Filed 7/11/13 In re J.G. CA5




                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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

                                       FIFTH APPELLATE DISTRICT

In re J.G. et al., Persons Coming Under the
Juvenile Court Law.

KERN COUNTY DEPARTMENT OF HUMAN                                                            F066085
SERVICES,
                                                                            (Super. Ct. Nos. JD128945-00,
         Plaintiff and Respondent,                                                  JD128946-00)

                   v.
                                                                                         OPINION
JOSE G.,

         Defendant and Appellant.



         APPEAL from an order of the Superior Court of Kern County. Jon E. Stuebbe,
Judge.
         Konrad S. Lee, under appointment by the Court of Appeal, for Defendant and
Appellant.
         Theresa A. Goldner, County Counsel, and Mark L. Nations, Chief Deputy County
Counsel, for Plaintiff and Respondent.
                                                        -ooOoo-
       Appellant Jose G. (father) seeks reversal of the juvenile court’s dispositional order
on the grounds the Kern County Department of Human Services (the Department) made
insufficient efforts to determine if the children, J.G. and C.G. (collectively the children),
had Indian heritage. Father also contends that substantial evidence did not support the
juvenile court’s decision to deny reunification services to him. We disagree and will
affirm the dispositional orders.
                     FACTUAL AND PROCEDURAL SUMMARY
       Jose G. is the presumed father of C.G., born in 2011, and J.G, born in 2010,
although he is not the biological father of J.G. Father was arrested in June 2011 for first
degree burglary, which resulted in his second conviction for this offense. After he was
incarcerated, father saw the children infrequently through a plexiglass partition at the jail.
       After father’s incarceration, the children’s mother, Rebecca (mother), began using
methamphetamine, became involved with a new boyfriend, and left the children with
father’s relatives. J.G. was placed with Denise G.; C.G. was placed with an aunt. Mother
had a history of social services contact and child neglect. She later was arrested on
burglary charges.
       Between February and June 2012, while in Denise’s care, then two-year old J.G.
was the victim of vicious, life-threatening physical abuse. When admitted to the hospital,
J.G. was diagnosed as suffering from traumatic brain injury, multiple abrasions, burns on
his face, neck, back, abdomen, buttocks, and soles of his feet, bone fractures, a fractured
jaw and shoulder blade, malnutrition and severe anemia, and possible injury to his spleen.
J.G. also tested positive for methamphetamine exposure and was observed to be a “social
devastated” child.
       On June 27, 2012, petitions pursuant to Welfare and Institutions Code section 300
were filed by the Department on behalf of J.G. and C.G. (All further statutory references
are to the Welfare and Institutions Code unless otherwise stated.) The petitions later
were amended to identify J.G.’s abusers. Father disclaimed any Indian ancestry and the

                                              2.
juvenile court ruled that the Indian Child Welfare Act (25 U.S.C. § 1901 et seq., ICWA)
did not apply to father. Mother reported that she might have Apache ancestry. The
Department was ordered to provide notice pursuant to ICWA as to mother.
       On July 12, 2012, the Department provided notice of the August 14, 2012,
jurisdictional hearing pursuant to ICWA to mother, the Bureau of Indian Affairs (BIA),
the Secretary of the Interior, and eight Apache tribes. The notice identified the children
by their names and dates of birth, the name, address, and birth date of the children’s
mother, the name of the children’s maternal grandmother, who was deceased, and the
name of the children’s maternal grandfather. The address given for the grandfather,
however, was a former address; the current address was listed as unknown.
       Four Apache tribes responded that the children were not members of and were not
eligible for membership in an Apache tribe; the BIA indicated it “does not determine
tribal eligibility.” When the jurisdictional hearing was postponed, the Department again
notified the four Apache tribes that previously had not responded. The Department
received notification from one of these four tribes that the children were not members of
and were not eligible for membership in the tribe.
       On September 26, 2012, the Department submitted a declaration from the assigned
social worker regarding the notice to the tribes and the lack of any response from some
tribes. The Department explained that it had not received any evidence indicating
eligibility for enrollment in any tribe after the notices had been served. The Department
asked that the juvenile court find that ICWA did not apply.
       At the October 4, 2012, jurisdictional hearing, the juvenile court addressed the
issue of applicability of ICWA. No one expressed a desire to be heard on the issue, after
which the juvenile court determined ICWA did not apply. The juvenile court found that
the children came within the provisions of section 300, subdivision (b).
       After the juvenile court assumed jurisdiction, instead of proceeding to a
dispositional hearing, father, through his counsel, requested that the dispositional hearing

