Opinion
NOT TO BE PUBLISHED
Appeal from a post judgment order of the Superior Court of Orange County, Super. Ct. No. DP012629 James Patrick Marion, Judge.
Robert McLaughlin, under appointment by the Court of Appeal, for Defendant and Appellant.
Benjamin P. de Mayo, County Counsel, Karen L. Christensen, Senior Deputy Counsel, and Aurelio Torre Deputy County Counsel, for Plaintiff and Respondent.
OPINION
IKOLA, J.
Rebecca B. (mother) appeals the court’s termination of her parental rights over Tatiana G. (now age 2). Mother contends (1) the court and Orange County Social Services Agency (SSA) did not comply with the Indian Child Welfare Act (ICWA) (25 U.S.C. § 1901 et seq.), and (2) termination of mother’s parental rights was detrimental to Tatiana under the beneficial relationship exception contained in Welfare and Institutions Code section 366.26, subd. (c)(1)(A). We disagree and affirm the order.
All statutory references are to the Welfare and Institutions Code unless otherwise stated. Section 366.26 was amended effective January 1, 2008. Former subdivision (c)(1)(A) is now designated subdivision (c)(1)(B)(i). Because this matter was heard before the effective date of the amendment, and the record reflects the statutory designation then in effect, we use the former subdivision designations for convenience and clarity.
FACTS
In November 2005, six-month-old Tatiana was taken into protective custody after police responded to a domestic violence report and found cocaine at her home. In January 2006, the court found true the allegations in SSA’s amended petition that Tatiana came within the court’s jurisdiction under section 300, subdivision (b) (failure to protect) because, inter alia, mother was incarcerated for violating her probation after the police found cocaine in Tatiana’s bedroom; mother had an unresolved problem with the use of alcohol, methamphetamines and cocaine; mother had suffered a driving under the influence conviction; and mother and father had engaged in domestic violence incidents on at least two occasions. About two weeks later, Tatiana was conditionally released to her parents’ custody, but was soon removed “due to continued alcohol abuse by the mother and domestic violence between the parents.” Tatiana was then placed with her paternal grandmother.
For the six-month review hearing, the social worker reported mother “ha[d] demonstrated very little progress, if any, in completing her case plan.” Mother had missed six counseling sessions and six parenting classes, failed to consistently drug test, and continued “to test positive for alcohol.” Although mother appeared “to be loving and nurturing during visits” with Tatiana (which were scheduled “typically every other day”), mother visited sporadically after May 3, 2006, and on one visit smelled of alcohol. In July 2006, an officer arrested mother for her own safety after she caused a disturbance while appearing to be “extremely intoxicated” and tried to “force[] her way into the residence” she shared with father.
At the six-month review hearing in August 2006, the court ordered mother’s reunification services terminated, but “indicated that if [she] drug test[ed] negative from now [until] the next hearing date [she could] file a [section 388] motion.”
For the 12-month review hearing, the social worker reported mother had failed to drug test clean. Mother’s visitation with Tatiana had been “inconsistent”; she visited the child six times in August, once in September, once in October, not at all in November, and four times in December. Tatiana was “happy,” “loved and well taken care of” in her placement with her paternal grandparents, and the paternal grandparents wanted “to adopt the child should family reunification be unsuccessful.” Meanwhile, Tatiana had been “found to be adoptable” after completion of a permanent planning assessment. The social worker recommended a section 366.26 hearing be scheduled.
Mother did not attend the 12-month review hearing; her counsel stated he had tried to reach her by telephone for two weeks without success. The court scheduled a section 366.26 hearing for May 15, 2007.
In its report prepared for the section 366.26 hearing, SSA reported the paternal grandparents were “in the process of adopting” Tatiana who was “bonded and . . . attached to the paternal grandparents” and got “along well with” her 13-year-old aunt who also lived in the home. In contrast, Tatiana referred to mother as “Becky” and did “not appear to be attached to” mother. Mother visited Tatiana once in January, twice in February and not at all in March or April.
