Filed 1/21/16 Adoption of Josiah P. CA4/1

                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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                    COURT OF APPEAL, FOURTH APPELLATE DISTRICT

                                                  DIVISION ONE

                                           STATE OF CALIFORNIA



Adoption of JOSIAH P., a Minor.

AARON AND AMANDA P. et al.,                                      D068215

         Plaintiffs and Respondents,
                                                                 (Super. Ct. No. A59987)
         v.

TYLER F.,

         Defendant and Appellant.


         APPEAL from a judgment of the Superior Court of San Diego County, Edlene

McKenzie, Commissioner. Reversed with directions.



         Donald R. Holben & Associates and Amelia A. McDermott for Defendant and

Appellant.

         Joseph T. Tavano, under appointment by the Court of Appeal, for Plaintiff and

Respondent Jessica K.
       Ted R. Youmans and Leslie A. Barry, for Plaintiff and Respondents Aaron and

Amanda P.

       Tyler F. appeals from a judgment terminating his parental rights to his biological

son, Josiah P., and allowing Aaron and Amanda P. (together, the P.'s) to proceed with

their adoption of Josiah. Contrary to Tyler's principal argument on appeal, the record

contains substantial evidence supporting the juvenile court's finding that Tyler is not a

Kelsey S. presumed parent.1 However, throughout the proceedings, the court and the San

Diego County Health and Human Services Agency (Agency) failed to comply with the

required inquiry and, depending on the response, notice provisions of the Indian Child

Welfare Act of 1978 (ICWA) (25 U.S.C. § 1901 et seq.).

       Accordingly, we reverse the judgment and remand the matter for the sole purpose

of requiring compliance with ICWA.

                                             I.

                               FACTUAL BACKGROUND

       We recite the evidence in a light most favorable to the court's ruling that Tyler is

not a Kelsey S. presumed father. (In re Adoption of Arthur M. (2007) 149 Cal.App.4th

704, 707 (Arthur M.).) In so doing, we acknowledge that the record contains, and at

times we discuss, other evidence that arguably supports a different outcome; but for



1      In Adoption of Kelsey S. (1992) 1 Cal.4th 816, 849 (Kelsey S.), our Supreme Court
held that an unwed father who has no statutory right to block a third party adoption by
withholding consent may have a constitutional right to do so under the due process and
equal protection clauses of the Fourteenth Amendment of the United States Constitution.

                                              2
purposes of our appellate review, the other evidence has limited application. We defer to

the juvenile court's express findings that the testimony of Jessica K., Josiah's mother, was

"extremely credible"; the testimony of Tyler was "credible"; and the testimony of

Kimberly F. was "not credible" and "give[n] no weight." (Adoption of Allison C. (2008)

164 Cal.App.4th 1004, 1015, fn. 9 [credibility is for the trial court to determine].)

       Jessica and Tyler had known each other since elementary school, although they

did not begin a romantic relationship until after high school in June 2013.

       At that time Jessica was financially self-sufficient, other than health insurance

which her father provided. She worked fulltime at a furniture design company, was

living and sharing rent with her sister, and otherwise paid for her own expenses. Tyler

worked at a fast food outlet and lived with his parents. By the time of trial, his monthly

pay was $1,600. Until shortly before trial, Tyler had been paying his parents $200 per

month for car insurance and cellular telephone; otherwise, he had no expenses.2 In

addition, Tyler volunteered at a gym and took classes at a community college.

       The parties' romantic relationship was very rocky. Tyler had a bad temper; at

times, he would be out of control and put Jessica in physical danger. To her face, he used

derogatory terms, calling her "a bitch" and "a slut." Tyler smoked marijuana every day,3

often in Jessica's presence, preferring to party with his friends rather than to spend time

2     At some point in time after Tyler was served with the underlying petition to
terminate parental rights, Tyler began paying his parents $300 per month.

3     Tyler did not have a medical prescription for marijuana and knew that use of
marijuana was illegal.

                                              3
with her. Jessica suspected Tyler had cheated on her a number of times, although he

denied any disloyalty. By or around late 2013, each of them had planned to break up and

end the relationship.