                                             3.
be continued so as to allow more time to respond to the recommendation to deny
reunification services to him. Father’s counsel also asked that father be provided with
visitation while in jail; counsel for the minors did not object to a visit pending
disposition. The juvenile court authorized a jail visit as long as father was housed
locally; if father was sent to prison, there was to be no visit.
       At the November 5, 2012, dispositional hearing, father was elevated to the status
of presumed father as to J.G. Father requested reunification services, but the juvenile
court denied the request. The juvenile court found that there was clear and convincing
evidence the children came within the provisions of section 361.5, subdivision (e)(1).
The children were ordered removed from the custody of mother and reunification
services were ordered provided to mother for six months, which period would expire on
April 4, 2013.
                                        DISCUSSION
       Father claims the notice requirements of ICWA were not satisfied because the
notices failed to include all necessary information that was readily available if the
Department had interviewed the maternal grandfather. Father also contends the juvenile
court erred in denying reunification services because the Department failed to meet its
burden under section 361.5, subdivision (e)(1).
I.     ICWA Notice
       We apply a substantial evidence standard of review to father’s argument. (In re
Rebecca R. (2006) 143 Cal.App.4th 1426, 1430; In re Aaliyah G. (2003) 109 Cal.App.4th
939, 941-943.) Applying this standard of review, we reject father’s contention.
       ICWA protects the interests of Indian children and promotes the stability and
security of Indian tribes and families by establishing certain minimum federal standards,
distinct from state court standards, in juvenile dependency actions involving an Indian
child. (In re Kahlen W. (1991) 233 Cal.App.3d 1414, 1421.) When a state court “knows
or has reason to know that an Indian child is involved” in a juvenile dependency

                                               4.
proceeding, a duty to give notice under ICWA arises. (25 U.S.C. § 1912(a); see Kahlen
W., at p. 1421.) Under ICWA, an “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).) The Indian status of the child need not be certain in order to
trigger notice. (Kahlen W., at p. 1422.) The requisite notice enables the tribe and/or BIA,
in part, to investigate and determine whether the minor is an “Indian child.” (In re
Junious M. (1983) 144 Cal.App.3d 786, 796.)
       To ensure compliance with ICWA notice requirements, this court held in In re
H.A. (2002) 103 Cal.App.4th 1206, 1214 (H.A.) that a department that seeks the foster
care placement of or the termination of parental rights to a child who may be eligible for
Indian child status must do the following or face the strong likelihood of reversal on
appeal to this court.
       “First, the Department must complete and serve, pursuant to the terms of 25
United States Code section 1912(a), the ‘NOTICE OF INVOLUNTARY CHILD CUSTODY
PROCEEDING INVOLVING AN INDIAN CHILD’ [(the SOC 319)] along with a copy of
the dependency petition. Second, the Department must file with the superior court copies
of proof of the registered mail or certified mail and the return receipt(s), the completed
‘NOTICE OF INVOLUNTARY CHILD CUSTODY PROCEEDING INVOLVING AN
INDIAN CHILD’ that was served, and any responses received.” (H.A., supra, 103
Cal.App.4th at p. 1215.)
       Here, mother claimed Apache ancestry. She identified her parents and her
siblings. Although mother claimed to have some contact with the maternal grandfather,
the only information obtained from mother when interviewed about the maternal
grandfather was an old address. The only address provided by either mother or father for
the location of the maternal grandfather was the same address where father and mother



