Opinion
NOT TO BE PUBLISHED
Contra Costa County Super. Ct. No. A10-00063
Kline, P.J.
INTRODUCTION
Emilio P., the presumed father of the child Christian R., appeals from an order of the Contra Costa County Superior Court, terminating his parental rights and finding his consent was not required for the adoption of the child by the child’s stepfather Jorge R. The order resulted from a petition filed pursuant to Family Code section 8604, subdivision (b) by the stepfather, seeking permission of the trial court to adopt the child without appellant’s permission.
All statutory references are to the Family Code and all references to rules are to the California Rules of Court, unless otherwise indicated.
Appellant contends the order terminating his parental rights must be reversed because: (1) the court exceeded its jurisdiction in terminating his parental rights under section 8604, as the statute does not provide for termination; (2) there was insufficient evidence that appellant had willfully failed to communicate with and support the child for the one-year period provided in the statute; (3) the stepparent adoption petition under section 8604 cannot be “deemed” a petition pursuant to Family Code section 7822, seeking to terminate appellant’s rights due to his abandonment; (4) if the petition could be considered a Family Code section 7822 petition, statutory requirements were not met and the claim was not forfeited; (5) the court erred in failing to ascertain whether the Indian Child Welfare Act (25 U.S.C.A. § 1901 et seq.) (ICWA) applied; and (6) appellant was denied the effective assistance of counsel when counsel failed to object to termination under section 8604.
We shall conclude the trial court’s order terminating appellant’s parental rights provided relief in excess of that authorized by section 8604, which permits an adoption to proceed without the noncustodial parent’s consent. The ultimate result may be the same, that is, the child is freed for adoption by the stepparent. However, the court’s confusion of the relief available under section 8604 with that available under section 7800 et seq. (declaring the child free from the custody and control of one or both parents and terminating parental rights and responsibilities with respect to the child) rendered that part of its order terminating appellant’s parental rights in excess of the court’s jurisdiction. However, that portion of the order decreeing that only the consent of Christian’s mother is required for adoption is proper under section 8604, subdivision (b). We shall affirm that portion of the order, which we shall conclude was supported by substantial evidence.
FACTUAL AND PROCEDURAL BACKGROUND
Christian was five years old at the time of the trial court proceedings. Appellant and Christian’s mother never married and appellant has never lived with either Christian or the mother. The mother and Jorge R. married in early 2009 and have lived together with Christian continuously since 2008. The mother and Jorge R. want Jorge R. to adopt Christian.
Appellant was listed as Christian’s father on his birth certificate and had signed a declaration of paternity, making him a presumed father. (§ 7611.)
On February 19, 2010, Jorge R. filed a request for stepparent adoption of Christian. The request alleged that appellant had not contacted Christian for one year or more and that appellant’s consent to the adoption was not necessary. (§ 8604, subd. (b).) The box on the form stating “Child may have Indian Ancestry” was checked “No.” The mother filed her consent to the stepparent adoption on May 20, 2010.
On July 12, 2010, a “Report and Recommendation of the Stepparent Investigator” was filed. The report stated that Christian was a five-year-old boy residing with his mother and Jorge R. Christian’s name had been legally changed the year before. The investigator had observed Christian interacting with the mother and Jorge R. at home and his relationship with them appeared to be satisfactory. Christian had no particular health or adjustment problems and was about to start kindergarten; he was a “social, engaging child who appears to be smart and enthusiastic about his life.” The report described the backgrounds of the mother and Jorge R. and related that “[s]ince the minor’s birth, the natural father has visited the child approximately two times, during supervised visitation through the Court. The last visit occurred in or around December 2007.” Appellant had not communicated with the child by telephone, letter or gift since that time. It was reported that appellant had not made regular support payments. The report stated that Jorge R.’s attorney had notified appellant of the upcoming hearing, and that appellant had not responded by May 21, 2010. The report also stated that Jorge R.’s attorney “is requesting termination of birth father rights so that this stepparent adoption can be granted.” The report recommended that, “pending the termination of the rights of the presumed father of this child, the petition of Jorge [R.] to adopt Christian [R.] be granted....”