       In January 2014, Jessica learned that she was pregnant. She never had any doubt

that Tyler was the father, and a paternity test confirmed that Tyler was Josiah's father.

During the parents' initial discussions in January, Tyler was the first to bring up the

possibility of adoption. In considering other options, from January through May 2014

Tyler said he wanted to be a good parent, but he did not behave in a manner consistent

with his words.

       Tyler continued to smoke marijuana, despite Jessica's requests that he stop. Tyler

would not get a second job, instead volunteering at a gym in his spare time, despite

Jessica's requests that he work more hours to earn money for the baby. Tyler continued

to frequent bars, clubs and house parties with friends instead of spending time with

Jessica or working more. Tyler drove under the influence of marijuana. Tyler was

arrested twice: once by the Border Patrol for smoking marijuana in the car, and once in

Pacific Beach after fighting and being drunk in public.

       From the beginning of her pregnancy through March 2014, Jessica had prenatal

medical appointments approximately once a month, and after March they increased to

every two weeks due to pregnancy-related complications. From January through May,

Tyler came to only one ultrasound appointment, even though Jessica told him about each

appointment and even asked him to accompany her. Although Tyler explained that he

did not want to take off time from work to accompany Jessica to medical appointments,

                                              4
he took off time in order to attend someone else's 21st birthday party. After May (for

reasons explained below), Jessica did not initiate contact with Tyler for doctors'

appointments or otherwise.

       In May 2014, Tyler told Jessica he had been unfaithful to her. Also in May, in text

messages to his friends, Tyler called Jessica "stupid" and complained that she was "acting

like a cunt."

       Shortly thereafter, Jessica lost her job. Tyler never offered to assist her financially

— with either living or medical expenses. Indeed, other than buying a few meals and

bottles of water, Tyler never once offered to — or, in fact, did — assist Jessica

financially for any reason at any time after she became pregnant.4 Tyler knew that

Jessica had medical insurance, but he did not offer to pay or even inquire about any

premiums, deductibles or birth-related expenses. Thus, after losing her job, Jessica had

no source of income and was facing the responsibility of caring not only for herself but

also for her baby.

       In early June 2014, Jessica and Tyler broke up by mutual agreement. Within days

of the break-up, Tyler admitted to Jessica's uncle that he (Tyler) was not ready to parent a

child and boasted on social media that "Single life is the life." A few days later, based on




4       To the extent Josiah received baby supplies from Tyler, Kimberly (Tyler's mother)
actually bought and paid for them. Notably, Kimberly bought most of the larger items
(e.g., car seat, high chair, bedding) after Josiah's birth, after Josiah's placement with the
P.'s and after Tyler's deposition in the underlying consolidated paternity and adoption
proceedings.

                                              5
her financial concerns and the lack of emotional support from Tyler, Jessica moved into a

maternity home for the remainder of her pregnancy.

         Despite the move (and then cutting herself off from social media), Jessica was not

hiding from Tyler; he had a way to contact her within two days of her move and was able

to see her if he wanted. In fact, Tyler visited Jessica — but only once — during the time

she was at the maternity home. Kimberly, Tyler's mother, was with him, and she

communicated the following plan to Jessica: She (Kimberly) would raise the baby with

Tyler.

         Jessica gave birth to Josiah on August 24, 2014, in San Diego. The next day,

Jessica signed an adoption placement agreement, giving the P.'s legal custody of Josiah,

who has lived with them ever since.

                                             II.

                             PROCEDURAL BACKGROUND

         On June 10, 2014 — which was a week after Tyler and Jessica broke up, a few

days after Jessica moved to the maternity home, and more than two months before

Josiah's birth — Tyler filed a paternity action in the family court to establish a parental

relationship with (and custody of) the anticipated child.5 Approximately six weeks later,

Tyler requested an order for DNA testing.




5      Within one week of Jessica's move to the maternity home, Kimberly went there
and served Jessica with process from Tyler's paternity action.