                                             5.
had lived at one point, which was the address set forth on the ICWA notices. By the time
of the dependency petition, however, that address no longer was current.
       When the dependency petition was filed, father was incarcerated and mother had
been living a chaotic lifestyle. J.G. was admitted to the hospital on June 23, 2012, but the
Department was unable to locate mother until June 27. When mother was interviewed on
July 2, she admitted a recent history of using methamphetamine. She had left both her
children with others because she had no job and no money with which to care for the
children; she stayed at multiple locations. During the case, the social worker attempted to
make contact with relatives of mother, to no avail. There also were multiple occasions
when the social worker attempted to contact mother, to no avail.
       The Department does have an obligation to make inquiry of the child’s family
members and obtain information that may assist in establishing or determining Indian
ancestry. (§ 224.3, subd. (c).) According to father, the Department should have inquired
of the children’s maternal grandfather, or presumably other relatives, for additional
family history, such as the birthplaces and/or birth dates for those listed on the request for
confirmation form whose birthplaces and/or birth dates were noted as unknown.
       We reject this argument because it is based on speculation and unsupported by the
record. (Calhoun v. Hildebrandt (1964) 230 Cal.App.2d 70, 72 [it is appellant’s burden
to show affirmatively error on the record].) Further, while the Department had a duty to
make inquiry and act on information it received, it did not have a duty to conduct an
exhaustive search. (In re C.Y. (2012) 208 Cal.App.4th 34, 41.) That the record is silent
regarding whether the Department spoke with or attempted to contact the maternal
grandfather does not necessarily mean the Department failed to make an adequate inquiry
for Indian heritage information. (In re D.W. (2011) 193 Cal.App.4th 413, 417.) The
record does show extensive attempts to track the maternal aunt. Father also assumes
without any basis in the record that the maternal grandfather or other older maternal



                                              6.
relatives were available to be interviewed and could have supplied the missing
birthplaces and birth dates for the request for confirmation form.
       We conclude the Department made an adequate inquiry. We base this on the
following: (1) Mother was only “semi-cooperative” with the Department throughout the
case; (2) she was unable to provide any current or accurate information regarding any of
her immediate family members; (3) the record evidence of exhaustive attempts to locate
the maternal aunt to no avail; (4) a silent record as to attempts made to locate other
family members; and (5) nothing in the record to suggest the Department had a means of
contacting any other family members, or other more current information for the two
family members that it allegedly failed to follow through on.
       The Department, using what information was available to it, gave notice to every
possible Apache tribe and the BIA. Notice was sent by registered or certified mail with
return receipt requested and all return receipts were filed with the juvenile court in
advance of the hearings. (§ 224.2, subds. (a)(1), (c).) Consequently, the record reflects
the ICWA notice requirements were satisfied. (H.A., supra, 103 Cal.App.4th at p. 1211.)
II.    Denial of Reunification Services
       Father contends the denial of reunification services pursuant to section 361.5,
subdivision (e)(1) was not supported by the evidence because the Department failed to
meet its burden of proving detriment.
       Section 361.5, subdivision (e)(1) states in relevant part:
       “(1) If the parent or guardian is incarcerated, institutionalized … the court shall
order reasonable services unless the court determines, by clear and convincing evidence,
those services would be detrimental to the child. In determining detriment, the court shall
consider the age of the child, the degree of parent-child bonding, the length of the
sentence, the length and nature of the treatment, the nature of the crime or illness, the
degree of detriment to the child if services are not offered .… Reunification services are



