Opinion
NOT TO BE PUBLISHED
Appeal from a judgment of the Superior Court of Orange County, Robert B. Hutson, Judge, Super. Ct. No. DP011250
Kate M. Chandler, under appointment by the Court of Appeal, for Defendant and Appellant Marco D.
Roni Keller, under appointment by the Court of Appeal, for Defendant and Appellant Jennifer G.
Benjamin P. de Mayo, County Counsel, Karen L. Christensen and Jeannie Su, Deputy County Counsel, for Plaintiff and Respondent.
OPINION
SILLS, P. J.
Marco D. and Jessica G. appeal from the termination of parental rights to Andrew G. Marco contends his rights as an alleged father were violated because the juvenile court refused to order a paternity test to determine if he was the biological father. Jessica contends the judgment must be reversed because notice was not given as required under the Indian Child Welfare Act (25 U.S.C.A. § 1901 et seq.) (ICWA). We find no error and affirm.
FACTS
Andrew G. was born prematurely at 31 weeks gestation in December 2004. His mother, Jessica G., admitted to snorting methamphetamines two days before his delivery, and she tested positive for drugs at his birth. Andrew was placed on a hospital hold and detained by the Orange County Social Services Agency (SSA). Jessica named Abraham M. as his father.
Although Jessica denied any Indian heritage, the juvenile court ordered SSA to send notice of the proceedings to the Bureau of Indian Affairs, the Yaqui Tribe and the Pascua Yaqui Tribe because Jessica had claimed Indian heritage in 2003, when Andrew’s half sister was detained by SSA. The notices and the return receipts were submitted to the juvenile court on February 23, 2006; by stipulation of the parties, the court found that the notices were given as required by law and ICWA did not apply.
Jessica’s parental rights to Andrew’s half-sisters, Elizabeth and Victoria, were terminated in January 2006. The judgment was affirmed by this court in In re Elizabeth M. (Jul.26, 2006, G036651 [unpublished opn.].)
After Andrew was able to leave the hospital, he was placed in foster care in the home of Nancy P., where he remained until October 2006. He was declared a dependent under Welfare and Institutions Code section 300, subdivisions (b) [failure to protect] and (j) [sibling abuse] in March 2005. Jessica was provided reunification services. Abraham initially expressed an interest in paternity testing and visitation, and he was provided with counsel. But before jurisdiction was adjudicated, he disappeared.
All further statutory references are to the Welfare and Institutions Code.
In September 2005, the social worker received a phone call from Abraham’s fiancée, Yvonne V. She reported Abraham had been incarcerated since March 2005. At that time, Abraham had a paternity testing appointment, but was “picked up one week before . . . .” The social worker found him in the Santa Ana City Jail but was unable to speak to him “due to the availability of booths and waiting list.” The social worker stated she was “requesting that while [Abraham] is incarcerated that [he] be allowed to submit to a paternity test.” The juvenile court ordered funding for paternity testing in December 2005. Abraham’s relatives were interested in adopting Andrew if Abraham was found to be the father.
In the meantime, at the six-month review hearing in October 2005, the juvenile court ordered reunification services terminated and referred Andrew to a permanent plan selection hearing in January 2006. In January, the social worker reported that Andrew, then one year old, “demonstrated some global delays in feeding, fine motor and cognitive skills.” Although the social worker believed Andrew was adoptable, she had not yet placed him in a foster-adoptive home because she was waiting for the paternity test results. “If [Abraham] were to be found as the biological father, [his] relatives have expressed the desire to pursue the goal of adopting the child, Andrew.” The social worker recommended the juvenile court find that termination of parental rights would not be detrimental to Andrew and he had a probability for adoption but was difficult to place. The juvenile court did so and continued the hearing for 30 days.
At the continued hearing on February 23, SSA reported the paternity test results showed that Abraham was not Andrew’s father. The court asked Jessica if she could identify “who else may be the father of the child,” but she was unable to do so. The court stated, “I think it’s pretty clear that the identity of the other father is unknown, and . . . any further efforts to identify the father would be futile at this time, and . . . the court will order [SSA] to notify the unknown father by way of publication in the County of Orange.” The court again found adoption was the appropriate permanent plan for Andrew and continued the hearing for 90 days to allow SSA to locate an adoptive home.
