Opinion
E041550
6-13-2007
In re PRESTON S. et al., Persons Coming Under the Juvenile Court Law. SAN BERNARDINO COUNTY DEPARTMENT OF CHILDRENS SERVICES, Plaintiff and Respondent, v. LAMAR F. et al., Defendants and Appellants.
Diana W. Prince, under appointment by the Court of Appeal, for Defendant and Appellant Lamar F. Monica Vogelmann, under appointment by the Court of Appeal, and Richard Pfeiffer for Defendant and Appellant Brandi S. Ruth E. Stringer, Interim 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.
NOT TO BE PUBLISHED
I. INTRODUCTION
Appellant Brandi S. is the mother of minors Preston and Patrick. Appellant Lamar F. is an alleged father of Patrick. At a hearing held pursuant to Welfare and Institutions Code section 366.26, the court terminated Brandis parental rights to her two children, as well as the parental rights of any alleged fathers. Brandi contends that the court erred in finding that the "beneficial relationship" exception to terminating parental rights did not apply. (See § 366.26, subd. (c)(1)(A).) Lamar contends that the court failed to comply with the notice requirements of the Indian Child Welfare Act (the ICWA) after he informed the court of his possible Cherokee ancestry. (See 25 U.S.C.A. § 1912(a).) Brandi joins in Lamars argument pursuant to rule 13(a)(5) of the California Rules of Court.
All further statutory references will be to the Welfare and Institutions Code unless otherwise indicated.
Effective January 1, 2007, the California Rules of Court have been renumbered. For the sake of clarity, we will refer to the rules under the former rule numbers. All further references to rules are to the California Rules of Court unless otherwise indicated.
We hold: (1) there is substantial evidence to support the courts finding with respect to the beneficial relationship exception; (2) Lamar does not have standing to challenge the termination of his parental rights; and (3) on this record, there was no obligation to send ICWA notices following Lamars assertion of Cherokee ancestry. We dismiss Lamars appeal, and affirm the orders made at the section 366.26 hearing.
II. SUMMARY OF FACTS AND PROCEDURAL HISTORY
A. Background
In August 2004, an ambulance was called to Brandis home. Brandi informed the emergency medical technician (EMT) that seven-month-old Preston had injured his nose when he fell out of a laundry basket. The EMT reported that two-year-old Patrick had three black and blue bruises on his back and two fresh red scrapes, as well as scars and scratches on his body. Brandi told the EMT that she caused these marks by grabbing Patrick hard with her fingernails and shaking him when he would not be quiet. She admitted using a belt to discipline Patrick. The EMT also reported that "the home was poorly kept with broken glass all over the front of the home and two[-]year[-]old Patrick wearing no clothes or shoes but only a saturated diaper."
Later that day, Brandi told a social worker that she had inflicted the multiple scars and scratches on Patrick during discipline. She said this was done out of frustration and anger when the child acts out. Brandi said she needed help and parenting classes, and that she had previously received mental health treatment in Los Angeles.
Brandi told the social worker that Craig V. was the father of Preston; she did not know the name of Patricks father. Craig V. denied that he was Prestons father. The social worker learned that during the course of a child support investigation prior to the detention of the children, Brandi had identified Cecil S. as Patricks father. A search for this person was not successful. Brandi also told the social worker that "[t]heres [a] guy who looks like Patrick . . . in Inglewood." (Bolding omitted.) Patrick B. was also identified by the San Bernardino County Department of Childrens Services (DCS) as an alleged father of Patrick.
Brandi was arrested and charged with inflicting corporal punishment or injury resulting in a traumatic condition. (Pen. Code, § 273d, subd. (a).) The children were detained by DCS and removed from Brandis custody.
DCS filed juvenile dependency petitions concerning Preston and Patrick pursuant to section 300. The petitions alleged that Brandi was mentally unstable, had physically abused Patrick, and was incarcerated.
