In re Michael W. CA2/1 ( 2015 )

Filed 1/30/15 In re Michael W. CA2/1
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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
SECOND APPELLATE DISTRICT
DIVISION ONE
In re MICHAEL W., a Person Coming B257109
Under the Juvenile Court Law. (Los Angeles County
Super. Ct. No. CK97602)
LOS ANGELES COUNTY
DEPARTMENT OF CHILDREN AND
FAMILY SERVICES,
Plaintiff and Respondent,
v.
S.A.,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los Angeles County, Anthony
Trendacosta, Commissioner. Affirmed.
Daniel G. Rooney, under appointment by the Court of Appeal, for Defendant and
Appellant.
Mark J. Saladino, County Counsel, Dawyn R. Harrison, Assistant County Counsel,
and Kim Nemoy, Principal Deputy County Counsel, for Plaintiff and Respondent.
——————————
Appellant S.A. (S.) is the biological father of Michael W., the subject of this
dependency proceeding. He appeals from a juvenile court order denying his motion for
presumed father status, contending the order lacks substantial evidentiary support. He also
contends the juvenile court erroneously failed to inquire about his American Indian heritage,
in violation of the Indian Child Welfare Act (25 U.S.C. § 1901 et seq.) (ICWA). We find no
error and affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Michael, then about one month old, came to the attention of respondent Department
of Children and Family Services (DCFS) on January 22, 2013, when the agency responded
to a referral claiming several drug users were squatting in a filthy, cockroach infested “crack
house,” and had an infant with them. Among the people living in the home were Michael’s
mother, Felicia D. (mother, who is not a party to this appeal) and her companion Noel W.
(Noel). Both mother and Noel identified Noel as the baby’s biological father. The baby was
initially allowed to remain with mother, who denied that she or Noel abused drugs. Michael
was subsequently placed in foster care, with the permission of mother and Noel, after mother
tested positive for amphetamines and methamphetamines and Noel admitted smoking
marijuana several times a day. The parents agreed to participate in drug treatment programs
and other services.
On February 4, 2013, DCFS filed a Welfare and Institutions Code section 300,1
subdivision (b) petition which, as ultimately sustained, alleged that due to their respective
unresolved substance abuse problems, mother and Noel were incapable of providing regular
care for Michael, and their ongoing drug use placed him at risk of physical harm. Mother
and Noel each signed and submitted standardized “Parental Notification of Indian Status”
forms denying Indian ancestry. (Capitalization omitted.) At the detention hearing on
1All further statutory references are to the Welfare and Institutions Code unless
otherwise indicated.
2
February 4, 2013, the juvenile court determined that ICWA did not apply, declared Noel to
be Michael’s presumed father and detained the child.
The jurisdictional/dispositional hearing was conducted on March 21, 2013. DCFS’s
report for that hearing detailed mother’s and Noel’s respective criminal histories, their
admittedly extensive drug histories, and mother’s history of mental health problems and
failure to obtain treatment and/or to comply with a treatment plan. The report also revealed
that Noel tested positive for amphetamines and methamphetamines once in January 2013,
and that both he and mother were “NO SHOWS” for drug testing on February 6 and 7. At
the hearing, mother and Noel pleaded no contest to the amended petition. Michael was
declared a dependent, removed from parental custody, and mother and Noel were given
reunification services and monitored visitation.
The six-month review hearing was conducted on October 4, 2013. By then, mother’s
whereabouts were unknown, Noel was incarcerated, and DCFS reported that both parents
had expended minimal effort to comply with the court-ordered case plan and had visited
Michael on very few occasions. The matter was set for a contested hearing (§ 366.21,
subd. (e)), on October 23, 2013.
In its supplemental report for the October 23 hearing DCFS indicated that, in mid-
October mother informed the agency that S. “may or may not be [Michael’s] father.” She
had been involved with S. and Noel about the same time, but did not want S. in Michael’s
life due to his drug addiction and criminal history. S. told DCFS that he “[felt] certain that he
[was] indeed the father of the child.” Even so, he requested a paternity test and conditioned
his willingness to assume custody on proof that he was Michael’s biological father.
Mother informed DCFS that she had been involved with S. in mid-April 2012, before
she met Noel. S. knew she was pregnant before she went to jail in June 2012. Mother said
that S. “was never there for [her] during [her] pregnancy.” In the past, S. “didn’t want any
part,” but after she posted photos on Facebook of Michael following his birth, S. “hit [her] up
and said, ‘Oh, that’s my son.’”
