Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
Mendocino County Super. Ct. No. SCUK-JVSQ-05-14470-01
Swager, J.
In this appeal from the denial of appellant’s request for a declaration of paternity and visitation rights with the minor Emilee, he claims that a prior judgment which declared his status as the biological father of the minor must be given binding, conclusive effect in this dependency proceeding to grant him visitation rights with the minor. He also claims that a violation of the Indian Child Welfare Act (25 U.S.C. § 1901 et seq., hereafter the ICWA) occurred. We conclude the judgment that declared appellant to be the biological father of Emilee does not rebut the presumption of paternity in Shawn, the “step-father” of the minor, and does not entitle appellant to visitation rights in this proceeding. We also find no violation of the ICWA. We therefore affirm the judgment.
For the sake of confidentiality and convenience, we will refer to the minor and other members of her family by their first names.
STATEMENT OF FACTS AND PROCEDURAL HISTORY
The minor, Emilee, was born in November 1997 while her mother Heidi was married to Shawn. Shawn’s name appears on Emilee’s birth certificate as her father, and after her birth she lived with him and Heidi. Heidi and Shawn have two other children: sons born in 1994 and 1996.
Shawn is the biological father of the two boys, who are not the subjects of this appeal.
In November of 1999, examination of genetic samples revealed that appellant is Emilee’s biological father. By judgment filed on December 13, 1999, appellant was declared to be the biological father of Emilee, and he was ordered to pay child support for her. On February 25, 2000, appellant was convicted of second degree murder and sentenced to 15 years to life in state prison. Appellant has neither supported Emilee nor acted as her father in any way during the course of her life.
The murder was committed in May of 1998; the conviction was affirmed by Division Five of this court in 2001.
After Heidi and Shawn separated and Shawn began living with “his girlfriend,” this lengthy dependency proceeding began on October 5, 2005, when a petition was filed by the Mendocino County Department of Social Services (hereafter the Department or respondent) which alleged a history of domestic violence and physical abuse of the children by Shawn. (Welf. & Inst. Code, § 300, subds. (a), (b) & (c).) In the petition Shawn was described as the “step-father” of Emilee. Appellant was specified to be the “biological father of Emilee as determined by paternity testing.” Appellant received notice of the proceedings, and counsel was appointed to represent him, although he did not thereafter personally appear at any hearings.
At the detention hearing, Shawn and Heidi “stated that they have no Native American heritage.” A Parental Notification of Indian Status Form (JV-130) was mailed to appellant in state prison, but the record does not show that he ever completed or returned it. The juvenile court subsequently found that the provisions of the ICWA do not apply to the present action.
Following contested jurisdictional and dispositional hearings, the allegations of the petition related to substantial risk of physical harm to the children, failure to protect the children, and substantial risk of serious emotional harm to Alexander were sustained. The children were declared dependents of the juvenile court under a family maintenance plan, with joint physical custody and placement of the minors with Heidi and Shawn.
After the dispositional hearing, Alexander and Nickolas lived in an apartment in Willits with Shawn, his girlfriend, and her three children; they did not have regular contact with Heidi. Emilee lived primarily with Heidi, but they did not have a stable residence and Emilee did not regularly attend school. Heidi did not comply with her family maintenance plan.
Respondent filed a supplemental petition (§ 387) on June 5, 2006, that sought to have the children detained from Heidi and placed with Shawn. Following a hearing, the supplemental petition was granted on the grounds that Heidi did not properly care for Emilee, failed to comply with the family maintenance services provided to her, was addicted to prescription medication for chronic pain, and tested positive for controlled substances that impaired her ability to parent. Emilee was placed with Shawn, and family reunification services were ordered for Heidi.
Thereafter, Heidi made “minimal progress” with her case plan. She continued to miss counseling and other appointments, failed to regularly visit with the children as scheduled, tested positive for drugs, and was the victim of domestic violence by a man “she had been living with for a short time.”
Heidi also disclosed to Emilee during a visit that Shawn is “not her biological father,” and that her “real father,” appellant, who “is in prison for murder, is going to come and take her away from” Shawn. This disclosure was “profoundly disturbing to Emilee,” as Shawn was the “only father she has known” and she had “formed a strong attachment” to him. Heidi was admonished by the social worker “to have no further discussions with Emilee” about appellant, who is “merely a biological father” with “no standing” in the case and whose incarceration in “prison for murder” precludes his custody of the minor. The social worker also recommended that Heidi receive only supervised visitation with Emilee “due to the inappropriate conversations.”
