Opinion
F076955
09-05-2018
In re ANA L., a Person Coming Under the Juvenile Court Law. FRESNO COUNTY DEPARTMENT OF SOCIAL SERVICES, Plaintiff and Respondent, v. JESUS L., Defendant and Appellant.
Beth A. Sears, under appointment by the Court of Appeal, for Defendant and Appellant. Daniel C. Cederborg, County Counsel, and Brent C. Woodward, Deputy County Counsel, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 16CEJ300203-1)
OPINION
APPEAL from an order of the Superior Court of Fresno County. Gary Green, Temporary Judge. (Pursuant to Cal. Const., art. VI, § 21.) Beth A. Sears, under appointment by the Court of Appeal, for Defendant and Appellant. Daniel C. Cederborg, County Counsel, and Brent C. Woodward, Deputy County Counsel, for Plaintiff and Respondent.
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Alleged father Jesus L. (Jesus) appeals from an order of the juvenile court terminating his parental rights to Ana L. and ordering her placed for adoption under Welfare and Institutions Code section 366.26. He claims the termination orders should be reversed because the juvenile court failed to comply with the placement preferences of the Indian Child Welfare Act (ICWA or the Act) (25 U.S.C. § 1901 et seq.). Because Jesus lacks standing to challenge the placement order, we will dismiss the appeal.
All further statutory references are to the Welfare and Institutions Code unless otherwise stated.
FACTUAL AND PROCEDURAL BACKGROUND
Background
When Ana was born, she tested positive for amphetamines and opiates. Her mother, Raven F., admitted methamphetamine use just prior to Ana's birth; she later admitted to a history of heroin use as well. In speaking to a Fresno County Department of Social Services (department) social worker, mother acknowledged her history of drug use, but claimed she was sober for the six months before relapsing just prior to Ana's birth. Mother said she received no prenatal care and her living situation was unstable.
Mother is not a party to this appeal. --------
Mother named Jesus as Ana's father, although she was not certain. Jesus was present at Ana's birth, but he denied being Ana's father and would not sign the birth certificate until he was certain. He did not sign a voluntary declaration of paternity and requested a paternity test. Mother wanted to speak to Jesus before giving the social worker his contact information. Ana was taken into protective custody but remained hospitalized with withdrawal symptoms. Detention
A section 300 petition was filed alleging Ana was at substantial risk of serious physical harm due to mother's drug use. The petition named Jesus, whose whereabouts remained unknown, as Ana's alleged father. The Indian child inquiry form (ICWA-010) indicated mother claimed Oglala Sioux and Arapaho Indian heritage.
Neither mother nor Jesus were present at the detention hearing held July 19, 2016. Ana was ordered temporarily removed from mother's custody. Jurisdiction was scheduled for August 9, 2016. Jurisdiction
The report filed in anticipation of jurisdiction stated Jesus's whereabouts were still unknown. Mother failed to attend a substance abuse assessment and scheduled meeting with the social worker, had not registered for random drug testing, and had not yet visited Ana. Notice of the jurisdiction hearing was mailed to the applicable Indian tribes.
After mother failed to appear for the scheduled jurisdiction hearing, the juvenile court proceeded in her absence and sustained the allegations of the petition. A disposition hearing was set for August 23, 2016. Procedures Prior to Disposition
The disposition hearing was continued numerous times for various reasons.
The August 22, 2016, report written in anticipation of disposition stated mother, now 22 years old, was raised by her maternal grandmother until she entered foster care at age 12. Ana was mother's fourth child; her first was placed for adoption and the other two were in the custody of their respective fathers. Mother had struggled with addiction for 10 years and was without stable housing for the past four years. Mother had not yet begun any offered services and Jesus had not yet contacted the department.
Mother's parental notification of Indian status form (ICWA-020) indicated she was a member of the Oglala Sioux Tribe and had an enrollment number. The department contacted the tribal representative to discuss Ana's case, but had not yet received a response. Mother suggested a distant cousin as a possible placement, but the cousin did not return the social worker's call. Ana was currently placed in a licensed foster home.
The department recommended Ana be adjudged a dependent of the juvenile court and removed from mother's care. The department asked that reunification services be ordered for mother, but denied to Jesus, based on his status as an alleged father.
Mother first appeared on August 23, 2016, and the matter was continued to the following day for appointment of counsel.
On September 28, 2016, the department requested additional time to receive responses from various Indian tribes. Disposition was continued to October 20, 2016.