S. acknowledged to the CSW “that he was aware that [mother] was pregnant by April
2012 because she told him” after she had become involved with Noel and S. ended their
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relationship. S. found out about the October 23 hearing after mother contacted him on
Facebook to say he needed to go to court if he did not want his son in foster care. S. declared
on a statement regarding paternity that he believed he was Michael’s parent, and claimed
mother kept the infant hidden from him until October 4, at which point he immediately
contacted DCFS.
A selection and implementation hearing (section 366.26) was set for February 19,
2014. In its report for that hearing DCFS indicated that mother and Noel had last visited
Michael on April 3, 2013. The agency opined that it was in Michael’s best interest that
parental rights be terminated to free the child for adoption by his current caretaker. The
February 19, 2014 section 366.26 hearing was continued to April 8 at the request of S., who
had received that day the results of DNA testing revealing that he was Michael’s biological
father and needed some time to prepare.
In connection with the April 8 hearing, DCFS reported that S. said he saw mother in
“March or April 2012 . . . . By that time, [he] found out the mother was pregnant.” S. was
subsequently incarcerated and, by the time of his release in July 2012, mother had become
involved with Noel, so S. terminated his relationship with her. Mutual acquaintances told S.
that mother said he was not the child’s father. He asked mother whether the baby was “his,”
but she just changed the subject. In early October 2013, mother contacted S. on Facebook,
told him he was Michael’s father and said he needed to go to court to prove Noel was not
Michael’s father and prevent the child from being adopted. S. had monitored visits with
Michael in early December 2013, late February 2014 and thereafter. S. was appropriate with
Michael during visits, but when they ended Michael was “very happy to see his adoptive
foster mother and [ran] to her.” DCFS continued to recommend adoption as Michael’s
permanent plan, and advised the court that the caretaker’s adoptive home study had been
approved. The section 366.26 hearing was continued to June 10, 2014, to permit
transportation of Noel. S.’s counsel was directed promptly to file any motion or section 388
petition requesting presumed father status.
On May 9, 2014, S. filed a “MOTION FOR PRESUMED FATHER STATUS.” In a
declaration submitted in support of that motion—which the court treated as a section 388
4
petition—S. stated that mother told him she was pregnant with “[their] child” in March 2012,
and he had no reason to doubt her. S. was incarcerated in April 2012. After his release in
July 2012, he looked for mother but could not find her and acquaintances told him that
mother said he was not the father of the child she carried.
S. further declared that mother contacted him through Facebook in late November
2012 after hearing he had been looking for her. S. responded the following day, and “told
her to contact [him], to help with the baby,” but she never responded. In December 2012, S.
learned through Facebook that mother had “delivered [their] baby boy.” After seeing a
photograph of the newborn S. “instantly knew he was [his] son.” He continued
unsuccessfully to search for mother or to contact her on Facebook. He said he “believed that
[mother] was keeping [their] son from [him] because she thought [S.] would take him away
from her.”
When mother contacted S. through Facebook on October 4, 2013, she asked him “to
call her ‘asap’ because she was at court and [their son] was going to be ‘gone for good’”
unless she could prove Noel was not his father. S. declared that he responded to mother’s
message immediately, asking what he needed to do to prevent the child’s removal, but that
mother then told him to forget it because he was trying to take Michael from her and she
would not let that happen. S. contacted DCFS and was informed about the October 23, 2013
hearing. S. declared that, but for mother’s attempt to hide Michael and the dependency
action from him, he would have come forward immediately to establish paternity.
On June 10, 2014, the juvenile court denied S.’s motion seeking status as a presumed
father, and identified adoption as Michael’s permanent plan. This timely appeal followed.
DISCUSSION
S. contends the court erred when it denied his motion for presumed father status, and
by failing to inquire about his American Indian heritage. We find that the latter contention
has merit but the error was harmless.
1. S. failed to demonstrate an entitlement to status as a Kelsey S. father.
“Dependency law recognizes four types of fathers: alleged, de facto, biological, and
presumed.” (In re D.M. (2012) 210 Cal. App. 4th 541, 544.) Only presumed fathers are
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entitled to custody and reunification services. (Ibid.) A man is a presumed father if he meets
the criteria of Family Code section 7611. Under Family Code section 7611, subdivision (d),
a man who has neither legally married nor attempted to marry the child’s mother may attain
presumed father status if he “receives the child into his home and openly holds out the child
as his natural child.” The California Supreme Court has held that a biological father who
does not qualify as a statutorily presumed father may nevertheless attain that status if he has
made “a full commitment to his parental responsibilities—emotional, financial, and
otherwise,” but a third party has thwarted his efforts to achieve presumed father status under
Family Code section 7611, subdivision (d). (Adoption of Kelsey S. (1992) 1 Cal. 4th 816, 849
(Kelsey S.).)
