Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
APPEAL from the Superior Court of San Bernardino County, Super.Ct.Nos. J200522, J205365, James C. McGuire, Judge.
Michael D. Randall, under appointment by the Court of Appeal, for Defendant and Appellant.
Ruth E. Stringer, County Counsel, and Phebe W. Chu, Deputy County Counsel, for Plaintiff and Respondent.
Janette Freeman Cochran, under appointment by the Court of Appeal, for Minors.
OPINION
RICHLI, J.
Alleged father Larry J. (Larry) appeals from an order of the juvenile court terminating his parental rights to his daughters J.J. and L.J. under Welfare and Institutions Code section 366.26. He claims the termination orders should be reversed because (1) his due process rights were violated when he failed to receive notice of his right to establish paternity; and (2) the juvenile court failed to comply with the notice requirements of the Indian Child Welfare Act (ICWA) (25 U.S.C. § 1901 et seq.). We reject these contentions and affirm the judgment.
All future statutory references are to the Welfare and Institutions Code unless otherwise stated.
I FACTUAL AND PROCEDURAL BACKGROUND
On December 27, 2004, Kern County Department of Human Services filed a section 300 petition on behalf of one-year-old J. due to abuse of illegal substances by her mother (Mother).
Mother named one man as J.’s birth father but claimed to be married to another, Larry. She stated that Larry had just been released from jail after serving a 60-day sentence for assault with a deadly weapon and intent to terrorize, and she asked that J. be released to his custody.
On December 28, 2004, Larry completed form JV-505 (statement regarding paternity) requesting the court to appoint him an attorney and to enter a judgment of paternity.
Larry was present at the December 28, 2004, detention hearing. The court appointed him counsel and ordered him to comply with paternity testing. J. was ordered removed from parental custody and placed in a suitable foster care facility.
Larry claimed to have Cherokee Indian heritage and reported his birth date as May 10, 1956. He also provided his parents’ names. On January 12, 2005, the social worker provided notice to the Bureau of Indian Affairs (BIA) and Cherokee Nation of Oklahoma (Cherokee Nation), United Keetoowah Band of Cherokee Indians (United Keetoowah Band), and Eastern Band of Cherokee Indian (Eastern Band). The notices included Larry’s name, birthplace, tribal affiliation, birth date (“5-10-65”), as well as the names, birth dates (where available), and birthplaces of the paternal grandparents and paternal great-grandmother.
Larry denied being married to Mother but stated it was possible that he was J.’s father. He also said that he did not want DNA testing. On January 5, 2005, Larry was arrested for second degree burglary.
At the jurisdictional/dispositional hearing, the Kern County Juvenile Court sustained the section 300 petition and ordered reunification services for Mother. The disposition as to Larry was continued to complete paternity testing.
In February and March 2005, the Cherokee Nation and United Keetoowah Band responded that J. was not an Indian child.
On March 7, 2005, the social worker reported that Larry failed to appear for his appointment for paternity testing on February 2, 2005. A second appointment was scheduled for March 2, 2005; however, Larry was incarcerated by this time. The social worker made appropriate referrals for Larry to submit a sample for DNA testing while in custody. The social worker recommended that no reunification services be provided to Larry, as paternity had not been established. Larry’s claims to be J.’s father were not credible, as evidenced by his refusal to comply with paternity testing and Mother’s identification of someone else as the father.
On March 7, 2005, the Kern County Juvenile Court ordered no reunification services for Larry in that he was “merely an alleged father who ha[d] not sought to establish paternity.” (Capitalization omitted.) The juvenile court found Mother and J.’s legal residence to be San Bernardino County and ordered the case transferred. On June 20, 2005, San Bernardino County accepted the intercounty.
When the San Bernardino County Department of Children’s Services (the Department) attempted an initial visit with Mother on July 12, 2005, Larry opened the door, and a strong odor of marijuana emanated from inside. Larry stated that Mother was not home because she had gone to Los Angeles to visit J. J.’s caretaker later reported that Mother had not visited the child on that date.
By November 2, 2005, Larry was incarcerated on a parole violation. Mother told the social worker that she was “certain” that Larry was not J.’s biological father but that he was the only father the child knew. Mother was also pregnant and identified Larry as the biological father of her unborn child.
On November 2, 2005, the juvenile court ordered additional reunification services for Mother and continued the matter for a 12-month review hearing.
On December 12, 2005, the Department filed a section 300 petition on behalf of L., Mother’s newborn, after Mother tested positive for cocaine at birth. Larry was identified as the child’s alleged father.
