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In re C.W.

Court of Appeals of California, Third District, Sutter.
Nov 14, 2003
No. C044361 (Cal. Ct. App. Nov. 14, 2003)

Opinion

C044361.

11-14-2003

In re C.W., a Person Coming Under the Juvenile Court Law. SUTTER COUNTY DEPARTMENT OF HUMAN SERVICES, Plaintiff and Respondent, v. STACY J., Defendant and Appellant.


Stacy J. (appellant), the alleged father of C. W. (the minor), appeals from the order of the juvenile court terminating parental rights.[] (Welf. & Inst. Code, §§ 366.26, 395; further section references are to this code unless otherwise specified.)

At various times, the record states that appellants first name is spelled "Stacey." We will adopt the spelling used by appellant in his notice of appeal.

Appellant contends the juvenile court failed to comply with the notice requirements of the Indian Child Welfare Act of 1978 (25 U.S.C. § 1901 et seq.) (ICWA), thereby "render[ing] all orders made by the juvenile court void." We conclude that, as an alleged father only, he lacks standing to complain about the purported violation of ICWA. Accordingly, we will affirm the order terminating parental rights.

FACTUAL AND PROCEDURAL BACKGROUND

The juvenile dependency petition filed on October 24, 2002, alleged that appellant is the father of the minor but that his whereabouts were unknown. The social workers reports reflected that "[the minors] original birth certificate does not list a father," but that the minors mother claimed appellant is the father. However, the minors mother later amended the birth certificate to state that John J. is the minors father.

The Sutter County Human Services Agency (HSA) requested paternity testing but this request was opposed by the minors counsel. The juvenile court deferred on ordering paternity testing, and the record does not contain any test results.

At various times throughout the dependency proceedings, HSA and the State Department of Social Services reported that ICWA might apply. The minors mother told the social worker that the minors paternal grandmother was Indian; and appellant told the juvenile court that he might have Indian heritage, but did not remember the tribe. Consequently, HSA sent notices of the proceedings to the Bureau of Indian Affairs.

At the section 366.26 hearing on June 17, 2003, appellant testified that he is the biological father of the minor and that the mothers side of appellants family could have "Blackfoot" Tribe heritage.

Counsel for the Department of Human Services (DHS) argued that since appellant was "merely an alleged father" and because of the vagueness of the information provided by him and the minors mother, ICWA did not apply. Finding "by clear and convincing evidence that [ICWA] does not apply," the juvenile court found that the minor was adoptable and terminated parental rights.

DISCUSSION

The sole issue raised on appeal is appellants claim that the juvenile court violated the notice requirements of ICWA and, therefore, the juvenile courts orders are void. According to appellant, the notices provided to the Bureau of Indian Affairs were "defective" because they failed to include all of the information required by ICWA.

DHS retorts that appellant lacks standing to challenge a purported violation of ICWA because he is not the biological father of the minor. (In re Daniel M. (2003) 110 Cal.App.4th 703.)

"The Family Code and the Welfare and Institutions Code differentiate between `alleged, `natural, and `presumed fathers." (In re O. S. (2002) 102 Cal.App.4th 1402, 1406.) Both the extent to which a father may participate in dependency proceedings and his rights in those proceedings are dependent on his paternal status. "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." (In re Zacharia D. (1993) 6 Cal.4th 435, 449, fn. 15.)

On the record before us, it has not been established that appellant is the minors biological father, and appellant did not achieve presumed father status by receiving the minor into his home and holding the minor out as his natural child. (In re Zacharia D., supra, 6 Cal.4th at p. 449; Adoption of Kelsey S. (1992) 1 Cal.4th 816, 825.) Hence, appellants status was that of an alleged father throughout these proceedings. (In re O. S., supra, 102 Cal.App.4th at p. 1406.) Indeed, the juvenile courts order terminating parental rights lists John J. as the minors father and appellant as the alleged father.

The juvenile court was entitled to reject appellants testimony that he is the natural father of the minor. (In re Cheryl E. (1984) 161 Cal.App.3d 587, 598.)

"Alleged fathers have [fewer] rights in dependency proceedings than biological and presumed fathers. [Citation.] An alleged father does not have a current interest in a child because his paternity has not yet been established. [Citation.] Therefore, [an alleged father] is not a `parent [for purposes of appointment of counsel and entitlement to reunification services]." (In re O. S., supra, 102 Cal.App.4th at p. 1406; §§ 317, 361.5, subd. (a); In re Zacharia D., supra, 6 Cal.4th at pp. 448-449.)

Moreover, an alleged father is not a parent within the meaning of ICWA. "Parent" is defined 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. It does not include the unwed father where paternity has not been acknowledged or established." (25 U.S.C. § 1903(9).)

Therefore, "[a]n alleged father who has not acknowledged or established he is a parent within the meaning of [ICWA] lacks standing to challenge a violation of the ICWA notice provisions." (In re Daniel M., supra, 110 Cal.App.4th at p. 709 (hereafter Daniel M.).)

Appellants circumstances are indistinguishable from those in Daniel M. There, as here, the alleged father underwent a paternity test, but the results were unavailable at the time of the section 366.26 hearing. (Daniel M., supra, 110 Cal.App.4th at pp. 706-707.) There, as here, the alleged father had limited contact with the child. (Id. at p. 707.) There, as here, the alleged fathers name apparently was not on the birth certificate and he apparently did not file a voluntary declaration of paternity. (Id. at p. 708-709.)

Accordingly, for the reasons stated in Daniel M., appellant lacks standing to complain about an alleged violation of ICWAs notice provisions.

DISPOSITION

The order terminating parental rights is affirmed.

We concur, SIMS, J. and BUTZ, J.


Summaries of

In re C.W.

Court of Appeals of California, Third District, Sutter.
Nov 14, 2003
No. C044361 (Cal. Ct. App. Nov. 14, 2003)
Case details for

In re C.W.

Case Details

Full title:In re C.W., a Person Coming Under the Juvenile Court Law. SUTTER COUNTY…

Court:Court of Appeals of California, Third District, Sutter.

Date published: Nov 14, 2003

Citations

No. C044361 (Cal. Ct. App. Nov. 14, 2003)