Kelsey S., supra, 1 Cal. 4th 816 was not a dependency action, but its holding has been
extended to dependency proceedings. (See, e.g., In re Julia U. (1998) 64 Cal. App. 4th 532,
540–541 (Julia U.); In re D.M., supra, 210 Cal.App.4th at p. 551.) In determining whether a
biological father qualifies as a Kelsey S. father, the juvenile court considers whether the
man’s conduct evidences a full commitment to his parental responsibilities, both before and
after the child’s birth. (Julia U., at p. 541.) “Once the father knows or reasonably should
know of the pregnancy, he must promptly attempt to assume his parental responsibilities as
fully as the mother will allow and his circumstances permit. [Citation.] In particular, the
father must demonstrate a willingness himself to assume full custody of the child—not
merely to block adoption by others. [Citation.] A court should also consider the father’s
public acknowledgment of paternity, his payment of pregnancy and birth expenses
commensurate with his circumstances, and prompt legal action to seek custody of the child.”
(Ibid.)
A biological father has the burden in the juvenile court to demonstrate the factual
basis for his claim to Kelsey S., supra, 1 Cal. 4th 816 status. (Adoption of O.M. (2008)
169 Cal. App. 4th 672, 679.) Generally, courts review Kelsey S. determinations for
6
substantial evidence (e.g., id. at pp. 679–680; In re J.L. (2008) 159 Cal. App. 4th 1010,
1023, fn. 5.)2
Here, the relevant facts are largely undisputed. S. learned about mother’s
pregnancy as early as March 2012, shortly before he was incarcerated. She told S. the
child was his, and he concedes he had no reason to doubt her. S.’s incarceration ended
when mother was about four months pregnant. He made an effort to find mother, but was
unable to do so. Meanwhile, mutual acquaintances told S. that mother claimed the baby
was not his. Mother contacted S. through Facebook in November 2012, just before
Michael’s birth. S. responded, telling mother that “if [she] need[ed him] to do something
for the baby [she could] hit [him] up,” but otherwise he wanted her to know he was
“happy with [his] family. . . .”
On December 6, 2012, mother sent S. a Facebook message stating she needed to
talk to him. S. responded, and mother told him about a problem involving her mother
about which she could not do anything because she would be “popping anytime.” S. did
not respond or communicate with mother again until early January 2013. S. claims that,
as soon as he saw a picture of newborn Michael mother posted on Facebook, he knew the
child was his. He claims he tried unsuccessfully to contact mother through her
grandmother, mutual friends and Facebook. However, apart from S.’s self-serving
declaration, there is no evidence he made any such effort until January 6, 2013, when he
sent two Facebook messages saying, “hello” and asking, “Can u please have [mother] get
at my pleaaaseee!!!” [sic] (Capitalization omitted.) S. did not ask mother about the
2 The standard of review for Kelsey S., supra, 1 Cal. 4th 816 determinations
remains somewhat unsettled. The substantial evidence standard typically applies where
the party without the burden of proof below challenges a ruling in favor of the party that
bore it. (In re I.W. (2009) 180 Cal. App. 4th 1517, 1528.) However, where, as here, the
juvenile court “expressly or implicitly concluded that the party with the burden of proof
did not carry the burden and that party appeals,” at least one court has concluded that the
question on appeal “becomes whether the evidence compels a finding in favor of the
appellant as a matter of law.” (Ibid.) Because we conclude the court’s order should
remain undisturbed under either standard we need not decide which one governs.
7
pregnancy or where she planned to give birth, and there is no evidence he provided (or
offered) financial assistance for pregnancy or medical expenses or that he attended the
child’s birth. The record reflects no further contact or attempted contact between S. and
mother until October 4, 2013, when mother sent a message asking S. to contact her
“asap” about this dependency action, and said he “[r]eally . . . [didn’t] care about [his]
son” who would soon “[b]e gone for good.”