On August 24, 2010, Jorge R. filed a verified petition titled, “Petition to Terminate Parental Rights of Father (Family Code section 8604 (b)).” The petition sought an order that “the parental rights of [appellant] be terminated and only the consent of [the] mother of the minor, be required for the adoption.” The petition alleged that appellant had not seen the child “since December, 2007 and he has not provided any financial support for the child for well over two years.” It further alleged that the mother and appellant were parties in a domestic violence action in the superior court in which the mother was granted sole legal and physical custody of the child and appellant “was ordered to have ‘no visitation’ in an order filed on June 3, 2008.” The petition stated appellant’s consent “is not necessary because he failed to comply with the supervised visitation order in the DVPA [domestic violence protection act] case and that there has been no contact and no support from the presumed father for at least one year to qualify for ‘willful failure’ under Family Code section 8604(b).” Appellant had never returned the consent to adoption form he had been mailed by Jorge R.’s attorney.
Also on August 24, 2010, the superior court clerk served appellant with a “Citation to Appear At Hearing (Family Code section 8604 (b))” to be held on October 19, 2010, at which appellant was ordered to show cause why Christian “should not be declared free from your parental control according to the petition on file herein to free the minor for adoption.” On August 31, 2010, appellant was personally served with the citation to appear.
On October 19, 2010, appellant appeared in propria persona at the hearing on Jorge R.’s petition to terminate appellant’s parental rights. The court appointed counsel for him, and the hearing was continued to November 23, 2010. The order appointing counsel stated appointment was made pursuant to Family Code section 7862 and was headed “ORDER APPOINTING COUNSEL (Petition to Declare Minor Free from Parental Custody & Control) TERMINATE RIGHTS OF FATHER.” The order stated the scope of appointment was “General appointment for all issues.”
On November, 23, 2010, all parties and counsel were present and ready to proceed. Jorge R.’s counsel stated at the outset that, “[t]oday’s hearing is actually on the petition to terminate parental rights of the birth father, which was filed on August 24, 2010.” He also stated the adoption request was being made on the basis of “willful no contact under Family Code 8604(b).” Counsel also asked the court to take judicial notice of the file in the domestic violence action that would show appellant had not made any request to modify the restraining order or to modify the custody or visitation orders in that case, obviating the need for testimony on the issue.
The court stated it needed to “focus on the petition to terminate parental rights” and to “ignore the adoption request” for the moment. It accepted as an offer of proof Jorge R.’s sworn declaration stating that appellant had not seen Christian since December 2007 and had not provided financial support for “well over two years.” Jorge R. testified on cross-examination that he was not aware of any efforts by appellant to contact Christian since December 2007. Jorge R. was aware there was a restraining order in place, restraining appellant from having contact with Christian. It was due to expire on January 28, 2011. Jorge R. testified that appellant had not attempted to make contact with Christian since the filing of the restraining order. At this point, the court interjected that it lacked enough information to make a decision, because it did not know what went on in the family law case. The court expressed its frustration with the information available to it. “Let me tell you I’ve got a problem. Was there ever an order for support? Was there ever a supervised visitation order? Was there a requirement of anger management?” The court continued the hearing so that evidence could be obtained from the file in the domestic violence case and properly presented with a request for judicial notice. The court also asked for briefs on the issue of whether the existence of a restraining order preventing appellant from having visitation with Christian was “sufficient to meet the requirements and sufficient to terminate his parental rights.” The hearing was continued to January 25, 2011.
