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In Re C.R. et al., Persons Coming Under the Juvenile Court v. M.R

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT


December 16, 2010

IN RE C.R. ET AL., PERSONS COMING UNDER THE JUVENILE COURT LAW. SACRAMENTO COUNTY DEPARTMENT OF HEALTH AND HUMAN SERVICES, PLAINTIFF AND RESPONDENT,
v.
M.R., DEFENDANT AND APPELLANT.

(Super. Ct. Nos. JD230321, JD230320)

The opinion of the court was delivered by: Raye , P.J.

In re C.R. CA3

NOT TO BE PUBLISHED

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

(Sacramento)

M.R., the mother of four-year-old C.R. and six-year-old X.A., appeals from an order of the Sacramento County Juvenile Court adjudging the children to be persons described by Welfare and Institutions Code section 300,*fn1 removing them from mother's custody, and ordering paternity testing for P.A., the alleged father of X.A. Mother contends the court had reason to know that X.A. was an Indian child and thus erred by failing to send Indian Child Welfare Act (ICWA; 25 U.S.C. § 1901 et seq.) notice of the proceedings to the Apache tribes. We shall affirm the order.

FACTUAL AND PROCEDURAL BACKGROUND

In November 2009 the Sacramento County Department of Health and Human Services (Department) filed petitions alleging that mother frequently used excessive corporal punishment on the children and had, on more than one occasion, physically abused the children's older half siblings. (§ 300, subds. (a), (b) & (j).) The physical abuse included hitting the half siblings with belts, rulers, and shoes, resulting in bruising. The Department obtained a protective custody warrant and removed the children from mother.

Mother reported to the Department's social worker that P.A. is the father of X.A.

At the initial hearing in November 2009 mother's counsel told the juvenile court that P.A. was not present at X.A.'s birth, and his name is not on X.A.'s birth certificate; mother was not married to P.A. or anyone else when X.A. was born; P.A. has never signed a "notice" of paternity; P.A. has never lived with X.A. or provided him support; there is no child support order, nor has there ever been a paternity test; but, according to mother, P.A. holds out to family and friends that X.A. is his child.

The juvenile court concluded that P.A. was an alleged father, not a presumed father. It ordered the Department to make a diligent search for P.A. and provide him notice of the next hearing.

The jurisdiction/disposition report revealed that mother was interviewed in December 2009. She indicated that P.A. had had no contact with X.A. since he was one year old. Mother described P.A. as "very violent" and claimed that she did not know where he was located.

Two days after the interview, P.A. telephoned the social worker from Mule Creek State Prison, where he was incarcerated. He believed that his name was on X.A.'s birth certificate and stated that he had visited X.A. every weekend until the "mother and child disappeared" when X.A. was three years old. P.A. acknowledged paternity and requested counsel. He reported that he has Apache heritage.

The jurisdiction/disposition report indicates that ICWA notice to the Apache tribes was withheld pending the establishment of P.A.'s paternity of X.A.*fn2

At a prejurisdictional status conference in December 2009 the juvenile court stated, "[P.A.] is an alleged father at this point. He thinks he might be the dad. If he is, he wants to have an attorney and participate, but I'm going to direct the Department to offer genetic testing to [P.A.], and if he is determined to be the father, then we can take it from there. [¶] At this point, we don't appoint attorneys for people who are only alleged fathers. We need to make sure that they're the dad before we allow them to participate." The court ordered that P.A. "is an alleged father and if he wants to be involved in this matter, the Department shall refer him for a paternity test."

At the jurisdiction/disposition hearing on January 22, 2010, mother's counsel informed the juvenile court that P.A. was scheduled to have a paternity test on February 13, 2010. In response, the court ordered the Department to facilitate the testing. The court sustained the petitions on all counts, adjudged the children to be dependents of the court, and committed them to the Department for confidential placement. The court stated: "With regard to [P.A.], he is having genetic testing done next month, and when those results are obtained, I will direct the Department to give notice to all other counsel about the results. And . . . if he is, in fact, the biological father and if the Department otherwise assesses it would be appropriate to offer him services and to have an opportunity to reunify with [X.A.], then a [section] 388 motion to change the current court orders should be filed so that those services can be identified, and the Court can make the order for the services to be offered."

The juvenile court did not address P.A.'s claim of Apache heritage.

On January 26, 2010, mother filed a timely notice of appeal from the juvenile court's January 22, 2010, findings and orders.

At a prepermanency hearing six months later, the juvenile court addressed the paternity test results for X.A. The court appointed counsel for P.A. Because he had indicated possible Indian heritage, the court directed the Department to provide ICWA notice to the identified tribes.*fn3 Thereafter, the Department filed its paralegal's declaration regarding an ICWA family heritage/ancestry inquiry and the notice that was sent to the tribes.

DISCUSSION

Mother's sole contention is that the juvenile court erred by failing to send ICWA notice to the Apache tribes.

The Department responds that the contention is moot because the court ordered notice to the tribes following the completion of the paternity testing.