                                              6
       On August 26, 2014 — which was two days after Josiah's birth and one day after

Josiah was placed with the P.'s — the P.'s filed the underlying action to terminate Tyler's

parental rights. In their petition, the P.'s asserted that they had filed an adoption request;

that Jessica had consented to the adoption; that even though Tyler had requested DNA

testing to determine whether he was Josiah's biological father, he was not Josiah's

presumed father, and therefore the P.'s adoption of Josiah could proceed without Tyler's

consent. As particularly relevant, the P.'s alleged that Tyler "has not promptly come

forward during the pregnancy and demonstrated a full commitment to all his parental

responsibilities, emotionally, financially and otherwise, to [Jessica] and [Josiah]."

       Also on August 26, 2014, the P.'s filed the Parental Notification of Indian Status

form (with Indian Child Inquiry Attachment) required by rule 5.481 of the California

Rules of Court.6 In this form, Jessica disclosed that she is Josiah's mother and that she is

unaware of any Indian ancestry of either her or Josiah. Although the generic Indian Child

Inquiry Attachment has space to identify two people questioned about the child's Indian

ancestry and their relationship to the child, the form in the record on appeal here

identifies only Jessica and leaves blank the area to identify anyone else questioned.

Significantly, the record on appeal does not indicate Tyler ever received notice or inquiry

related to his possible Indian ancestry.




6      Subsequent undesignated rule references are to the California Rules of Court.

                                               7
       In mid-September 2014, the court consolidated Tyler's paternity action with the

P.'s termination of parental rights action and stayed the paternity action. The court

ordered that DNA testing proceed and that the P.'s retain custody of Josiah.

       Tyler responded to the P.'s petition, the Agency filed its report as ordered, and the

action proceeded.

       The trial on the P.'s petition to terminate Tyler's parental rights took place on

April 10 and 15, 2015. The court heard testimony from Jessica, Tyler, Kimberly and

Jessica's uncle and received into evidence approximately 30 exhibits. At the close of

trial, the court ruled that Tyler did not meet his burden of establishing Kelsey S. presumed

parent status of Josiah and that the P.'s adoption of Josiah was in Josiah's best interest and

could proceed without Tyler's consent.

       On May 5, 2015, the court filed its judgment reflecting these and related rulings,7

and Tyler timely appealed.

                                             II.

                                       DISCUSSION

       Tyler argues on appeal that the record does not contain substantial evidence to

support the finding that he is not a Kelsey S. presumed father and that the juvenile court

failed to comply with ICWA. As we explain post, we conclude that substantial evidence

supports the court's finding that Tyler is not a Kelsey S. presumed father. Nonetheless,



7     In addition to reciting many of the factual findings, the judgment also dismissed as
moot Tyler's paternity action.

                                              8
we further conclude that the failure to ensure compliance with ICWA requires a reversal

of the judgment with directions to the juvenile court.

A.     Substantial Evidence Supports the Finding That Tyler Is Not a Kelsey S.
       Presumed Father

       As introduced ante, a father like Tyler — i.e., an unwed biological father who has

no statutory right to block a third-party adoption by withholding consent — may have a

constitutional right to do so under the due process and equal protection clauses of the

Fourteenth Amendment of the United States Constitution. (Kelsey S., supra, 1 Cal.4th at

p. 849.) To succeed with such a claim, the unwed father must prove that, after learning

of the pregnancy, he "promptly c[ame] forward and demonstrate[d] a full commitment to

his parental responsibilities — emotional, financial, and otherwise."8 (Id. at p. 849; see

Adoption of Michael H. (1995) 10 Cal.4th 1043, 1053-1054 [full commitment], 1059

[emphasizing need for prompt and timely action] (Michael H.).) This standard requires

the trial court to consider a number of factors, including "[t]he father's conduct both

before and after the child's birth" and the extent to which "the mother will allow and his

circumstances permit" the father to assume his parental responsibilities. (Kelsey S., at

p. 849; accord, Michael H., at pp. 1054, 1055, 1058.) The father must demonstrate " 'a

willingness himself to assume full custody of the child — not merely to block adoption

by others.' " (Kelsey S., at p. 849.) This includes any delay by the father in

communicating his decision to tell the mother that he did not agree with the proposed

8       In other situations, the statutory distinction between a biological father and a
presumed father is "constitutionally sufficient." (Kelsey S., supra, 1 Cal.4th at p. 849;
e.g., Fam. Code, § 7611.)