SSA published the required notice in April 2006. Also in April, Andrew’s neuro-developmental screening indicated he was “most likely to be autistic,” and further tests were recommended. The social worker began looking for adoptive homes willing to take a child with special needs. In May, the court found notice had been given to the parents as required by law, again found adoption to be the appropriate permanent plan, and continued the hearing to November 13, 2006 to allow SSA to locate an adoptive home.
At the continued hearing on November, Marco D.’s name appeared in the record as a potential father for the first time; the court ordered SSA to contact him and continued the hearing for one week, to November 20. SSA interviewed Marco at the Santa Ana jail on November 16. He did not know anyone by the mother’s name, and said “he ha[d] not been involved with any other woman [other than] his fiancée” for the past “two or more years.” He wanted no involvement in the matter. By the hearing on November 20, however, Marco had changed his mind and requested counsel. The court appointed counsel and continued the hearing to December 7, 2006.
On December 7, Marco remained incarcerated in the Santa Ana Jail, “under federal hold.” His counsel asked for a continuance to December 20 so he could have the full period of notice to which he was entitled. She also asked for paternity testing. “”[U]pon further thinking about it, [Marco] indicates that he could have fathered this child in 2004 . . . . [¶] [Marco] had indicated that he would like to be a father to this child. And he would have come forward sooner. He didn’t know that the child had been conceived. He’s been in custody for a year-and-a-half . . . .” The court expressed its concern that the federal authorities would not allow access to Marco for paternity testing and asked counsel to find out. “So what I’ll do is, today, I will deny your motion for a paternity test without prejudice, and there may be other arguments, I presume, but . . . as a threshold issue, we need to find out whether or not the federal authorities would honor an order by this court that they admit a representative from Long Beach Genetics or another testing agency to come in and test the father at the federal facility . . . .” The hearing was continued to December 20, 2006.
On December 20, Marco’s counsel asked to continue the hearing so he could undergo paternity testing. Andrew’s counsel and SSA opposed the motion. Andrew had been placed in a prospective adoptive home two months earlier, and the foster parents wanted to adopt. They were “aware that the child is developmentally delayed” and “is being monitored for possible autism spectrum disorder. The [foster] mother noted that this does not matter to her and her husband. [T]hey have grown close to the child.” Andrew was described as “sociable and energetic” and “active and playful.” He had improved in all areas of functioning.
The trial court found there was not good cause to continue the hearing and that it would not be in Andrew’s best interest to do so. Furthermore, it found the results of a paternity test would not be relevant to the permanent plan selection hearing and denied the request without prejudice “to minor’s counsel renewing [it] at a later time.” The court then found it was likely that Andrew would be adopted and no exceptions applied, and it terminated parental rights.
DISCUSSION
Marco’s Appeal
Marco contends the juvenile court violated his rights as an alleged father by refusing to order a paternity test. He claims Jessica suppressed his identity and he came forward as soon as he could; therefore, he should have received the statutorily prescribed notice and been allowed to participate in a contested hearing to select a permanent plan for Andrew. After considering the relevant statutes and court rules, and invoking principles of due process, we find no error.
An alleged father is a man who may be the biological father of a child but whose paternity has not been established and who does not qualify as a presumed father. (In re Kobe A. (2007) 146 Cal.App.4th 1113, 1120.) A man is a presumed father if he marries or attempts to marry the mother or receives the child into his home and holds the child out as his own. (Adoption of Kelsey S. (1992) 1 Cal.4th 816, 847.) In the adoption context, an unwed biological father who is prevented from becoming a presumed father because the mother refuses to allow him to see the child may withhold his consent to the adoption if he “promptly comes forward and demonstrates a full commitment to his parental responsibilities -- emotional, financial, and otherwise . . . absent a showing of his unfitness as a parent.” (Id. at p. 849.) Such a father is known as a “Kelsey S. father.”