Jesus appeared for the first time on October 20, 2016. He stated he had no known Indian heritage. The matter was continued to allow father's counsel time to prepare and for Jesus to submit a statement of parentage (JV-505). In addition, the department requested additional time to receive responses from various Indian tribes. Jesus's JV-505, filed October 21, 2016, stated Jesus believed he was Ana's father, he had told a number of people that he was Ana's father, he had visited her in the hospital after she was born, he had provided Ana with baby clothes, diapers, and "baby stuff," but that he did not come forward sooner because he was hoping to "force" mother to get "help." Disposition was continued to November 22, 2016.
The addendum report dated November 21, 2016, stated Jesus had been located in county jail. The JV-505 Jesus signed a month earlier requested he be elevated to presumed father status. But because Jesus did not sign Ana's birth certificate or a declaration of paternity, and because mother disclosed that she was not certain Jesus was Ana's father, the department asked that he undergo a paternity test.
Attached to the report was the declaration of an ICWA expert, psychologist Ricardo Carrillo, who reviewed the department's records and interviewed mother. The expert opined that continued custody of Ana by mother was likely to result in serious emotional or physical damage to Ana. The expert noted that Ana was in a foster home that was also caring for mother's minor siblings, but that the foster home was "not a sanctioned Native American home, not a tribal member, nor a family member."
At the November 22, 2016, hearing, William Cross, a tribal representative from the Oglala Sioux, appeared by telephone and informed the juvenile court Ana was eligible for enrollment in the Tribe. The matter was continued to December 20, 2016, to allow the department to confer with the Tribe as to placement and to obtain a declaration from a required expert in accordance with the ICWA. The juvenile court also ordered a paternity test for Jesus at the request of his counsel.
The addendum report dated December 19, 2016, chronicled the department's numerous unsuccessful attempts to speak to a tribal representative of the Oglala Sioux Tribe about placement for Ana. After repeated rescheduling, mother completed mental health and addiction assessments. Although the social worker transported mother to a treatment program, mother failed to complete the intake process on three separate occasions. Mother was dropped from the department's visitation schedule in August, September and November, for missing numerous visits. The department's disposition recommendation remained unchanged.
As of December 20, 2016, the paternity test was still pending, scheduled for January 5, 2017, and a second tribe—the Northern Arapaho—needed additional information to determine Ana's enrollment eligibility. Disposition was continued to January 24, 2017. Disposition
The disposition hearing was finally held January 24, 2017. Neither mother nor Jesus was present. At the hearing, the juvenile court considered the department's reports, as well as the testimony of the ICWA expert, who appeared telephonically. The expert reiterated that continued custody of Ana by mother was likely to result in serious emotional or physical damage to Ana.
Upon submission of the matter, the juvenile court adjudged Ana a dependent and removed her from mother's custody. Reunification services were ordered for mother, but not for Jesus, pending the outcome of the paternity test. Based on Ana's eligibility for enrollment in the Oglala Sioux Tribe, the juvenile court found ICWA applicable to the proceedings. The juvenile court found by clear and convincing evidence that continued custody of Ana in mother's home would likely cause serious emotional or physical damage; that active efforts had been made to prevent the breakup of the family; and that good cause existed for the department not to comply with the ICWA placement preferences and authorized Ana's continued placement in her current foster home.
The juvenile court noted Jesus's parentage would be resolved when DNA test results were received. Mediation was scheduled for March 21, 2017, and a six-month review hearing for June 27, 2017. Interim Proceedings
The mediation report filed March 21, 2017, stated Jesus missed a January 2017 paternity test, as well as a February 2017 rescheduled test. At the subsequent hearing, the juvenile court declined to change Jesus's paternity status "at this time." Six-Month Review
The June 27, 2017, six-month review report stated mother had not engaged in any of her court-ordered services and failed to meet with the social worker. Mother had attended no more than five visits with Ana during the reunification period. As of June 22, 2017, there was an active warrant for mother's arrest for her failure to comply with the terms of her probation.
Ana remained in her original foster care placement and was developing normally. The Oglala Sioux Tribe had located relatives for placement in South Dakota — Ana's maternal great-aunt and uncle — and the department's plan for Ana was adoption by these relatives. An expedited Interstate Compact on the Placement of Children (ICPC) was filed May 23, 2017.
The department recommended that the juvenile court terminate mother's reunification services and schedule a section 366.26 hearing.