                                              9
adoption. (Michael H., at p. 1060.) Additional considerations include the father's public

acknowledgement of paternity, payment of pregnancy and birth expenses commensurate

with the father's ability to do so, and prompt legal action to seek custody of the child.9

(Michael H., at p. 1060.)

       There is no requirement of a showing (either way) whether Tyler loved Jessica,

proposed marriage to her, or was a compatible mate for her. (Adoption of Baby Boy W.

(2014) 232 Cal.App.4th 438, 452, fn. 13 (Baby Boy W.).) The only showing that is

required under Kelsey S. and Michael H. is that Tyler "provide[d] care and support for

[Jessica]'s physical and emotional health to the extent it affect[ed] the health and welfare

of the child she [wa]s carrying." (Baby Boy W., at p. 452, fn. 13.)

       In the juvenile court, Tyler did not meet his burden of presenting sufficient

evidence to establish presumed father status under Kelsey S.10 (T.K., supra, 240

Cal.App.4th at p. 1398.) On appeal, we review the court's ruling under the substantial

evidence standard, "viewing 'all factual matters most favorably to the prevailing party and

9     No one has questioned Tyler's public acknowledgement of paternity or the
promptness by which he sought legal custody.

10     In his opening brief, Tyler twice suggests that the juvenile court was required to
determine his Kelsey S. presumed father status by clear and convincing evidence.
However, Tyler does not provide authority for this suggestion, and in fact "[a]n unwed
father seeking Kelsey S. status has the burden of showing by a preponderance of the
evidence that he qualifies." (Adoption of T.K. (2015) 240 Cal.App.4th 1392, 1398, italics
added (T.K.).) To the extent that evidence of a presumed father's "unfitness" must be
shown by clear and convincing evidence when the issue is the child's best interest in an
adoption proceeding (Kelsey S., supra, 1 Cal.4th at p. 825; see Fam. Code, § 3041,
subd. (b)), the issue of Tyler's "unfitness" was not reached in this case since the court
determined he was not a presumed father.

                                             10
in support of the judgment, indulging all reasonable inferences and resolving all conflicts

accordingly.' " (Baby Boy W., supra, 232 Cal.App.4th at p. 452.) As particularly apt in

the present appeal, we look only to the substantiality of the evidence in support of the

trial court's finding, " 'even if there is other evidence supporting a contrary finding.' "

(Id. at p. 453; see In re Adoption of Easley (1966) 240 Cal.App.2d 821, 824 (Easley) [we

assume trial court rejected evidence supporting a contrary finding]; 9 Witkin, Cal.

Procedure (5th ed. 2008) Appeal, § 370, p. 427 ["appellate court ordinarily looks only at

the evidence supporting the successful party, and disregards the contrary showing"].)

       As we explain, Tyler did not meet his burden of establishing a lack of substantial

evidence in support of the juvenile court's ruling that he was not a Kelsey S. presumed

father of Josiah. More specifically, the record contains substantial evidence that after

learning of Jessica's pregnancy, Tyler did not promptly come forward and demonstrate a

full commitment to his parental responsibilities.

              1.      Financial Responsibilities

       Tyler did not pay, or even inquire about paying, any of the pregnancy or birth-

related medical expenses. Nor did he offer to pay, let alone actually pay, for maternity

clothes for Jessica or baby supplies for Josiah. Jessica told Tyler that the doctor was

concerned because she was not gaining sufficient weight, Tyler only suggested that she

eat more; he did not provide any food or resources. Indeed, Tyler never once offered

Jessica money for any purpose. Even after Jessica told Tyler in June 2014 that she had

lost her job, he did not offer her financial assistance.



