Opinion
NOT TO BE PUBLISHED
Appeal from an order of the Superior Court of Orange County, No. DP012364 Julian W. Bailey, Temporary Judge. (Pursuant to Cal. Const., art. VI, § 21.)
Roni Keller, under appointment by the Court of Appeal, for Defendant and Appellant.
Benjamin P. de Mayo, County Counsel, Karen L. Christensen and Paula A. Whaley, Deputy County Counsel, for Plaintiff and Respondent.
No appearance for the Minor.
OPINION
O’LEARY, J.
John M., an alleged father of Brandon F., appeals from the order terminating his parental rights. (Welf. & Inst. Code, § 366.26.) He contends the order must be reversed because the record does not contain a Penal Code section 2625 waiver of his right to be present at the permanency hearing and 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 find no merit to his contentions and affirm the order.
All further statutory references are to the Welfare and Institutions Code, unless otherwise indicated.
FACTS
In November 2005, then five-year-old Brandon was declared a dependent child due to his mother, Keri P.’s, chronic substance abuse and inability to care for him. At the time, Richard F., was the only man identified as an alleged father, although Keri suggested there were four possibilities as to the child’s biological father.
Keri’s and Richard’s parental rights were terminated and they do not appeal.
We need only briefly detail the reasons for Brandon being placed in protective custody. Keri had been incarcerated, and Brandon was placed with an aunt in Arizona. Brandon became seriously ill (he was later diagnosed with Guillain-Barre Syndrome). The aunt did not seek medical attention for Brandon and instead deposited him with Richard in violation of a restraining order forbidding Richard from having any contact with Brandon. Richard did not seek medical attention for the child. When Keri was released from jail, she went to Arizona and found Brandon at Richard’s house gravely ill. The child was paralyzed and unable to speak. Keri did not seek immediate medical attention either, and instead drove Brandon back to Orange County where he was hospitalized.
Keri was given reunification services, but failed to comply with her case plan and services were terminated on January 4, 2007. Brandon was living in the foster home of his now prospective adoptive parents and doing very well. A permanency hearing was scheduled for May 3, 2007. Keri desired to relinquish her parental rights so the foster parents could adopt Brandon.
On March 29, 2007, Keri told the Orange County Social Services Agency (SSA) social workers John was Brandon’s biological father. John was incarcerated at the Orange County Jail at the time. SSA served him with notice of the May 3, 2007, permanency hearing and transportation orders were issued.
John appeared at the May 3, 2007, hearing. He told the court it would be at least two years before he would be released from custody. John told the court he had only just learned about Brandon’s existence—John was not listed on the birth certificate as Brandon’s father; John never provided any financial support or held the child out as his; and although John admitted he had sexual relations with Keri, he was not entirely sure about when. The court appointed counsel for John “for purposes of paternity only.”
When the court asked John about possible Native American Indian ancestry, John said he might have Blackfeet Tribe ancestry on his father’s side and his mother might have more information. The court ordered SSA to give ICWA notice to the Blackfeet Tribe and the Bureau of Indian Affairs (BIA). The court ordered the permanency planning hearing continued to June 28, 2007. John indicated he wanted to waive his appearance, but the court instead issued transportation orders, and ordered John be provided with a Penal Code section 2625 waiver form.
John was subsequently transferred to the state prison at Wasco, California. SSA made several unsuccessful attempts via telephone to obtain information on possible Native American Indian heritage from John’s father. ICWA notices were sent to the Blackfeet Tribe and the BIA identifying Keri, John, and the paternal grandfather (i.e., John’s father) as having possible Native American Indian heritage. SSA subsequently received responses from the BIA and Blackfeet Tribe stating none were eligible members of the tribe.
On May 21, 2007, the social worker received a letter from John’s mother relating a conversation she had had with John. John told his mother he would like to know if Brandon was indeed his biological child, but said he did not want to do anything to interfere with Brandon’s placement with, and adoption by, his foster parents.
On May 29, the social worker received a signed Penal Code section 2625 waiver form from John for the June 28 hearing, but the declaration part of the form did not contain the signature of a witness. A transportation order request provided to the court indicated transportation of John to the June 28 hearing was refused because there was “not enough time to transport.” The hearing was continued to July 12 and the court ordered SSA to provide John with a Penal Code section 2625 waiver form.
In its July 11 report, SSA indicated the social worker had sent John a Penal Code section 2625 waiver form, but no response had been received. SSA’s transportation order request, which had been submitted on July 3, was denied because there was “not enough time to transport.”
John was not present at the July 12 permanency planning hearing, but was represented by counsel. Counsel did not contest the proceeding, and submitted on the reports. Counsel stated it was clear John did not want to do anything to disrupt Brandon’s adoption by the foster parents. But because there was no information on whether a Penal Code section 2625 waiver form had been received from John, counsel did not know if he wanted to be present. Keri stipulated to the court’s order terminating parental rights. The court found ICWA did not apply and none of the provisions of section 366.26, subdivision (c), applied. It found Brandon was adoptable and terminated parental rights.