Mother replies that the issue is not moot because the purported error affects subsequent proceedings, evidently by thwarting early tribal participation in the reunification process. (Citing In re Dylan T. (1998) 65 Cal.App.4th 765, 769.) In Dylan T., the appellate court concluded that the erroneous denial of visitation to an incarcerated parent of a child under age three could erode the parent-child relationship and thus hinder her efforts at reunification. (Id. at pp. 769-770.)

In this case, the juvenile court acknowledged that courts "frequently find services through the tribes that are very beneficial for the kids, so more is better." To the extent that ICWA notice seven months earlier would have garnered earlier tribal services, the asserted error is not moot. Because the Department has not shown that earlier tribal services would have been unavailable, we decline its invitation to deem the notice issue moot.

Mother contends, and the Department does not dispute, that she has standing to raise the ICWA compliance issue even though she is not the parent with the claimed Apache heritage. (In re B.R. (2009) 176 Cal.App.4th 773, 779-780 (B.R.); In re Jonathon S. (2005) 129 Cal.App.4th 334, 338-339.) We agree.

Mother next contends the juvenile court erred by failing to provide notice to the Apache tribes. We are not persuaded.

"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, dependency actions. [Citations.] If, after the petition is filed, the juvenile court 'knows or has reason to know that an Indian child is involved,' notice of the pending proceeding and the right to intervene must be sent to the tribe or the Bureau of Indian Affairs if the tribal affiliation is not known. [Citations.]" (In re E.G. (2009) 170 Cal.App.4th 1530, 1533 (E.G.).)

This court explained in E.G.: "ICWA defines 'Indian child' as '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.' [Citation.] The necessity of a biological tie to the tribe is underlined by the ICWA definition of a 'parent' as 'any biological parent or parents of an Indian child [or any Indian person who has lawfully adopted an Indian child, including adoptions under tribal law or custom. It does not include the unwed father where paternity has not been acknowledged or established].' (25 U.S.C. § 1903(9).) [¶] An alleged father may or may not have any biological connection to the child. Until biological paternity is established, an alleged father's claims of Indian heritage do not trigger any ICWA notice requirement because, absent a biological connection, the child cannot claim Indian heritage through the alleged father." (E.G., supra, 170 Cal.App.4th at p. 1533.)

In E.G., paternity testing ultimately showed that the alleged father of the child was not the biological father. (E.G., supra, 170 Cal.App.4th at p. 1532.) Moreover, there was no claim that the alleged father had an adoptive relationship to the child. (See B.R., supra, 176 Cal.App.4th at pp. 784-785.) Finally, the E.G. court had no occasion to consider whether paternity nevertheless had been acknowledged within the meaning of section 1903(9) of title 25 of the United States Code.

Here, in contrast, mother contends P.A. acknowledged paternity in his December 2009 conversation with the social worker. She concedes that older cases have required something more than a mere statement in a conversation with a social services department.

Thus, the court in In re Daniel M. (2003) 110 Cal.App.4th 703 (Daniel M.) explained: "[B]ecause the ICWA does not provide a standard for the acknowledgment or establishment of paternity, courts have resolved the issue under state law. [Citations.] Courts have held an unwed father must take some official action, such as filing a voluntary declaration of paternity, establishing paternity in legal proceedings, or petitioning to have his name placed on the child's birth certificate. [Citations.] Similarly, in California an alleged father may acknowledge or establish paternity by voluntarily signing a declaration of paternity at the time of the child's birth, for filing with the birth certificate [citation], or through blood testing [citation]." (Daniel M., at pp. 708-709.) It is undisputed that P.A. did not do any of these things.

Mother claims the Daniel M. reasoning is not consistent with current California statutes. But her only citation, B.R., supra, 176 Cal.App.4th 773, is inapposite because it dealt with tribal ancestry through adoption, an issue not present in this case.

Quoting a prior case and guidelines issued by the Department of the Interior, the B.R. court suggested that a court has reason to believe a child involved in a child custody proceeding is an Indian if "'"[a]ny party to the case . . . informs the court that the child is an Indian child."'" (B.R., supra, 176 Cal.App.4th 773, 782, quoting In re Junious M. (1983) 144 Cal.App.3d 786, 793; see In re Marinna J. (2001) 90 Cal.App.4th 731, 737; Guidelines for State Courts; Indian Child Custody Proceedings (44 Fed.Reg. 67584 et seq. (Nov. 26, 1979)).)

However, contrary to mother's argument, P.A. was not "treated as a party during the pendency of the proceedings." Rather, the juvenile court made plain that "[w]e need to make sure that [the alleged father is] the dad before we allow [him] to participate."*fn4 Mother's reliance on B.R. is misplaced.

As noted, the juvenile court was true to its word. Once P.A.'s paternity was established, notice to the Apache tribes was given. (See fn. 3, ante.) There was no error.

DISPOSITION

The order is affirmed.

We concur:

NICHOLSON , J.

BUTZ , J.


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