At the detention hearing, the juvenile court ordered the child detained. The court also ordered Larry to complete a paternity inquiry. The parents were not present at the hearing.
The social worker reported that Larry had an extensive criminal history for drugs and other violent crimes and was currently incarcerated at Wasco State Prison. The social worker recommended that Larry remain an alleged father and not entitled to reunification services. The social worker listed Larry’s date of birth as May 10, 1956.
The social worker further reported that J.’s caretaker was her maternal great-aunt, who was very supportive of Mother and transported J. to Barstow from her home in Long Beach once a month to facilitate visits with Mother. The maternal great-aunt asked that L. be placed with her to allow the siblings to bond. However, the social worker believed that it would be best to allow L. to remain in her current local placement to facilitate weekly visits with Mother.
On January 3, 2006, Larry was in custody and not present at the jurisdictional/ dispositional hearing. The court appointed him counsel, who then requested a continuance and a transportation order.
Larry was present in custody at the further jurisdictional/dispositional hearing. The juvenile court asked Larry if he was L.’s father, and he replied, “Yes, sir.” Larry informed the court that he had Cherokee Indian heritage through his grandmother, C.H.; however, she was deceased, and he did not know her date of birth. Larry’s counsel informed the court that Larry was not contesting the allegations and that he had discussed “his options” with him. Larry’s counsel requested a copy of the petition and the jurisdictional/dispositional report and asked that two of Larry’s relatives be assessed for placement. The matter was then set contested on behalf of Mother, who was not present.
On March 3, 2006, the Department sent ICWA notices to the BIA, the Eastern Band, the United Keetoowah Band, and the Cherokee Nation. Larry’s full name, date of birth (listed as “5/13/1956”) and C.H.’s name were included on the notices.
Larry was not present at the contested jurisdictional/dispositional hearing on March 6, 2006. His counsel stated that Larry was not contesting the allegations and wanted his ex-wife and adult daughter to be considered as a relative placement for L. The juvenile court sustained the allegations in the petition, including the allegation that identified Larry as the child’s alleged father. The court found Larry to be L.’s alleged father and not entitled to reunification services. The court ordered six months of services for Mother and continued the matter to April 5, 2006, for the ICWA notice review hearing.
The Department reported on April 3, 2006, that ICWA notices were completed, and no confirmation of membership had been received. The United Keetoowah Band responded that a search of their enrollment records resulted in no evidence that L. was an Indian child.
By April 12, 2006, Larry’s ex-wife, Linda, had not yet been approved as a relative placement for L. J.’s caretaker had been approved. However, the social worker recommended L. be placed with Linda if she was approved so as to afford Larry a greater opportunity to visit with the child upon his release from prison.
At J.’s 12-month review hearing on May 3, 2006, the matter proceeded uncontested, and the court terminated Mother’s reunification services. The matter was then set for a section 366.26 hearing.
On April 26, 2006, the Cherokee Nation reported that neither J. nor L. was an Indian child; they listed Larry’s name, his birth date (“5/13/1956”), the paternal grandmother’s name and birth date, and the names of the paternal great-grandparents.
On August 14, 2006, the juvenile court found that ICWA did not apply and that no further notice was required.
By September 6, 2006, the social worker recommended terminating Mother’s services as to L. and setting a section 366.26 hearing. Larry was still incarcerated, called the social worker at least twice a month, and received updates on L. He reported taking classes and counseling in prison in order to “try to be a good parent when he [was] released.” The social worker reminded him that as an alleged father he was not entitled to reunification services and that he would not get custody of L. due to his length of incarceration. Larry indicated that he understood and just wanted to be involved in L.’s life upon his parole. by this time, L. had been placed with Linda to facilitate visits with Larry upon his release, if appropriate.
The parents were not present but were represented by counsel at L.’s contested six-month review hearing on October 17, 2006. The juvenile court terminated Mother’s services and set a section 366.26 hearing. The court found that Larry remained an alleged father and not entitled to services.
The social worker recommended that parental rights be terminated as to J. and a permanent plan of adoption be implemented. The social worker reported that Larry failed to cooperate with paternity testing previously ordered by the Kern County Juvenile Court, that he remained an alleged father, and that no services had been ordered for him. Larry maintained contact with the social worker and expressed his concern that J. have contact with L.
By October 18, 2006, J. (now age 2) had been in her current placement since March 17, 2005, and the prospective adoptive parent expressed a strong desire to adopt her and to provide for her needs on a permanent basis. The prospective adoptive parent stated that J. had not had any contact with L., but she was willing to allow contact in the future. The prospective adoptive parent loved and cared for J. and had formed a loving parent-child relationship with her.