Notice of the June 27, 2017, six-month status review hearing was served on mother, Jesus and the Oglala Sioux Tribe, but none were present at the hearing. Upon submission of the matter, the juvenile court adopted the department's recommendation and a section 366.26 hearing was scheduled for October 10, 2017. The juvenile court directed the clerk to notify the parents of their right to seek writ review. Jesus's Writ Petition
Jesus filed a timely notice of intent to file a writ petition on July 3, 2017. This court denied the petition September 25, 2017. (Case No. F075899.) Interim Proceedings
On September 19, 2017, the juvenile court held a hearing to appoint new counsel for Jesus, when appointed counsel declared a conflict. Jesus was present and requested a paternity test, which was denied. The juvenile court granted a request from Ana's counsel that her placement not be changed pending the scheduled section 366.26 hearing.
On October 10, 2017, the juvenile court appointed another new counsel for Jesus, when appointed counsel declared a conflict. In addition, the juvenile court granted Ana's foster parents request that they be recognized as Ana's de facto parents. The section 366.26 hearing was continued to December 5, 2017, to allow the department additional time to confer with the Oglala Sioux Tribe. Section 366 .26 Report
The department's October 10, 2017 selection and implementation report, characterized Ana, now age one, as generally adoptable. She was still in her original foster home and was described as happy, healthy, and developmentally on target. The foster mother facilitated two visits between mother and Ana, which reportedly went well; no visits between Jesus and Ana were arranged due to his alleged father status.
The social worker had spoken to Ana's maternal great-aunt in South Dakota, who expressed her continued interest in placement and adoption, although she had yet to meet Ana and had no ongoing relationship with her.
On October 3, 2017, the social worker spoke to Oglala Sioux tribal representative Jeannie Trueblood, who informed the social worker that the recommended plan for Ana was guardianship with the maternal great-aunt. The social worker left a telephone message for Trueblood several days later, informing her that the department wished to proceed with a plan for adoption due to Ana's young age.
The social worker opined that it would not be detrimental to terminate parental rights based on Ana's lack of relationship with mother and Jesus. The social worker requested a continuance in the proceedings to obtain a declaration from a qualified expert identified by the Oglala Sioux Tribe.
The social worker subsequently filed an addendum report and attached the declaration of ICWA expert Richard England. England, in his report dated November 20, 2017, offered the following opinions: (1) there was evidence beyond a reasonable doubt that continued custody of Ana by mother or Jesus was likely to result in serious emotional or physical damage to Ana; (2) active efforts were made to provide remedial services and rehabilitative services to mother intended to prevent the breakup of the Indian family, but efforts were unsuccessful; and (3) the "current ICWA preferred placement" of Ana's maternal great-aunt and her husband "is the most appropriate and least restrictive setting that most approximates a family situation at this time."
In assessing Ana's placement, England noted he had been in contact with Oglala Sioux tribal representative Trueblood, and was aware Trueblood had advised the department of the recommendation for guardianship with the aunt. In addition, England had spoken with the maternal great-aunt, who advised him her home had been certified by the Tribe. The maternal great-aunt described her family as actively involved in their tribal community's cultural activities. England opined that it was important for Ana's self-esteem and self-confidence to have contact with her culture, her extended family, and tribal community. England stated placement of Ana "with family on the reservation is reflective of the best practices and preferred placements of the Indian child welfare act." He did acknowledge that, while Ana's current placement was not an ICWA preferred placement, it allowed Ana to be around her aunt and uncle, mother's minor siblings, who were also living in the home.
On November 28, 2017, the social worker sought clarification from England concerning his reference in the report to the "current ICWA preferred placement," asking whether it meant the out of state relative placement or the current care provider. England replied,
"based on the availability, up until this point in time [Ana's] current placement was considered the most appropriate because there were no other placements that were ICWA preferred that were available. Now that the Tribe is asking for a change in placement with an available family member, and also transferring this to their tribal court, it is my opinion that their new placement would be the preferred ICWA placement."
The social worker recommended the juvenile court select adoption as the permanent plan and referred to Ana's current foster parents as the prospective adoptive parents. According to the social worker, Ana appeared to have a significant relationship with her foster parents, and her foster parents were willing and able to provide Ana with a permanent home and ensure that Ana maintained a connection to her heritage. The department recommended parental rights be terminated as to mother and "alleged father, Jesus ..., and any and all persons claiming to be the father ...." Section 366 .26 Hearing
Jesus was present for the section 366.26 hearing December 5, 2017; mother was not and her whereabouts were unknown.