In contrast, Shawn complied with family maintenance services and made “significant progress” with his parenting skills. He continued to attend individual counseling sessions to treat anger management. He and the children participated in family therapy to deal with conflict resolution. Shawn also secured a new job to provide him with more income and greater opportunity to spend time with the children. The family sought new, separate housing away from the crowded, stressful residence of Shawn’s girlfriend and her children.
Appellant requested but was denied the right to contact Emilee by letter. He thereafter made a request for the juvenile court to take judicial notice of the prior judgment of paternity that established him as the biological father of Emilee. Based on the paternity judgment he also sought “letter contact” with Emilee and visitation with her by her “half siblings”–appellant’s two other children–and his mother. Appellant claimed that the judgment of paternity conclusively establishes his “legal status” as Emilee’s father under the “doctrine of res judicata,” and rebuts any presumption of paternity on the part of Shawn.
At the subsequent 18-month review hearing, family reunification services for Heidi were terminated and the children were ordered to remain in Shawn’s custody under the family maintenance plan. The court also took judicial notice of the paternity judgment as requested by appellant.
A special hearing on appellant’s request for letter contact and visitation with Emilee was held on June 7, 2007. The court considered the paternity judgment, the judgment of appellant’s conviction for murder and commitment to state prison, and a report from the social worker that recounted the impressions of Emilee’s therapist: that Emilee “suffered from nightmares and fears that someone will come take her away from her father, Shawn”; and that introduction of “another person into her life at this time would be emotionally stressful for her and would be detrimental to her psychological wellbeing.” The therapist recommended that the “biological paternal grandmother not be granted visitation at this time.” The court found that appellant, while the biological father, “does not have presumed father status” in the case. The court further found that visitation “between Emilee and her biological father and grandmother” would be “detrimental to Emilee’s well-being.” The court therefore denied appellant and his mother any visitation with Emilee. This appeal followed.
DISCUSSION
I. The Effect of the Judgment of Paternity .
Appellant argues that the December 1999 judgment which declared him to be the biological father of Emilee “is determinative for all purposes” pursuant to Family Code, section 7636, and “rebutted any presumption that Shawn was the father.” He adds that the paternity judgment “cannot be collaterally attacked” in this dependency proceeding. Appellant therefore claims that the juvenile court’s “order vacating the prior order” was “reversible error as the court had no legal authority to set aside the 1999 order” and make a “second finding of paternity, naming Shawn the presumed father.” He asks us to reverse the “paternity findings and orders” of June 7, 2007, and remand the case with directions to the juvenile court to grant him “reunification services and visitation, absent a finding of detriment.”
All further statutory references are to the Family Code unless otherwise indicated; all references to rules are to the California Rules of Court. Section 7636 reads: “The judgment or order of the court determining the existence or nonexistence of the parent and child relationship is determinative for all purposes except for actions brought pursuant to Section 270 of the Penal Code.”
We commence our analysis by disagreeing with an essential premise espoused by appellant. He has misconstrued the nature and effect of the juvenile court’s order. The juvenile court did not in any way set aside or vacate the 1999 paternity judgment, as appellant asserts. To the contrary, the court recognized that appellant “has been found to be the father by a prior judgment,” but determined that “in spite of that he is not a presumed father.” The distinction is critical; the prior declaration that appellant is the biological father of Emilee remains intact. “However, the presumed father finding is not the same as the paternity judgment.” (In re Margarita D. (1999) 72 Cal.App.4th 1288, 1296.) Thus, the juvenile court did not violate section 7636 by declaring that appellant’s status as the biological father of Emilee does not grant him presumed father status or entitle him to visitation with the child.
We proceed to examine the effect of appellant’s status as the biological father in this dependency proceeding. “In dependency proceedings, fathers are divided into four categories: de facto fathers, alleged fathers, natural fathers and presumed fathers. A man, such as a stepfather, who has assumed the role of parent, is a ‘de facto father.’ A man who may be the father of the dependent child but has not been established to be the natural or presumed father is an ‘alleged father.’ A man who has been established to be the biological father is a ‘natural father.’ A man who has held the child out as his own and received the child into his home is a ‘presumed father.’ A ‘natural father’ can be, but is not necessarily, a ‘presumed father’ and a ‘presumed father’ can be, but is not necessarily, a ‘natural father.’ [¶] Presumed father status ranks highest. Only a ‘statutorily presumed father’ is entitled to reunification services under Welfare and Institutions Code section 361.5, subdivision (a) and custody of his child under Welfare and Institutions Code section 361.2.” (In re Jerry P. (2002) 95 Cal.App.4th 793, 801, fns. omitted.)