                                              11
       The lack of financial responsibility is particularly troubling here, where Tyler had

at least $1,000 per month of expendable income,11 and he chose to spend his money on

marijuana and alcohol, and on frequenting bars and clubs during Jessica's pregnancy. In

addition, Tyler never considered getting a second job, even though Jessica suggested he

make the effort — and he had the time to (and did) volunteer at a gym two days a week.

       Although there is no requirement that there be a showing that the biological

father's lack of financial responsibility had an adverse effect on the mother, here a

principal motivating factor for Jessica's move to the maternity home was her concern

about her inability to support the unborn child.

              2.     Emotional Responsibilities

       There is no requirement for a showing that the biological father's lack of emotional

responsibility had an adverse effect on the mother — except, as we explained ante, to the

extent it adversely affected the unborn child's health and welfare. (Baby Boy W., supra,

232 Cal.App.4th at p. 452, fn. 13.) Here Jessica explained that Tyler's behavior caused

her anxiety and stress — to the point that she had difficulty gaining sufficient weight

during the pregnancy, resulting in risk to the unborn child.

       Initially, we note that the result of each of the financial responsibilities discussed

immediately above is also substantial evidence of Tyler's lack of emotional support for

Jessica. In addition, Tyler's behavior — or lack of understanding or appreciation of the



11     On a monthly basis, Tyler netted $1,200 from his job, and his monthly expenses
totaled $200.

                                              12
effects of his behavior on Jessica — demonstrates a significant deficiency of commitment

to any emotional responsibility.

       Other than one ultrasound procedure early in the pregnancy, Tyler did not go to

any of Jessica's doctor's appointments — even though Jessica had told Tyler about each

appointment and asked him on occasion to accompany her.12 Tyler ignored the medical

care for the mother of his child, even after knowing that she was experiencing physical

problems with the placenta.13

       Jessica suspected Tyler of infidelity during the pregnancy, which he denied

consistently until May 2014, when he finally told her that he had had sexual relations

with someone else (whom Jessica had suspected) months earlier.14 In addition, Tyler

was texting at least five different girls; Tyler told the girl with whom he had sex that she

12     Tyler explained to Jessica that he did not want to take off work, but then he
managed to rearrange his work schedule so that he could attend someone else's 21st
birthday party.

13     At oral argument, Tyler's counsel acknowledged that Tyler did not accompany
Jessica to doctors' appointments, but emphasized that he always texted her afterward to
see how she was. Counsel did not provide record references for this statement, and given
our review of the record based on citations in Tyler's opening brief, Jessica often texted
Tyler after her medical appointments, and Tyler merely replied.

14     At oral argument, Tyler's counsel suggested that the sexual encounter should not
be considered for substantial evidence purposes, because it occurred before Jessica had
told Tyler she was pregnant. First, counsel did not provide a record reference for her
statement, and neither the record reference in Tyler's opening brief nor our independent
review of the record establishes the date of the sexual encounter. In any event, the fact of
the encounter (regardless when it took place) is highly relevant to the substantiality of the
evidence that Tyler was not emotionally supporting Jessica: In May 2014, almost four
months after learning Jessica was pregnant, Tyler was still texting with the woman and
suggesting that she not tell anyone.

                                             13
should not tell anyone they were still communicating, and Tyler did not support Jessica in

response to a text from another girl who called Jessica "a bitch."

       Tyler called Jessica "a bitch" and "a slut" to her face; in May 2014, he referred to

her as "stupid" and complained that she was "acting like a cunt" in text messages to his

friends — texts that Jessica saw in May. In June 2014, after Tyler's mother served

Jessica with the court process in Tyler's paternity action — which was within one week

of Jessica moving to the maternity home — Tyler posted on social media, " 'You've been

served.' Seth Rogan voice. BITCH."

       Tyler exhibited ongoing anger issues toward Jessica during the pregnancy by both

raising his voice and intimidating her.

