IN RE: A.P.

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Court of Appeal, Second District, California.

IN RE: A.P., et al, Persons Coming Under the Juvenile Court Law.2d Juv. SANTA BARBARA COUNTY CHILD PROTECTIVE SERVICES, Plaintiff and Respondent, v. C. S AND P. U., Defendants and Appellants.

No. B218312

Decided: June 21, 2010

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

C.S. (mother) appeals from a juvenile court order terminating her parental rights to her two children:  A.U., now aged two years, and A.P., III, (A.P.), now aged seven years.   P.U., the alleged father of A.U., appeals from an order terminating his parental rights to A.U. (Welf. & Inst.Code, § 366.26.) 1 P.U. contends that Santa Barbara County Child Welfare Services (CWS) and the juvenile court failed to afford him the due process rights of notice and an opportunity to appear in court.   Both P.U. and C.S. contend that the orders terminating parental rights must be reversed because CWS and the juvenile court failed to comply with the inquiry and notice requirements of the Indian Child Welfare Act (ICWA, 25 U.S.C. § 1901 et seq.).   We affirm.

P.U.'s Due Process Claim

Factual and Procedural Background

A.U.'s birth certificate shows that her father is Noel U. In February 2008 a paternity test excluded Noel U. as the biological father.   At a hearing conducted in March 2008, the court asked mother if there were “anybody else that we should consider as father of A.” Mother replied that they should consider Noel U.'s brother, P.U.

A minute entry dated November 24, 2008, states:  “Paternity test has not been completed as [P.U.] was released from prison prior to test being completed.”

On January 21, 2009, P.U. was scheduled to take a paternity test at the Santa Barbara County Health Department.   But he did not appear for testing.   On February 10, 2009, P.U.'s mother contacted CWS and reported that he was incarcerated in Wasco State Prison.

Technicians went to Wasco State Prison to take a DNA sample from P.U. so that they could perform paternity testing.   But P.U. refused to give a DNA sample.   P.U. claimed that he had refused because he did not know why the technicians wanted a DNA sample.   He allegedly was unaware that the sample would be used for paternity testing.

On February 12, 2009, CWS mailed notice to P.U. that a status review hearing would be conducted on February 23, 2009.

On March 17, 2009, the juvenile court mailed notice to P.U. at Wasco State Prison.   The notice informed him that the court had ordered a hearing to make a permanent plan under section 366.26.   At the section 366.26 hearing, P.U.'s counsel acknowledged that his client had received this notice.

On June 22, 2009, P.U. made his first court appearance.   He had been transported from Wasco State Prison.   Counsel was appointed to represent him.   Counsel said that P.U. was willing to declare his paternity as to A.U. and wanted to sign a form JV-505 (Statement Regarding Parentage).   CWS objected that, because this was a section 366.26 hearing, counsel should file form JV-180 (Request to Change Court Order).   The matter was continued to July 23, 2009.   On that date, the matter was further continued to August 6, 2009.

On August 6, 2009, P.U.'s counsel said that her client wanted “to sign a declaration of paternity and be considered for presumed father status.”   Counsel claimed that her client had not received adequate notice “of the case itself.”   She requested that her client “be given the opportunity to establish his paternity” and his entitlement to the status of a presumed father.   Counsel acknowledged that it would be difficult to establish presumed father status because P.U. had been “incarcerated for most of A.'s life.”   Counsel said that she had told her client that “there's really not enough to make him presumed

under ․ Family Code section 7611.”   If the court were unwilling to consider presumed father status for P.U., counsel asked that the court “make him biological so that, at least, ․ he could ask the court to have [CWS] consider his family as a potential placement option.”

The trial court declared, “I'm not going to take up the issue of whether his status should be changed at this time.   Let's go.”   The court then proceeded with the section 366.26 hearing.

Discussion

P.U. was an alleged father.  “The dependency system recognizes four classes of fathers:  alleged, natural, presumed, and de facto.  [Citation.]  An alleged father may be the father of a dependent child.   However, he has not yet been established to be the child's natural or presumed father.  [Citation.]  A natural father is one who has been established as a child's biological father.   The term ‘natural father’ means that while the man's biological paternity has been established, he has not yet achieved presumed father

status. [Citation.]   A presumed father is ‘one who “promptly comes forward and demonstrates a full commitment to his paternal responsibilities-emotional, financial, and otherwise․”  ‘ [Citation.]   A de facto father is one who has, on a day-to-day basis, assumed the role of a parent for a substantial period of time.  [Citation.]  [¶] Only presumed fathers are entitled to reunification services and to possible custody of the child.  [Citation.]  In order to become a presumed father, a man ‘must’ fall within one of the categories enumerated in Family Code section 7611.  [Citations.]”  (In re E.O. (2010) 182 Cal.App.4th 722, 726-727, fn. omitted.)  “If a man has not legally married or attempted to legally marry the mother of his child, he can only be a presumed father if he has received the minor into his home and openly held the child out as his natural child.  [Citation.]”  (In re Marcos G. (2010) 182 Cal.App.4th 369, 383.)