Appellant is the “natural father” in this proceeding. Shawn qualifies as the “presumed father” of Emilee pursuant to section 7611. “Section 7611 sets forth various circumstances wherein the court will presume a man to be a child’s father. ‘A man is presumed to be the natural father of the child if . . . [¶] (a) He and the child’s natural mother are or have been married to each other and the child is born during the marriage . . . .’ (§ 7611, subd. (a).) A man is also presumed to be the natural father of the child if ‘[h]e receives the child into his home and openly holds out the child as his natural child.’ (§ 7611, subd. (d).)” (Amy G. v. M.W. (2006) 142 Cal.App.4th 1, 12.) The record unequivocally discloses that Shawn has satisfied the factual predicates for presumed father status under section 7611. (Gabriel P. v. Suedi D. (2006) 141 Cal.App.4th 850, 857–858; Librers v. Black (2005) 129 Cal.App.4th 114, 125–126.) Appellant, in contrast, did not meet any of the statutory conditions for presumed fatherhood. (Dawn D. v. Superior Court (1998) 17 Cal.4th 932, 937.) There is “an obvious distinction between a biological father who has actually established a parent and child relationship, and a man who has not established such a relationship but would like to do so. Only the former are presumed fathers under section 7611, subdivision (d).” (Rodney F. v. Karen M. (1998) 61 Cal.App.4th 233, 239.)
As a presumed father Shawn is granted all of the rights associated with that status in this dependency proceeding. “Presumed fathers are accorded greater rights than alleged or biological fathers. [Citations.] Alleged fathers have only limited rights to notice of proceedings bearing on the paternity of a child. [Citation.] Although a biological father’s parental relationship with a child is not terminated when another man is declared the child’s presumed father, only the presumed father is entitled to custody of the child.” (Gabriel P. v. Suedi D., supra, 141 Cal.App.4th 850, 857.) “There is an obvious distinction between a man who has undertaken the obligations of marriage and family and a man whose only connection with the child is biological. Our Supreme Court has held that the state has a legitimate interest in preferring the former over the latter.” (Rodney F. v. Karen M., supra, 61 Cal.App.4th 233, 239.)
The fact that Shawn is not the biological father of Emilee does not negate his status as a presumed father for purposes of a dependency action. Although blood tests proved Shawn is not the natural father, he remains the presumed father by virtue of his relationship with the child. (In re Raphael P. (2002) 97 Cal.App.4th 716, 729; Susan H. v. Jack S. (1994) 30 Cal.App.4th 1435, 1443.) “[P]resumed father status, when used to connote a father with financial and social ties to the child, is unrelated to natural father status.” (In re Jerry P., supra, 95 Cal.App.4th 793, 804–805.) Our high court has stated: “A man’s parentage of a child may be undisputed and legally proven, but he may nevertheless fail to be a ‘presumed father’ . . . . Conversely, even if paternity is denied and legally disproved, a man may be deemed, under some circumstances, to be a ‘presumed father.’ ” (Adoption of Kelsey S. (1992) 1 Cal.4th 816, 823, fn. 3; In re Raphael P., supra, at p. 726.) A “man does not lose his status as a presumed father” by an admission or proof that he is “not the biological father.” (In re Nicholas H. (2002) 28 Cal.4th 56, 63.)
Further, appellant’s status as biological father based on genetic testing does not entitle him to the rights or status of a presumed father. “Because presumed fatherhood is based not on a biological connection but rather a man’s relationship with the child (or the child’s mother) (see Fam. Code, § 7611), genetic testing has no applicability in determining presumed father status.” (In re Joshua R. (2002) 104 Cal.App.4th 1020, 1026–1027.) “This is because biological paternity is not a relevant factor in determining presumed father status under section 7611. [Citation.] Thus, ‘it is irrelevant that the biological father can prove his paternity or even that all parties to the proceedings may concede that [he] is the biological father.’ [Citation.]” (In re Elijah v. (2005) 127 Cal.App.4th 576, 585–586.)