       Tyler ignored Jessica's requests that he stop smoking marijuana.15 Indeed, Tyler

smoked every day and even drove under the influence of marijuana. During the

pregnancy, Tyler was arrested twice for drug- and alcohol-related offenses.16

       Tyler never made any plans for Jessica's or the baby's physical well-being. In May

2014, Tyler suggested to Jessica that his parents could put a trailer or log cabin on their

15      Although Tyler testified that he stopped smoking on June 3, 2014, Jessica testified
that to her knowledge he never stopped. In any event, evidence that Tyler continued
smoking for five months until June 2013 despite Jessica's requests that he stop is
substantial evidence of Tyler's lack of emotional support.

16     At oral argument, Tyler's counsel suggested that the first arrest should not be
considered for substantial evidence purposes, because at the time of the arrest in January
2014, Jessica had not yet told Tyler that she was pregnant. We disagree. The fact that
the second arrest — at a time Tyler knew Jessica was pregnant — was merely three
months after the first arrest strongly suggests a lack of emotional responsibility on Tyler's
part.

                                             14
property so that Jessica and the child would have a place to live and Jessica and Tyler

could raise their child together. Tyler even understood from Jessica that "[s]he was clear

she was in agreement" to this arrangement and told this to his mother in May 2014.

However, Tyler presented no evidence that he did anything to follow-up in terms of

offering even the most basic living arrangements for Jessica or the baby.17

       Tyler, not Jessica, first suggested the option of adoption, stating that he was not

emotionally or financially ready to parent a child. Yet later, when Jessica told Tyler in

June 2014 that she thought adoption would be best for the baby, he opposed it. Although

Tyler then said he wanted to keep the child, he made no plans or attempted any

arrangement whereby he could provide for the child.

              3.     Tyler Does Not Present Persuasive Argument or Legal Authority

       Tyler's presentation on appeal emphasizes the evidence in the record that arguably

supports a finding that he qualified as a Kelsey S. presumed father. We acknowledge that

evidence and commend Tyler for the efforts reflected in that evidence, but under the

substantial evidence standard of review, we " 'affirm the [trial court's ruling] even if there

is other evidence supporting a contrary finding.' " (Baby Boy W., supra, 232 Cal.App.4th

at p. 453, italics added; see Easley, supra, 240 Cal.App.2d at p. 824 [trial court rejected

evidence supporting a contrary finding]; 9 Witkin, Cal. Procedure, supra, § 370, p. 427


17     At oral argument, Tyler's counsel was critical of the trial court's finding that
Kimberly's three-bedroom home might be inadequate to accommodate the child. We
note that the actual ruling — "there was not sufficient room in [Kimberly's] home for all
of them" — was based exclusively on Kimberly's testimony (that there were already five
adults living there) and a photograph submitted on behalf of Tyler.

                                              15
[appellate court "disregards" evidence not in support of finding on appeal].) Further,

Tyler's presentation of evidence does not take into consideration the juvenile court's

express findings of credibility of the principal witnesses.

       Tyler's focus is similarly misdirected in his reliance on Adoption of H.R. (2012)

205 Cal.App.4th 455 — a case in which the Court of Appeal affirmed the juvenile court's

finding that the biological father had met his burden of proof that he was a Kelsey S.

presumed father. (H.R., at pp. 468-470.) In particular, Tyler's comparison of the

evidence in H.R. to the evidence in the present appeal is not helpful, because under the

substantial evidence standard of appellate review, the appellate court considers only the

substantiality of the evidence in support of the ruling actually made, not the evidence that

might support a contrary ruling. (Baby Boy W., supra, 232 Cal.App.4th at p. 453.) At

oral argument, Tyler's counsel also compared the evidence of Tyler's financial and

emotional involvement in the present case to the evidence of the biological father's

involvement in the Baby Boy W. case. There, as in H.R., the Court of Appeal affirmed a

finding that the biological father was a Kelsey S. presumed father. (Baby Boy W., supra,

232 Cal.App.4th at p. 450.) Thus, in both H.R. and Baby Boy W., the appellate courts

considered the evidence that supported a finding that the biological father was a Kelsey S.

presumed father, whereas we are considering the evidence that supports a finding that

Tyler is not a Kelsey S. presumed father. In neither situation does the appellate court

review the substance of the evidence that might have supported a different finding. Thus,

we do not review the record in this appeal to determine whether it contains evidence to

support a finding that Tyler may be a Kelsey S. father.