“As an alleged father, [P.U.] had limited due process and statutory rights.   ‘Alleged fathers have less rights in dependency proceedings than biological and presumed fathers.  [Citation.]  An alleged father does not have a current interest in a child because his paternity has not yet been established.   [Citation.]’  [Citation.]  ․ [¶] Due process for an alleged father requires only that the alleged father be given notice and ‘an opportunity to appear and assert a position and attempt to change his paternity status.  [Citations.]’  [Citation.]”  (In re Paul H. (2003) 111 Cal.App.4th 753, 760.)

P.U. contends:  “The juvenile court erred in not affording [him] the due process right to notice and [to] appear so that he could seek placement with relatives and establish presumed father status.”  (Capitalization and underscoring omitted.)   We disagree.   No later than January 21, 2009, P.U. had notice of his alleged father status.   On that date P.U. was scheduled to take a paternity test at the Santa Barbara County Health Department, but he “did not show up for the test.”

Moreover, months before the section 366.26 hearing on August 6, 2009, P.U. was given notice of the proceedings in this matter.   A status review report filed on February 23, 2009, states that notice of the status review hearing was mailed to P.U. on February 12, 2009.   On March 17, 2009, the juvenile court notified him that it had “ordered a hearing to make a permanent plan under Section 366.26.”   Thus, P.U. had adequate time to arrange for paternity testing to establish that he was the biological father of A.U. He refused to give a DNA sample while incarcerated at Wasco State Prison.   He appeared in court on June 22, July 23, and August 6, 2009.   In these circumstances, P.U.'s due process rights to notice and to appear were not violated.

Even if P.U. had not received adequate notice, a reversal would not be required.  “[E]rrors in notice do not automatically require reversal but are subject to the harmless beyond a reasonable doubt standard of prejudice.   [Citation.]”  (In re J.H. (2007) 158 Cal.App.4th 174, 183.)   Assuming for the purpose of discussion that P.U. would have been able to establish through paternity testing that he was the biological father of A.U., there is no evidence in the record suggesting that he would have been able to establish presumed father status.   P.U.'s counsel said that she had told her client that “there's really not enough to make him presumed under ․ Family Code section 7611.”   Without presumed father status, P.U. would not have been entitled to reunification services.  (In re E.O., supra, 182 Cal.App.4th at 726.)  “[A] biological father's rights are limited to establishing his right to ‘presumed’ father status, and the court does not err by terminating a biological father's parental rights when he has had the opportunity to show presumed father status and has not done so.  [Citation.]”  (In re Ninfa S. (1998) 62 Cal.App.4th 808, 811.)

P.U. argues that it was error to deny his request for a paternity test, even as late as the section 366.26 hearing.   But the administration of a paternity test would have required a continuance of the section 366.26 hearing, and P.U. was not entitled to a continuance.   In In re Ninfa S., supra, 62 Cal.App.4th 808, an alleged father contended that the juvenile court had abused its discretion in denying his request for a continuance of the section 366.26 hearing to permit him to complete paternity testing.   The Ninfa S. court rejected the father's contention, and its reasoning is applicable here:  “The only basis of the requested continuance was [father's] wish to establish his genetic link to Ninfa.   However, [father] does not explain how this information would have been relevant to any issue decided at the .26 hearing.   A .26 hearing is concerned only with a long-term placement plan for the child, the preferred alternative being adoption and termination of parental rights.   The court first decides whether it is likely the child will be adopted if parental rights are terminated.   If so, the court examines whether termination of parental rights will be detrimental to the minor based on four enumerated circumstances.  ‘[T]here is no window of evidentiary opportunity for a parent to show that in some general way the “interests” of the child will be fostered by an order based on some consideration not set forth in section 366.26.’  [Citation.]  [¶] Here, genetics is irrelevant to either the likelihood of Ninfa's adoption or any of the four enumerated exceptions which might make termination of parental rights detrimental to Ninfa.   Because further delay of the hearing would have interfered with Ninfa's need for prompt resolution of her custody status and her right to a permanent placement, and the sole reason asserted for continuing the hearing was to adduce information irrelevant to the pending proceeding, the court did not abuse its discretion by denying the continuance.”  (Id., at p. 811.)

