1 Filed 4/9/14 In re A.P. CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELL ATE DISTRICT DIVISION TWO

In re A.P. et al., Persons Coming Under the Juvenile Court Law.

SAN BERNARDINO COUNTY CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent,

v. T.V., Defendant and Appellant. E059846 (Super.Ct.Nos. J- 245104, J-245105, J-245106, J-245107)

OPINION

APPEAL from the Superior Court of Sa n Bernardino County. Cheryl C. Kersey, Judge. Affirmed. Jack A. Love, under appointment by th e Court of Appeal, for Defendant and Appellant. Jean-Rene Basle, County Counsel, Dawn M. Messer, Deputy County Counsel, for Plaintiff and Respondent.2 T.V. (mother) filed notices of appeal re garding the termination of her parental rights to her four children: Ab.P., Al.P., An.V., and Ay.V. (child). None of the fathers of these four children is a party to this appeal. J. is the father of Ay.V. only. On appeal, mother raises as her only issue the failure of the San Bernardino County Department of Children and Family Services (Department) to comply with the notice requirements of the Indian Child and Welfare Act of 1978 (25 U.S.C. § 1901 et seq.; ICWA) regarding J.,

the father of the child. 1 As a consequence, mother clai ms that there is no substantial evidence to support the court’ s finding that ICWA does not apply. We affirm the judgment.

PROCEDURAL FACTS AND HISTORY 2 A petition was filed on July 13, 2012, on behalf of the ch ild alleging that she came within the jurisdiction of th e court under Welfare and Ins titutions Code section 300, subdivisions (b) and (g). 3 It alleged that bo th mother and father had histories of drug abuse. It further alleged that mother had an unstable lifestyle, and J. had a criminal history and was in custody at an out-of-state prison.

1 Since the issue raised only affects the judgment with respec t to the child, we will treat the appeal concerning the other three children, Ab.P., Al.P. and An.V., as abandoned. ( Wall Street Network, Ltd

. v New York Times Co . (2008) 164 Cal.App.4th 1171, 1177.) Consequently, we will only addr ess whether the court erred in terminating mother’s rights to th e child due to noncom pliance with ICWA.

2 Due to the limited nature of the appeal, we state the facts in abbreviated form.

3 All further statutory references ar e to the Welfare and Institutions Code.3 J. remained incarcerated throughout the course of the dependency and never appeared at any of the heari ngs; although, he was represente d by counsel. He had never

seen the child. The cour t found J. to be the biological fath er of the child. J. is not named

as the child’s father on the birth certificate. He never had a rela tionship with mother other than having casual sexual relations with her for a few months, and he has never supported the child. At the time of the filing of the petition, J .’s whereabouts were then unknown. The Department did not know whether or not J. ha d Indian ancestry. Consequently, the box stating that “[t]he child may have Indian ancestry” was checked. The detention report stated, “[t]he Indian Child We lfare Act does or may apply.” On July 16, 2012 , mother filed a Parental Notific ation of Indian Status form (ICWA 020) signed under penalty of perjury stating that she ha d no Indian ancestry. The court ordered J. to complete an ICWA 020 form. However, there is not one in the

record. The report for the ju risdiction/disposition hearing was filed August 1, 2012. It contains a section summarizing an interview th e social worker had w ith J. discussing his relationship with mother and the child, his cr iminal history and his expectation of being released on his current felony in December 2013. That summary does not contain any information regarding J.’s possible Indian an cestry, but in the Indian Child Welfare Act Status section of the jurisdicti on/disposition report, the social worker stated, “[t]he Indian Child Welfare Act does not appl y.” This report was adm itted into evidence at the jurisdiction/disposition heari ng held October 10, 2012.4 The child and her half siblings were declar ed to be dependents of the court. The court found that ICWA did not apply in its written findings and orde rs. The court made no specific oral findings regarding ICWA. However, the court orally adopted the proposed findings and orders prepared by the Department, which included recommended findings that none of the children came with in the provisions of ICWA. While the Department recommended that no reunifica tion services be provided, reunification