As to L., her caretaker decided not to pursue adoption due to opposition from her significant other, but J.’s prospective adoptive parent was willing to adopt L. as well. The adoptive placement was being assessed, and L. would be placed upon approval. The prospective adoptive parent remained willing to adopt both children and was open to facilitating visitation with family members.
Larry was present in custody at L.’s section 366.26 hearing on February 14, 2007. His counsel requested mediation to resolve postadoption visitation issues. The court granted the request, set mediation for March 15, 2007, and set a further section 366.26 hearing.
Larry was present in custody at the further section 366.26 hearing. Mother’s counsel set the matter contested for short cause, and Larry’s counsel joined the motion. Larry was asked to be excused for the contested hearing and transported back to state prison.
At the contested section 366.26 hearing, the social worker’s reports and adoption assessment reports were admitted into evidence. The Department stated that there was no impediment to adoption and asked the court proceed with the termination of parental rights. The parents were not present, but their respective counsel objected and asked that parental rights not be terminated until L.’s placement was secure. The court authorized L.’s placement with J.’s caretaker and found adoption to be in the children’s best interest. The court also found that it was likely the children would be adopted and terminated parental rights.
II DISCUSSION
A. Standing to Appeal
The Department argues that Larry lacks standing to appeal. “‘[W]hether one has standing in a particular case generally revolves around the question whether that person has rights that may suffer some injury, actual or threatened.’ [Citation.] . . . ‘[A]ny person having an interest recognized by law in the subject matter of the judgment, which interest is injuriously affected by the judgment’ is considered a ‘party aggrieved’ for purposes of appellate standing. [Citation.]” (Cesar V. v. Superior Court (2001) 91 Cal.App.4th 1023, 1034-1035.)
“[O]nly parties of record may appeal.” (In re Joseph G. (2000) 83 Cal.App.4th 712, 715.) “A party of record is a person . . . who takes appropriate steps to become a party of record in the proceedings.” (Ibid.) In In re Emily R. (2000) 80 Cal.App.4th 1344, 1356, the court held that an alleged father in a dependency proceeding does not become a party “until he appear[s] and assert[s] a position.” Similarly, in Joseph G., an alleged biological father who had not requested “a finding of paternity, blood testing, reunification, or any other relief” despite being provided notice of the proceedings (Joseph G., at p. 714), did not have standing because he had failed to take advantage of the opportunity to become a party. (Id. at p. 716.)
In re Paul H. (2003) 111 Cal.App.4th 753 illustrates the measures an alleged father must take to achieve standing in a dependency case. There, the alleged father addressed the court at the jurisdictional hearing and indicated that he might be the minor’s father. (Id. at p. 756.) He then worked diligently to try to establish paternity. Without considering the alleged father’s efforts, the court terminated parental rights. (Id. at pp. 756-758.) The appellate court found that the alleged father had standing to appeal because he appeared at the hearing and asserted a position, i.e., his possible paternity. 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. Under such circumstances, appellant has standing on appeal to raise issues concerning his parental interest in the minor.” (Id. at p. 759.)
Here, Larry took immediate steps to become a party once he was notified of the dependency proceedings. He completed form JV-505 in J.’s case, asking the court to appoint him counsel and to enter a judgment of paternity. He also set forth his belief that he was the children’s father. In addition, he communicated to the social worker and claimed to be the children’s father. He also expressed a desire to place the children together in the same placement. He appeared at the further jurisdictional/dispositional hearing and the section 366.26 hearings with counsel. Thus, Larry did what he could, in light of his incarceration, to “appear[] and assert[] a position.” (In re Emily R., supra, 80 Cal.App.4th at p. 1356.) Under these circumstances, we find that Larry has standing to appeal the due process violation claim.
B. Due Process Claim
Larry claims his due process rights to notice were violated because there is no record that he was given the paternity form, form JV-505, as required by section 316.2, subdivision (b), in L.’s case. We find that the dependency process does not have to be suspended, and the court’s rulings cannot be overturned, merely because Larry failed to receive a judicial council form regarding paternity, which should be included with the notice of the dependency hearing (§ 316.2, subd. (b); Cal. Rules of Court, rule 5.635(g)) in L.’s case.
Larry admits that he received form JV-505 in J.’s case.
Form JV-505 allows an alleged father to check boxes next to preprinted statements through which he may indicate his position with regard to paternity and representation by counsel, and “contains an advisement to alleged fathers regarding reunification, the right to a court trial to determine paternity and the right to be represented by counsel at such trial.” (In re Paul H., supra, 111 Cal.App.4th at p. 761.)
