California Court of Appeal, Second District, Fourth Division
IN RE JOVANNI B., a Person Coming Under the Juvenile Court Law.
John B., Defendant and Appellant. Los Angeles County Department of Children and Family Services, Plaintiff and Respondent,
APPEAL from an order of the Superior Court of Los Angeles County, Valerie Skeba, Juvenile Court Referee. Reversed and remanded. (No. CK92293)
[165 Cal.Rptr.3d 432] Andrea R. St. Julian, under appointment by the Court of Appeal, for Defendant and Appellant.
John F. Krattli, County Counsel, James M. Owens, Assistant County Counsel, and Tracey Dodds, Principal Deputy County Counsel, for Plaintiff and Respondent.
Jovanni B. was born in June 2012 to Andrea F. (mother). Two men claim to be his father: appellant John B., who was living with mother when Jovanni was born and signed a voluntary declaration of paternity, and Brian H., Jovanni's biological father. When DNA tests showed John was not Jovanni's biological father, the juvenile court dismissed John from the proceedings and offered reunification services to Brian. John appeals from those orders, contending that because he signed a voluntary declaration of paternity, he is entitled to presumed father status. He also contends that the
trial court erred in failing to require an investigation of mother's possible Indian ancestry, as required by the Indian Child Welfare Act (ICWA).
We agree with John that the DNA test results are not dispositive of his right to participate in these proceedings. We disagree, however, that John is entitled to presumed father status merely because he signed a voluntary declaration of paternity. We remand the matter for the juvenile court to consider whether, in view of the DNA test results, setting aside John's voluntary declaration of paternity is appropriate under the facts of this case (Fam.Code, § 7575), whether John is entitled to presumed father status (Fam.Code, § 7611, subd. (d)), and for investigation of Jovanni's possible Indian heritage.
FACTUAL AND PROCEDURAL BACKGROUND
I. Petition and Detention
The Los Angeles County Department of Children and Family Services (DCFS) filed a juvenile dependency petition on August 17, 2012, asserting jurisdiction over Jovanni pursuant to Welfare and Institutions Code section 300, subdivisions (a) and (b). It asserted: (1) Mother and John have a history of engaging in violent altercations in Jovanni's presence. On August 11, 2012, John threatened to kill mother, struck her in the face and body with his fists, struck her arm with a machete, and refused to let mother leave the home or call law enforcement. John was intoxicated at the time of the attack. (§ 300, subds.(a), (b).) (2) John has a history of substance abuse and is a current abuser of alcohol, which endangers the child's physical health and safety and creates a detrimental home environment. (§ 300, subd. (b).)
DCFS filed a detention report on August 17, 2012. It stated as follows. On June 5, 2012, DCFS received a referral alleging emotional abuse of two-day-old Jovanni. Mother and John, who were living together with Jovanni, agreed to participate in voluntary family maintenance and to receive services. Mother identified John as Jovanni's father, and John signed the voluntary family maintenance plan as the father.
On August 13, 2012, mother told her social worker that John had been jailed on August 11 because he became violent while drinking and attacked her with a machete. She and Jovanni currently were staying at a safe location, and John remained incarcerated. [165 Cal.Rptr.3d 433] Mother explained that on the night of August 11, she had wanted to take Jovanni to her Alcoholics Anonymous (AA)
sponsor's house because John was drinking, but John would not let her leave. She attempted to call 911, but John took her phone. A neighbor called 911 and John was arrested. Mother said she had obtained a temporary restraining order against John and would be seeking a permanent restraining order. She had moved out of the home where she had been living with John and would not be returning.
Mother also disclosed to the social worker that Brian, not John, was Jovanni's biological father. Mother said she had been six months pregnant with Jovanni when she met John. Brian had visited Jovanni, but always in her presence. Mother also said she has Vergo Native American heritage, but was not registered with a tribe.
John admitted to the social worker that mother had been pregnant when he met her, but said that admission was " off the record." He said he was willing to take a paternity test, that he would consent to Jovanni's detention, and that " if you guys (DCFS) want me out of Jovanni's life, I am willing to do that."
Brian told the social worker that he was not sure if he was Jovanni's father, but he was willing to take a paternity test and would like to be involved in Jovanni's life if he were the father. On August 17, 2012, he filed a " Statement Regarding Parentage," in which he stated that he did not know if he was Jovanni's father and requested a paternity test. The same day, mother filed a notice of Indian status, stating that she may have Indian ancestry but was not sure of the name of the tribe to which she might be eligible for membership.
The juvenile court held a detention hearing August 17, 2012. The court found a prima facie case that Jovanni was a child described by section 300, subdivision (b), and ordered Jovanni released to mother. It ordered Brian to submit to a DNA test and deferred making paternity findings pending receipt of the DNA test results. With regard to Indian heritage, the court said any Indian heritage appeared " very remote," but ordered DCFS to interview mother. Finally, it denied John visitation and granted Brian monitored visits.
The court held a further hearing on September 17, 2012. At that time, the court entered a temporary restraining order against John, ordered John to submit to a DNA test, and said it would find John the father " only ... if ...