services were ordere d for mother only. Ultimately, J.’s parental right s to the child and mother’s pa rental rights to all of the

children were terminated at a section 366.26 hearing held October 17, 2013. The report prepared for that hearing again in dicated that ICWA did not apply. Father was represented by counsel afte r the detention hearing, and at no time during the dependency did he, or anyone else, cl aim that ICWA applied or that J. claimed Indian heritage. His counsel never objected to the court’s findings at the hearings that ICWA did not apply no r did anyone else. J.’s mother appeared nu merous times throughout the dependency seeking visitation and placement of the child with her. She also filed section 388 petitions in the case. At no time during the hearings did she i ndicate that J. had or might have Indian ancestry.5 DISCUSSION In the present case, the ICWA noncompliance claim is raised for the first time on appeal. The parties agree that we review the trial court’s finding regarding ICWA compliance under a substantia l evidence standard. ( In re J.T . (2007) 154 Cal.App.4th 986, 991.) Father was interviewed in order to pr epare a jurisdictional/dispositional report prior to the date set for the ju risdiction hearing. While the summary of the interview does not specifically mention any inquiry into J.’s possible Indian heritage, the social worker indicated in the report she pr epared following the interview that ICWA did not apply in the ICWA status portion of the report. This raises a strong inference that inquiry was made during the interview, and the social worker reported that ICWA did not apply

because J. indicated no Indian ancestry.

In In re Aaliyah G . (2003) 109 Ca l.App.4th 939 ( Aaliyah G .), a father argued that

a termination order had to be reversed becau se the required ICWA inquiry as to whether the child there had Indian ancestry was not made. The father contended that the Los Angeles County Department of Children and Family Services failed to satisfy its affirmative duty to inquire as to ICWA’s applicability. A ll the reports prepared for hearings indicated that ICWA did not apply. ( Id . at p. 941.)

The court in Aaliyah G . disagreed with father. The petition application indicated

that the child there did not have Indian ancestry, which suggests that an inquiry as to the child’s Indian heritage had been made. Ther eafter, the reports file d in the dependency case consistently stated that ICWA did not appl y. “There is no indication to the contrary.6 The court had no obligation to make a fu rther or additional inquiry absent any information or suggestion that th e child might have Indian heritage. In the cases in which

termination orders have been reversed fo r the failure to comp ly with ICWA notice requirements, there was information indicati ng that the child had Indian heritage. [Citations.] [¶] Based on the record, there is sufficient evidence that an inquiry was made as to whether Aaliyah is an Indian child. The record also contains no indication that Aaliyah has such a herita ge. We therefore conclude th at there was no violation of ICWA.” ( Aaliyah G ., supra , 109 Cal.App.4th at pp. 942-943.) Aaliyah G . is directly on point with the circumstances of the present case. Initially, at the detention stage of the proc eedings, because father had not yet been contacted and interviewed, the detention re port indicated that ICWA “does or may apply.” After father was interviewed, the jurisdictional/dispositional report in the ICWA status section indicated that ICWA did not appl y. Subsequent reports stated likewise, and the court made ICWA orders and findings that ICWA did not apply. Father was represented by counsel who did not object to the orders and findings, and no one else, including mother, objected or indicated that fa ther may have Indian ancestry. Nothing in this record indicates possible Indian ancestry. Subsequently, this court in In re S.B . (2005) 130 Cal.App.4th 1148 (Fourth Dist., Div. Two), at pages 1160-1161, cited to Aaliyah G . with approval and adopted its reasoning in a sufficiency of the evidence challenge to th e ICWA compliance in that case. Relying on these two cases, we find that there is substantial evidence to support the court’s orders and findings that ICWA did not apply in this case.7 DISPOSITION The judgment is affirmed.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

McKINSTER J.

We concur:

RAMIREZ P. J.

KING J.