Brandi told the social worker that she has Blackfoot and Cherokee ancestry. Brandis mother said that she is "Red bone" Apache and Blackfoot Indian. Pursuant to the ICWA, DCS sent notices to the Apache, Blackfeet, and Cherokee tribes, as well as the Bureau of Indian Affairs (BIA). The notices state that Patricks father is Patrick B., and that the tribal affiliation of the father is unknown. No other information regarding Patricks paternal ancestry is provided. No tribe asserted a right to intervene and, in October 2005, the court ruled that the ICWA notice requirements had been satisfied and that the ICWA does not apply.
In a report prepared for the jurisdictional/dispositional hearing, the social worker made the following assessment: "Although Brandi . . . desires to raise her children she has difficulty functioning and caring for herself. The prognosis for her to raise her children is poor. Her mental health is such that she is on SSI. She can not handle her money so her grandmother is the payee. Her psychological evaluation contends that she wants to be a good mother but that her psychological condition and personality disorder prevent her from executing that desire. [¶] . . . [¶] Poor judgement, chronic mental health problems, transient lifestyle, limited intellectual abilities and limited social support make it impossible for Brandi . . . to independently care for herself, and precludes her from effective parenting."
At the jurisdictional/dispositional hearing, the juvenile court declared the children to be dependents of the court, placed them in DCS custody, approved of a DCS reunification plan, and ordered supervised visitation between Brandi and the children at least once each week.
In a status review report prepared in June 2005, the social worker reported that Brandi has made attempts to cooperate with services, but has not completed her program. With respect to visitation, the social worker reported: "[Brandis] visits [with the children] have been appropriate in a supervised setting. [Brandis] progress in visitation is apparent and she appears to benefit from the opportunity to show new parenting skills. During one incident in May 2005, [Brandi] became inappropriate when she saw a small laceration on Patricks lower lip. It was determined that being hit in the lip with a basketball after throwing the basketball in the air caused this cut. [Brandi] became irate and accusatory without having all the information. She very much overreacted and showed that she can be incapable of controlling her emotions appropriately."
The social worker provided the following assessment/evaluation: "Given the current situation with [Brandi], reunification of her children with her at this hearing is not in the best interest[s] of the children and placement in the future is guarded due to [Brandis] inconsistency in obtaining and benefiting from services. During the last six [months] [Brandi] has had difficulty with stabilizing her mental health, housing and has shown incidents of inability to control her emotions and anger during at least one visit. [Brandi] requires a high level of basic needs being met and bonding and attachment evaluation prior to her regaining custody of her children. [Brandi] appears committed during the visitations, and the one anger outburst may have been an exception. However, with the concern that [Brandi] is not addressing her medication and depression consistently, as well as showing instability with her housing, the overall picture is guarded at this time due to these factors."
Brandi gave birth to a son in September 2005. In October 2005, she made threats to harm the infant and was involuntarily hospitalized pursuant to section 5150. According to a police officers report, Brandi told the officer that "she is depressed and wanted to harm her one-month-old baby." The infant was removed from Brandis custody.
By November 2005, Preston and Patrick were settled into their foster home and growing attached to their foster parents. According to a social worker, at the end of visits with Brandi, the children would run to and hug the foster parents "with convivial effect."
Between August and November 2005, Brandi attended all of her scheduled visits with the children. A social worker made the following report regarding the visits: Brandi "has been observed to provide appropriate nurturance for Patrick and Preston, engaging them both verbally and non-verbally. She does, however, appear to be overwhelmed when having to physically redirect them when they walk away. This has been evidenced in her tone of voice and anxious mood. Once [Brandi] is seated on the visiting room couch, it is very unusual for her to get up to assist the boys in any manner. This may be a product of various factors. She occasionally had trouble arriving to the visit on time due to the bus schedule as per her report. It could well be that she had exhausted some of her energy doing some walking to get to the office. In addition, at some of the visits [Brandi] appeared disheveled, agitated and unvarying predominate mood. Patrick and Preston appear to have gotten used to the visiting arrangement as they appear to show no signs of anxiety when transitioning to their foster family after visits. Usually, Patrick will run to meet either foster parent in an elated manner. Similarly, Preston appears to welcome his foster parents cheerfully as he easily embraces into their arms."