There was no appearance on behalf of the Oglala Sioux Tribe, but England appeared by telephone. Counsel for the department briefly questioned England, and he reiterated that there was evidence beyond a reasonable doubt that continued custody of Ana by mother and Jesus was likely to result in serious emotional or physical damage to Ana.
Counsel for mother and Ana submitted on the matter. Jesus objected to the order terminating parental rights, stating he still hoped to have a relationship with Ana someday. Counsel stated father "made an effort to elevate himself from alleged," but "[t]hat was not successful."
The juvenile court found Ana adoptable by clear and convincing evidence. It further found, based on England's report, that continued custody of Ana by mother was likely to cause Ana serious emotional or physical damage and that active efforts had been made to provide remedial services, but those efforts failed. With regard to placement, the juvenile court found Ana's current foster home placement appropriate and that she was placed "in a preferred placement as designated by appropriate federal law." The juvenile court's subsequent written findings and orders stated Ana was placed "in the care provider[s] home where her maternal aunt and uncle, who are minors[,] reside, a preferred placement, as described in 25 U.S.C. sec. 1915." The juvenile court ordered parental rights of mother "and all persons claiming to be the father of this child, including Jesus" terminated and Ana placed for adoption.
DISCUSSION
Jesus's sole contention on appeal is that the juvenile court's order continuing Ana in her non-Indian foster home was made in violation of the provisions of ICWA and section 361.31. Jesus does not argue that his parental rights were terminated in error, but instead that placement with extended family members, as recommended by the Oglala Sioux Tribe, would allow him to keep his parental rights intact (as guardianship was recommended) and afford him the opportunity to pursue his desire of establishing a relationship with Ana. We find Jesus lacks standing to contest this issue and dismiss the appeal. ICWA's Placement Provision
"'The United States Congress enacted ICWA to respond to a crisis in which large numbers of Indian children were being removed from their families for placement in non- Indian homes. (Mississippi Choctaw Indians v. Holyfield (1989) 490 U.S. 30, 32 ....) ICWA was designed to protect the best interests of Indian children and promote the stability and security of Indian tribes and families by establishing minimum federal standards for the removal of Indian children from their families by state courts and the placement of such children in foster or adoptive homes. (25 U.S.C. § 1902; In re Kahlen W. (1991) 233 Cal.App.3d 1414, 1421 ....' [Citation.]" (In re Anthony T. (2012) 208 Cal.App.4th 1019, 1027.)
To meet its goal to place children in foster or adoptive homes which reflect the unique values of Indian culture, ICWA establishes placement preferences for Indian children who have been removed from their families. (25 U.S.C. §§ 1902, 1915(b); Welf. & Inst. Code, § 361.31.) An Indian child in foster care must be placed in "the least restrictive setting which most approximates a family ... within reasonable proximity to his or her home, taking into account any special needs of the child." (25 U.S.C. § 1915(b); see Welf. & Inst. Code, § 361.31, subd. (b); In re Anthony T., supra, 208 Cal.App.4th at p. 1027.) Section 361.31, subdivision (b), adheres closely to the federal provision and sets forth the specific order of placement preference the juvenile court must follow for an Indian child. Under both section 361.31, subdivision (b) of the Welfare and Institutions Code, and section 1915(b) of title 25 United States Code, "[i]n the absence of good cause to the contrary, the preferred placement ... is with a member of the child's extended family; a foster home approved by the Indian child's tribe; an Indian foster home; or an institution for children approved by an Indian tribe or operated by an Indian organization. (§ 361.31, subd. (b).)" (In re Anthony T., supra, at p. 1027.) Background
When removed from mother's custody, Ana was placed in a local, licensed foster home while the department looked into relative placement. Once it was determined Ana was an Indian child, the department attempted to consult with the Oglala Sioux Tribe regarding placement. The Tribe did not provide a placement recommendation, and the juvenile court found good cause at disposition to deviate from the ICWA's placement preference.
At the section 366.26 hearing, the Oglala Sioux Tribe had located and approved the home of Ana's maternal great-aunt and uncle - extended family members within the meaning of the ICWA (25 U.S.C. § 1903(2)) - for placement. The Tribe recommended Ana be placed with her extended family members under a plan of guardianship. The report of ICWA expert, England, stated Ana's placement with the maternal great-aunt and uncle was the "ICWA preferred placement," and that her current foster home, although offering Ana the opportunity to be around mother's younger siblings, was not a preferred placement.
