Opinion
NOT TO BE PUBLISHED
APPEAL from orders of the Superior Court of Tulare County Nos. JJV063167E & JJV063167F, Charlotte A. Wittig, Commissioner.
Julie E. Braden, under appointment by the Court of Appeal, for Defendant and Appellant.
Kathleen Bales-Lange, County Counsel, John A. Rozum and Amy-Marie Costa, Deputy County Counsel, for Plaintiff and Respondent.
OPINION
Before Gomes, Acting P.J., Detjen, J., and Franson, J.
Maria P. (mother) appeals from orders terminating parental rights (Welf. & Inst. Code, § 366.26) to two of her children, including her infant son, Cruz. Mother contends the juvenile court failed to clarify Cruz’s paternity after a man claimed he might be the biological father of Cruz. As a consequence, mother argues, the juvenile court never inquired of the man regarding possible Native American heritage, thereby violating the Indian Child Welfare Act (ICWA; 25 U.S.C. § 1901 et seq.). She concludes she is entitled to reversal of the termination order as to Cruz. On review, we disagree and affirm.
All statutory references are to the Welfare and Institutions Code unless otherwise indicated.
PROCEDURAL AND FACTUAL HISTORY
Respondent Tulare County Health and Human Services Agency (agency) detained newborn Cruz and initiated the underlying dependency proceedings in August 2010. Cruz and mother had tested positive for methamphetamine. Mother had a history of drug abuse rendering her periodically incapable of providing regular care. In addition, mother previously lost custody of and eventually parental rights to four children due to her drug abuse and failure to adequately address her substance abuse issues.
Mother’s Identification of Ignacio C. as Cruz’s Father
At a juvenile court detention hearing for Cruz, mother was sworn in to testify regarding Cruz’s paternity. She identified Ignacio C. as the infant’s father. She and Ignacio C. were not married, but had lived together before Cruz was born. Ignacio C. was reportedly killed days before the infant’s birth.
The juvenile court initially found Ignacio C. was Cruz’s father, without determining whether Ignacio C. was the child’s presumed or alleged father. It then began its ICWA inquiry of mother. She denied any Native American heritage, but claimed Ignacio C. had some Native American heritage.
At this juncture, the court expressed its need to establish what kind of father Ignacio C. was because of ICWA. The attorneys for the agency and Cruz asserted he was at best the biological father. Mother’s counsel represented:
“mother believes that he is the father, and he is the father of the other children, and she was living with him at the -- until the child was conceived and up until the father was murdered, and she believes him to be the father.”
The court found Ignacio C. to be the biological father of Cruz.
In addition, because Cruz’s paternal grandfather stated his family was Mexican Indian, not Native American Indian, the court found that ICWA did not apply.
In early September 2010, the juvenile court conducted a combined jurisdictional/dispositional hearing for Cruz. At the hearing, the court exercised its dependency jurisdiction over Cruz, adjudged him a dependent child, and removed him from parental custody. Having also denied mother reunification services, the juvenile court set a December 2010 section 366.26 hearing to select and implement a permanent plan for the infant.
Meanwhile, mother had a one-year-old daughter who, according to mother, was living out of state with a maternal relative. However, less than two weeks after the jurisdictional/dispositional hearing for Cruz, authorities located mother with her daughter in Tulare County. Mother was arrested at the time for being under the influence while her daughter appeared to have suffered significant neglect. The daughter was detained and the agency initiated dependency proceedings on her behalf.
The juvenile court subsequently exercised its dependency jurisdiction over mother’s daughter, removed the child from mother’s custody, denied mother services, and set a section 366.26 hearing for the daughter.
Mother’s Identification of Victor I. as Cruz’s Father
Within a few days of the daughter’s detention, a social worker met with mother. During that meeting, mother stated that another man, Victor I., was the father of Cruz. Mother further claimed she listed Ignacio C. as the father because he wanted to be on it.
At an October 2010 hearing, the juvenile court appointed an attorney to represent Victor I. and directed the attorney to have Victor I. complete a JV-505 form, known as a “Statement Regarding Parentage.” Father and the attorney completed the form and returned it to the court during the hearing. In his completed form, Victor I. marked, with his initials, boxes indicating: he did not know if he was the parent of Cruz, he requested DNA testing to determine whether he was the biological parent, he believed he was the child’s parent, and he told his parents and all his friends that the child was his.