S. claims mother rejected his offer of assistance and hid Michael from him
because she was afraid he would take the child from her. Although mother did initially
withhold the true identity of Michael’s biological father from DCFS, S. concedes he
never doubted that Michael was his son. Nevertheless, the record does not demonstrate
that S. publically acknowledged the child as his own, nor that he took prompt legal action
to establish his paternity. S. provided no financial assistance or emotional support to
mother during her pregnancy (she said he was “never there for” her), and extended only a
single vague offer “to do something for the baby” shortly before Michael was born, while
also making it clear he was happy with his current family situation and content to remain
uninvolved. He never asked mother about the pregnancy, and never helped her obtain
prenatal care nor paid any medical expenses. He did not ask to see the child, did nothing
to suggest he was willing to share custody, took no legal action to seek custody of or to
assume any responsibility for the child, and made no effort to establish a relationship
with his son who was almost one year old and bonded with his caretaker by the time S.
stepped up.
S. became involved only after learning Michael might be removed from mother’s
custody. At that point he sent mother a message saying, “Thought you had everything
taken care of . . . all under control . . . Guess not . . . I’m just looking out for MY son,”
and asked her what to do because he “want[ed] custody of [Michael] so [he could] make
sure he is okay and not taken away . . . .”
These facts do not make a case to support S.’s claim that mother impeded his
“ability to become a father to his child. . . . [denying him] an opportunity to accept his
child into his home, [and] thus denying him the opportunity to gain presumed status.” S.
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clearly had no intention to become involved before or after Michael’s birth and so long as
his child was in mother’s care and until he feared that would change. A biological father
who learns of the pregnancy prior to the baby’s birth yet does nothing to assume parental
responsibilities until after the birth is not entitled to Kelsey S., supra, 1 Cal. 4th 816 status.
(Adoption of Michael H. (1995) 10 Cal. 4th 1043, 1055.)
S.’s argument for Kelsey S., supra, 1 Cal. 4th 816 status is based primarily on the
testimony in his own declaration, in disregard of the prevailing standard of review. Yet even
taking S.’s testimony at face value, it fails to satisfy Kelsey S. S. acknowledged that he knew
mother was pregnant and believed the child was his as early as March 2012. Although S.
claims he was ultimately put off by mother’s statement to others that he was not the father, S.
was well aware the child might be his—indeed he believed it was—as he was having sexual
relations with mother at the time of Michael’s conception. There is no evidence, either
before or after their respective incarcerations, that S. accompanied mother to prenatal
appointments, publicly acknowledged paternity during the pregnancy (even though he
believed the child was his), provided mother any financial assistance or purchased any items
for the child before his birth.3
Nor did S. provide mother any emotional support. On the contrary, according to
mother, S. was “never there” for her before the child’s birth and did not “want any part.” He
made a single tepid offer of assistance and expended no effort to establish his paternity or to
facilitate any relationship with Michael. Even though he was always “certain that he
[was] . . . the father,” his first act after appearing in this action was to request a DNA test, and
he conditioned his willingness to assume custody of Michael on proof the child was his
biological offspring. (Compare, e.g., Adoption of H.R. (2012) 205 Cal. App. 4th 455, 468
3S. appropriately does not argue that the fact of his incarceration prevented him
from proving under Kelsey S., supra, 1 Cal. 4th 816 that he did “all that he reasonably
could do under the circumstances. (Id. at p. 850, italics omitted.) At least one court has
determined that incarceration during a pregnancy was no excuse for a father’s failure to
assume parental responsibilities. (See In re Adoption of O.M., supra, 169 Cal.App.4th at
pp. 680–681.)
9
[biological father qualified under Kelsey S, supra, 1 Cal. 4th 816 by participating in prenatal
care and, after being excluded by mother, filed an action claiming paternity, obtained his
own DNA test, and actively sought physical and legal custody].) S.’s conduct was
ambivalent at best and an insufficiently prompt or unequivocal assertion of parental rights to
qualify under Kelsey S. S.’s disinclination to be involved with Michael or to seek custody
continued even after mother posted photos of newborn Michael on Facebook and S. was
certain the child was his son. Thus, S. failed to prove his willingness to assume full custody
of Michael. S. failed to establish that he promptly stepped forward to assume full parental
responsibilities for his son’s well-being. He was not present when Michael was born, and
did not visit the child or even inquire about his health. There is no evidence he paid any
medical bills associated with the birth. S.’s lack of involvement with and lack of
commitment to Michael both before and after his birth shows S. did not promptly step
forward to assume full responsibility for the child’s well-being. (See Kelsey S., supra, 1
Cal.4th at p. 849 [when determining presumed father status, a court must consider a
biological father’s conduct before and after a child’s birth].)