On December 15, 2010, Jorge R. filed a request for judicial notice, attaching copies of documents from the domestic violence action. These documents showed the history of proceedings and orders in the domestic violence case:
On October 22, 2007, a temporary restraining order issued, ordering sole legal and physical custody to the mother and no visitation for appellant. The order was modified in December 2007 by stipulation following mediation. Father was to have up to two hours a week of supervised visitation and to take random drug tests at least twice a month. At a January 29, 2008 hearing, the court issued an order to show cause against appellant for his failure to attend the hearing, issued a “no contact” domestic violence restraining order, and suspended appellant’s visitation until the next hearing date. On February 19, 2008, the court ordered that appellant could have supervised visitation, twice per week, and he was ordered to complete a 52-week domestic violence batterer’s program and to participate in random drug testing. By the June 3, 2008 hearing, appellant had failed to test and had failed to submit proof of enrollment in a domestic violence program. The court again ordered appellant to supply proof he had enrolled in an anger management program, as he had claimed, and to participate in random drug testing. Appellant stated that he could not afford it. The court ordered that mother could suspend visitation if she received a positive drug test result from appellant. At a hearing on August 26, 2008, which appellant failed to attend, the mother testified she still had not received results of the court-ordered drug testing, so the court suspended appellant’s visitation.
On January 12, 2011, Jorge R. filed his brief in support of his petition to terminate appellant’s parental rights. This brief argued that Jorge R.’s adoption request was based on the “ ‘willful failure’ allegation under Family Code section 8604(b), as specified in... the Request and page 2 of the Petition to Terminate Parental Rights.” Jorge R. acknowledged that section 8604, subdivision (b), was different from the “abandonment statute” (§ 7822) as the court need not make a finding that the father’s failure to support and communicate with his child was done with the intent to abandon the child under section 8604. Jorge R. argued that no appellate case held that a presumed father was excused from contacting his child when there was a domestic violence restraining order in place that restrained the father from seeing his child, and that “those orders are usually modified at the hearing as long as an involved concerned parent participates in the process and complies with court orders that may be a condition to granting expanded visitation.”
Appellant filed a brief responding to the petition to terminate his parental rights, asserting that he had not willfully failed to communicate with Christian. He argued that he had been prevented from communicating with Christian by the family law court’s June 3, 2008 restraining order. He also asserted he did not know the current address of the mother and so could not have contacted her in any event.
At the resumed hearing on January 25, 2011, the court took judicial notice of the file in the domestic violence action. The court asked appellant’s counsel to address whether appellant had voluntarily declined to seek to be involved in his son’s life in that he had not taken the domestic violence course and had not done the drug testing required in order to resume visitation. The court asked, “[I]sn’t this voluntary? If he held the keys to visitation in his hand, which is [drug] test and do the DV class and [he] failed to do that.” The court also observed that appellant did not even go to the hearing, nor did he make any motions to modify the “no visit” order, which he could have done upon a showing of changed circumstances at any time up to the filing of the petition. Appellant’s counsel argued that a reasonable person would have interpreted the restraining order prohibiting visitation for three years as meaning just that.
Jorge R. stipulated that the mother had never sought a child support order and that her reason for not seeking support was that appellant was not working and had no source of income. Nevertheless, Jorge R.’s counsel argued that there were other means by which appellant could have shown his financial support by sending “voluntary money or gifts, ” but he had not done so.
Appellant testified that he had known that his son was living with Christian’s maternal grandmother from his birth to the date of issuance of the restraining order, yet he had provided no financial support during that period. He had been incarcerated from June 2009 to “about May 2010.” During incarceration he had no means of providing support and before his incarceration he had been “kind of lost into my addiction.” Before June 2009, he “guess[ed]” he was supported by his parents. He testified he had sometimes bought Christian “ice creams” and milk. He added, “I buy him gifts all the time” and said he had bought him a bicycle for Christmas 2007 (when Christian would have been two years old). At some point, the mother had moved from the maternal grandmother’s home and appellant had no knowledge of her new address. He had never tried to send support to her and after the restraining order he was not able to contact her. Appellant’s counsel relied upon a 1918 case purporting to show that there was no support duty absent custody and/or a support order. The court responded that such was not the current law.
