Opinion
NOT TO BE PUBLISHED
Appeal from an order of the Superior Court of Orange County No. DP013075, John C. Gastelum, Judge.
Rene Judkiewicz, under appointment by the Court of Appeal, for Defendant and Appellant.
Benjamin P. de Mayo, County Counsel, and Karen L. Christensen, Deputy County Counsel, for Plaintiff and Respondent.
No appearance for the Minor.
OPINION
RYLAARSDAM, ACTING P. J.
Arturo B. (father) appeals from an order terminating his parental rights to now almost two-year-old Baby Girl Q. on the ground the Orange County Social Services Agency (SSA) and the juvenile court failed to inquire whether he has any American Indian heritage. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
SSA initiated dependency proceedings for Baby Girl Q. a few days after she was born in March 2006 in part because her mother, Johanna Q., had tested positive for methamphetamines both two weeks before and when she gave birth. Baby Girl Q. was mother’s fifth child, her fourth to be the subject of a dependency proceeding, and her third with father. Mother denied having any American Indian heritage and did not know if father had any. Because father was living in Mexico at an unknown location at the time, SSA could not ask him about his American Indian heritage.
SSA received contact information for father two months later and advised him of the next hearing. Father reported he had been deported but was interested in reunification services and was planning to return for the trial. He never appeared in court because there was an outstanding warrant against him and he was unable to return to the United States. The record contains no indication father was asked whether he has any American Indian heritage.
Mother pleaded no contest to, and father submitted on, an amended petition alleging her substance abuse, father’s failure to protect, and the previous dependency cases involving the other children. Reunification services were not offered to either parent.
At the permanency hearing, neither of the two social workers who testified was asked any questions regarding father’s possible American Indian ancestry and father did not argue Baby Girl Q. was an Indian child. The court terminated father’s and mother’s parental rights. It also found the child was likely to be adopted and that adoption was in her best interest.
DISCUSSION
Father’s sole contention on appeal is that SSA did not inquire whether he had any American Indian heritage, as required by Welfare & Institutions Code section 224.3 and former California Rules of Court, rule 5.664(d) (repealed, eff. Jan. 1, 2008). SSA concedes no inquiry was made but argues there was no injury or miscarriage of justice because father has not presented any evidence or claimed he has American Indian heritage. We agree.
“[T]he fundamental requisite before an appellate court will reverse a trial court’s judgment” is a showing of a miscarriage of justice. (In re Rebecca R. (2006) 143 Cal.App.4th 1426, 1430 (Rebecca R.).) That showing has not been made here.
In Rebecca R., the father appealed the order terminating his parental rights, arguing the court failed to ensure social services asked whether he had any Indian ancestry. The court affirmed the order, in part because the father failed to show a miscarriage of justice. Although the father complained he was not asked whether the child had any Indian heritage, the court held “there can be no prejudice, unless, if he had been asked, father would have indicated that the child did (or may) have such ancestry.” (Rebecca R., supra, 143 Cal.App.4th at p. 1431.)
According to the court, nothing prevented the father “from removing any doubt or speculation: about the child’s heritage in his briefing or otherwise. (Rebecca R., supra, 143 Cal.App.4th at p. 1431.) “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 [Indian Child Welfare Act]. He did not. [¶] In the absence of such a representation, the matter amounts to nothing more than trifling with the courts. [Citation.] 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, keeping an extra ace up their sleeves. Parents cannot spring the matter for the first time on appeal without at least showing their hands.” (Ibid.)
The court concluded, “The burden on an appealing parent to make an affirmative representation of Indian heritage is de minimis. In the absence of such a representation, there can be no prejudice and no miscarriage of justice requiring reversal.” (Rebecca R., supra, 143 Cal.App.4th at p. 1431.)
We agree with that reasoning. Because father made no offer of proof or other affirmative representation that he has American Indian heritage, his contention on appeal lacks merit.
Father distinguishes Rebecca R. on the grounds the juvenile court there ordered both the county welfare agency to inquire if the father had any Indian heritage and the parents to reveal if they were members of an Indian tribe. He argues the parents thus knew of the relevance of Indian heritage whereas in a case such as this where no inquiry is made, “parents are not expected to know the relevance of Indian heritage in dependency proceedings” and “cannot be held responsible” for the failure to inquire.
But father was represented by counsel at all relevant times once SSA located him in Mexico. Counsel certainly knew or should have known of the relevance of Indian heritage and there is no claim she did not. The same counsel represented father in the dependency case concerning Baby Girl Q.’s five-year-old brother, Jermaine B. At the combined dispositional hearing for Baby Girl Q. and contested 12- and 18-month review hearing for Jermaine B., counsel never once raised or hinted at the possibility of Indian heritage. And when county counsel asked the court to find the exception under Welfare and Institutions Code section 366.26, former subdivision (c)(1)(F), now subdivision (c)(1)(B)(iv), for an Indian child inapplicable, father’s counsel did not object.
Father urges this court to follow In re J.N. (2006) 138 Cal.App.4th 450, in which the Court of Appeal reversed a termination order for failure to inquire of one parent whether the child had Indian ancestry, “refus[ing] to speculate about what mother’s response to any inquiry would be . . . and instead remand[ing] the matter to the trial court with directions . . . .” (Id. at p. 461, fn. omitted.) We decline to do so. As observed by Rebecca R., “[t]he sole reason an appellate court is put in a position of ‘speculation’ on the matter is the parent’s failure or refusal to tell us.” (Rebecca R., supra, 143 Cal.App.4th at p. 1431.)
DISPOSITION
The order terminating father’s parental rights is affirmed.
WE CONCUR: O’LEARY, J. MOORE, J.