DISCUSSION
1. Status as Alleged Father
Prior to addressing the specific issues raised by John, we comment on his status in this proceeding. John appeared in this matter as an alleged father and as suchhas very limited rights. (In re Zacharia D. (1993) 6 Cal.4th 435, 449, fn. 15 (Zacharia D.) “A man who may be the father of a child, but whose biological paternity has not been established, or, in the alternative, has not achieved presumed father status, is an ‘alleged’ father. Citation.”; In re Emily R. (2000) 80 Cal.App.4th 1344, 1352 (Emily R.) [“An alleged father in dependency or permanency proceedings does not have a known current interest [in the proceeding] because his paternity has not yet been established”].) As an alleged father, John only had the right to notice and the opportunity to appear in the dependency proceeding, once his identity was known, and the right to bring an action under Family Code sections 7630 or 7631 to establish paternity. (§ 316.2, subd. (d).) But even if John’s paternity was established, an action under the Family Code would not prevent the termination of an alleged father’s parental rights. (§ 316.2, subd. (b).) Unless John achieved presumed father status, he had no right to reunification services. (Zacharia D., supra, 6 Cal.4th at p. 452.)
2. Presence at Permanency Hearing
John contends the court violated his due process rights when it conducted the permanency hearing in his absence or without adequate waiver of his presence. We find no merit to his contention.
Penal Code section 2625, subdivision (b), requires an incarcerated parent be given notice of any hearing to terminate parental rights under section 366.26. Furthermore, the court may not proceed unless the incarcerated parent is physically present, or a proper waiver of the parent’s presence has been provided. (Pen. Code, § 2625, subd. (d).) John was not present at the July 12 hearing, and although SSA sent him a Penal Code section 2625 waiver form, it was not returned.
Assuming that as a merely alleged father John had a right to be present at the permanency hearing (neither party addresses this point), and that proceeding in his absence or without a proper waiver of his presence violated the mandates of Penal Code section 2625, subdivision (d), any error was harmless. Physical presence or a signed waiver of appearance from an incarcerated parent is not a jurisdictional prerequisite to conducting a hearing under section 366.26. (In re Jesusa V. (2004) 32 Cal.4th 588, 623-624 (Jesusa V.).) Contrary to John’s argument that such an error makes the order terminating parental rights reversible per se, a violation of Penal Code section 2625 is subject to harmless error analysis. (Jesusa V., supra, 32 Cal.4th at pp. 623-624[involuntary absence of incarcerated parent from dependency proceeding reversible only if reasonably probable result would have been more favorable to parent absent the error].)
John offers no meaningful suggestion as to how his presence at the permanency hearing could possibly have resulted in an outcome more favorable to him. John was an alleged father only, he never requested paternity testing, and his biological parentage has not been established. John suggests that had he been present at the permanency hearing, he might have requested paternity testing. But even if John’s paternity was established, he could not achieve presumed father status this late in the proceedings, and he would not have been entitled to reunification services. (In re Emily R. (2000) 80 Cal.App.4th 1344, 1355 [“The dependency proceedings were simply too far advanced and the biological father would not have been entitled to reunification services in any event”].) Other than being given another chance at establishing his biological parentage of Brandon, John offers no information he would have added at the permanency hearing. John never had any knowledge of or relationship with Brandon—he certainly could not have added any evidence as to the applicability of any of the section 366.26, subdivision (c), exceptions.
By the time of the permanency hearing, the time for reunification services had expired and John was going to be incarcerated for at least two more years. John suggests termination of parental rights should have been delayed and Brandon placed with John’s relatives until John was released from prison so he could then develop a relationship with the child. But as dependency proceedings continue, the child’s interest in permanency becomes progressively more important, outweighing the parent’s interest in preserving, or as in this case establishing, ties with the child. (David B. v. Superior Court (1994) 21 Cal.App.4th 1010, 1018-1019.) When the ties are merely biological, and there is no meaningful personal relationship, both the law and common sense dictate that the child’s right to permanency must outweigh any interest an alleged father may have.
3. ICWA Notice
John contends the order terminating parental rights must be reversed because SSA failed to give adequate notices under ICWA. John asserts the notices sent to the Blackfeet Tribe and the BIA were insufficient because they gave no identifying information as to Brandon’s paternal grandmother (i.e., John’s mother) even though SSA was in contact with her and she claimed Blackfeet heritage.
We reject John’s argument for two reasons. First, John has misconstrued the record. John advised the court he possibly had Blackfeet Tribe ancestry on his father’s side via John’s own paternal grandmother, and that his own mother might have more information about his father’s heritage. The ICWA notices properly identified John’s father as a possible tribal member. But more importantly, as a merely alleged father, John lacks standing to challenge inadequate ICWA notice on appeal. (See In re Daniel M. (2003) 110 Cal.App.4th 703, 708 [unwed father whose paternity has not been acknowledged or established is not a “parent” who may challenge termination of parental rights on grounds of inadequate ICWA notice].)
DISPOSITION
The order is affirmed.
WE CONCUR: RYLAARSDAM, ACTING P. J., IKOLA, J.