ICWA Claim

Law

Appellants claim that the juvenile court and CWS failed to comply with the inquiry and notice requirements of the ICWA. “Congress enacted the ICWA in 1978 to ‘protect the best interests of Indian children and to promote the stability and security of Indian tribes and families.’  (25 U.S.C. § 1902.)   It allows a tribe to intervene in state court dependency proceedings (25 U.S.C. § 1911(c)), because the ‘ICWA presumes it is in the best interests of the child to retain tribal ties and cultural heritage and in the interest of the tribe to preserve its future generations, a most important resource.’  [Citation.]”  (In re Louis S. (2004) 117 Cal.App.4th 622, 628.)   Both the juvenile court and the “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․”  (Cal. Rules of Court, rule 5.481(a).)

“The notice requirements of the ICWA are intended to ensure the tribe will have the opportunity to assert its rights to intervene in juvenile dependency proceedings irrespective of the position of the parents or state agency.   [Citation.]  The ICWA provides that when the court knows or has reason to know an Indian child is involved, the agency must notify the child's tribe, or if the tribe is unknown, the BIA [Bureau of Indian Affairs], as agent for the Secretary of the Interior.  (25 U.S.C. § 1912(a)․)”  (In re X.V. (2005) 132 Cal.App.4th 794, 802.)

“The notice must include the name, birthdate, and birthplace of the Indian child;  his or her tribal affiliation;  a copy of the dependency petition;  the petitioner's name;  a statement of the right to the tribe to intervene in the proceeding;  and information about the Indian child's biological mother, biological father, maternal and paternal grandparents and great-grandparents or Indian custodians, including maiden, married and former names or aliases;  birthdates;  places of birth and death;  current and former addresses;  tribal enrollment numbers, and/or other identifying information.  [Citation.]  The burden is on the Agency to obtain all possible information about the minor's potential Indian background and provide that information to the relevant tribe or, if the tribe is unknown, to the BIA. [Citation.]”  (In re Louis S. (2004) 117 Cal.App.4th 622, 630.)

For purposes of the ICWA, “ ‘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.A. § 1903(4).)  “The Indian tribe determines whether the child is an Indian child.  [Citation.]  ‘A tribe's determination that the child is or is not a member of or eligible for membership in the tribe is conclusive.’  [Citation.]”  (Alicia B. v. Superior Court (2004) 116 Cal.App.4th 856, 865.)

Factual and Procedural Background

In November 2007 mother completed a form indicating that A.P. may be a member of, or eligible for membership in, the Santa Ynez Band of Chumash Mission Indians of the Santa Ynez Reservation, California (the Santa Ynez Band), a federally recognized tribe.   At a hearing conducted in December 2007, mother informed the juvenile court that she had Indian ancestry through the maternal grandmother.   In January 2008 mother completed a form indicating that A.U. may be a member of, or eligible for membership in, the Santa Ynez Band.

In January 2008 a social worker contacted the maternal grandmother, Irene R., who said that she had Indian ancestry through the maternal great-grandmother and great-great-grandmother, both of whom were deceased.   Irene R. said that her cousin, Adelina R., would have more information regarding the children's Indian ancestry, but she did not know how to contact her.

On January 16, 2008, CWS mailed notice to the Santa Ynez Band as to A.U. CWS mailed a copy of the notice to mother, P.U, and the BIA. The Santa Ynez Band responded that A.U. is neither an enrolled member of the tribe nor eligible for enrollment.   On March 27, 2008, the juvenile court found that the ICWA does not apply to A.U.

On January 15, 2008, CWS mailed notice to the Santa Ynez Band as to A.P. A copy of the notice was mailed to mother and A.P.'s father.   The notice is missing from the record on appeal.   The Santa Ynez Band responded that A.P. is neither an enrolled member of the tribe nor eligible for enrollment.   On July 24, 2008, the juvenile court found that the ICWA does not apply to A.P.

On June 22, 2009, P.U. completed a form indicating that he had no Indian Ancestry.   On the same date, A.P.'s father completed a form indicating that he may have a familial connection with the Santa Ynez Band. The father's counsel said that his client has some Indian ancestry “on his mother's side, although it's fairly remote.”   On July 13, 2009, CWS mailed a second notice to the Santa Ynez Band as to A.P. CWS mailed a copy of the notice to mother and to the father of A.P. The record does not contain the tribe's response to the notice.   After the mailing of the second notice, the court made no further finding as to the applicability of the ICWA to A.P.

After the filing of appellants' opening briefs, ICWA proceedings occurred in the juvenile court.   We granted CWS's motion to augment the record to include documents relating to these proceedings.  (See In re A.B. (2008) 164 Cal.App.4th 832, 839-840.)

