Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of San Diego County, Gary M. Bubis, Judge, Super. Ct. No. SJ11461
BENKE, Acting P. J.
Daniel C. appeals the judgment terminating parental rights in the dependency case of Alyssa H. Daniel contends there is reversible error because the juvenile court and the San Diego County Health and Human Services Agency (the Agency) failed to inquire whether he had Indian heritage as required by the Indian Child Welfare Act (ICWA) (25 U.S.C. § 1901 et seq.). We dismiss the appeal.
BACKGROUND
In April 2005 when Alyssa was three years old, the Agency filed a dependency petition alleging inadequate parental supervision and a filthy home. Alyssa's mother is Bonnie H., and the petition named her husband, Donald H., as an alleged father. The petition did not mention Daniel.
Bonnie initially told the social worker that Donald was Alyssa's father, but he might not be the father of several of her six children. In her paternity questionnaire, she named Donald and Daniel as possible fathers of Alyssa. She listed Daniel's address as "Ohio" and stated he "was in the Navy." In their questionnaires, both Bonnie and Donald declared they were married to and living with each other, and he was not impotent or sterile when Alyssa was conceived. At the detention hearing, the Agency's counsel stated that Donald was Alyssa's presumed father pursuant to Family Code section 7540. Later in the hearing, Donald requested presumed father status pursuant to section 7611 by virtue of his marriage to Bonnie. The court deferred ruling on the matter and added Daniel to the petition as an alleged father. The court ordered the Agency to search for Daniel and ordered Alyssa detained out of Donald and Bonnie's home.
At the detention hearing, Bonnie added that she knew the year of Daniel's Navy service and his command. Later, she said she began seeing him and conceived Alyssa while living in Washington State with Donald. Bonnie told Daniel she was pregnant and moved to San Diego with Donald. After Daniel was located, he first claimed he did not know Bonnie was pregnant, but later admitted he knew about the pregnancy.
All further statutory references are to the Family Code unless otherwise specified. Section 7540 states, "Except as provided in Section 7541, the child of a wife cohabiting with her husband, who is not impotent or sterile, is conclusively presumed to be a child of the marriage." Section 7541 provides for paternity testing requested on or before the child's second birthday by the mother, her husband, the presumed father, or the child. (§ 7541, subds. (b), (c).)
Section 7611, subdivision (a) provides for a rebuttable presumption of paternity where the man "and the child's natural mother are or have been married to each other and the child is born during the marriage . . . ." (§ 7611, subd. (a); In re T.R. (2005) 132 Cal.App.4th 1202, 1209.)
The Agency unsuccessfully searched for Daniel in San Diego. At the June jurisdictional and dispositional hearing, the court sustained the petition based on inadequate supervision and dismissed the remaining allegation. It ordered the Agency to continue searching for Daniel, ordered Alyssa placed in a foster home and granted Donald reunification services.
The Agency unsuccessfully searched for Daniel using a nationwide public records database. At a December 2006 hearing, Bonnie stated through counsel that Daniel lived "in the city where Ohio State is." In January 2007 Bonnie repeated the above information about Daniel to the social worker, and added that Daniel was White, in his middle to late 20's, and had been stationed on the Lincoln six years earlier. The social worker initiated a search in Ohio and found Daniel four days later. Two weeks later, Daniel requested appointed counsel and was personally served in Columbus, Ohio with notice of a March hearing. On February 1 the court appointed counsel for Daniel for the purpose of determining paternity.
At the March 2007 hearing, the court ordered paternity testing for Daniel. In April Daniel filed a Welfare and Institutions Code section 388 petition requesting the jurisdictional finding be vacated for lack of notice and that Alyssa be placed with him as soon as his paternity was established. In June, over Daniel's objection, the court granted Donald's request for a finding he was Alyssa's presumed father pursuant to section 7540. The results of Daniel's paternity test, which took place in April, were received a few days after the June hearing. The results showed a 99.99 percent probability he was Alyssa's biological father.
In July 2007 the court denied Daniel's request for a finding he was Alyssa's biological father. The court reasoned that Donald was conclusively presumed to be her father, and should have been granted that status at the detention hearing. Thus, Daniel had no standing to ask for a paternity test and the order for testing was legally unauthorized. The court denied Daniel's Welfare and Institutions Code section 388 petition, noting he had no relationship with Alyssa, it was speculative whether he would be able to establish a relationship that would allow him to obtain custody, Alyssa was in a stable home with her sibling and it was not in her best interests for the court to order reunification services or for Daniel to attempt to establish a relationship. The court terminated parental rights.
Alyssa and one of her siblings lived in the same foster home from April 2005 until May 2007 when they were moved to the home of Donald's parents. Donald's parents wish to adopt them.
DISCUSSION
Daniel contends because the juvenile court and the Agency failed to inquire whether he had Indian heritage as required by ICWA, the judgment terminating parental rights must be reversed. We disagree. The juvenile court's denial of Daniel's request for a paternity finding is the practical equivalent of a finding he was not Alyssa's biological father. Daniel does not challenge the denial. Once the court effectively found he was not Alyssa's biological father, he was no longer even an alleged father. Because he is not Alyssa's parent, there was no duty to direct an ICWA inquiry to him and he lacks standing to raise the issue. (See In re Daniel M. (2003) 110 Cal.App.4th 703.)
Daniel does not claim presumed father status, and the record would not support such a claim.
When a child is the subject of dependency proceedings, the court and the Agency have a duty to ask her parents about possible Indian ancestry. (Welf. & Inst. Code, § 224.3, subds. (a), (c); Cal. Rules of Court, rule 5.481(a).) ICWA defines "parent" as "any biological parent or parents of an Indian child . . . . It does not include the unwed father where paternity has not been acknowledged or established . . . ." (25 U.S.C. § 1903(9).) The unchallenged order denying Daniel's request for a paternity finding constitutes a refutation of any attempt on his part to acknowledge or establish paternity. Furthermore, "because the ICWA does not provide a standard for the acknowledgment or establishment of paternity, courts have resolved the issue under state law. . . . [I]n 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 [§ 7571, subd. (a)], or through blood testing [§ 7551]." (In re Daniel M., supra, 110 Cal.App.4th at pp. 708-709.) Here, Daniel did not sign a declaration of paternity at the time of Alyssa's birth. He was not one of the persons authorized to seek blood testing, and because Alyssa was three years old at the inception of this case, it was too late for blood testing in any event. (§ 7541; In re Elijah V. (2005) 127 Cal.App.4th 576, 585-586.) Thus, the order for testing was improper. (Rodney F. v. Karen M. (1998) 61 Cal.App.4th 233, 239.)
DISPOSITION
Appeal dismissed.
WE CONCUR: HUFFMAN, J., McDONALD, J.