In a status review report prepared for the 18-month review hearing in December 2005, the social worker reported that Brandi had moved twice since the last hearing and that her whereabouts were unknown. Although Brandi had been making her visits with the children and was compliant with her child abuse courses, "her overall stability and vulnerability for what could be described as a psychological relapse was high." The social worker recommended that reunification services be terminated and that a section 366.26 hearing be set to establish a permanent plan of adoption for the children.
At the December 2005 hearing, Lamar appeared, claiming to be Patricks father. Brandi informed the court that she believes that Lamar is Patricks father. The court asked Lamar if he was aware of whether Patrick has any Indian ancestry. He said that his great-grandmother was Cherokee. The court told Lamar that he would need to fill out a form setting forth information about Patricks Indian ancestry. The court set a further hearing for February 2006.
On December 27, 2005, Lamar filed a form JV-130, Parental Notification of Indian Status, checking a box to indicate that he is or may be a member of, or eligible for membership in, the Cherokee tribe. He did not check the box to indicate that the child is or may be a member of, or eligible for membership in, an Indian tribe. The record does not indicate that the court ordered DCS to provide further notice to the Cherokee tribes or the BIA, or that DCS gave such notice.
At the February hearing, the court found that Lamar was an alleged father not entitled to reunification services, and terminated services for Brandi. The court set a hearing to be held pursuant to section 366.26. Visits with Brandi were to continue.
On the date of the section 366.26 hearing, Brandi filed a Request to Change Court Order pursuant to section 388. Following argument by counsel, the court denied a hearing on the request.
B. Section 366.26 Evidence and Hearing
DCS introduced four reports into evidence at the section 366.26 hearing: (1) a section 366.26 WIC report; (2) an adoption assessment report; (3) a July 2006 addendum report; and (4) an October 2006 addendum report.
In the section 366.26 WIC report, the social worker stated that Brandis "capacity for developing an appropriate bond is limited and the children do not have a strong bond with [Brandi] at this time. They have a capacity to bond with parental figures in the future due to the lack of emotional bond with [Brandi] and children, the visits are one sided at this time and in order for the adoption to succeed, the visits are determined to be detrimental for the prospective success of the children being adopted." The report also states that the ICWA does not apply.
The adoption assessment report states that the children "would be at substantial risk as a result of the birth parents[] inability to provide for, perform adequate care for[,] and protect" them. Regarding the childrens adoptability, the report states that "Patrick and Preston present as very happy, content and active young boys. The current caretakers report that both boys respond well to direction and rarely act out. The undersigned observed that the boys have appropriate stranger wariness. They look to the current caretakers for assurance and support. They appear to be developing a healthy attachment to the current caretakers."
The July 2006 addendum report provides that Brandi "has not shown any progress in completing her service plan, and continues to exhibit signs of depression . . . ."
The October addendum report states that an adoptive home has been found for the children.
In addition to these four reports, the court took judicial notice of all prior findings, orders, and judgments in the proceedings.
At the section 366.26 hearing, Brandi testified that she feels there is a "very strong bond" between her and the children. She has been visiting with the children once per week for more than six months. The children recognize her as their mother, and Preston always runs up to her and tells her he loves her and misses her. On cross-examination, Brandi stated that she missed two scheduled visits in August 2006 "[b]ecause of transportation."
Lamar testified that he visits the children every Tuesday. He said that he is "pretty sure" he is Patricks biological father because the "timeframes right." He admitted that he is not married to Brandi, and his name is not on Patricks birth certificate. No evidence was submitted that Lamar had taken any action to establish his paternity. Although Lamars counsel referred during argument to a "parental relationship" between Lamar and the children, he gave no indication that Lamar was seeking or would seek to establish paternity.
Counsel for Brandi argued that legal guardianship, rather than adoption, is appropriate because of the "beneficial strong bond between her and her children." The court rejected the argument, telling Brandi, "You have tried, but you have been unsuccessful. These children deserve permanency. Its the obligation of the Court to give them that opportunity." The court terminated the parental rights of Brandi and the alleged fathers, and identified adoption as the permanent plan for the children.
