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In Re C.F., A Person Coming Under the Juvenile Court Law. v. S.F. et al

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (Shasta)


January 12, 2012

IN RE C.F., A PERSON COMING UNDER THE JUVENILE COURT LAW. SHASTA COUNTY HEALTH AND HUMAN SERVICES AGENCY, PLAINTIFF AND RESPONDENT,
v.
S.F. ET AL., DEFENDANTS AND APPELLANTS.

(Super. Ct. No. 10JVSQ2833401)

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

In re C.F. 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

S.T., the biological father of minor C.F., appeals from the juvenile court's denial of his petition under Welfare and Institutions Code section 388*fn1 and from the court's ruling that the Indian Child Welfare Act (25 U.S.C. § 1901 et seq. (ICWA)) did not apply.*fn2 We conclude that the juvenile court's denial of presumed father status to S.T. was correct. The record shows that S.T. did not make a full commitment to his parental responsibilities. With regard to ICWA, we conclude that one tribe did not receive the ICWA notice and the matter must be remanded for such notice. Accordingly, we vacate the juvenile court's orders on appeal and remand for further notice under ICWA.

FACTUAL AND PROCEDURAL BACKGROUND

The minor, C.F., was detained at birth in January 2010 because mother (S.F.) and the alleged father (W.F.) allegedly had substance abuse, anger control, and domestic violence problems that put the minor at risk, and their parental rights to three other children had been terminated.

The jurisdiction/disposition report recommended foster care for the minor; bypassing reunification services to mother and the alleged father.

An addendum report stated that on March 22, 2010, S.T. contacted the Shasta County Department of Social Services (Department) to say that he might be the minor's biological father and wanted a DNA test. The social worker informed him of the scheduled jurisdiction/disposition hearing on April 30, 2010, and mailed him the documents he would need to complete.*fn3 As of April 15, 2010, he had not returned the documents.

At the jurisdiction/disposition hearing, the juvenile court exercised jurisdiction over the minor, ordered him placed in foster care, denied services to mother and the alleged father, and set a section 366.26 hearing.*fn4

On June 22, 2010, the social worker renoticed S.T. and remailed the documents to him "c/o Teen Challenge, P.O. Box 40100, San Francisco, CA 94140." On July 8, 2010, S.T. completed and returned the documents, which included a request for DNA testing and an ICWA-020-form (020-form). On the 020-form, S.T. indicated that he might have Indian ancestry in the Mono, Pit River, and "Madacy" [sic] tribes. He also stated that one or more of his lineal ancestors is or was a member of the Pit River and Table Mountain tribes.

On July 21, 2010, the juvenile court appointed counsel and ordered DNA testing for S.T.

The section 366.26 report, filed August 12, 2010, recommended terminating the parental rights of mother, the alleged father, and S.T., and ordering a permanent plan of adoption by the minor's maternal aunt, with whom the minor was placed.

According to the report, S.T. entered Teen Challenge, a residential drug treatment program in San Francisco, in April 2010, and was expected to complete the program by October 2011. He had no relationship or contacts with the minor.

After the DNA results confirmed S.T.'s biological paternity, an addendum report filed November 5, 2010, recommended that the juvenile court find S.T. a mere biological father. According to the Shasta County Probation Officer, S.T. was on probation until September 2011. He entered Teen Challenge, a program normally lasting up to a year and half, in lieu of a prison sentence, after failing three times in Proposition 36.

On November 8, 2010, the juvenile court continued the matter for ICWA noticing.

An addendum report filed January 18, 2011, stated that ICWA notice had been sent on November 10, 2010, to Big Sandy Rancheria, Cold Springs Rancheria, North Fork Rancheria, and Pit River Reservation.*fn5

S.T. was in contact with the Department and had been generally cooperative. He expected to complete Teen Challenge on March 26, 2011, and then move back to the Redding area. He wanted to do whatever was needed to get the minor placed with him. In December 2010, he and his mother approached the maternal great-grandmother in church to ask her to give the minor a gift from him and to ask for pictures of the minor. After this contact, the relative caregiver was advised that any such communication, including the exchange of gifts and pictures, should be handled through the Department.*fn6

The minor was thriving with his relative caregiver, who wanted the placement to become permanent.