The court found that there was “sufficient evidence to grant the petition to terminate parental rights. For more than a period of longer than a year, [appellant] failed to have any contact with his son. He could have had contact. He didn’t even show—he did not even attempt to modify the no contact order. I do not believe that California law is that he does not have a legal obligation to support his child. He does irrespective of any court order. His failure to do so is further reason for terminating the parental rights. The petition will be granted.” An “Order Terminating Parental Rights of Father (Family Code section 8604 b)” was filed January 26, 2011. It stated the court had received and reviewed the “Petition to Terminate Parental Rights of Father, ” filed August 24, 2010, and ordered that the parental rights of the presumed father be terminated and “that only the consent of... the mother of the minor, is required for adoption.”
This timely appeal followed.
DISCUSSION
I. Section 8604
Section 8604 states the general rule that any child having a presumed father may not be adopted without the consent of both birth parents. (Id., subd. (a).) The statute then provides an exception to the general rule. If one parent has custody of the child, through either judicial order or agreement of the parents, “and the other birth parent for a period of one year willfully fails to communicate with and to pay for the care, support, and education of the child when able to do so, then the birth parent having sole custody may consent to the adoption [of the child], but only after the birth parent not having custody has been served with a copy of a citation in the manner provided by law....” (§ 8604, subd. (b), italics added.)
Section 7800 et seq. contains provisions for a child’s freedom from parental custody and control. Proceedings under these sections are initiated by a petition under section 7840 or 7841. Section 7822 provides that a proceeding may be brought on behalf of an abandoned child. This includes a situation in which “[o]ne parent has left the child in the care and custody of the other parent for a period of one year without any provision for the child’s support, or without communication from the parent, with the intent on the part of the parent to abandon the child.” (§ 7822, subd. (a)(3), italics added.) The failure to provide for support or to communicate “is presumptive evidence of the intent to abandon.” (Id., subd. (b).)
The two statutes, sections 8604 and 7822, are significantly different. “Unlike section 8604, section 7822 requires an intent to abandon.” (In re Marriage of Dunmore (2000) 83 Cal.App.4th 1, 5.) In re Jay R. (1983) 150 Cal.App.3d 251, described the distinctions between the two statutes where the child’s stepfather sought to adopt the child and contended the father’s consent was not required pursuant to the provisions of the predecessor to section 8604 (former Civ. Code, § 224). The appellate court reversed the order of abandonment because the stepfather had not filed a petition pursuant to the predecessor to section 7822 (former Civ. Code, § 232). (In re Jay R., at p. 257.) The Court of Appeal explained: “ ‘[A]bandonment’ within the meaning of section [7822] is not an issue in a stepparent adoption pursuant to section [8604]. [Citations.] In such proceedings the sole issue, other than the child’s best interests, is whether the noncustodial parent had the ability to communicate with and provide for the child, but willfully failed to do so. [Citations.] In contrast, the essential element in an abandonment proceeding is whether the parent failed to communicate with or provide for the child with the intent to abandon the child. [Citation.]
“Moreover, under section [8604], petitioner must show [father] failed to provide for and communicate with the child for a period of one year [citation], whereas a petitioner under section [7822] need show only that the parent either failed to support or failed to communicate for one year, with the intent to abandon the child. [Citation.] Under section [8604], a section [7822] abandonment order provides a completely separate ground for granting an adoption without a parent’s consent. It was neither necessary nor proper considering the state of the pleadings for the court to issue an order of abandonment in this case.” (In re Jay R., supra, 150 Cal.App.3d at p. 258.)
Moreover, “the consequences of a finding under section 7822 are vastly different from a finding under section 8604. The termination of parental rights under section 7822 also terminates the support obligation. A finding pursuant to section 8604 permits an adoption to proceed without the absent parent’s consent and over that parent’s objection. However, it is the later adoption and not the finding under section 8604 that relieves the parent of the support obligation.” (In re Marriage of Dunmore, supra, 83 Cal.App.4th at p. 5.) Consequently, it is the completed adoption, rather than the order permitting the adoption with only the mother’s consent, that will serve to terminate all of the noncustodial parent’s parental rights. (§ 8617.)