Although the record discloses that the Department and the court clerk were remiss in failing to mail or give form JV-505 to Larry in L.’s case, their failure did not constitute a due process violation. “Due process for an alleged father requires only that the alleged father be given notice and ‘an opportunity to appear and assert a position and attempt to change his paternity status.’” (In re Paul H., supra, 111 Cal.App.4th at p. 760.) Unlike the alleged father in Paul H., Larry had discussed his options with his counsel, informed the court that he was L.’s father, and never asked for a paternity finding; his only request was that his relatives be considered for placement. In addition, though it is unknown whether Larry knew of the order, at the detention hearing the court ordered Larry “to complete the paternity inquiry . . . .” Further, when the court asked him if he was L.’s father at the jurisdictional/dispositional hearing, he had an opportunity to “put paternity at issue” despite not having been given form JV-505, but he chose not to do so. Moreover, he did not object to the court’s finding that he was L.’s alleged father.
While the failure to provide Larry with form JV-505 was an error, we disagree that it amounts to reversible error. The state constitution expressly limits reversals in the event of a procedural error: “No judgment shall be set aside, or new trial granted, in any cause . . . for any error as to any matter of procedure, unless, after an examination of the entire cause, including the evidence, the court shall be of the opinion that the error complained of has resulted in a miscarriage of justice.” (Cal. Const., art. VI, § 13.) Reversal is not required merely because a statutory procedure was not followed. The Supreme Court instructs us to “apply a harmless-error analysis when a statutory mandate is disobeyed, except in a narrow category of circumstances when we deem the error reversible per se.” (In re Jesusa V. (2004) 32 Cal.4th 588, 624.) In Jesusa V., the issue was whether an incarcerated biological father had a right to personally attend the hearing at which the juvenile court adjudicated the dependency petition. (Id. at p. 621.) The Supreme Court found that the biological father had a right to attend the hearing: The controlling statute “requires both the prisoner and the prisoner’s attorney be present” before the juvenile court may adjudicate the dependency petition. (Id. at p. 622, italics omitted.) As a result, the juvenile court erred in proceeding without the biological father’s presence. (Id. at p. 624.)
Continuing with its analysis, the Supreme Court in Jesusa V. determined that any error resulting from the involuntary absence of the biological father was harmless. No constitutional provision or rule required the father’s presence at the dependency hearing. (In re Jesusa V., supra, 32 Cal.4th at pp. 622, 624.) Moreover, there was no showing that a different outcome would have resulted had the error not been made. (Id. at p. 625.) The legislative requirement “that dependency actions be resolved expeditiously” would “be thwarted if the proceeding had to be redone without any showing the new proceeding would have a different outcome.” (Ibid.)
Even if Larry had been served with form JV-505, it would not have changed the outcome of the jurisdictional/dispositional hearing. At best, Larry would have completed the form and requested a paternity test. However, “[u]nless and until appellant was able to elevate his status to that of a biological or presumed father, the only issues on which he was entitled to assert a position concerned his paternal status and his intent and desires regarding the minor if his paternal status became more than just a potentiality.” (In re Christopher M. (2003) 113 Cal.App.4th 155, 160.)
Larry’s parental status was no more than a potentiality at the time of the jurisdictional/dispositional hearing. Even if he had received form JV-505 and had requested paternity testing, Larry would not have been entitled to reunification services at the time of the dispositional hearing due to his status as an alleged father and his failure to contest that status. The outcome of the jurisdictional/dispositional hearing was unaffected by Larry’s nonreceipt of form JV-505. (See In re Paul H., supra, 111 Cal.App.4th at p. 760.) In short, any error resulting from the failure to serve Larry with form JV-505 was harmless. (See In re Kobe A. (2007) 146 Cal.App.4th 1113, 1122.)
C. ICWA
Larry also claims the ICWA notices were defective for various reasons and therefore asserts reversal is mandated. The Department responds that Larry has no standing to raise this issue as an alleged father. We agree that Larry has no standing.
Specifically, he argues that on L.’s ICWA notice, his birth date was listed as May 13, 1956, instead of May 10, 1956; there was no birth date for the paternal grandmother; L.’s birth certificate was not included; and J.’s ICWA notice listed Larry’s year of birth as 1965, rather than 1956.