On January 28, 2011, the juvenile court again continued the matter for ICWA noticing and granted S.T. a one-hour visit with the minor. The court received a letter from the executive director of San Francisco Teen Challenge, praising S.T.'s work in the program and opining that S.T. "has become a man of God and has learned what it takes to be a father to his child."

On February 15, 2011, the juvenile court ordered up to six hours a week of supervised visitation for S.T.

On March 10, 2011, the relative caregiver requested de facto parent and prospective adoptive parent status. An attached letter from Lilliput Children's Services stated that her home had been approved as an adoptive home.

An addendum report filed April 1, 2011, stated that S.T.'s visit on January 28, 2011, had gone well. He had moved to the Redding area on February 8, 2011, and transferred into the Redding branch of Teen Challenge. He had begun parenting classes on February 14, 2011, and had attended regularly. His scheduled visitation was generally good, although he had missed a couple of visits. However, he did not have a parent and child relationship with the minor. He related to the minor as a "frequent and friendly [visitor]."

The report also stated that on March 15, 2011, S.T. was arrested for public drinking. The probation officer intended to recommend revoking probation and imposing a three-year prison sentence. Furthermore, S.T. was unemployed and did not have a stable residence.

The report recommended that the juvenile court find ICWA did not apply, based on an addendum to be filed later.

The ICWA addendum report stated that Big Sandy Reservation and Cold Springs Reservation had returned negative responses and the other noticed tribes had not responded within ICWA's 60-day time limit. Furthermore, although S.T. received tribal services on the Pit River Reservation as a child because his stepfather and half sisters were enrolled members, he himself had no blood relationship to the tribe.

At a hearing on April 8, 2011, S.T. testified that he had tried to obtain as much visitation as possible once he learned he was eligible for visitation, he had told everyone in his family and Teen Challenge that the minor was his child, and he had given a toy car to the minor.

The juvenile court granted S.T. a continuance to file a section 388 petition. The court also ordered visitation of six hours a week, to take place three times a week.

On April 19, 2011, S.T. filed a section 388 petition, requesting that the juvenile court find him a presumed father and order reunification services. As to changed circumstances, the petition alleged the facts to which S.T. had testified, plus his engagement in drug and alcohol treatment and regular attendance at outside meetings. As to the child's best interest, the petition alleged that dependency law prefers relative placement, S.T. desperately wanted the minor placed in his custody, and S.T. was willing to do anything necessary to be a parent to the minor.

An addendum report filed June 6, 2011, recommended denying S.T. presumed-father status because he did not live with the mother when the minor was conceived or born, had not had the minor in his custody, had not provided financially for the minor, and had not developed a parental relationship with the minor.

As to visitation, the addendum report stated that S.T. had not performed acceptably, and the quality of the visits had declined. He had missed numerous visits, sometimes because he arrived past the grace period. On several of those occasions, he did not even call. During S.T.'s most recent visits, the minor scowled, whimpered, avoided eye contact with S.T., clung to the relative caregiver, and cried inconsolably when the relative caregiver or the social worker left the room. The minor was very tired after these visits.

According to the addendum report, S.T. had also failed to participate fully in services. He was dropped from a parenting class for nonattendance, though he claimed he was taking such a class elsewhere. He had participated irregularly in the outpatient substance abuse treatment and 12-step groups recommended for him, and had been arrested for public intoxication.

S.T.'s Testimony at Section 388/Section 366.26 Hearing

At the consolidated section 388/section 366.26 hearing on June 16 and 17, 2011, S.T. testified that he saw the minor's mother once when she was pregnant with the minor, but then went into Teen Challenge. After learning of the minor's birth, he tried to call the Department at least once a week to update his situation, find out what was going on, and push for his DNA testing. He did not receive the documents the Department sent him until May 2010, two months after they were mailed. He explained that he was then in a phase of the program where he was kept isolated from the world to work on his problems; that was why he did not complete and return the documents until July 2010. He did not wait six months after contacting the Department to request DNA testing. The request was made sooner, but the results were slow in coming back. Because he was in the program, he could not provide financial or emotional support for the minor at that time, but he had done what he could since then.