Appellant nevertheless argues that “any presumption under section 7611 is rebutted by a judgment establishing paternity of the child by another man. (Family Code, § 7612.)” He thus maintains that the 1999 judgment which found him to be the biological “father of Emilee rebutted any presumption that Shawn was the father.”
Appellant is correct in asserting that the section 7611 presumption is rebuttable. (Craig L. v. Sandy S. (2004) 125 Cal.App.4th 36, 50–52.) The section 7611 presumption “ ‘is a rebuttable presumption affecting the burden of proof and may be rebutted in an appropriate action only by clear and convincing evidence.’ ” (§ 7612, subd. (a).) (In re Nicholas H., supra, 28 Cal.4th 56, 70, italics omitted.) “The procedure for reconciling competing presumptions is stated in section 7612, which provides: ‘(a) . . . a presumption under Section 7611 is a rebuttable presumption affecting the burden of proof and may be rebutted in an appropriate action only by clear and convincing evidence. [¶] (b) If two or more presumptions arise under Section 7611 which conflict with each other, the presumption which on the facts is founded on the weightier considerations of policy and logic controls. [¶] (c) The presumption under Section 7611 is rebutted by a judgment establishing paternity of the child by another man.’ ” (In re Jesusa v. (2004) 32 Cal.4th 588, 603; see also Gabriel P. v. Suedi D., supra, 141 Cal.App.4th 850, 858.) Notwithstanding the conclusive presumption that the “child of a wife cohabiting with her husband, who is not impotent or sterile is . . . a child of the marriage” (§ 7540), “if the court finds that the conclusions of all the experts, as disclosed by the evidence based on blood tests,” are that “the husband is not the father of the child, the question of paternity of the husband shall be resolved accordingly.” (§ 7541, subd. (a); see also In re Marriage of Moschetta (1994) 25 Cal.App.4th 1218, 1225.)
Section 7554, subdivision (a), like section 7541, “directs that ‘[i]f the court finds that the conclusions of all the experts, as disclosed by the evidence based upon the tests, are that the alleged father is not the father of the child, the question of paternity shall be resolved accordingly.’ ” (In re Raphael P., supra, 97 Cal.App.4th 716, 734.)
However, appellant is wrong in suggesting that mere biological evidence of nonpaternity rebuts presumed father status. (In re Nicholas H., supra, 28 Cal.4th 56, 69-70; Librers v. Black, supra, 129 Cal.App.4th 114, 126; In re Raphael P., supra, 97 Cal.App.4th 716, 734-735.) Our high court has definitively and repeatedly declared that the section 7611 presumption “ ‘is not, under section 7612[,] [subdivision] (a), necessarily rebutted by clear and convincing evidence that the presumed father is not the biological father of the child.’ [Citation.]” (In re Jesusa v. supra, 32 Cal.4th 588, 603-604, quoting from In re Nicholas H., supra, at p. 64, italics omitted.) The court has observed that the language of section 7612, subdivision (a) “provides merely that a presumption under section 7611 ‘ “may be rebutted in an appropriate action only by clear and convincing evidence.” ’ [Citation.]” (In re Jesusa v. supra, at p. 604, italics omitted; Nicholas H., supra, at p. 63.) “Accordingly, the statute did not contemplate a reflexive rule that biological paternity would rebut the section 7611 presumption in all cases, without concern for whether rebuttal was ‘appropriate’ in the particular circumstances. [The court] found additional support in section 7612, subdivision (b), which directs the juvenile court confronted with conflicting presumptions to prefer the presumption which on the facts is founded on the weightier considerations of policy and logic.” (In re Jesusa v. supra, at p. 604.)
In In re Jesusa v. supra, 32 Cal.4th 588, 604, the court, by “[a]pplying the analytical framework developed in Nicholas H.,” found that even “biological paternity by a competing presumed father does not necessarily defeat a nonbiological father’s presumption of paternity.” The court reasoned: “[T]he text of section 7612, subdivision (a) does not articulate a categorical rule detailing when the section 7611 presumption of paternity is rebutted, but instead provides only that the presumption ‘ “may” ’ be rebutted ‘ “in an appropriate action.” ’ [Citation.] This indicates that the Legislature did not envision an automatic preference for biological fathers, even if the biological father has come forward to assert his rights. Indeed, as noted above, ‘if the Legislature had intended that a man who is not a biological father cannot be a presumed father under section 7611, it would not have provided for such weighing, for among two competing claims for presumed father status under section 7611, there can be only one biological father.’ [Citation.] If, on the other hand, the Legislature had intended to restrict the weighing process under section 7612, subdivision (b) to disputes between competing nonbiological fathers, it could easily have said so.” (Id. at pp. 604–605.)