III. ANALYSIS
A. Beneficial Relationship Exception to Adoption
Brandi contends that the beneficial relationship exception to adoption, under section 366.26, subdivision (c)(1)(A), applies here. We disagree.
At a section 366.26 hearing, the court determines a permanent plan of care for a dependent child. (In re Casey D. (1999) 70 Cal.App.4th 38, 50.) Adoption is the permanent plan preferred by the Legislature. (In re Autumn H. (1994) 27 Cal.App.4th 567, 573.) If the court finds that a child may not be returned to his or her parents and is likely to be adopted, it must select adoption as the permanent plan, unless it finds that termination of parental rights would be detrimental to the child under one of the six exceptions set forth in section 366.26, subdivision (c)(1)(A) through (F). (See In re Jamie R. (2001) 90 Cal.App.4th 766, 773.)
The parental benefit or "beneficial relationship" exception is set forth in section 366.26, subdivision (c)(1)(A). (In re Jerome D. (2000) 84 Cal.App.4th 1200, 1206.) The exception applies where "`[t]he parents . . . have maintained regular visitation and contact with the minor and the minor would benefit from continuing the relationship." (In re Derek W. (1999) 73 Cal.App.4th 823, 826; § 366.26, subd. (c)(1)(A).) The parent has the burden of proving that the exception applies. (In re Derek W., supra, at p. 826.) "The parent must do more than demonstrate `frequent and loving contact[,] [citation] an emotional bond with the child, or that parent and child find their visits pleasant. [Citation.] Instead, the parent must show that he or she occupies a `parental role in the childs life." (Id. at p. 827.)
The parent must also show that his or her relationship with the child "`promotes the well-being of the child to such a degree as to outweigh the well-being the child would gain in a permanent home with new, adoptive parents. In other words, the court balances the strength and quality of the natural parent/child relationship in a tenuous placement against the security and the sense of belonging a new family would confer. If severing the natural parent/child relationship would deprive the child of a substantial, positive emotional attachment such that the child would be greatly harmed, the preference for adoption is overcome and the natural parents rights are not terminated." (In re Derek W., supra, 73 Cal.App.4th at p. 827, quoting In re Autumn H., supra, 27 Cal.App.4th at p. 575.)
"`The balancing of competing considerations must be performed on a case-by-case basis and take into account many variables, including the age of the child, the portion of the childs life spent in the parents custody, the "positive" or "negative" effect of interaction between parent and child, and the childs particular needs. [Citation.] When the benefits from a stable and permanent home provided by adoption outweigh the benefits from a continued parent/child relationship, the court should order adoption." (In re Jasmine D. (2000) 78 Cal.App.4th 1339, 1349-1350.)
"`Where a biological parent . . . is incapable of functioning in [a parental] role, the child should be given every opportunity to bond with an individual who will assume the role of a parent. [Citation.] Thus, a child should not be deprived of an adoptive parent when the natural parent has maintained a relationship that may be beneficial to some degree but does not meet the childs need for a parent. It would make no sense to forgo adoption in order to preserve parental rights in the absence of a real parental relationship." (In re Jasmine D., supra, 78 Cal.App.4th at p. 1350.)
There must be a "compelling reason" for applying the parental benefit exception. (In re Jasmine D., supra, 78 Cal.App.4th at p. 1349.) We review this "quintessentially discretionary determination" for an abuse of discretion. (Id. at p. 1351.) Nevertheless, "`[E]valuating the factual basis for an exercise of discretion is similar to analyzing the sufficiency of the evidence for the ruling. . . . Broad deference must be shown to the trial judge. The reviewing court should interfere only "`if [it] find[s] that under all the evidence, viewed most favorably in support of the trial courts action, no judge could reasonably have made the order that he did. . . . ." [Citations.]" (Ibid.)