Mother did not attend the section 366.26 hearing. Her counsel, despite attempts to contact and “track down” mother, had not “heard from her.” The court ordered the termination of both parents’ parental rights and the placement of Tatiana for adoption, finding by clear and convincing evidence (1) she was likely to be adopted, (2) the provisions of section 366.26, subdivision (c)(1)(A) did not apply, and (3) termination of parental rights and placement for adoption were in Tatiana’s best interests.
DISCUSSION
Any Omissions in Inquiring into Indian Heritage Were Harmless
Mother contends the court and SSA “failed to fulfill their duties of inquiry under ICWA.” She asserts “SSA never asked mother whether Tatiana had any Indian ancestry” and the “court failed to ensure that both parents completed the mandatory JV-130 form.” In mother’s view, these errors were not harmless. She concludes the court’s order terminating her parental rights must be reversed.
The record reveals the court and SSA took the following steps to comply with ICWA and related state law. On the day after Tatiana was taken into protective custody, SSA asked father and Tatiana’s maternal grandmother whether their respective families had any “American Indian Heritage.” Both father and the grandmother denied any such heritage. SSA did not interview mother because she was incarcerated at the time. Mother was, however, present at the detention hearing. There, the court asked each parent individually if they were “aware of any American Indian heritage.” Mother replied, “Not that I’m aware of,” and father stated, “None, Your Honor.” Accordingly, the court found the ICWA did not apply.
The ICWA “is designed to promote the stability and security of Indian tribes and families by establishing minimum standards for removal of Indian children from their families and placement of such children ‘in foster or adoptive homes which will reflect the unique values of Indian culture, and by providing for assistance to Indian tribes in the operation of child and family service programs.’” (In re Levi U. (2000) 78 Cal.App.4th 191, 195.) “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.” (In re Aaliyah G. (2003) 109 Cal.App.4th 939, 941.) California law imposes upon the court and county welfare department “an affirmative and continuing duty to inquire whether a child [who is the subject of a section 300 petition] is or may be an Indian child.” (§ 224.3, subd. (a).) Rule 5.664(d) of the California Rules of Court requires the social worker to ask the parents whether the child “may be an Indian child or may have Indian ancestors.” (Cal. Rules of Court, rule 5.664(d)(2).) “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). (Cal. Rules of Court, rule 5.664(d)(3).) Form JV-130 requires a parent to indicate whether the parent or the child “may be a member of, or eligible for membership in, a federally recognized Indian tribe”; whether the parent “may have Indian ancestry”; or whether the parent has “no Indian ancestry as far as [he or she] know[s].” “If the court [or] social worker . . . knows or has reason to know that an Indian child is involved, the social worker . . . is required to make further inquiry regarding the possible Indian status of the child, and to do so as soon as practicable, by interviewing the parents, Indian custodian, and extended family members to gather the information required . . ., contacting the Bureau of Indian Affairs and the State Department of Social Services . . . and contacting the tribes . . . .” (§ 224.3, subd. (c).)
The rule was repealed effective January 1, 2008. The subject matter of the rule is now found in rule 5.481 of the California Rules of Court.
Effective January 1, 2008, the form is now designated ICWA-020.
Here, the court met its duty to ask mother whether she was aware of any Indian heritage. Mother’s reply, “Not that I’m aware of,” was synonymous with “No.” Contrary to mother’s assertion on appeal that her reply was ambiguous, her answer clearly stated she had no knowledge of any Native American ancestry. The court had no duty to make further inquiry. (In re Aaliyah G., supra, 109 Cal.App.4th 939, 942; see also In re Levi U., supra, 78 Cal.App.4th at pp. 198-199 [“[I]f appellant had additional information [she] should have tendered that information to the court. Neither the [ICWA] nor the various rules, regulations, and case law interpreting it require . . . the juvenile court to cast about, attempting to learn the names of possible tribal units to which to send notices, or to make further inquiry with BIA”].)