“ ‘Thus, although the results of genetic testing constitute clear and convincing evidence, it does not follow that such evidence will rebut the presumption in every case. Rather, the statute seeks to protect presumptions of paternity, once they have arisen, from being set aside except upon clear and convincing evidence and only in an appropriate case.’ [Citation.]” (In re Jesusa v. supra, 32 Cal.4th 588, 605, quoting from In re Kiana A. (2001) 93 Cal.App.4th 1109, 1118–1119; see also Steven W. v. Matthew S. (1995) 33 Cal.App.4th 1108, 1116–1117.) The court concluded that as “ ‘between two men,’ ” even if both qualify as presumptive fathers, “ ‘biological paternity does not necessarily determine which presumption will prevail under section 7612.’ [Citation.]” (In re Jesusa v. supra, at p. 605.) A juvenile court confronted with the contention that biological paternity “necessarily rebuts another man’s presumption of paternity under section 7612, subdivision (a). . . . must instead consider whether rebuttal of the presumption would be appropriate in the circumstances of the case.” (Id., at p. 606.) In making this determination, the court is obliged to weigh all pertinent factors, including biological paternity. (Gabriel P. v. Suedi D., supra, 141 Cal.App.4th 850, 864.)
That is not the case here; appellant does not qualify as a presumptive father.
Where conflicting presumptions arise, the court must make factual findings with respect to each presumption and only then weigh which presumption is entitled, in that case, to greater weight. (Craig L. v. Sandy S, supra, 125 Cal.App.4th 36, 51-52.) “The nature of each presumed father’s role in the life of a child and the marital circumstances will vary from case to case and thus the trial court must make its determination under section 7612 on a case-by-case basis. In resolving such a conflict, the trial court must at all times be guided by the principle that the goal of our paternity statutes is ‘the protection of the child’s well being.’ ” (Id. at p. 52.)
“This is a matter entrusted to the juvenile court’s discretion.” (In re Jesusa v. supra, 32 Cal.4th 588, 606.) “As such, our review of the court’s ruling is limited to determining whether the court abused that discretion. ‘ “The appropriate test for abuse of discretion is whether the trial court exceeded the bounds of reason. When two or more inferences can reasonably be deduced from the facts, the reviewing court has no authority to substitute its decision for that of the trial court.” [Citation.]’ [Citation.]” (In re Joshua R., supra, 104 Cal.App.4th 1020, 1028.)
In the present case the juvenile court properly undertook an evaluation of the pertinent competing considerations. We also agree with the juvenile court’s assessment that appellant has “no bonding, no relationship with the child.” Appellant has a biological connection to the minor, but absolutely nothing more. Even after appellant was declared Emilee’s biological father, he did not support her, take her into his home, or even, as far as the record shows, engage in personal visitation with her. Six months after Emilee’s birth, appellant committed a murder. By February of 2000, he began serving a sentence of 15 years to life in state prison for a conviction of second degree murder. Given the predicament he faces of probable incarceration during the entirety of Emilee’s minority, appellant will not be able to assume parental responsibilities. “Case law holds that mere biological fatherhood, unaccompanied by a parent-child relationship, is worth little in the dependency context.” (In re Joshua R., supra, 104 Cal.App.4th 1020, 1029.) Appellant falls within the category of those the Supreme Court found unworthy of the term “ ‘parent’ ”: “fathers who had never demonstrated any commitment to the child’s welfare.” (In re Zacharia D. (1993) 6 Cal.4th 435, 451; In re Joshua R., supra, 104 Cal.App.4th 1020, 1029.)
Further, appellant did not even demonstrate an expeditious commitment to Emilee in the course of this dependency action. He had notice of the proceedings, but did not take any action until more than a year and a half passed and the case had reached the point of termination of Heidi’s parental rights. “[T]he dependency system requires a more time-critical response. Once a child is placed in that system, the [biological] father’s failure to . . . develop a parental relationship with that child must necessarily occur at the risk of ultimately losing any ‘opportunity to develop that biological connection into a full and enduring relationship.’ ” (In re Zacharia D., supra, 6 Cal.4th 435, 452; In re Emily R. (2000) 80 Cal.App.4th 1344, 1354.)