S.T. told everyone in Teen Challenge and in his family that he was the minor's father. He asked for visitation as soon as he came into court and realized it was possible, but he was not normally allowed to go to Redding to visit while in the program in San Francisco. He had tried to give the minor a Christmas gift by approaching the minor's maternal great-grandmother instead of giving the gift to his social worker. After the Christmas gift, he gave the minor a toy car and an Easter basket. He wanted to be declared the minor's father because he wanted to look out for the minor; he knew he would be a good father. He believed the minor was happy during visits.

S.T. had missed visits when it was "mandatory" (that is, when he had to be elsewhere or it would "take [him] out of the picture"). He had also missed visits when he was sick; he had recently suffered an arm and back injury in a swimming accident. He had missed one visit for a job interview because his case plan required it and he needed to be employed to take care of the minor. He had missed a couple of visits for lateness because he lived in Anderson and sometimes had to go to Happy Valley for Teen Challenge, the visits were in Redding, and his sister, on whom he relied for transportation, sometimes ran late. When he missed the 15-minute grace period, it was only by a minute or two, and he always called. He had missed one visit due to the death of a close relative. Finally, he had missed one visit to help with a first cousin's wedding, which he felt was his duty as a family member. He could not recall whether he had told his uncle about the scheduled visit. He always returned any calls about visitation.

S.T. was doing two different treatment programs: Teen Challenge and Right Roads Recovery. If Right Roads Recovery requirements and Teen Challenge requirements conflicted, he told his counselors. He was not dropped from a parenting course. Rather, he had chosen to go to Right Roads Recovery's course in Anderson because it was closer to his residence than his original course in Redding, but had neglected to tell the Department. He had learned parenting skills and applied them during his visits with the minor.

S.T. had done everything required under his case plan and was on track to complete Right Roads Recovery in four months. He had finished the residential phase of Teen Challenge in late March 2011, but there was still another six to eight months in the program. He planned to obtain a job and housing once he completed the programs.

S.T. admitted he had relapsed with alcohol in the month he was released from the residential phase of Teen Challenge. He now had a sponsor and kept in regular touch with him. He was working on his "steps," although he was still on the first one. Attending his outside meetings was keeping him clean and sober. However, he appeared wrongly to be out of compliance because he had not realized he needed to turn in his attendance cards at Right Roads Recovery.*fn7 He knew how to avoid further relapses.

S.T.'s two half sisters were enrolled members of the Pit River tribe. Because he and his half sisters were raised together, he believed he was also a member. He expected to receive supporting documentation within a week. He considered the minor's Native American heritage very important and would educate the minor in that heritage.

Juvenile Court's Ruling

After hearing argument and denying S.T.'s counsel's request for a continuance as to ICWA, the juvenile court ruled that S.T. did not qualify as a presumed father under Family Code section 7611, subdivision (d) (section 7611(d)). After learning of his possible paternity in March 2010, he waited a long time to claim his rights as a father by appearing in court and participating in the proceedings. Furthermore, it would not be in the minor's best interests to order reunification services for S.T. because he had not committed to acting as a parent and establishing an emotional connection to the minor. Despite the extended visitation the court had given him, he put attending a cousin's wedding above the opportunity to spend time with the minor. Thus, the juvenile court found that S.T. was a mere biological father and would not receive services.

Based on the ICWA addendum report, the juvenile court ruled that ICWA did not apply.

The juvenile court terminated S.T.'s parental rights (along with the mother's and the alleged father's) and ordered adoption as the minor's permanent plan.

DISCUSSION

I

Section 388 Petition

S.T. contends the juvenile court erred by denying his section 388 petition, both as to his request for presumed father status and his request for services. We disagree.

A parent petitioning the juvenile court under section 388 for a modification of a court order must allege facts showing that new evidence or changed circumstances exist and that the proposed modification would be in the child's best interests. (In re Daijah T. (2000) 83 Cal.App.4th 666, 672.) The parent has the burden of proof on both points by a preponderance of the evidence. (Cal. Rules of Court, rule 5.570(h)(1).) The court may consider the entire history of the case in assessing the petition. (In re Justice P. (2004) 123 Cal.App.4th 181, 189.)

"The dependency system recognizes four classes of fathers: alleged, natural, presumed, and de facto. [Citation.] . . . A presumed father is 'one who "promptly comes forward and demonstrates a full commitment to his parental responsibilities -- emotional, financial, and otherwise . . . ."' [Citation.]" (In re E.O. (2010) 182 Cal.App.4th 722, 726.)