The court and the parties here conflated the remedies available under the two statutes. Unlike the father in In re Jay R., supra, 150 Cal.App.3d 251, appellant was notified in the August 24, 2010 petition and in all pleadings filed thereafter, that Jorge R. was seeking to terminate his parental rights as part of the stepparent adoption under section 8604. However, such remedy is not provided under the statute.
Although arguably “harmless” error, because termination of parental rights was inevitable under section 8617 once the stepparent adoption was finalized, there remains the possibility that the adoption would not be finalized by the stepfather. If such were the case, appellant would have been relieved of his support obligation, yet Jorge R. would not have assumed that responsibility. This relief from the support obligation inured to appellant’s benefit, rather than his detriment. The same cannot necessarily be said with respect to Christian. (See In re Marriage of Dunmore, supra, 83 Cal.App.4th at p. 5.) In any event, termination of parental rights under section 8604 is contrary to the express holding and rationale of In re Marriage of Dunmore. As noted there, “the narrowly drawn provisions of section 8604... operate only to facilitate adoptions, [while] the provisions of section 7822... make abandonment an independent ground for termination of parental rights.” (Id. at p. 4.) We are compelled to reverse that part of the order terminating appellant’s rights.
Nevertheless, if the findings made pursuant to section 8604 are supported by substantial evidence, and the order is not reversible on the other grounds raised by appellant, only that portion of the order that terminates parental rights need be stricken. That portion of the order “that only the consent of... the mother of the minor, is required for adoption” would remain. Appellant would be precluded from objecting to Jorge R.’s adoption of Christian and termination of appellant’s rights would occur on completion of the adoption. We therefore turn to the remaining issues.
II. Substantial Evidence of Willful Failure to Communicate and Support
Appellant contends that he did not “willfully” fail to communicate with or to support Christian. He argues he was precluded from communicating with the child due to the restraining orders and he could not support the child because he was unable to do so by reason of his incarceration, his lack of employment, and his addiction.
Section 8604, subdivision (c), provides: “Failure of a birth parent to pay for the care, support, and education of the child for the period of one year or failure of a birth parent to communicate with the child for the period of one year is prima facie evidence that the failure was willful and without lawful excuse. If the birth parent or parents have made only token efforts to support or communicate with the child, the court may disregard those token efforts.” The one-year period need not immediately precede the petition for adoption. The statute applies if this period occurred at any time after the dissolution judgment. (Adoption of Christopher S. (1987) 197 Cal.App.3d 433, 440-441; 10 Witkin, Summary of Cal. Law (10th ed. 2005) Parent and Child, § 102, p. 170.)
“A parent who contests allegations of [willful] neglect may have to sustain a heavy burden of proof. The petitioner need show only that the noncustodial parent failed to provide for and communicate with the child for a year to establish a prima facie case of willful neglect without lawful excuse. [Citation.] The burden then shifts to the parent to prove he did not willfully fail to provide for or communicate with the child, or was unable to do so. [Citation.]” (In re Jay R., supra, 150 Cal.App.3d at p. 263.)
It was undisputed that appellant did not communicate with or support Christian for a lengthy period, exceeding the statutory one-year threshold. Therefore, appellant must show that his failures to communicate and to support were not “willful.” He makes two central arguments. First, he contends he was excused from failing to communicate with Christian by the presence of the restraining orders that prevented him from communicating with either the mother or the child for extensive periods of time and because he did not know where the mother had moved. Second, he argues no evidence refuted his testimony that his failure to support Christian was not willful because he was unable to do so.