Once it received Victor I.’s paperwork, the juvenile court questioned mother who was already under oath. The court asked mother whom did she believe was Cruz’s father. She replied “Um, this one, ” but acknowledged she previously said the father was Ignacio C. Mother then claimed the 5th Amendment as to a further paternity inquiry.
The juvenile court ordered the clerk to conduct a paternity inquiry for any judgment or declaration of paternity. The court also stated if there were none, it would order paternity testing by way of a minute order.
The paternity inquiry revealed no paternity judgment or declaration. On December 1, 2010, the juvenile court issued its minute order for expedited DNA testing as to Cruz. The minute order mistakenly referred to the alleged father as Cruz. However, an agency worker clarified Victor I.’s identity as the child’s alleged father in an early December request to the family support division for paternity testing.
As of the December 2010 permanency planning hearing date for Cruz, the paternity testing apparently had not yet occurred. Also, mother had filed a notice of intent to file a writ petition as to Cruz and her deadline to file the writ petition had not yet lapsed. At the request of several of the attorneys, the court continued the permanency planning hearing for Cruz to a February 2011 date scheduled for permanency planning as to mother’s daughter.
Mother never filed a petition for writ relief as to Cruz. In turn, this court dismissed the matter, M.P. v. Superior Court (case no. F061238).
On the February 2011 hearing date, the parties were prepared to proceed with the apparent understanding that there were, as yet, no paternity testing results. The agency in turn submitted the cases for Cruz and his older sister on reports recommending the court find each child adoptable and order termination of parental rights. None of the other parties had any evidence to introduce.
On appeal, mother claims that the juvenile court denied a continuance to obtain the paternity testing results. However, no one asked the court to continue the February hearing on that or any other ground.
Mother’s counsel asked the court not to terminate mother’s rights to either her daughter or Cruz, because mother claimed she had a bond with her daughter before the child’s detention. Victor I.’s counsel informed the court that she and her client “would still like to see this through and find out the results of the paternity testing.” Attorneys for the children and the agency urged the court to terminate parental rights.
The juvenile court followed the agency’s recommendations and terminated parental rights as to both children. It added in passing that mother had not been credible throughout these proceedings and seemed to testify to whatever was most convenient or whatever position she wanted to take at the time.
DISCUSSION
Mother contends we must reverse the termination order as to Cruz because the juvenile court did not inquire of Victor I. regarding possible Indian heritage. (§ 224.3, subd. (a).) This alleged error was, in her view, a consequence of the court’s failure to determine Cruz’s parentage once Victor I. claimed possible paternity. As discussed below, mother weaves a tangled and unavailing argument in seeking reversal.
Remarkably, mother does not claim she is entitled to reversal because the juvenile court had not determined whether Victor I. was the biological father of Cruz. That is because, as respondent observes, mother lacks standing to raise the paternity issue. A parent has no standing on appeal to seek reversal based on a claim that another parent’s rights were violated, unless the appellant parent suffered resulting harm. (In re Jenelle C. (1987) 197 Cal.App.3d 813, 818.) Here, mother makes no such claim. We also observe the obvious in this regard, i.e., Victor I. never challenged the juvenile court’s decision by means of appeal.
Instead, mother argues the juvenile court abandoned its inquiry duty under ICWA and claims standing to raise this issue, citing In re Jonathon S. (2005) 129 Cal.App.4th 334, 339 [a parent has standing to raise ICWA compliance issues even if the appellant parent is not the one claiming Indian heritage]. Her claim is spurious, in part, because once the juvenile court determined that Ignacio C. was the biological father of Cruz, the court conducted the necessary ICWA query and determined that ICWA did not apply in the case.
In addition, mother acknowledges that there was no ICWA inquiry as to Victor I. because there had been no determination that Victor I. was the biological parent of Cruz. (See In re Daniel M. (2003) 110 Cal.App.4th 703, 708.) For purposes of ICWA, “parent” means any biological parent and does not include an unwed father whose paternity has not been acknowledged or established. (25 U.S.C. § 1903(9).) Here, Victor I. had equivocated, rather than acknowledged, paternity and paternity, through DNA testing, had yet to be established. Thus, the court’s duty to inquire of a child’s parent regarding Indian ancestry did not extend in Cruz’s case to Victor I.
Because mother’s ICWA argument hinges on a claim she has no standing to assert and the court had no duty under the circumstances to make a new ICWA inquiry at the permanency planning hearing, we conclude mother’s argument is meritless.
DISPOSITION
The orders terminating parental rights are affirmed.