Here, we cannot conclude that the courts determination was unreasonable. While Brandis desire to reunite with her children is apparent, the record also reveals that she did not have a parental role in the childrens lives. Preston was removed when he was seven months old and had spent more than two years in foster care prior to the section 366.26 hearing. Patrick had spent nearly half of his four and one-half years in foster care. Although Brandi had a near-perfect record of attending visits with the children, the evidence regarding her interaction with the children was somewhat conflicting. Although Brandi testified that Preston runs up to her, hugs her, and says he misses her, the social worker reported that Brandi was inappropriately angry on one occasion and appears overwhelmed when the children walk away from her. The social worker also reported that the visits are one-sided, and that the children are elated when they are returned to the foster parents. The social worker further observed that the children do not have a strong bond with Brandi. In light of the preference placed on adoption, the record does not support a "compelling reason" for applying the parental benefit exception. There was no error.
B. ICWA Notice
Lamar contends that the court erred in failing to give the notice required by the ICWA. (See, e.g., In re S.B. (2005) 130 Cal.App.4th 1148, 1156-1158; In re Desiree F. (2000) 83 Cal.App.4th 460, 469-470.) Brandis opening brief does not mention the ICWA, but states that she "joins in any and all relevant issues presented by co-appellant Lamar F., and adopts by reference all the briefing as permitted by rule 13(a)(5)." DCS contends that Lamar lacks standing to assert this argument because he is an alleged father.
1. Lamars Standing to Assert ICWA Violation
To have standing to appeal, an appellant must be a party of record and legally aggrieved. (In re Joseph G. (2000) 83 Cal.App.4th 712, 715-716; In re Frank L. (2000) 81 Cal.App.4th 700, 703.) In dependency proceedings, a "party of record is a person named as a party to the proceedings or one who takes appropriate steps to become a party of record in the proceedings. [Citation.]" (In re Joseph G., supra, at p. 715.) An alleged father does not have an interest in the subject of the proceedings because he has not established his paternity. (In re Emily R. (2000) 80 Cal.App.4th 1344, 1352.) Although the order terminating parental rights may refer to an alleged father by name, a "person does not become a party of record merely because his or her name and interest appear in documents filed with the court or are referenced in the judgment. [Citation.]" (In re Joseph G., supra, at p. 715.) Thus, an alleged father generally does not have standing to challenge the termination of parental rights in a dependency proceeding. (Id. at pp. 715-716; Francisco G. v. Superior Court (2001) 91 Cal.App.4th 586, 596.)
Courts have held that if the alleged father appears in the proceedings, asserts a position, and takes steps to establish his paternity, he does have standing to appeal. (See, e.g., In re Baby Boy V. (2006) 140 Cal.App.4th 1108, 1116-1117; In re Paul H. (2003) 111 Cal.App.4th 753, 759.) Paternity may be established by a voluntary declaration of paternity (Fam. Code, §§ 7573-7574), or through blood or genetic testing (id., § 7551). (See In re Daniel M. (2003) 110 Cal.App.4th 703, 708-709 (Daniel M.), disagreed with on another point in In re Jonathon S. (2005) 129 Cal.App.4th 334, 342 (Jonathon S.).) If Lamar had requested a paternity finding, the court would have been required to determine whether he was the biological father of Patrick. (See rule 1413(h)(2); In re Baby Boy V., supra, at p. 1118.) In the absence of such a request, the court had the authority to order blood tests to determine parentage, but was not required to do so. (See rule 1413(e)(1); In re Jesusa V. (2004) 32 Cal.4th 588, 621.)
In In re Baby Boy V., the father appeared and made repeated requests for a paternity test, which were denied. (In re Baby Boy V., supra, 140 Cal.App.4th at pp. 1112-1113.) The Court of Appeal found that the alleged father had standing because he "appeared and asserted a position—that he believed he was the father, wanted to confirm his belief with a paternity test, and wanted to know and support his son." (Id. at p. 1117.) The alleged father in In re Paul H. also made numerous attempts to obtain paternity testing. (In re Paul H., supra, 111 Cal.App.4th at pp. 756-758.) The Court of Appeal held that he had standing to appeal because 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 minors father and attempted to complete paternity testing." (Id. at p. 759.)