The trial court found, and we agree, that appellant “held the keys” to visiting with his son, had he chosen to comply with court orders to drug test and to document his participation in an anger management course. The court could determine that appellant’s blaming the restraining orders for his failure to renew visitation with Christian did not undermine the prima facie showing of willfulness, when appellant had the ability to seek to modify those orders by complying with the conditions set by the court under which he could resume visits. He never sought to do so. Nor does it appear from the record that the court impermissibly considered the period of incarceration against appellant, either with respect to his failure to communicate with Christian or on the support issue. (See Adoption of Christopher S., supra, 197 Cal.App.3d at pp. 440-441.) Substantial evidence supports the court’s finding that his failure to communicate with Christian was “willful.”
The question of support is more difficult, as there was no direct evidence presented that appellant was ever employed or had the means to support Christian. Appellant never attempted to provide support for Christian. Before he was sent to jail, appellant “guess[ed]” he was supported by his parents and was “kind of lost to [his] addiction.” Asked whether he had ever tried to send support to Christian’s mother, appellant evaded the question by saying that once the restraining order was in place, he “wasn’t able to call or nothing.” This response could be interpreted to indicate that appellant’s failure to provide any support for his son was not necessarily because he was unable to do so, but because he could not contact the mother. The court observed that nothing prevented him from attempting to contact the maternal grandmother. It was stipulated that the mother had not sought a support enforcement order because appellant was not working and had no source of income. Nevertheless, the court could determine that appellant had failed to carry his burden of showing that he had never been able to support Christian in the five years since the child’s birth. Appellant presented no evidence other than his own testimony that he had no means to support Christian or that he could not have provided some meaningful support for Christian during some portion of the child’s first five years of life. His testimony that he had occasionally bought milk and ice cream, and that he had given the two-year-old a bicycle in 2007, were not required to be credited by the court and, in any event, could be considered “token efforts” under the statute. (§ 8604, subd. (c).) Appellant did not testify that he was unable to work and the trial court was not required to credit appellant’s testimony or his excuses. (See Eisenberg et al., Civil Appeals and Writs (The Rutter Group 2011) ¶ 8:54, p. 8-24 [“Uncontradicted testimony in appellant’s favor does not necessarily conclusively establish the pertinent factual matter: The trier of fact is free to reject any witness’ uncontradicted testimony; and the court of appeal will affirm so long as the rejection was not arbitrary”]; Polk v. Polk (1964) 228 Cal.App.2d 763, 776.) We conclude that substantial evidence supports the trial court’s findings.
We do not address the question whether either of Jorge R.’s two petitions may be deemed a petition pursuant to section 7820 et seq. Both petitions were brought under section 8604 and neither purported to be brought under 7820 et seq. or other statutes providing for termination of parental rights. Jorge R. also concedes that he never sought a finding that appellant had “abandoned” Christian and the trial court did not find Christian had been abandoned or that appellant had the “intent” to abandon him. ~(RB 28)~
III. ICWA
Appellant contends that the court erred in failing to ascertain whether the ICWA applied to this child.
Although “the ICWA itself does not require an inquiry, where, as here, no evidence of an Indian child has been presented” (In re Noreen G. (2010) 181 Cal.App.4th 1359, 1386), “[u]nder the broad language of rule 5.481, the duty of inquiry attaches to any proceeding which may result in termination of parental rights or adoptive placement” (id. at p. 1387, italics added; see Adoption of Lindsay C. (1991) 229 Cal.App.3d 404, 407 [proceeding to dispense with consent to stepparent adoption filed pursuant to former Civil Code section 224].) As observed by the court in In re Noreen G., “[t]he breach of duty to inquire into the Indian heritage of the minors was error that necessitates ‘a limited reversal of an order or judgment and remand for proper inquiry and any required notice [that] may be necessary. [Citation.] Reversal is not warranted, however, when the court’s noncompliance with the inquiry requirement constitutes harmless error.’ (In re A.B. [(2008)] 164 Cal.App.4th 832, 839.) Where the record below fails to demonstrate and the parents have made no offer of proof or other affirmative assertion of Indian heritage on appeal, a miscarriage of justice has not been established and reversal is not required. (See In re N.E. [(2008)] 160 Cal.App.4th 766, 769-771; In re Rebecca R. (2006) 143 Cal.App.4th 1426, 1430-1431.)” (In re Noreen G., at pp. 1387-1388, italics added.)