                                             16
       In numerous places in his opening brief, Tyler suggests that because Jessica "went

into hiding at" or "disappeared to" the maternity home, he was disadvantaged in

establishing his commitment to parental responsibilities for purposes of the Kelsey S.

presumed father analysis. We disagree both with Tyler's characterization of Jessica's

move and with the proposition that her move adversely affected his ability to demonstrate

the requisite commitment to parental responsibilities. The uncontradicted evidence is that

Jessica moved to the maternity home in early June 2014 not to hide or disappear, but

because she was receiving no financial or economic support from Tyler. Moreover,

Tyler's suggestion that Jessica was hiding or had disappeared is disingenuous: within two

days of Jessica's move, Tyler's mother contacted Jessica's father, received a number at

which Jessica could be reached, and from that number obtained the address of the

maternity home; less than a week later, Tyler's mother went to the maternity home and

served Jessica with court process in Tyler's paternity action; and within the next month

Tyler (and his mother) visited Jessica at the maternity home. Given this chronology, the

change in circumstances gave Tyler the perfect opportunity to demonstrate parental

responsibilities if he had been so committed.

B.     Failure to Comply with ICWA's Duty of Inquiry Requires a Reversal

       "ICWA protects the interests of Indian children and promotes the stability and

security of Indian tribes by establishing minimum standards for, and permitting tribal

participation in, [certain] proceedings which terminate parental rights. [Citations.]

ICWA contains provisions for notice to the tribes and specifies certain findings that must

be made prior to termination of parental rights when an Indian child is involved." (In re

                                             17
Adoption of Hannah S. (2006) 142 Cal.App.4th 988, 994-995.) In particular, ICWA

applies to private adoption proceedings where parental rights may be terminated. (In re

Jonathon S. (2005) 129 Cal.App.4th 334, 338, citing 25 U.S.C. §§ 1903(1), 1911(a)-(c),

1912-1921; see Welf. & Inst. Code, § 224 et seq.; rule 5.480 et seq.)

       Rule 5.480 provides in part: "This chapter addressing [ICWA] . . . , as codified in

various sections of the California Family, Probate, and Welfare and Institutions Codes,

applies to most proceedings involving Indian children that may result in . . . termination

of parental rights . . . or adoptive placement." (Citation omitted.) Rule 5.481(a) is

entitled "Inquiry" and directs in part: "The court, court-connected investigator, and party

seeking a . . . termination of parental rights, or adoption have an affirmative and

continuing duty to inquire whether a child is or may be an Indian child in all proceedings

identified in rule 5.480." In the present appeal, this directive applies to the trial court, the

Agency and the P.'s. (Rule 5.481(a).) This rule continues with two additional

requirements: (1) the P.'s were required to "ask . . . [both of Josiah's] parents . . . whether

the child is or may be an Indian child and must complete the Indian Child Inquiry

Attachment (form ICWA-010(A)) and attach it to the petition"; and (2) at the P.'s first

appearance, the court was required to "order [Tyler] . . . to complete Parental

Notification of Indian Status (form ICWA-020)." (Rule 5.481(a)(1) & (2).)

       Rule 5.481's duty to inquire "attaches to any proceeding which may result in

termination of parental rights or adoptive placement." (In re Noreen G. (2010) 181

Cal.App.4th 1359, 1387 (Noreen G.) [termination of parental rights in guardianship

proceeding].) Thus, upon the filing of the P.'s underlying action and the P.'s first

                                              18
appearance, the court, the Agency and the P.'s were all "vested with the affirmative and

continuing duty pursuant to rule 5.481(a) to inquire whether [Josiah is] or may be [an]

Indian child[]." (Ibid.) The record on appeal discloses that the P.'s complied with

rule 5.481 with regard to Josiah's mother (Jessica), but is void of any attempt by the

court, the Agency or the P.'s to comply with rule 5.481 with regard to Josiah's father

(Tyler) — despite Tyler's full participation in the underlying proceedings.