Among the documents are the following:

1. Notice concerning A.U. mailed on February 4, 2010, to the Santa Ynez Band, the BIA, mother, and P.U. The notice includes the following information:  mother's name, address, birth date, and tribal affiliation;  (Id., at p. 2) the maternal grandmother's name, address, birth date, place of birth, and tribal affiliation;  (Id., at p. 3) the maternal great-grandmother's name, place of birth, tribal affiliation, and year of death;  (Id., at p. 4) the name of the maternal great-great-grandmother and her tribal affiliation;  the name of the maternal great-aunt, her address, and her tribal affiliation.   (Id., at p. 7)

2. Notice concerning A.P. mailed on February 4, 2010, to the Santa Ynez Band, the BIA, mother, and A.P.'s father.   As to mother's family, the notice includes the same information as the notice concerning A.U. mailed on the same date.   As to A.P.'s father's family, the notice includes the following information:  the name, address, birth date, and tribal affiliation of A.P.'s father;  (Id., at p. 3) the name, birth date, and tribal affiliation of the paternal grandmother;  the name, address, and birth date of the paternal grandfather.   (Id., at p. 4)

3. An interim review report filed on February 8, 2010, summarizing “the efforts made by [CWS] to gather information from the family regarding their Indian heritage and to notify the [Santa Ynez Band].” CWS contacted mother and the maternal grandmother, Irene R., who provided information concerning her family.  (Id., at pp.   3-5) CWS unsuccessfully tried to contact the maternal great-aunt, Adelina R. (Id., at p. 3)

4. An interim review report filed on April 12, 2010, summarizing further efforts by CWS to obtain information concerning the family's Indian ancestry.   The report shows that in January 2010 CWS contacted A.P.'s paternal grandfather, Arturo P. (Id., ICWA Matrix, p. 1) The information received from the paternal grandfather was included in the notice sent to the Santa Ynez band on February 4, 2010.

5. A letter from the Santa Ynez Band, dated April 6, 2010, stating that A.U. is neither an enrolled member of the tribe nor eligible for enrollment.

6. A letter from the Santa Ynez Band, dated March 23, 2010, stating that A.P. is neither an enrolled member of the tribe nor eligible for enrollment.

7. A reporter's transcript of proceedings conducted on March 1, 2010.   During the proceedings, CWS requested that the juvenile court find that the ICWA does not apply to A.U. and A.P. The court asked if any of the parties objected to such a finding.   Counsel for mother and A.P.'s father said that they did not object.   Counsel for P.U. remained silent.   The court found that the ICWA does not apply.

8. A reporter's transcript of proceedings conducted on April 12, 2010.   The court declared that, as to both A.U. and A.P., it would “restate its findings that ICWA does not apply.”   All of the parties were present and represented by counsel.   No one objected to the restatement of the court's findings.  (Id., at pp. 2-3)

Discussion

Appellants contend that CWS failed to give proper notice to the Santa Ynez Band of Mission Indians, the parents and the Bureau of Indian Affairs (BIA) pursuant to the requirements of the Indian Child Welfare Act (ICWA).   In addition, appellants contend that CWS “conducted little or no statutorily required investigation into the minors' Indian status, particularly with those relatives who claimed Indian ancestry.”

The augmented record shows that, after the filing of appellants' opening briefs, CWS and the juvenile court fulfilled their duty of inquiry as to the children's Indian ancestry.   In addition, the augmented record shows that any previous ICWA notice defects were cured when, after the filing of appellants' opening briefs, CWS mailed revised notices to the Santa Ynez Band. (See Alicia B. v. Superior Court, supra, 116 Cal.App.4th at pp. 866-867 [augmented record showed proper notice sent to tribes].)   Appellants have not “shown that any relevant known information was excluded on the [revised] forms or that the notices were defective.”  (Id., at p. 867.)   The Santa Ynez Band responded to these proper notices by declaring that the children are neither enrolled members of the tribe nor eligible for enrollment.   In view of the augmented record, the ICWA claim is without merit.

Disposition

The orders terminating parental rights to A.U. and A.P. are affirmed.

NOT TO BE PUBLISHED.

We concur:

James E. Herman, Judge

Superior Court County of Santa Barbara

Lee Gulliver, under appointment by the Court of Appeal, for C.S., Appellant.

Roni Keller, under appointment by the Court of Appeal, for P.U. Appellant.

Dennis A. Marshall, County Counsel, County of Santa Barbara and Toni Lorien, Deputy, for Respondent.

FOOTNOTES

FN1. All statutory references are to the Welfare and Institutions Code unless otherwise stated..  FN1. All statutory references are to the Welfare and Institutions Code unless otherwise stated.

GILBERT, P.J. COFFEE, J.