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 This opinion has not been certified for publication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. Filed 1/11/2 2 In re N.M CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE

In re N.M. et al., Persons Coming Under

the Juvenile Court Law.

ORANGE COUNTY SOCIAL

SERVICES AGENCY,

Plaintiff and Respondent,

v.

D.M.,

Defendant and Appellant. G060482

(Super. Ct. Nos. 20DP0006 &

20DP0007)

O P I N I O N

Appeal from a judgment of the Superior Court of Orange County, Robert

Gerard, Judge. Affirmed.

Michelle D. Peña, under appointment by the Court of Appeal, for

Defendant and Appellant.

Leon J. Page, County Counsel; Karen L. Christensen and Aurelio Torre,

Deputy County Counsel, for Plaintiff and Respondent.

No appearance for the Minor.

* * *2 INTRODUCTION

D.M., father of N. and D. (Father), appeals from the juvenile court’s order

terminating his parental rights under Welfare and Institutions Code section 366.26. 1 His

sole contention on appeal is that the juvenile court erred by failing to comply with its

duty of inquiry imposed by state statutory provisions implementing the Indian Child

Welfare Act of 1978 (25 U.S.C. § 1901 et se q.) (ICWA) before finding ICWA did not

apply. County Counsel concedes the juvenile court erred by failing to satisfy its inquiry

duty, but argues the error is harmless.

It is undisputed the juvenile court never asked Father about Indian ancestry

or heritage in violation of section 224.2, subdivision (c). But the record shows Father,

through his counsel, stipulated that ICWA did not apply in this case. As the juvenile

court’s error was not prejudicial, we affirm.

FACTS AN D P R OC E DURA L

HI S T OR Y I.

T HE J UVENILE C OURT A SSERTS J URISDICTION OVER THE C HILDREN

.

In December 2019, then five

- year

- old N. and two

- year

- old D. (collectively

the children) were taken into protective custody and placed with their maternal

grandmother after their mother J.I. (Mother ) gave birth to their half

- brother J. and tested

positive for THC, methamphetamine, and amphetamine; J. tested positive for THC. The

following month, the Orange County Social Services Agency (SSA) filed a juvenile

dependency petition (the petition) allegin g the children came within the juvenile court’s

1 All undesignated statutory references are to the Welfare and Institutions Code.

2 Our summary of facts and procedural history is limited to provide relevant context for

the resolution of the single issue presented in this appeal. 23 4

jurisdiction under section 300, subdivisions (b)(1) (failure to protect) and (g) (no

provision for support). 3

The petition alleged Mother had an unresolved problem with substance

abuse involving methamphetamine, marijuana, and alcohol; she admitted she used

methamphetamine twice while she was pregnant with J. and used marijuana throughout

that pregnancy. The petition alleged Mother had a criminal history, which included

c onvictions and/or arrests for several substance

- abuse related offenses. Mother and

Father have a history of domestic violence; in May 2016, an emergency protective order

was issued protecting Mother from Father. Mother did not have a safe and stable home

i n which she could provide appropriate care for the children.

The petition further alleged Father had a criminal history which includes

convictions and/or arrests for second degree robbery and participating in a criminal street

gang. At the time the petition was filed, Father was incarcerated and unavailable to

provide appropriate care for the children.

At the jurisdiction and disposition hearing in July 2020, Mother and J.’s

father submitted on the allegations of the petition. Father did not appear at the hearing

and his whereabouts were unknown at that time. SSA mailed Father a letter informing

him of the c ourt p r oce e dings and sen t h i m an i ncarcerated p a rent pa c ket

. SS A had not

heard from Father as of the time of the jurisdiction hearing. The juvenile court granted

Father’s appointed counsel’s request to be relieved.

The juvenile court found the petition’s allegations true by a preponderance

of the evidence and declared the children dependent children of the Orange County

3 The petition was filed on behalf of J. as well as the children. Neither J. nor his father is

a party to this appeal; our references to them are limited to provide relevant background.

4 An SSA addendum report stated that on January 11, 2019, Father had been sentenced

to a 10

- year prison term.4

Juvenile Court under section 360, subdivision (d). The court also ordered SSA to

continue to search for Father.

II.

SSA M AKES W RITTEN I NQUIRY A BOUT F ATHER ’ S I NDIAN H ERITAGE /A NCESTRY

, THE

P ARTIES ’ C OUNSEL S TIPULATE THAT ICWA I S I NAPPLICABLE

, AND THE C OURT

A CCEPTS THE S TIPULATION

.