       The breaches of this duty to inquire into Josiah's possible Indian heritage are error

that necessitates " 'a limited reversal . . . and remand for proper inquiry and any required

notice [that] may be necessary.' " (Noreen G., supra, 181 Cal.App.4th at p. 1387.) A

parent like Tyler " 'does not necessarily waive an ICWA notice issue by failing to raise it

below.' " (Id. at p. 1385.) That is because ICWA's notice requirements " ' " 'serve the

interests of the Indian tribes "irrespective of the position of the parents" and cannot be

waived by the parent.' " ' " (Ibid.)

       We acknowledge that not every breach of the duty to inquire under rule 5.481(a)

requires a reversal; noncompliance with the inquiry requirement may be harmless error.

(Noreen G., supra, 181 Cal.App.4th at pp. 1387-1388.) However, where the parent

makes an offer of proof on appeal that the child has Indian heritage, the parent establishes

a sufficient miscarriage of justice such that the error is not harmless. (Id. at p. 1388.) In

the present appeal, we accept Tyler's offer of proof that, had inquiry been made, he would

have replied that he is of Indian ancestry.

       Tyler asks that we (1) "augment [the] record with additional evidence on appeal"

(capitalization omitted) by accepting his declaration in which he asserts his Indian

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ancestry and a corresponding basis on which Josiah is "eligible for membership in the

Pueblo of Taos Indian Tribe of New Mexico,"18 and (2) take judicial notice that the

"Pueblo of Taos, New Mexico is an Indian Entity recognized by the federal government"

for purposes of ICWA. In response, the P.'s ask that we take evidence, in a declaration

from counsel, regarding membership eligibility requirements of the Pueblo of Taos, New

Mexico tribe. Implicit in all three requests is that we make findings of fact regarding

Tyler's Indian ancestry, if any.

       Code of Civil Procedure section 909 and rule 8.252(b) and (c), which govern the

taking of additional evidence and the finding of facts on appeal, have limited application.

We invoke section 909 " 'sparingly.' " (Noreen G., supra, 181 Cal.App.4th at pp. 1388-

1389.) " ' " 'Absent exceptional circumstances,' " ' " we do not issue findings of fact; and

this appeal does not offer "any 'exceptional circumstances' that warrant the taking of

additional evidence from either party." (Id. at pp. 1388, 1389.) For these reasons, we

deny the motions to take evidence. Without the additional evidence relating to Tyler's

alleged Indian ancestry, Tyler's motion to take judicial notice of a federally recognized

Indian tribe is not necessary to the determination of any issue in this appeal; we

accordingly deny the motion. (Piccinini v. California Emergency Management Agency

(2014) 226 Cal.App.4th 685, 690.)


18      We consider Tyler's motion to augment the record a motion to take evidence, since
an augmentation is limited to a "document filed or lodged in the case in superior court" or
a "certified transcript — or agreed or settled statement — of oral proceedings" not
previously designated. (Rule 8.155(a)(1)(A), (B).) The declaration that Tyler asks us to
consider was not filed or lodged in the superior court and is not a transcript of
proceedings.
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                                        DISPOSITION

          The judgment is reversed and the case is remanded to the juvenile court with

directions that the court ensure compliance with the notice provisions of ICWA. If, after

proper notice, a tribe claims Josiah is an Indian child, then the court shall proceed in

conformity with all provisions of ICWA. If, alternatively, no tribe claims Josiah is an

Indian child, then the court shall reinstate the judgment terminating Tyler's parental

rights.


                                                                                   IRION, J.

WE CONCUR:



MCDONALD, Acting P. J.



O'ROURKE, J.




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