Filed 3/4/16 In re G.S. CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE

In re G

. S

. , a Person Coming Under the

Juvenile Court Law.

ORANGE COUNTY SOCIAL SERVICES AGENCY,

Plaintiff and Respondent,

v.

A NGELA F

.,

Defendant and Appellant. G052527

(Super. Ct. No. DP02 5 438 )

O P I N I O N

Appeal from a judgment of the Superior Court of Orange County, Dennis J.

Keough , Judge. Affirmed

.

Brent Riggs

, under appointment by the Court of Appeal , for Defendant and

Appellant.

Leon J. Page , County Counsel, Karen L. Christensen and Jeannie Su,

Deputy County Counsel, for Plaintiff and Respondent.

* * *2 An gela F

. ( m other) appeals from the juvenile court ’ s terminati on of her

parental rights (Welf. & Inst. Code, § 366.26; all statutory citations are to this code) to

her son, G

. S. (born in September 2010)

. She contends the juvenile court fail ed to comply

with the Indian Child Welfare Act (ICWA) (25 U.S.C. § § 1901 et seq.) , as implemented

by California law (see § 224.3; Cal. Rules of Court, rules 5.480(l), 5.481(a))

, by asking

alleged father Brian S. whether he had American Indian heritage. Any err or was

harmless, and we therefore affirm the judgment

.

I

F ACTUAL AND P ROCEDURAL B ACKGROUND

In September 2014, the Orange County Social Services Agency (SSA) filed

a juvenile court petition (§ 300, subds. (b) & , (j)) alleging four

- year old G.S. had suffered

or was a t substan tial risk of suffering serious physical harm or illness

. Specifically, the

petition alleged mother , who had a lengthy history of criminal behavior and drug ab use,

left G.S. with an unrelated and unsuitable caregiver at 4:00 a.m. “ to find a job

, ” and that

person left the child with another individual who was arrested later that morning . The

petition also alleged mother had neglected to meet G.S.’ s basic needs concerning food,

hygiene, and dental care

. The court previously had terminated parental rights to four of

G.S.’ s half siblings. The petition alleged G.S. had no known Indian ancestry.

In November 2014 , the juvenile court sustained the petition. At the

disposition hearing in January 2015, the court removed G.S. from parental custody,

bypassed reunification services, and sche duled a section 366.26 hearing. A t the July 29,

2015

, section 366.26 hearing, the co urt terminated parental rights. Mother appeals.3 I I

D ISCUSSION

Fail ure to Ask A lleged F

ather Brian S. R egarding Indian H eritage Was Harmless

The detention report reflected mother denied American Indian heritage for

her family. In a prior dependency case involving G.S.’ s half siblings, the court found no

information ICWA would apply. Mother did not name a father on G.S.’ s birth certificate

,

but she identified two men as G.S.’ s po tential biological fathers, Brian S. and Daniel R.

Mother had us e d Brian ’ s last name for G.S

. N either man was involved in G.S.’ s life or

provided support , although Brian sent mother some money for G.S.’ s recent birthday.

T he social worker spoke on the telephone with Brian, who had lived in

Ohio since April 2014

. Bri a n met mother at a substance abuse treatment facility and

learned she was pregnant around the time they broke up . He believed G.S. was his

biological child in part because G.S. physically resembled Brian ’ s father

. Brian

maintained sporadic contact with mother, and had visited G.S. three times. He was

unsure whether he wanted placement. Nothing suggests the social worker asked Brian

whether he had any Indian heritage

.

At the detention hearing, mother claimed Brian was G.S.’ s biological

father

, and had applied for welfare listing him as G.S.’ s father. Mother submitted a form

stating she had no Indian herita ge as far as she knew. The court appointed counsel for

Brian. The court inquired whether anyone had asked Brian about Indian heritage, and

SSA ’ s lawyer stated it did not appear anyone had. Mother stated Brian did not have

Indian heritage.

The social w orker ’ s October 2014 report for the jurisdiction hearing stated

G.S.’ s Indian heritage was unknown. Brian advised the social worker he did not know

whether he was G.S.’ s father. He described his relationship with mother, and stated he

had care d for G.S. for a few weeks while mother was incarcerated.4 Mother and Brian did not attend the jurisdiction or disposition hearing s and

counsel proceed ed on their behalf. At the disposition hearing, Brian ’ s c ounsel agreed

Brian remained an alleged father. No one asserted G.S. had Indian heritage. As noted,

t he court declared G.S. to be a dependent child, removed him from parental custody,

bypassed reunification services for m other, and scheduled a section 366 .26 hearing.

In the report for the section 366.26 hea ring, the social worker requested the

court to find ICWA did not apply

. Neither mother nor Brian appeared for the section

366.26 hearing. Counsel submitted on SSA ’ s reports and argument . The court found

notice of the hearing h ad been provided to mother and the alleged fathers, and terminated

parental rights. No one at the hearing mentioned ICWA , and t he court made no ICWA

findings.

Mother contends the juvenile court’s failure to ask Brian if he had Indian

heritage requires us to remand for the juvenile court to conduct the inquiry

. ( § 224.3;

Cal. Rules of Court, rule s 5.480, 5.481; In re W.B. (2012) 55 Cal.4th 30, 52

- 53; In re A.B.

(2008) 164 Cal.App.4th 832, 838

- 839 ; In re J.N. (2006) 138 Cal.App.4th 450, 461

- 462;

Bureau of Indian Affairs, Guidelines for State Courts and Agencies in Indian Child

Custody Proceedings, 80 Fed.Reg. 10146, 10152 (Feb. 25, 2015) .)

SSA responds there was no obligation to ask Brian about potential Indian

heritage because he remained merely an alleged fa ther whose biological paternity ha d not

been acknowledged or established. (See 2 5 U.S.C. § 1903(9)

. )

There is no need to decide in this case whether California law

implementing ICWA required the juvenile court or SSA to ask Brian if he had Indian

ancestry . B reac h of the duty to inquire into the Indian heritage of a child does not

necessitate a remand for proper inquiry where “ the court ’ s noncompliance with the

inquiry requirement constitutes harmless error. ” ( In re A.B

. , supra, 164 Cal.App.4th at

p. 839 .) “ Where the record below fails to demonstrate and the parents have made no

offer of proof or other affirmative assertion of Indian heritage on appeal, a miscarriage of5

justice has not been established and reversal is not required. ” ( In re Noreen G. (2010)

1 81 Cal.App.4th 1359, 1388 .)

Here, the record below contains nothing suggesting Brian had Indian

heritage , and mother has made no offer of proof or affirmative assertion on appeal that

Brian has Indian heritage. A miscarriage of justice therefore has not been established and

remand is not required. We need not address whether the issue of Indian heritage was

moot ed by Brian’s post

judgment statement he did not have Indian heritage, or by the

juvenile court ’ s proceedings occurring after the section 366.26 hearing that resulted in the

court finding ICWA did not apply

. SSA ’ s motions to take additional evidence on appeal,

augment the record, and to dismiss the appeal as moot are denied.

III

D ISPOSITION

The judgment terminating parental rights is aff irmed.

ARONSON, J.

WE CONCUR:

BEDSWORTH, ACTING P. J.

FYBEL, J.