SSA apparently located Father and in late July 2020 sent Father a letter

stating in part: “Currently, you are assumed to be the alleged father of the children, N[.]

and D[.]

. If you choose to establish paternity, please complete the attached JV[

- ]505

forms, one for each child. [¶] To the best of you knowledge, do you have any American

Indian heritage/ancestry? If so, what tribe?”

The JV

- 505 forms themselves do not address American Indian heritage or

ancestry. Father completed the JV

- 505 forms and returned them to the social worker.

Father’s submission to the social worker did not include an answer to the question in

SSA’s July 2020 letter about whether he was aware of having Indian heritage or ancestry.

The record does not show SSA ever followed up with Father regarding its

inquiry about whether he had any Indian heritage or ancestry; it does not show SSA ever

provided him with a Judicial Council ICWA

- 020 inquiry form (form ICWA

- 020).

Instead, SSA’s interim report dated August 31, 2020 stated, “[t]he Orange County

Juvenile Court is respectfully requested to make ICWA findings.” At a progress review

hearing that same day, the court found Father to be the chi ldren’s presumed father. The

court denied Father reunification services under section 361.5, subdivision (e)(1) by clear

and convincing evidence.

In its six

- month status review hearing report dated December 18, 2020,

SSA reiterated its request: “The court is respectfully requested to make ICWA findings.”

In December 2020, a six

- month review hearing was conducted by written stipulation5

from the parties’ counsel who waived appearances. In that document, counsel, including

Father’s counsel who is identified in the stipulation as from Juvenile Defenders,

stipulated that the court should find, by a preponderance of the evidence, that ICWA does

not apply. The juvenile court accepted the parties’ stipulation and found that ICWA did

not apply.

I II.

T HE J UVENILE C OURT T ERMINATES F ATHER ’ S AND M OTHER ’ S P ARENTAL R IGHTS

.

Father first appeared at the contested six

- month status review hearing and

the contested 12

- month status review hearing in February 2021, but ICWA was not

discussed, and no inquiries were made. The juvenile court terminated Mother’s

reunification services. The court reiterated that reunification services to Father had been

bypassed by prior court order. The court set the matter for a permanency hearing.

Following the permanency hearing, the juvenile court ordered the

termination of Father’s and Mother’s parental rights to the children. Father appealed.

DISCUSSION

I.

S TANDARD OF R EVIEW

We review the juvenile court’s finding that ICWA does not apply to these

dependency proceedings for substantial evidence. ( In re S.R. (2021) 64 Cal.App.5th 303,

312.) “In the absence of an appellate record affirmatively showing the court’s and the

agency’s efforts to comply with ICWA’s inquiry and notice requirements, we will n ot, as

a general rule, conclude that substantial evidence supports the court’s finding that proper

and adequate ICWA notices were given or that ICWA did not apply. Instead, as a

general rule, we will find the appellant’s claims of ICWA error prejudicial an d

reversible.” ( In re N.G. (2018) 27 Cal.App.5th 474, 484.)6 II.

ICWA D UTIES OF I NQUIRY AND N OTICE

“ICWA reflects ‘a congressional determination to protect Indian children

and to promote the stability and security of Indian tribes and families by establishing

minimum federal standards that a state court . . . must follow before removing an Indian

child from his or her family.’ [Citations.] Both ICWA and the Welfare and Institutions

Code define an ‘Indian child’ as ‘any unmarried person who is under age eighteen and is

either (a) a member of an Indian tribe or (b) is eligible for membership in an Indian tribe

and is the biological child of a member of an Indian tribe.’” ( In re D.F. (2020) 55

Cal.App.5th 558, 565, fn. omitted ( D.F. ).)

The duties imposed by ICWA on the juvenile court and the county welfare

department can be separated into three phases: (1) a duty to inquire, (2) a duty of further

inquiry, and (3) a duty to provide ICWA notice. ( D.F., supra

, 55 Cal.App.5th at

pp. 566

- 567. ) If, after fulfilling the duty of inquiry and the duty of further inquiry, the

court or the county welfare agency “knows or has reason to know

. . . that an Indian child

is involved” in the dependency proceedings, then notice pursuant to ICWA must be

given. (§ 224.3, subd. (a).)

