the duty of inquiry was not met, where there is evidence to the contrary. In any case, there was no miscarriage of justice. A similar issue arose in Rebecca R., in which a father argued the duty of inquiry under the ICWA had not been satisfied. After rejecting this contention on other grounds, the Court of Appeal continued: “Third, and finally, we reject father’s claim because father has failed to show a miscarriage of justice, which is the fundamental requisite before an appellate court will reverse a trial court’s judgment. (Cal. Const., art VI, § 13.)” (Rebecca R., supra, 143 Cal.App.4th at p. 1430.) The Court of Appeal cited In re J. N. (2006) 138 Cal.App.4th 450, 461 (J. N.), in which the court had refused to speculate about what a mother’s response to an inquiry about her Indian ancestry would be, and therefore rejected the contention that the lack of inquiry was harmless error. The court in Rebecca R. went on to state: “Father essentially asks the same of us, to overlook his failure to demonstrate a miscarriage of justice. This we decline to do. [¶] The sole reason an appellate court is put into a position of ‘speculation’ on the matter is the parent’s failure or refusal to tell us. Father complains that he was not asked below whether the child had any Indian heritage. Fair enough. But, there can be no prejudice unless, if he had been asked, father would have indicated that the child did (or may) have such ancestry. [¶] Father is here, now, before this court. [Citation.] There is nothing whatever which prevented him, in his briefing or otherwise, from removing any doubt or speculation. He should have made an offer of proof or other affirmative representation that, had he been asked, he would have been able to proffer some Indian connection sufficient to invoke the ICWA. He did not. [¶] In the absence of such a representation, the matter amounts to nothing more than trifling with the courts. The knowledge of any Indian connection is a matter wholly within the appealing parent’s knowledge and disclosure is a matter entirely within the parent’s present control. The ICWA is not a ‘get out of jail free’ card dealt to parents of non-Indian children . . . .” (Rebecca R., supra, 143 Cal.App.4th at p. 1431.)
The father in J. N. had filled out a form JV-130, but there was no such form in the record for the mother. (J. N., supra, 138 Cal.App.4th at p. 460.) The court in Rebecca R. distinguished J. N. on this ground, stating: “There are no inconsistencies in the evidence to rebut the presumption that DCS properly carried out its duties in contrast to In re J.N., supra, 138 Cal.App.4th 450, where an affirmative showing that inquiry was made as to one parent supported an inference that it had not been made as to the other.” (Rebecca R., supra, 143 Cal.App.4th at p. 1430.)
We agree with the reasoning of Rebecca R. At no point in these proceedings—either below or on appeal—has Mother ever suggested that Logan might have Indian heritage. Although she appeared at the jurisdictional hearing, represented by counsel, she did not object to the 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. In the circumstances, any error was harmless.
III. Disposition
The orders are affirmed.
We concur REARDON, Acting P. J., SEPULVEDA, J.