Finally, Shawn not only had the status of presumed father in this proceeding, but has acted in all respects as Emilee’s father during the entire course of her life. We do not discount the prior physical abuse of Heidi and the children by Shawn which in great measure precipitated this action, but we also know from the record that Shawn has made significant strides to comply with his case plan, improve his parenting skills, and overcome the problems that resulted in the dependency. Most critically, he has accepted the obligations of acting as the only father Emilee has known. The record bespeaks a strong father-daughter bond between Emilee and Shawn which does not exist even to the slightest degree with appellant.
“There is an obvious distinction between a man who has undertaken the obligations of marriage and family and a man whose only connection with the child is biological. Our Supreme Court has held that the state has a legitimate interest in preferring the former over the latter.” (Rodney F. v. Karen M., supra, 61 Cal.App.4th 233, 239, citing Michelle W. v. Ronald W. (1985) 39 Cal.3d 354, 363.) “The courts have repeatedly held, in applying paternity presumptions, that the extant father-child relationship is to be preserved at the cost of biological ties.” (In re Raphael P., supra, 97 Cal.App.4th 716, 728–729.) “Thus, as between two men, both of whom qualify as presumptive fathers, biological paternity does not necessarily determine which presumption will prevail under section 7612. ‘ “ ‘ “[I]n the case of an older child [over two years of age] the familial relationship between the child and the man purporting to be the child’s father is considerably more palpable than the biological relationship of actual paternity. A man who has lived with a child, treating it as his son or daughter, has developed a relationship with the child that should not be lightly dissolved . . . . This social relationship is much more important, to the child at least, than a biological relationship of actual paternity. . . .” ’ ” ’ [Citation.]” (In re Kiana A., supra, 93 Cal.App.4th 1109, 1119, quoting from Steven W. v. Matthew S., supra, 33 Cal.App.4th 1108, 1116–1117.)
We conclude that under the facts presented the trial court did not abuse its discretion by declining to rebut the presumption of Shawn’s paternity of Emilee. (In re Jesusa v. supra, 32 Cal.4th 588, 607; In re Joshua R., supra, 104 Cal.App.4th 1020, 1029.) Therefore, the denial of appellant’s motion for letter contact with the minor and for personal visitation with her biological paternal grandmother was not error.
II. The Indian Child Welfare Act .
Appellant also claims that the juvenile court failed to comply with the ICWA by making a “proper inquiry into the possible Native American heritage of the minor.” Appellant asserts that without any response from him as to his “American Indian heritage,” and no evidence of a further inquiry, “it was error for the juvenile court to conclude the ICWA did not apply.”
The requirements of the ICWA are well delineated. “ ‘[W]here the court knows or has reason to know that an Indian child is involved, the party seeking the foster care placement of, or termination of parental rights to, an Indian child shall notify the parent or Indian custodian and the Indian child’s tribe, by registered mail with return receipt requested, of the pending proceedings and of their right of intervention.’ (25 U.S.C. § 1912(a).) If the identity of the tribe cannot be determined, notice must be given to the Bureau of Indian Affairs.” (In re Robert A. (2007) 147 Cal.App.4th 982, 988; see also In re Santos Y. (2001) 92 Cal.App.4th 1274, 1300-1301.)
“To satisfy the notice provisions of the [ICWA] and to provide a proper record for the juvenile court and appellate courts, [a social services agency] should follow a two-step procedure. First, it should identify any possible tribal affiliations and send proper notice to those entities, return receipt requested. [Rule 5.664 (formerly rule 1439(f) (rule 5.664 repealed effective Jan. 1, 2008).] Second, [the agency] should provide to the juvenile court a copy of the notice sent and the return receipt, as well as any correspondence received from the Indian entity relevant to the minor’s status. If the identity or location of the tribe cannot be determined, the same procedure should be used with respect to the notice to [the Bureau of Indian Affairs].” (In re Marinna J. (2001) 90 Cal.App.4th 731, 739–740, fn. 4; see also In re Jennifer A. (2002) 103 Cal.App.4th 692, 702–703; People ex rel. DSS in Interest of C.H. (S.D. 1993) 510 N.W.2d 119, 123–124.) “The ICWA notice requirement is not onerous. ‘[C]ompliance requires no more than the completion of a preprinted form promulgated by the State of California, Health and Welfare Agency, for the benefit of county welfare agencies.’ [Citation.]” (Dwayne P. v. Superior Court (2002) 103 Cal.App.4th 247, 254.)