As to the duty of inquiry, the court and the county welfare department

(here, SSA) have an “affirmative and continuing duty to inquire” whether a child who is

the subject of a dependency petition is or “may be” an Indian child. (§ 224.2, subd. (a).)

The duty to inquire begins with the “initial contact” and, at that stage, includes “asking

the party reporting child abuse or neglect whether the party has any information that the

child may be an Indian child.” ( Ibid. ) When the child is placed in temporary custody, the

county welfare department has a duty to inquire whether the child may be an Indian child.

( Id.

, subd. (b).)

“Inquiry includes, but is not limited to, asking the child, parents, legal

guardian, Indian custodian, ext ended family members, others who have an interest in the7

child, and the party reporting child abuse or neglect, whether the child is, or may be, an

Indian child and where the child, the parents, or Indian custodian is domiciled.” (§ 224.2,

subd. (b).) The juvenile court has a duty at the first appearance of each parent to ask

whether he or she “knows or has reason to know that the child is an Indian child.” ( Id.

,

subd. (c); see Cal. Rules of Court, rule 5.481(a)(2)(A) [“At the first a ppearance by a

parent . . . the court must . . . [a]sk each participant present whether the participant knows

or has reason to know the child is an Indian child”].) At the time of a parent’s first

appearance in a dependency case, the court must also order the parent to complete

“Parental Notification of Indian Status,” form ICWA

- 020. (Cal. Rules of Court,

rule 5.481(a)(2)(C).) The court must instruct the parties to thereafter inform the court if

any of them later receives “information that provides re ason to know the child is an

Indian child.” (§ 224.2, subd. (c).)

III.

A LTHOUGH THE J UVENILE C OURT ’ S F AILURE TO M AKE ICWA I NQUIRIES OF

F ATHER C ONSTITUTED E RROR

, S UCH E RROR IS H ARMLESS B ECAUSE F ATHER

S TIPULATED THAT ICWA I S I NAPPLICABLE

.

As conceded by County Counsel in the respondent’s brief, the record

establishes the juvenile court erred by failing to ask Father at his first court appearance,

or at any other time, whether he knew or had reason to know that either of the children is

an Indi an child and further erred by failing to order Father to complete form ICWA

- 020.

County Counsel argues reversal is unwarranted, however, because Father failed to show

prejudice from the juvenile court’s lack of inquiry.

In In re N.E. (2008) 160 Cal.App.4th 766, 769 ( N.E. ), the juvenile court

failed to order the father to complete a parental notification of Indian status form and

SSA did not question him about possible Indian heritage. A panel of this court held that

the juvenile court’s and SSA’s error, however, was harmless because the record showed

the mother had informed SSA that the father had no Indian heritage, and the father8

himself had stipulated ICWA did not apply to the case. ( Ibid. ) On appeal, the father

argued the order te rminating his parental rights must be reversed because SSA and the

juvenile court failed to comply with their duties to inquire about Indian ancestry. ( Ibid. )

He did not assert on appeal that “he in fact has any Indian heritage.” ( Ibid. )

The appellate court affirmed the juvenile court’s order, stating: “Even if

the juvenile court and SSA failed in their inquiry responsibilities, we cannot disturb the

juvenile court’s order without a showing [the father] was prejudiced by the claimed error.

[Ci tation.] And in this case, where there is absolutely no suggestion by [the father] that

he in fact has any Indian heritage, he has failed to demonstrate the requisite prejudice.”

( N.E., supra

, 160 Cal.App.4th at p. 769.)

Here, as in N.E.

, Father, through his counsel, had stipulated that the

juvenile court should find ICWA did not apply. There is no inconsistency in the record

on that point. Although Father acknowledges in his opening brief that the six

- month

status review hearing was conducted by t he written stipulation of counsel (including his

own), he does not mention that that stipulation included a request that the juvenile court

find ICWA inapplicable to the children. Father does not challenge the substance or effect

of that stipulation on app eal. Father’s stipulation is sufficient to support the juvenile

court’s finding that ICWA did not apply.9

is affirmed. DISPOSITION

The juvenile court’s order terminating D.M.’s parental rights to the children

FYBEL, J.

WE CONCUR:

MOORE, ACTING P. J.

MARKS, J.*

*Judge of the Orange County Superior Court, assigned by the Chief Justice pursuant to

article VI, section 6 of the California Constitution.