Rule 1413(h)(2) provided at the relevant time: "If a man appears at a hearing in a dependency matter . . . and requests a finding of paternity on form JV-505 in a dependency matter . . . , the court must determine whether he is the biological father of the child."
Rule 1413(e) provided at the relevant time that if parentage of a child has not been determined, "the juvenile court may make such a determination," and, "[t]o determine parentage, the juvenile court may order the child and any alleged parents to submit to blood tests . . . ."
Here, Lamar appeared at the 12-month review hearing and was appointed counsel in December 2005. He stated that he was not married to Brandi at the time of Patricks birth, was not living with her at the time of conception, was not listed as the father on Patricks birth certificate, and has never lived with the child. Although he was represented by counsel during the nine months between his first appearance and the section 366.26 hearing, there is no evidence that Lamar ever requested a finding of paternity; nor had he taken or attempted to take any other action to establish paternity. Testifying that he is "pretty sure" that he is Patricks father and visiting the children, without more, does not constitute an acknowledgement or establishment of paternity. Therefore, Lamar does not have standing to appeal the termination of parental rights.
These statements were made by Lamar in response to questions from the court. He was not, however, under oath.
Nor does it appear that Lamar was aggrieved by any failure to give notice required by the ICWA. "To be aggrieved, a party must have a legally cognizable immediate and substantial interest which is injuriously affected by the courts decision. A nominal interest or remote consequence of the ruling does not satisfy this requirement." (In re Carissa G. (1999) 76 Cal.App.4th 731, 734.) As an alleged father, Lamar had the right to appear in the case, assert a position, and attempt to change his paternity status. (In re Paul H., supra, 111 Cal.App.4th at p. 760.) He does not assert on appeal that he was denied any of these rights.
Nor does the ICWA provide Lamar with standing on appeal that he did not otherwise have. In Jonathon S., this court considered whether, for purposes of standing, a non-Indian mother was aggrieved by an ICWA notice violation. We held that she was, and gave the following explanation: "Even a non-Indian parent has rights under the ICWA. The ICWA defines `parent so as to include (subject to one exception not applicable here) `any biological parent or parents of an Indian child . . . . [Citation.] It then provides that `the parent, as well as the tribe, is entitled to notice. (25 U.S.C. § 1912(a).) Here, the mother had notice of the proceedings; she did not, however, receive notice of the tribes right of intervention, as the ICWA would require. [Citation.] [¶] Moreover, giving notice to the tribe could result in a determination that [the minor] is in fact an Indian child. In that event, the juvenile court would have to make certain specified findings before it could terminate parental rights, including an `active efforts finding (25 U.S.C. § 1912(d)) and a `serious . . . damage finding (25 U.S.C. § 1912(f)). Moreover, at least one `qualified expert witness[] would have to testify at the section 366.26 hearing. (25 U.S.C. § 1912(f).) These heightened requirements would apply regardless of whether the tribe chose to intervene. They all tend to benefit the non-Indian as well as the Indian parent." (Jonathon S., supra, 129 Cal.App.4th at p. 339.)
The rights and benefits held by the mother in Jonathon S. flowed directly from the mothers status as a parent within the meaning of the ICWA and her status as a parent under California law: A parent, under the ICWA, is entitled to notice under section 1912; and the "heightened requirements" under ICWA could affect a parents rights in a child. (25 U.S.C. § 1912(a), (d), (f).) A parent, under the ICWA, "does not include the unwed father where paternity has not been acknowledged or established." (25 U.S.C. § 1903(9), italics added; see also rule 1439(a)(4) ["`Parent of an Indian child . . . does not include . . . an unwed alleged father where paternity has not been determined or acknowledged"].) Whether paternity has been acknowledged or established for purposes of the ICWA is resolved under state law. (Daniel M., supra, 110 Cal.App.4th at p. 708; Yavapai-Apache Tribe v. Mejia (Tex.Ct.App. 1995) 906 S.W.2d 152, 173.) Again, Lamar has not taken any action to acknowledge or establish his paternity. He is not, therefore, a "parent," for purposes of the ICWA. Lamar does not present any argument as to how he might otherwise be aggrieved by the failure to give additional notice under the ICWA. Thus, as an unwed, alleged father who has not acknowledged or established paternity despite ample time to do so, he does not have standing to assert an ICWA violation. Accordingly, we will dismiss his appeal.