In the adoption request initially filed by Jorge R., the answer “No” was given to the “Child may have Indian ancestry” inquiry. The report prepared by the stepparent investigator contained no reference to ICWA and no indication that any inquiry had been made as to possible Indian ancestry. Appellant never raised the issue below and the court made no inquiry about the matter. On appeal, appellant charges that the failure of the court to conduct an inquiry as to Christian’s possible Indian ancestry was reversible error. However, he does not assert that Christian may have Indian ancestry. In the habeas corpus petition filed by appellant’s appellate counsel in connection with the claim that appellant received ineffective assistance of counsel below, appellant raises no claim of ineffective assistance due to counsel’s failure to object to the lack of an ICWA inquiry. Nor is there any accompanying declaration by appellant in which he maintains the child may have possible Indian ancestry.
Appellant argues that a parent does not necessarily waive an ICWA notice issue by failing to raise it below. (In re S.B. (2005) 130 Cal.App.4th 1148, 1159; In re J.T. (2007) 154 Cal.App.4th 986, 991.) However, it is not merely appellant’s failure to raise the issue below that appears in this case. Unlike In re Noreen G., supra, 181 Cal.App.4th 1389-1390, in which a limited remand was appropriate where the parent asserted Indian heritage on appeal and sought to have the court take additional evidence, here there is no suggestion whatever—whether below or on appeal— that Christian may have Indian ancestry. In such circumstances, any error in the court’s failure to inquire as to Indian ancestry was necessarily harmless. As stated in In re Rebecca R., supra, 143 Cal.App.4th at page 1431: “[T]here can be no prejudice unless, if he had been asked, father would have indicated that the child did (or may) have such ancestry. [¶] Father is here, now, before this court. There is nothing whatever which prevented him, in his briefing or otherwise, from removing any doubt or speculation. He should have made an offer of proof or other affirmative representation that, had he been asked, he would have been able to proffer some Indian connection sufficient to invoke the ICWA. He did not. [¶] In the absence of such a representation, the matter amounts to nothing more than trifling with the courts. [Citation.]... [¶] The burden on an appealing parent to make an affirmative representation of Indian heritage is de minimis. In the absence of such a representation, there can be no prejudice and no miscarriage of justice requiring reversal.”
Any error in the court’s failure to inquire as to Christian’s Indian heritage was necessarily harmless.
IV. Ineffective Assistance of Counsel
Appellant asserts on this appeal, and in a petition for writ of habeas corpus (No. A133197) filed shortly after his reply brief, that he received ineffective assistance of counsel when his trial counsel failed to object to the order terminating parental rights on the ground that termination was not a remedy permitted under 8604. (See In re Jay R., supra, 150 Cal.App.3d at p. 260 [right to counsel in stepparent adoption case]; In re Issac J. (1992) 4 Cal.App.4th 525, 531-532 [“Where there is a due process right to counsel, there is a concomitant right to the effective assistance of counsel.”) The habeas petition adds nothing to the claim of ineffective assistance raised on appeal. We have denied the habeas petition by separate order filed concurrently with this opinion.
Because we reverse that part of the trial court’s order under section 8604 that terminated appellant’s parental rights, we need not determine whether trial counsel rendered ineffective assistance in failing to object to termination of parental rights under the section 8604 adoption petition. Any ineffective assistance would necessarily be rendered harmless.
DISPOSITION
We reverse that part of the January 26, 2011 “Order Terminating Parental Rights of Father” that terminated the parental rights of appellant. We affirm the balance of that order granting the petition under section 8604, subdivision (b) and ordering that “only the consent of [the mother] of the minor, is required for adoption.” The matter is remanded to the trial court for further proceedings.
We concur: Haerle, J.Lambden, J.