Finally, contrary to S.’s assertion, there is very little evidence mother prevented him
from assuming his parental responsibilities after Michael’s birth. Rather, the record reflects
that S. chose from the outset to withdraw from his parental responsibilities, assuming for
most of the first year of his son’s life that mother alone “had everything taken care of . . . all
under control.” The evidence demonstrates that it was S.’s own conduct and decisions—not
actions of a third party—that prevented him from assuming parental responsibilities.
Our decision in In re D.A. (2012) 204 Cal. App. 4th 811 is instructive. There, the
father and mother had a nonexclusive relationship when she got pregnant. The mother
informed the father the baby might be his and he expressed a desire for a genetic test to
determine if he was the baby’s father. He also took mother to two doctor visits and offered
to help with any associated expenses. Soon after, mother cut off contact with father, and he
did not learn her whereabouts until after the child was born. He again requested a paternity
test, but mother stalled, and no test was performed until after the child was detained due to
mother’s behavioral issues. After tests established that another man the court originally
10
found to be the presumed father was not the biological father, father attended the very next
hearing and informed the court that, if he was the biological father, he wanted to form a
relationship with the child. Genetic testing showed he was the biological father, and he
requested presumed father status and visitation. He attended every hearing after that and
consistently requested visitation. (Id. at pp. 824–825.) We held that the father had
demonstrated Kelsey S., supra, 1 Cal. 4th 816 father status when “[d]uring [the] mother’s
pregnancy he expressed his desire for a genetic test to determine whether he was the baby’s
father, he took [the] mother to prenatal medical appointments, and he offered to help with
any associated expenses. His involvement ended only because mother cut off contact with
him . . . and he had no other way of reaching her.”4 (In re D.A., at p. 824.) Here, in contrast,
S.’s absence over the months before and after Michael was born, including the fact that he
never expressed a desire for paternity testing before the child’s birth, nor made any effort to
provide mother financial or emotional support runs counter to the full parental commitment
envisioned by Kelsey S.5
4 On appeal, the previously named presumed father faulted father for having asserted,
before he was determined to be the child’s biological father, that he wished to be a father to
the child only if the child was his. (In re D.A., supra, 204 Cal.App.4th at p. 825.) This court
rejected that contention observing that there was no requirement “that a Kelsey S.[, supra, 1
Cal. 4th 816] father must unconditionally assert his parental rights even before knowing
whether the minor is his biological child.” (In re D.A., at p. 825.) We do not suggest that a
father forfeits presumed father status by requesting a DNA test. Nevertheless, a father must
promptly “attempt to assume his parental responsibilities as fully as the mother will allow
and his circumstances permit” (Kelsey S., at p. 849).
5 For these reasons we find S.’s reliance on In re Baby V. (2006) 140 Cal. App. 4th
1108, and In re Jerry P. (2002) 95 Cal. App. 4th 793, inapt. In both cases, unlike here, the
man seeking presumed father status came forward as soon as he learned of the child’s
existence, and promptly attempted to assume parental responsibilities and demonstrate a
full parental commitment to the child. (See In re Baby V., at p. 1117, and In re Jerry P.,
at p. 812.)
11
In conclusion, S. failed to present sufficient evidence to prove the Kelsey S.
requirements for presumed father status. The juvenile court properly denied S.’s motion to
be declared Michael’s presumed father.6
2. There was no ICWA violation.
S. claims that because he is Michael’s biological father, the court erred in failing to
inquire about his American Indian heritage and to provide notice under the ICWA.
The ICWA protects “Indian children who are members of or are eligible for
membership in an Indian tribe.” (25 U.S.C. § 1901(3).) For purposes of the ICWA, “‘Indian
child’ means 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.” (25 U.S.C. § 1903(4); Welf. & Inst. Code, § 224.1,
subd. (b); In re S.B. (2005) 130 Cal. App. 4th 1148, 1162.)
The ICWA requires that when the court “knows or has reason to know that an
Indian child is involved,” it must send notice to the appropriate tribe of the proceedings
and of the tribe’s right to intervene. (25 U.S.C. § 1912(a).) Neither the ICWA nor its
implementing regulations impose a duty to inquire about Indian ancestry. (See In re H.B.