Daniel M., upon which DCS places sole reliance, comes to a similar conclusion based upon section 1914 of the ICWA. This section permits only the Indian child, a parent, an Indian custodian, or the Indian tribe to petition a court to invalidate an order terminating parental rights. In Jonathon S., supra, 129 Cal.App.4th 334, this court expressed its disagreement with Daniel M.s implicit assumption that an appeal asserting an ICWA violation was a proceeding under section 1914. Thus, while we arrive at the same result as the court in Daniel M., we do not rely upon its rationale.
2. Brandis ICWA Argument
Brandi, by adopting Lamars argument, asserts that Lamars statement that he may have Cherokee ancestry required DCS to "re-notice the Cherokee tribes and the [BIA] with the new information." We disagree.
Our dismissal of Lamars appeal does not affect Brandis joinder in the argument asserted in Lamars brief. (See California Assn. of Retail Tobacconists v. State of California (2003) 109 Cal.App.4th 792, 836, fn. 28.) Moreover, regardless of whether Lamar has standing to assert his ICWA argument, Brandi does. She is a parent under both the ICWA and California law, and, even if she is not Indian herself, she may be aggrieved by an unlawful failure to give ICWA notice. (See Jonathon S., supra, 129 Cal.App.4th at pp. 338-339.)
"The ICWA establishes minimum federal standards, both procedural and substantive, governing the removal of Indian children from their families." (In re H. A. (2002) 103 Cal.App.4th 1206, 1210.) It provides: "In any State court proceeding for the foster care placement of, or termination of parental rights to, an Indian child, the Indian custodian of the child and the Indian childs tribe shall have a right to intervene at any point in the proceeding." (25 U.S.C.A. § 1911(c).) An "Indian child" is a child who is either (1) "a member of an Indian tribe" or (2) "eligible for membership in an Indian tribe and . . . the biological child of a member of an Indian tribe[.]" (25 U.S.C.A. § 1903(4).) To ensure that an Indian childs tribe will be afforded the opportunity to assert its right to intervene, the ICWA provides that courts must give notice to the tribe when "the court knows or has reason to know that an Indian child is involved." (25 U.S.C.A. § 1912(a).)
Rule 1439(d)(4) sets forth "circumstances that may provide probable cause for the court to believe the child is an Indian child." Such circumstances include: "(A) A person having an interest in the child, including the child, an Indian tribe, an Indian organization, an officer of the court, or a public or private agency, informs the court or the county welfare agency or the probation department or provides information suggesting that the child is an Indian child; [¶] (B) The residence of the child, the childs parents, or an Indian custodian is in a predominantly Indian community; or [¶] (C) The child or the childs family has received services or benefits from a tribe or services that are available to Indians from tribes or the federal government, such as the Indian Health Service." (Rule 1439(d)(4).)
The facts in this case do not fall within any of the circumstances described in rule 1439(d)(4). Because Lamar, as an alleged father, does not have a legally cognizable interest in the child (see In re Christopher M. (2003) 113 Cal.App.4th 155, 159), he is not a source of information that could suggest that the child is an Indian child for purposes of paragraph (A) of the rule. Nor is there any basis for concluding that our facts fit within paragraph (B) or (C) of the rule.