"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 . . . section 7611. [Fn. omitted.] [Citations.]" (In re E.O., supra, 182 Cal.App.4th at pp. 726-727.)

The parties agree that S.T. can be a presumed father only on the basis that he "receive[d] the child into his home and openly h[e]ld out the child as his natural child." (§ 7611(d); In re Nicholas H. (2002) 28 Cal.4th 56, 58.) The statute normally requires that the father physically receive the child into his home. (Adoption of Michael H. (1995) 10 Cal.4th 1043, 1051.) But where the father could not do so because of forces beyond his control, such as the fact that a social services agency had taken custody of the child, the father's failure to receive the child into his home does not necessarily defeat a claim of presumed fatherhood under section 7611(d). (In re Andrew L. (2004) 122 Cal.App.4th 178, 191; In re Jerry P. (2002) 95 Cal.App.4th 793, 807, 811; see Adoption of Kelsey S. (1992) 1 Cal.4th 816, 825.)

The fundamental question under section 7611(d) is whether the alleged father has "'promptly come[] forward and demonstrate[d] a full commitment to his parental responsibilities -- emotional, financial, and otherwise . . . .' [Citations.] The focus is on whether the natural father 'has done all that he could reasonably do under the circumstances' to demonstrate his commitment to the child. [Citations.]" (In re Andrew L., supra, 122 Cal.App.4th at p. 191.) The record does not demonstrate S.T.'s commitment to the minor.

First, as the juvenile court observed, S.T. took a long time to become actively involved in the case after learning of his possible parenthood. Even if he did not receive the Department's paperwork until two months after it was sent to him, his explanation for this delay -- that the program kept him isolated from the world -- was both vague and uncorroborated. Assuming he was in a 30-day blackout period, he admits he completed this phase by May 1. Yet, he returned the paperwork in July.

Next, even if S.T. did all he reasonably could have done under the circumstances while in treatment in San Francisco, after relocating to Redding he did not demonstrate his full commitment to his parental responsibilities. As the court noted, he failed to take advantage of the visitation he had been given. He missed numerous visits, once because he decided to take part in a cousin's wedding. But even when he did visit the minor, the evidence was unrebutted that he acted more like a friendly visitor than a parent. Furthermore, his relapse into public intoxication almost immediately after returning to Redding, while aware that he remained on probation, showed he was not yet prepared to take care of himself, let alone a very young child.

For all of these reasons, the juvenile court's denial of presumed father status to S.T. was correct. As a mere biological father, the court properly ruled that S.T. was not entitled to reunification services.

II

ICWA Notice

S.T. contends the juvenile court erred in finding ICWA inapplicable, for two reasons: (1) a tribe designated on his 020-form, the Table Mountain Rancheria, did not receive notice; and (2) the juvenile court did not allow adequate time to ensure sufficient information had been provided to the Mono and Pit River tribes to ensure compliance with ICWA. We agree only with S.T.'s first contention.

The Table Mountain Rancheria

Where the juvenile court knows or has reason to know that a child involved in a dependency proceeding is an Indian child, ICWA requires that notice of the proceedings be given to any federally recognized Indian tribe of which the child might be a member or eligible for membership. (25 U.S.C. §§ 1903(8), 1912(a); In re Robert A. (2007) 147 Cal.App.4th 982, 989.) Because the primary purpose of ICWA is to benefit the tribes, a parent does not forfeit a claim of ICWA notice violation by failing to raise it in the juvenile court. (In re J.T. (2007) 154 Cal.App.4th 986, 991; Nicole K. v. Superior Court (2007) 146 Cal.App.4th 779, 783, fn. 1; In re Marinna J. (2001) 90 Cal.App.4th 731, 738-739.)

S.T. stated on his 020-form that one or more of his lineal ancestors is or was a member of the "Table Mountain" tribe. The Table Mountain Rancheria of California is a federally recognized Indian tribe. (75 Fed.Reg. 60810-60814 (Oct. 1, 2010).)*fn8 It never received notice of these proceedings. Because the failure to give notice to a tribe entitled to notice is prejudicial error, the matter must be remanded for notice to this tribe. (In re Desiree F. (2000) 83 Cal.App.4th 460, 472.)