Although SSA interviewed Tatiana’s maternal grandmother, it did not interview mother directly. In addition, SSA and the court failed to obtain JV-130 forms from the parents. These omissions constitute reversible error only if a miscarriage of justice occurred. (In re Celine R. (2003) 31 Cal.4th 45, 60.) Applying the harmless error standard under People v. Watson (1956) 46 Cal.2d 818, 836, we examine whether a reasonable probability exists the result would have been different absent the errors. (In re Celine R., at pp. 59-60.)
Here, the omissions were harmless. The court and SSA substantially complied with the inquiry requirements and determined there was no likelihood the maternal side of Tatiana’s family had any Indian heritage. Nothing in the record or in mother’s briefing on appeal suggests otherwise. Mother has made no “offer of proof or other affirmative representation that . . . [she can] proffer some Indian connection sufficient to invoke the ICWA.” (In re Rebecca R. (2006) 143 Cal.App.4th 1426, 1431.) “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, allowing them to avoid a termination order by withholding secret knowledge.” (Ibid.)
Mother relies on In re J.N. (2006) 138 Cal.App.4th 450, where the appellate court found the juvenile court “erred in failing to ask [the] mother about her Indian heritage” and remanded the matter with directions to the lower court to inquire of the mother whether the child is or may be an Indian child. (Id. at p. 453.) But in In re J.N., the record showed the “mother was never asked whether she had any Indian ancestry.” (Id. at p. 461.) The Court of Appeal noted: “The cases the Department relies on for its contention we may find the error harmless are all distinguishable, as none involve the complete failure to inquire of a parent regarding his or her ancestry.” (Id. at p. 461, fn. 6.) Here, mother was asked about potential Indian heritage and stated she was unaware of any.
The Section 366.26 (c)(1)(A) Beneficial Relationship Exception Did Not Apply
Mother contends the court “erred when it declined to apply the [beneficial relationship] exception” contained in section 366.26, subdivision (c)(1)(A).
SSA contends mother waived this argument by failing to argue below that the exception applied. At the section 366.26 hearing, mother’s counsel moved for a continuance to give him time to find mother, to ascertain “her wishes” and to “secure her attendance.” Because the court denied the motion, mother’s counsel then “submit[ted] the matter on the reports.” The record does not reveal why mother was unreachable. Under these circumstances, we will address mother’s contention on the merits.
The preferred disposition at a section 366.26 hearing is to terminate parental rights and order the child placed for adoption. (§ 366.26, subd. (b)(1).) An exception to the adoption preference occurs when termination of parental rights would be detrimental to the child because the parent has “maintained regular visitation and contact with the child and the child would benefit from continuing the relationship.” (§ 366.26, subd. (c)(1)(A.) “[T]he parent has the burden of showing either that (1) continuation of the parent-child relationship will promote the well-being of the child to such a degree as to outweigh the well-being the child would gain in a permanent home with new, adoptive parents [citation] or (2) termination of the parental relationship would be detrimental to the child.” (In re Angel B. (2002) 97 Cal.App.4th 454, 466.)
On review, applying the substantial evidence test, we “accept the evidence most favorable to the order as true and discard the unfavorable evidence . . . .” (In re Casey D. (1999) 70 Cal.App.4th 38, 52-53.) We give “the prevailing party the benefit of every reasonable inference and [resolve] all conflicts in support of the order.” (In re Autumn H. (1994) 27 Cal.App.4th 567, 576.)
Mother acknowledges she “must prove: (1) she had regular visitation and contact with Tatiana and (2) the benefit Tatiana would realize from continuing her relationship with mother outweighs the benefit she would receive if she [were] adopted.” The record reveals mother failed to meet the first prong requiring regular visits and contact with the child. Mother herself acknowledges her visitation with Tatiana was “sporadic” at times. We therefore need not address the second prong, i.e., that Tatiana would benefit from continuing a parent-child relationship with mother.
DISPOSITION
The post judgment order is affirmed.
WE CONCUR: BEDSWORTH, ACTING P. J., O’LEARY, J.