The BIA has also issued Guidelines for State Courts; Indian Child Custody Proceedings (44 Fed.Reg. 67584 et seq. (Nov. 26, 1979)) (Guidelines), which interpret the ICWA. These nonbinding Guidelines provide in relevant part: "Circumstances under which a state court has reason to believe a child . . . is an Indian include but are not limited to the following: [¶] (i) Any party to the case, Indian tribe, Indian organization or public or private agency informs the court that the child is an Indian child. [¶] (ii) Any public or state-licensed agency involved in child protection services or family support has discovered information which suggests that the child is an Indian child. [¶] (iii) The child who is the subject of the proceeding gives the court reason to believe he or she is an Indian child. [¶] (iv) The residence or the domicile of the child, his or her biological parents, or the Indian custodian is known by the court to be or is shown to be a predominantly Indian community. [¶] (v) An officer of the court involved in the proceeding has knowledge that the child may be an Indian child." (Id. at p. 67586.)
With respect to the circumstances described in paragraph (i) of the Guidelines, Lamar is not a party to this case; nor is there evidence that the court received any information concerning Indian ancestry from any source other than Lamar. The situations described in paragraphs (iii) and (iv) are patently inapplicable here.
For purposes of this analysis, the information of Cherokee, Blackfeet, and Apache ancestry previously provided by Brandi and her mother is irrelevant because ICWA notices were sent based upon such information and there is no contention on appeal that such notices were inadequate. We are concerned only with the question of whether the subsequent information from Lamar provided the court with knowledge or a reason to know that Patrick was an Indian child such that new notices were required.
Arguably, the facts here fall within the circumstances described in the Guidelines in paragraphs (ii) (child services agency discovered information which suggests that the child is an Indian child) or (v) (an officer of the court has knowledge that the child may be an Indian child). Relying in part on these aspects of the Guidelines, some California courts have indicated that notice may be required when there are any facts or evidence suggesting that the child may be an Indian child. (See, e.g., Dwayne P. v. Superior Court (2002) 103 Cal.App.4th 247, 258; In re Antoinette S. (2002) 104 Cal.App.4th 1401, 1407.) However, whether information can reasonably suggest that the child is an Indian child depends upon the totality of the circumstances, including the nature and source of the information; vague or speculative information, for example, is insufficient to trigger the notice requirement. (In re O.K. (2003) 106 Cal.App.4th 152, 156-157; In re Aaron R. (2005) 130 Cal.App.4th 697, 707; see also B.H. v. People ex rel. X.H. (Colo. S.Ct. 2006) 138 P.3d 299, 303 [reason to know that a child is an Indian child "must depend upon the totality of the circumstances and include consideration of not only the nature and specificity of available information but also the credibility of the source of that information and the basis of the sources knowledge"].) Neither Brandi nor Lamar have cited to any authority holding that ICWA notice is required when the information is of an alleged fathers Indian ancestry and the only source of the information is the alleged father who failed to acknowledge or establish paternity.
Here, the source of the only relevant information concerning Indian ancestry is Lamar. Prior to his appearance, Lamar was not identified by either Brandi or DCS as a possible biological father. Indeed, Brandi initially said that she did not know who Patricks father was, although she believed that there was someone in Inglewood who looked like Patrick. (There is nothing in the record to indicate that Lamar is the Inglewood look-alike.) Another possible father, Cecil S., was never found. Lamar was not married to Brandi, never lived with Patrick, and appeared in the proceedings for the first time 16 months after the children were removed from Brandis custody. He then stated that he is Patricks father and that his great-grandmother was Cherokee. Significantly, as explained above, Lamar did nothing to establish his paternity with respect to Patrick. Nine months later, at the section 366.26 hearing, he could testify only that he was "pretty sure" he was Patricks father because the "timeframes right." In light of Brandis uncertainty as to Patricks biological father, Lamars failure to make any effort to establish paternity, and Lamars questionable basis for his belief of fatherhood, any biological connection between Lamar and Patrick is purely speculative. Thus, even if Lamar has Cherokee ancestry, there is no reasonable basis for finding a biological link between Lamar and Patrick. Without this link, Lamars information simply does not support a reasonable suggestion that Patrick is an Indian child. Therefore, there was no error in failing to send ICWA notice in response to Lamars statements.
IV. DISPOSITION
Lamars appeal is dismissed.
The orders made at the section 366.26 hearing are affirmed.
We concur:
Ramirez, P.J.
Hollenhorst, J.