                                              7.
subject to the applicable time limitations imposed in subdivision (a). Services may
include, but shall not be limited to, all of the following:
         “(A) Maintaining contact between the parent and child through collect telephone
calls.
         “(B) Transportation services, where appropriate.
         “(C) Visitation services, where appropriate.
         “(D) Reasonable services to extended family members or foster parents providing
care for the child if the services are not detrimental to the child.
         “An incarcerated or detained parent may be required to attend counseling,
parenting classes, or vocational training programs as part of the reunification service plan
if actual access to these services is provided.”
         The clear and convincing evidence standard specified in section 361.5 is for the
edification and guidance of the juvenile court and not a standard for appellate review.
The sufficiency of evidence to establish a given fact, where the law requires proof of the
fact to be clear and convincing, is primarily a question for the trial juvenile court to
determine. If there is substantial evidence to support its conclusion, the determination is
not open to review on appeal. On appeal from a judgment required to be based upon
clear and convincing evidence, the clear and convincing test disappears and the usual rule
of conflicting evidence applies. On review of the sufficiency of the evidence, we
presume in favor of the order, considering the evidence in the light most favorable to the
prevailing party, giving the prevailing party the benefit of every reasonable inference, and
resolving all conflicts in support of the order. The usual rule of conflicting evidence is
applied, giving full effect to the respondent’s evidence, however slight, and disregarding
the appellant’s evidence, however strong. (Sheila S. v. Superior Court (2000) 84
Cal.App. 4th 872, 880-881; In re Brian M. (2000) 82 Cal.App.4th 1398, 1401.)
         As noted above, in determining detriment when a parent is incarcerated, the
juvenile court shall consider the age of the child, the degree of parent-child bonding, the

                                               8.
length of the sentence, the nature of the treatment, the nature of the crime or illness, and
the degree of detriment to the child if services are not offered. (§ 361.5, subd. (e)(1).)
Here, both children were under three years of age. Reunification services would be
provided, if at all, for six months but no more than 12 months. (Id., subd. (a)(1)(B).)
       J.G. was slightly over one year old when father was arrested and incarcerated;
C.G. was a few months old. Father saw the children only sporadically, and then through
glass, after his incarceration. When asked to describe his interaction with the children
when he was not incarcerated and around them, all father could offer was “Spend quality
time as a father with his kids.” The only specific that father could offer to show any bond
between J.G. and him was to state that J.G. would “Always follow me around all the time
and his mother.”
       As of the dispositional hearing, father had been sentenced on a “[t]wo strikes”
offense to a term of five years; his current offense was burglary. Father had served a
portion of that time, but speculated he might be released in 18 months. He expected to be
housed at Wasco for eight more months before he was transferred elsewhere in the state.
He wanted to visit with the children through the glass partition at Wasco.
       No evidence was offered at the dispositional hearing of detriment to the children if
reunification was not offered to father. But, counsel for the children argued there would
be detriment to the children if services were to be offered because the children would be
attempting to establish a relationship through a glass partition with someone they could
not possibly reunify with before the expiration of the reunification period. Such a
circumstance, counsel opined, would raise false hope in the children during the
reunification period. The Department recommended that no reunification services be
offered to father as it opined it would be detrimental to the children.
       There is little to no evidence of any bond between father and the children. They
were both quite young when father was incarcerated. Assuming arguendo that father
would be released in 18 months from the dispositional hearing, that release date would be

                                              9.
six months after the maximum time period that reunification services could be provided.
The reunification services time limits are applicable to incarcerated parents. (§ 361.5,
subd. (e)(1).) As counsel for the minors pointed out at the dispositional hearing, father
would have to serve 80 percent of his time, and it was not possible for him to be released
before the reunification period expired. We point out that father, by choosing to engage
in criminal conduct, placed himself in a situation where he has been unable to establish
and sustain a relationship with his children and where he cannot be released before the
reunification period expires.
       “Section 361.5, subdivision (e)(1) does not require that each listed factor exist in
any particular case, nor does it specify how much weight is to be given to a factor bearing
on detriment, listed or not.” (Edgar O. v. Superior Court (2000) 84 Cal.App.4th 13, 18.)
The dispositional order denying father reunification services was supported by substantial
evidence and reversal is not required.
                                      DISPOSITION
       The orders are affirmed.

                                                                 _____________________
                                                                    CORNELL, Acting P.J.


WE CONCUR:


 _____________________
GOMES, J.


 _____________________
FRANSON, J.




                                             10.