“Standing to appeal is jurisdictional.” (In re Harmony B. (2005) 125 Cal.App.4th 831, 837.) In In re Daniel M. (2003) 110 Cal.App.4th 703, the juvenile court terminated the parental rights of an alleged father of Daniel M. On appeal, the alleged father argued that the court failed to comply with the notice requirements of ICWA. (Id. at p. 706.) The Court of Appeal dismissed the appeal because the alleged father lacked standing. (Id. at p. 709.) The court stated, “The termination of parental rights may be challenged on the ground of lack of ICWA notice by the dependent child, a parent or Indian custodian from whose custody the child was removed, and the Indian child’s tribe. [Citations.] 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.’ [Citation.] The ICWA expressly excludes from the definition of ‘parent’ an ‘unwed father where paternity has not been acknowledged or established.’ [Citation.]” (Id. at pp. 707-708.) The court held because the alleged father “has not acknowledged or established he is a parent within the meaning of title 25 United States Code section 1903(9),” he lacked “standing to challenge a violation of the ICWA notice provisions.” (Id. at p. 709.)
Here, there is nothing in the record to suggest that Larry is a “biological parent” of J. and L. or that he was an “Indian person who has lawfully adopted an Indian child.” (25 U.S.C. § 1903(9).) Larry failed to complete DNA testing as to J., despite several attempts, and Mother was adamant that Larry was not J.’s biological father. As to L., while Larry and Mother claimed that Larry was L.’s biological father and Larry asserted at the jurisdictional hearing that he was, he is not her “parent” as that term is used in ICWA. (See 25 U.S.C. § 1903(9) [“‘parent’ means any biological parent . . . or any Indian person who has lawfully adopted an Indian child. . . . It does not include the unwed father where paternity has not been acknowledged or established”].) This definition is consistent with California law regarding the rights of alleged fathers generally: “‘[P]arental rights are generally conferred on a man not merely based on biology but on the father’s connection to the mother [and/or] child through marriage . . . or his commitment to the child . . . .’” (In re Zacharia D. (1993) 6 Cal.4th 435, 449, quoting In re Sarah C. (1992) 8 Cal.App.4th 964, 974.)
Larry’s position here is indistinguishable from that of the alleged father in In re Daniel M., supra, 110 Cal.App.4th 703. In that case, Richard S. was identified as the alleged father of Daniel M. Both Richard and Daniel’s mother informed the juvenile court that they believed they had Indian heritage. Richard asked the juvenile court for paternity testing, but he did not keep his appointment for the blood test and subsequently withdrew his request. At the six-month review hearing, the juvenile court terminated reunification services and scheduled a section 366.26 hearing; three months after that, and approximately one month before the section 366.26 hearing, Richard renewed his request for paternity testing. The juvenile court ordered testing, but the testing was not complete by the time the juvenile court held the section 366.26 hearing. The juvenile court terminated Richard’s parental rights, concluding that Richard’s biological paternity was irrelevant because he had only “limited contact” with Daniel since the proceedings had commenced. (Daniel M., at pp. 706-707.)
Richard appealed, arguing that the juvenile court had failed to comply with ICWA’s notice requirements. The court of appeal held that “because Richard did not acknowledge or establish his paternity [citations], he lack[ed] standing to assert the issue.” (In re Daniel M., supra, 110 Cal.App.4th at p. 706.) Whether an alleged father has “acknowledge[d] or establish[ed] his paternity” under ICWA, the court reasoned, is determined by state law. (Id. at p. 708.) In California, the methods of acknowledging or establishing paternity are those set forth in the Family Code: “[A]n 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 (Fam. Code, § 7571, subd. (a)), or through blood testing (Fam.Code, § 7551.)” (Id. at pp. 708-709, fn. omitted.) Richard had done neither. As a result, the court concluded that “[a]n alleged father who has not acknowledged or established he is a parent within the meaning of title 25 United States Code section 1903(9) ] lacks standing to challenge a violation of the ICWA notice provisions.” (Id. at p. 709.)
Similarly, Larry is not listed as the children’s father on their birth certificates. Furthermore, as to J., the Department later learned that Larry did not even know Mother at the time J. was conceived. In addition, Larry had had minimal contact with J., as she had been removed when she was a year old. He had had no contact with L., as she had been removed at birth, and Larry had been arrested prior to her birth and incarcerated throughout the dependency proceedings. The record is unclear whether Larry had even seen L. in person. Moreover, though Larry knew of the dependency proceedings in both cases, he made no effort to establish his paternity.
Accordingly, as did the alleged father in In re Daniel M., supra, 110 Cal.App.4th 703, 706, Larry lacks standing to challenge the juvenile court’s compliance with ICWA’s notice provisions.
III DISPOSITION
The judgment is affirmed.
We concur: HOLLENHORST, Acting P.J., KING, J.