(2008) 161 Cal. App. 4th 115, 120–121.) But the statute permits states to provide “‘a
higher standard of protection to the rights of the parent . . . of an Indian child than the
rights provided under [ICWA].”’ (Id. at p. 120; 25 U.S.C. § 1921.) California has
imposed on the juvenile court and DCFS an affirmative and continuing duty to inquire
whether a child is or may be an Indian child. (Welf. & Inst. Code, § 224.3, subd. (a); Cal.
Rules of Court, rule 5.481(a); In re S.B., supra, 130 Cal.App.4th at p. 1158.) Upon a
parent’s first appearance, the juvenile court must also order the parent to complete a
parental notification of Indian status form. (Cal. Rules of Court, rule 5.481(a)(2).)
Nevertheless, under California’s statutes and rules notice is required only if the court or
6Our conclusion that S. failed to establish his status as presumed father renders it
unnecessary to address his assertion that the juvenile court erroneously required him to
rebut Noel’s preexisting status as presumed father.
12
DCFS “knows or has reason to know that an Indian child is involved.” (Welf. & Inst.
Code, § 224.3, subd. (d); Cal. Rules of Court, rule 5.481(b)(1); In re Shane G. (2008) 166
Cal. App. 4th 1532, 1538–1539.) Failure to comply with the California notice
requirements is “harmless unless the appellant can show a reasonable probability that he
or she would have enjoyed a more favorable result in the absence of the error.” (In re
S.B., supra, 130 Cal.App.4th at p. 1162; In re H.B., supra, 161 Cal.App.4th at p. 121 [“A
violation of ICWA notice requirements may be harmless error, particularly when, as here,
the source of the duty to inquire is not ICWA itself but rather . . . a [California] rule of
court implementing ICWA”].)
The record shows that mother and Noel each completed the parental notification of
Indian status form and denied any American Indian ancestry. Even after his biological
parentage was established S. was never asked to complete the form, nor did the juvenile
court ask about his possible Indian ancestry on the record. This was error. (In re H.B.,
supra, 161 Cal.App.4th at p. 121.)
The error, however, was harmless. S. has never asserted that he or Michael have
Indian ancestry. He has not stated on appeal that he would have indicated that he had
Indian heritage if he had filled out a notification of Indian status form, or if he had been
asked directly by the court. This court and numerous others have held that ICWA notice
need not be given when there is insufficient reason to believe a child is an Indian child. (See,
e.g., In re J.D. (2010) 189 Cal. App. 4th 118, 125 [notice not required where paternal
grandmother indicated possible Indian ancestry, tribe unknown]; see also In re Jeremiah G.
(2009) 172 Cal. App. 4th 1514, 1516, 1520–1521 [mere assertion there was a “‘possibility’” a
parent’s great-grandfather “‘was Indian’” was too vague and speculative to require ICWA
notice]; In re O.K. (2003) 106 Cal. App. 4th 152, 154, 157 [grandmother’s statement children
may have Indian heritage, without identifying tribe, was “too vague and speculative to give
the juvenile court any reason to believe the minors might be Indian children”]; In re Levi U.
(2000) 78 Cal. App. 4th 191, 194, 198 [paternal grandmother’s statement there might be
Indian ancestry on her mother’s side, tribe unknown, was insufficient to trigger notice
requirements].)
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There is no indication in the record that Michael has Indian heritage through his
biological father, and S.’s failure to claim on appeal that there nevertheless remains some
basis to believe ICWA applies supports our conclusion that the juvenile court’s error was
harmless. (In re H.B., supra, 161 Cal.App.4th at p. 122; In re A.B. (2008) 164
Cal. App. 4th 832, 843.) To reverse (or even, as DCFS suggests, to conditionally affirm
and remand for compliance with ICWA notice requirements), would cause Michael
“additional unwarranted delay and hardship, without any showing whatsoever that the
interests protected by the ICWA are implicated in any way.” (In re Rebecca R. (2006)
143 Cal. App. 4th 1426, 1431.) As the court stated in In re Rebecca R., “Father is here,
now, before this court. 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. [Citation.]” (Ibid.) We also note that, despite the fact that DCFS
pointed out in its respondent’s brief S.’s failure to proffer any evidence on this issue, S.’s
reply brief ignores the point.
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DISPOSITION
The order is affirmed.
NOT TO BE PUBLISHED.
JOHNSON, J.
We concur:
CHANEY, Acting P. J.
BENDIX, J.*
* Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant
to article VI, section 6 of the California Constitution.
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