The Department asserts that S.T. "never claimed any Indian ancestry in the Table Mountain [Rancheria]," did not complain below about the failure of notice to that tribe, and should not be allowed to win reversal by doing so for the first time on appeal. The Department's position lacks merit.

It is true that S.T. did not list the Table Mountain Rancheria on the portion of the 020-form that asks a parent to name the tribes in which he or she personally "may have Indian ancestry." However, by naming this tribe as one of which one or more of his "parents, grandparents, or other lineal ancestors is or was a member," S.T. did claim "Indian ancestry in the Table Mountain [Rancheria]." The Department cites no authority for its premise that it did not need to give notice to a tribe so named on the 020-form, and we know of no such authority.

The Department's assertion that S.T. may not raise this issue now because he did not do so in the juvenile court is also without merit. (In re J.T., supra, 154 Cal.App.4th at p. 991; Nicole K. v. Superior Court, supra, 146 Cal.App.4th at p. 783, fn. 1; In re Marinna J., supra, 90 Cal.App.4th at pp. 738-739.) The decisions the Department cites to support its charge of "sandbagging" are inapposite because they were not decided under ICWA. (Steve J. v. Superior Court (1995) 35 Cal.App.4th 798, 813; In re Richard K. (1994) 25 Cal.App.4th 580, 590.) Indeed, it is well settled that claims of ICWA notice violation may be raised for the first time on appeal.

The Pit River Tribe

Although S.T. asserts in his argument heading that adequate time was not given to ensure notice to the Mono and Pit River tribes, his actual argument addresses only the latter. Therefore, any claim of error as to the Mono tribe is forfeited.

As to the Pit River tribe, S.T. asserts that he established, or could have done so given the continuance he requested, that he qualified for membership. We disagree. S.T. fails to show that any evidence before the juvenile court supported his claim, and his assertion that he could have produced such evidence if given a continuance is speculation.

The ICWA addendum report stated that S.T. did not qualify for membership in the Pit River tribe because he had no blood relationship to the tribe, although his stepfather and half sisters did. S.T. produced no evidence that he had a blood relationship to the tribe or that he could be eligible for membership without a blood relationship. On appeal, he cites only his unfounded belief that he was eligible because he and his half sisters were raised together, and his counsel's unsupported assertion that the Pit River tribe does not require a blood relationship for membership. This was insufficient to meet his burden.

Citing to a Website, S.T. also provides what he represents as an excerpt from the Pit River Rancheria's constitution defining the tribe's membership criteria. We decline to consider this "evidence" because it was not before the juvenile court and has not been offered on appeal through a motion for this court to take judicial notice (Evid. Code, § 459) or to receive additional evidence. (Code Civ. Proc., § 909; Cal. Rules of Court, rule 8.252(b).) Internet sources cited only in an appellate brief are not evidence this court may consider. (See In re K.P. (2009) 175 Cal.App.4th 1, 5.)*fn9

In any event, S.T. overlooks another point made by the ICWA addendum report as to the Pit River tribe. The tribe had not responded to the Department's notice within the 60-day time limit provided by law for a response. (§ 224.3, subd. (e)(3).) Once that time period had gone by without a response from the tribe, the juvenile court could properly conclude that the tribe did not wish to intervene. (See In re N.M. (2008) 161 Cal.App.4th 253, 267.)

Conclusion

Because the Table Mountain Rancheria did not receive ICWA notice, the matter must be remanded for such notice, and the juvenile court's orders denying S.T.'s section 388 petition, terminating parental rights, and setting the matter for adoption must be vacated. (Nicole K. v. Superior Court, supra, 146 Cal.App.4th at p. 785.) However, no additional notice as to any other tribe is required.

If the juvenile court determines, after the requirements of ICWA notice have been satisfied, that the minor is not an Indian child, the court shall reinstate its orders denying S.T.'s section 388 petition, terminating parental rights, and ordering a permanent plan of adoption. If the Table Mountain Rancheria should determine that the minor is an Indian child, the court shall proceed in accordance with ICWA.

DISPOSITION

The orders appealed from are vacated and the matter is remanded for further proceedings in accordance with the Indian Child Welfare Act. (25 U.S.C. § 1901 et seq.)

We concur: RAYE , P. J. MURRAY , J.


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