In the context of dependency proceedings, only presumed fathers have a right to custody, appointed counsel and reunification services. (In re Zacharia D. (1992) 6 Cal.4th 435, 451; In re T.R. (2005) 132 Cal.App.4th 1202, 1209.) An alleged father has only the right to notice of the proceedings so he can appear and assert his position and the right to bring an action to establish paternity. (§ 316.2, subd. (b).)
The juvenile court has a statutory duty to identify the father of a dependent child. “At the detention hearing, or as soon thereafter as practicable, the court shall inquire of the mother and any other appropriate person as to the identity and address of all presumed or alleged fathers. The presence at the hearing of a man claiming to be the father shall not relieve the court of its duty of inquiry.” (§ 316.2, subd. (a).)
Once a man is identified as an alleged father, the court must notify him of the proceedings: “[E]ach alleged father shall be provided notice at his last and usual place of abode by certified mail return receipt requested alleging that he is or could be the father of the child. The notice shall state that the child is the subject of proceedings under Section 300 and that the proceedings could result in the termination of parental rights and adoption of the child. Judicial Council form Paternity-Waiver of Rights (JV-505) shall be included with the notice. Nothing in this section shall preclude a court from terminating a father’s parental rights even if [a paternity] action has been filed . . . .” (§ 316.2, subd. (b).)
The juvenile court has a duty to make a paternity determination: If the court determines there has been no prior paternity determination, “the juvenile court must take appropriate steps to make such a determination. [¶] (1) The alleged father and his counsel must complete and submit Statement Regarding Paternity (Juvenile Dependency) (form JV-505). Form JV-505 must be made available in the courtroom. [¶] (2) To determine parentage, the juvenile court may order the child and any alleged parents to submit to genetic tests . . . . [¶] (3) The court may make its determination of parentage or nonparentage based on the testimony, declarations, or statements of the alleged parents. . . . [¶] . . . [¶] (h) If a person appears at a hearing in a dependency matter . . . and requests a judgment of parentage on form JV-505, the court must determine: [¶] (1) Whether that person is the biological parent of the child . . . .” (Cal. Rules of Court, rule 5.635(e) & (h).).
Marco’s rights were not violated here. The gist of Marco’s complaint is the denial of a paternity test, which precluded him from knowing whether he was Andrew’s father; he does not complain that the juvenile court failed to make a paternity determination. A paternity test is only one of several methods used to make a paternity determination.
The juvenile court made the required inquiries of Jessica, and, when no names or other identifying information were forthcoming, it ordered notice by publication. Publication is sufficient “‘where it is not reasonably possible or practicable to give more adequate warning. [I]n the case of persons missing or unknown, employment of an indirect and even a probably futile means of notification is all that the situation permits and creates no constitutional bar to a final decree foreclosing their rights. [Citations.]’” (In re Emily R. (2000) 80 Cal.App.4th 1344, 1352, quoting Mullane v. Central Hanover Trust Co. (1950) 339 U.S. 306, 317.) As soon as Marco was identified, he was notified of the proceedings and provided an attorney, who appeared on his behalf. Although Form JV-505 was not mailed to him, it was available in the courtroom. The record does not indicate Marco signed and filed the form requesting a paternity declaration, which is a prerequisite to the court’s duty to make the determination.
A court must order paternity testing only if it is relevant to the proceeding and the request to do so is “made at a time so as not to delay the proceedings unduly . . . .” (Fam. Code, § 7551.) Marco’s appearance and request for a paternity test was after reunification services for Jessica had been terminated and the permanent plan selection hearing was imminent. As his counsel admitted, a determination of Marco’s paternity would have no effect on the termination of parental rights because a biological father is not entitled to reunification services or custody. (In re Zacharia D., supra, 6 Cal.4th at p. 451.) Thus, a paternity test was not relevant to the permanent plan selection hearing.
It follows there was no good cause to continue the hearing for paternity testing; nor would a continuance have been in Andrew’s best interests. Andrew had been a dependent for two years and further delay would have further postponed his chance for permanency and stability. Continuances are granted in dependency proceedings only on a showing of good cause and only if a continuance will not be contrary to the minor’s interests. “In considering the minor’s interests, the court shall give substantial weight to a minor’s need for prompt resolution of his or her custody status, the need to provide children with stable environments, and the damage to a minor of prolonged temporary placements.” (§ 352.)