At the section 366.26 hearing, the juvenile court found Ana's current foster home placement appropriate and that she was placed "in a preferred placement as designated by the appropriate federal law." In its subsequent written findings, the juvenile court identified Ana's "preferred placement" as that of the home where she resided with "her maternal aunt and uncle, who are minors." The juvenile court ordered parental rights of mother "and all persons claiming to be the father of this child, including [Jesus]" terminated and Ana placed for adoption. Standing
We find Jesus, as an alleged father, has no standing to raise the issue of ICWA placement.
While a parent whose custody was removed has the right to challenge an order made in violation of various provisions of the ICWA (see 25 U.S.C. § 1914; Cal. Rules of Court, rule 5.486(a)), Jesus is not a "parent" within the meaning of the ICWA. The ICWA defines "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." (25 U.S.C. § 1903(9).) The ICWA expressly excludes from the definition of "parent" an "unwed father where paternity has not been acknowledged or established." (Ibid.)
Because ICWA does not provide a standard for the acknowledgment or establishment of paternity, courts have resolved the issue under state law. (In re Daniel M. (2003) 110 Cal.App.4th 703, 708 (Daniel M.).) In California, an alleged father can establish paternity by (1) voluntarily signing a declaration of paternity at the time of the child's birth and filing it with the birth certificate (Fam. Code, §§ 7571-7574), (2) through a judgment of paternity or (3) through genetic testing (Fam. Code, § 7551). Here, Jesus did not sign a voluntary statement of paternity at the time of Ana's birth or sign the birth certificate. And he never established paternity by genetic testing, although he was offered the opportunity at least twice.
California courts have also held that if an alleged father appears in the proceedings, asserts a position, and takes steps to establish his paternity, he has standing to appeal. In In re Baby Boy V. (2006) 140 Cal.App.4th 1108, the father, who just learned of the baby's existence, appeared and made repeated requests for a paternity test, which were denied. (Id. at pp. 1112-1113.) The Court of Appeal found that the alleged father had standing because he "appeared and asserted a position—that he believed he was the father, wanted to confirm his belief with a paternity test, and wanted to know and support his son." (Id. at p. 1117.) The alleged father in In re Paul H. (2003) 111 Cal.App.4th 753, also made numerous attempts to obtain paternity testing. The Court of Appeal held that he had standing to appeal because he "took immediate steps to become a party once he was notified of the dependency proceedings. He contacted the social worker, appeared at the next court hearing, communicated to the court that he might be the minor's father and attempted to complete paternity testing." (Id. at p. 759.)
Assuming that the same standard applies to a determination whether an alleged father has acquired standing to assert ICWA error on appeal from an order terminating parental rights, we cannot conclude that Jesus took sufficient steps to acquire standing. Jesus was identified as the child's alleged father at the detention hearing on July 19, 2016. He was not present, and did not appear until October 20, 2016, prior to disposition. It was not until then that Jesus completed a JV-505 form, in which he stated that he believed he was Ana's father and requested that the court enter a judgment of parentage. After that, Jesus was scheduled for paternity testing in January 2017 and again in February 2017, but he failed to appear both times. Jesus did not appear at disposition in January of 2017, nor did he appear at the six-month status review hearing in June of 2017. It was not until September 2017 that he appeared again, and requested a paternity test, which was denied. At the December 2017 section 366.26 hearing, Jesus's parental rights were terminated. Jesus was at all times during the pendency of the proceedings referred to as the alleged father.
In Daniel M., supra, 110 Cal.App.4th at page 709, the court held that "[a]n alleged father who has not acknowledged or established he is a parent within the meaning of [ICWA] lacks standing to challenge a violation of the ICWA notice provisions." The circumstances of Daniel M. are similar to those here. There the alleged father underwent a paternity test, but the results were unavailable at the time of the section 366.26 hearing; here, Jesus failed to complete the provided for paternity tests. (Daniel M., supra, 110 Cal.App.4th at pp. 706-707.) There, as here, the alleged father had limited contact with the child. (Id. at p. 707.) There, as here, the alleged father's name was not on the birth certificate. And there, as here, the alleged father did not file a voluntary declaration of paternity. (Id. at pp. 708-709.)
Although Daniel M. addressed the issue of an alleged father's standing as it relates ICWA notice and inquiry requirements, which trigger ICWA requirements, we find it applicable to an alleged father's standing as it relates to alleged violations of ICWA's placement provisions, the end result of the ICWA proceedings, as well.
DISPOSITION
The appeal is dismissed.
/s/_________
FRANSON, J. WE CONCUR: /s/_________
HILL, P.J. /s/_________
DETJEN, J.