Rule 1439 was renumbered, as pertinent here was rule 5.664. Rule 5.664 was then repealed effective January 1, 2008, and in substance is currently rule 5.481.
“Pursuant to California Rules of Court, [rule 5.664 (formerly rule 1439(d))], the court and the Department ‘have an affirmative and continuing duty to inquire whether a child for whom a petition under section 300 . . . has been[] filed is or may be an Indian child.’ Under [rule 5.664 (former rule 1439(d)(2))], ‘the social worker must ask . . . the parents . . . whether the child may be an Indian child or may have Indian ancestors.’ Further, under[former] rule 1439[(d)(3)], ‘[a]t the first appearance by a parent or guardian in any dependency case, . . . the parent . . . must be ordered to complete form JV-130, Parental Notification of Indian Status.’ ” (In re J.N. (2006) 138 Cal.App.4th 450, 461, italics omitted; see also In re Aaliyah G. (2003) 109 Cal.App.4th 939, 941–942; In re Antoinette S. (2002) 104 Cal.App.4th 1401, 1409.) When any of the notice or inquiry provisions are “violated, an Indian child, parent, Indian custodian, or the Indian child’s tribe may petition the court to invalidate the proceeding.” (In re Marinna J., supra, 90 Cal.App.4th 731, 735.)
“ ‘The Indian status of the child need not be certain to invoke the notice requirement. [Citation.] Because the question of membership rests with each Indian tribe, when the juvenile court knows or has reason to believe the child may be an Indian child, notice must be given to the particular tribe in question or the Secretary [of the Interior].’ [Citation.]” (In re O.K. (2003) 106 Cal.App.4th 152, 156.) “The showing required to trigger the statutory notice provisions is minimal; it is less than the showing needed to establish a child is an Indian child within the meaning of ICWA.” (In re Miguel E. (2004) 120 Cal.App.4th 521, 549; see also In re Merrick v. (2004) 122 Cal.App.4th 235, 246.)
“Because ‘ “failure to give proper notice of a dependency proceeding to a tribe with which the dependent child may be affiliated forecloses participation by the tribe, [ICWA] notice requirements are strictly construed.” ’ [Citation.]” (In re Robert A., supra, 147 Cal.App.4th 982, 989.) “The circumstances under which a juvenile court has reason to believe that a child is an Indian child include, but are not limited to, the following: ‘(i) Any party to the case, Indian tribe, Indian organization or public or private agency informs the court that the child is an Indian child. [¶] (ii) Any public or state-licensed agency involved in child protection services or family support has discovered information which suggests that the child is an Indian child. [¶] (iii) The child who is the subject of the proceeding gives the court reason to believe he or she is an Indian child. [¶] (iv) The residence or the domicile of the child, his or her biological parents, or the Indian custodian is known by the court to be or is shown to be a predominantly Indian community. [¶] (v) An officer of the court involved in the proceeding has knowledge that the child may be an Indian child.’ (Guidelines for State Courts; Indian Child Custody Proceedings (44 Fed.Reg. 67584, 67586 (Nov. 26, 1979)) (Guidelines); [former] rule 1439(d)(2).)” (In re O.K., supra, 106 Cal.App.4th 152, 156.)
The record shows that respondent made an inquiry and obtained information from Shawn and Heidi that the children had no Native American heritage. The requisite JV-130 form was also sent to appellant, who was represented by counsel, with directions to complete it, but he never returned a response to respondent. Appellant continued to be represented by counsel as the proceedings ensued, but never filed the JV-130 form or suggested in any way that he had Native American ancestry. The Department thus satisfied its duty of initial inquiry, and received no indication that the ICWA may be applicable. Absent any disclosure of appellant’s Native American heritage that required a follow-up, the Department had no further duty of inquiry. (In re Rebecca R. (2006) 143 Cal.App.4th 1426, 1429–1430; In re S.B. (2005) 130 Cal.App.4th 1148, 1160–1161; In re Aaliyah G., supra, 109 Cal.App.4th 939, 942.) This is not a case in which the record fails to show that social services inquired of one of the parents whether the child had Indian ancestry. (Cf., In re J.N., supra, 138 Cal.App.4th 450, 460–461.) No violation of the ICWA occurred. (In re Aaliyah G., supra, at p. 943.)
Accordingly, the judgment is affirmed.
We concur: Stein, Acting P. J., Margulies, J.