Marco argues the court should have granted a continuance because Andrew had serious health issues and the prospective adoptive parents did not yet know the full extent of his problems. He appears to argue Andrew was not adoptable without the commitment of his current placement.
The prospective adoptive parents were willing to adopt and had no legal impediment to doing so. They had demonstrated a commitment to continuing Andrew’s therapy, and he was thriving in their home. “When a child is deemed adoptable only because a particular caretaker is willing to adopt, the analysis shifts from evaluating the characteristics of the child to whether there is any legal impediment to the prospective adoptive parent’s adoption and whether he or she is able to meet the needs of the child.” (In re Helen W. (2007) 150 Cal.App.4th 71, 80.) Furthermore, SSA had disclosed all medical reports to the prospective adoptive parents. “Nowhere in the statutes or case law is certainty of a child’s future medical condition required before a court can find adoptability.” (Id. at p. 79.) The adoptability finding is amply supported by the record.
Marco finally contends he should be allowed to make a showing that he is a Kelsey S. father because Jessica did not tell him or the court that he was Andrew’s father. He argues if he can establish Kelsey S. status, his parental rights cannot be terminated without a showing of unfitness. But there is no way Marco can achieve this status.
First, there is no evidence that Jessica willfully suppressed his identity; the record suggests she had sex with a man whose name she did not know. Second, Marco is presumed to know that sexual intercourse can result in pregnancy. If he were truly interested in being a father, he would have made some effort to stay in contact with Jessica. Third, the dependency system requires a “time-critical response. Once a child is placed in that system, the father’s failure to ascertain the child’s existence and develop a parental relationship with that child must necessarily occur at the risk of ultimately losing an ‘opportunity to develop that biological connection into a full and enduring relationship.’” (In re Zacharia D., supra, 6 Cal.4th at p. 452, quoting Adoption of Kelsey S., supra, 1 Cal.4th at p. 838.)
Jessica’s Appeal
Jessica contends the termination of parental rights must be reversed because SSA failed to comply with the notice requirements of ICWA. She claims SSA should have sent notices to all tribes with names that sound similar to Yaqui, such as the Yokut, Yuki and Yurok tribes. We disagree.
In the previous proceeding for Andrew’s half-sister, Elizabeth M., SSA interviewed the maternal grandfather, who reported “that he was told that he has ‘Yucca’ Indian ancestry. He did not know from what region or the exact name of the tribe, possibly the Yaqui Indian tribe.” SSA attempted to update the information by telephoning the maternal grandparents, but was unable to contact them.
The notices sent to the BIA, the Yaqui tribe and the Pascua Yaqui tribe substantially complied with ICWA. “Substantial compliance with the notice requirements of ICWA is sufficient. [Citation.] SSA must provide the tribe with notice of the pendency of the proceedings and the opportunity to intervene in them. [Citation.] When the specific tribe cannot be identified, SSA must provide notice to the BIA.” (In re Christopher I. (2003) 106 Cal.App.4th 533, 566.) The BIA’s role is to help identify possibilities for tribal membership. (Ibid.) SSA sent notice to the tribes most closely related to the tribe identified by the maternal grandfather and to the BIA, thus fulfilling its duty under ICWA.
Furthermore, the mother stipulated that the ICWA notices were given as required by law and ICWA did not apply to Andrew’s case. Generally, defects in ICWA notice cannot be waived by a parent’s failure to raise the error in the trial court. (In re Nikki R. (2003) 106 Cal.App.4th 844, 849.) Here, however, the mother affirmatively stipulated to the adequacy of ICWA notice, which was identical to the ICWA notice given and found adequate in the previous dependency proceeding. “We will not turn the process of ICWA notice into a game . . . .” (In re Christopher I., supra, 106 Cal.App.4th at p. 566.) Even if an ICWA notice defect existed, Jessica has forfeited her right to raise it now. (See In re Amber F. (2007) 150 Cal.App.4th 1152, 1156.)
DISPOSITION
The judgment terminating parental rights is affirmed.
WE CONCUR: ARONSON, J., FYBEL, J.