Opinion
NOT TO BE PUBLISHED
Appeal from a judgment and orders of the Superior Court of Orange County, Maureen Aplin, Temporary Judge. (Pursuant to Cal. Const., art. VI, § 21.) Super. Ct. No. DP013198
Dabney B. Finch, under appointment by the Court of Appeal, for Defendant and Appellant.
Benjamin P. de Mayo, County Counsel, Karen L. Christensen and Aurelio Torre, Deputy County Counsel, for Plaintiff and Respondent.
No appearance for the Minor.
OPINION
Moore, J.
Appellant Richard H. is the presumed father (father) of seven-year-old S.P. He appeals from the final judgment terminating jurisdiction and returning S.P. to her mother, without visitation rights for him. He claims the court erred in failing to comply with the Indian Child Welfare Act (25 U.S.C. § 1901 et seq.) (ICWA), in failing to provide him with reunification services, and in denying him visitation rights. We affirm.
The minute order terminating the dependency proceedings was dated May 22, 2007. Father’s May 30, 2007 notice of appeal states that he appeals from “Dependency terminated with exit orders 5/22/07[.]” The final judgment was dated June 14, 2007. We deem the appeal to be taken from the final judgment and the apposite exit orders contained therein.
I
FACTS
S.P. was born in March 1999, out of wedlock. Father and mother signed a declaration of paternity in July of that year. In October 2000, father stipulated to pay guideline child support.
In March 2006, S.P.’s half brother, E.P., tested positive for methamphetamines at birth. Mother claimed that she had been clean for about a year and a half and that, a couple of days before the birth, someone must have slipped her some methamphetamines at a party. E.P.’s father, Brian A., with whom mother had been living for about six years, admitted to prior drug use, but claimed not to use drugs around S.P. Brian A. helped raise S.P. from the time she was about a year old, and she believed him to be her father. On March 30, 2006, the court ordered that S.P. and E.P. be detained under the protective custody of the Orange County Social Services Agency (Welf. & Inst. Code, § 300, subd. (b)). S.P. was placed in the home of her maternal grandparents.
In April 2006, the court accepted mother into the dependency court drug program. Also that month, father received notice concerning the dependency proceedings. He contacted the social worker assigned to the case and stated a desire to establish a relationship with S.P. Father, who disclosed that he was on parole for burglary, indicated that he was willing to be introduced to S.P. using “baby steps,” so she could “get to know him gradually.”
The social worker met with father in July 2006. Father admitted that he had not seen S.P. since she was about two years old. He later testified before the court that he was convicted of residential burglary in 2001 and served four and a half years in prison, so he had no way of seeing his daughter during that period. However, he testified that he had sent letters while he was in prison and he told the social worker that he had sent cards and gifts to S.P. for special occasions. Father also expressed a desire to have visitation with S.P. In the July 24, 2006 interim review report, the social worker recommended against father having visitation. The social worker noted that S.P. believed Brian A. to be her father, and that S.P. was in a stable environment with the maternal grandparents, with whom she had resided for most of her life. The social worker stated: “To introduce [father] into the child’s life, as her father, at this point in time would be a disruption to her emotional health and welfare.”
On August 8, 2006, the court granted mother a 60-day trial visit with S.P. A week later, the court found father to be the presumed father of S.P. The court ordered the minor to undergo therapy for the purpose of addressing issues pertaining to father. It also authorized the therapist to introduce father to S.P. if appropriate and not to S.P.’s detriment. In addition, the order permitted father to give the therapist letters addressed to S.P., for the therapist to provide to S.P. as appropriate.
On April 24, 2007, the matter of contested custody orders re visitation was set for hearing on May 22, 2007. Also on April 24, 2007, the father, for the first time, delivered to the social worker a letter intended for S.P. The social worker received a second letter on May 4, 2007, and a package four days later, both intended for S.P.
In its June 14, 2007 final judgment, the court terminated jurisdiction over S.P., ordered that S.P.’s mother have legal and physical custody over her, and provided no visitation rights to father. However, the judgment permitted mother, in her discretion, to allow father to visit S.P. That discretion was limited in that the judgment specified that father was only to be permitted visitation under certain conditions, including compliance with his parole requirements, completion of a parenting course and an anger management course, completion of six months of individual counseling, satisfactory drug testing, and, in the discretion of mother and S.P.’s therapist, conjoint therapy with S.P. Father appeals.
II
DISCUSSION
A. ICWA:
The March 30, 2006 detention report stated that mother denied having Indian heritage. It also stated that the whereabouts of father were then unknown, so there was no information about any possible Indian heritage on his side of the family. The April 24, 2006 jurisdiction/disposition report reflected that the whereabouts of father had only recently become known and that no information was yet available about his possible Indian heritage. A June 1, 2006 minute order indicates that father was present in court for the first time on that date. However, there is no indication in the order that any inquiry was made as to whether father may have had Indian heritage. Indeed, father represents that no one ever inquired as to his heritage. And, as he points out, the court made no findings as to whether the ICWA applied to S.P.
Father contends the case should be remanded with directions to inquire of him whether S.P. may be an Indian child. He relies on In re J.N. (2006) 138 Cal.App.4th 450. In that case, the child was detained and placed in foster care. (Id. at p. 455.) Reunification services were ordered for the father, but not for the mother. In addition, the father was permitted supervised visits, but the mother was ordered not to have any contact with the child. (Id. at p. 456.) The mother appealed from the no-contact order, asserting noncompliance with ICWA. (Id. at pp. 456, 460.) The court held: “It is apparent from the record that mother was never asked whether she had any Indian ancestry. Pursuant to California Rules of Court, rule 1439(d), the court and the Department ‘have an affirmative and continuing duty to inquire whether a child for whom a petition under section 300 . . . has been[] filed is or may be an Indian child.’ Under rule 1439, subdivision (d)(2), ‘the social worker must ask . . . the parents . . . whether the child may be an Indian child or may have Indian ancestors.’ Further, under rule 1439, subdivision (d)(3), ‘[a]t the first appearance by a parent or guardian in any dependency case, . . . the parent . . . must be ordered to complete form JV-130, Parental Notification of Indian Status.’ (Italics added.) The Department concedes the record does not show these rules were complied with, but urges us to find any error harmless since there is nothing in the record to indicate mother has any Indian ancestry. We refuse to speculate about what mother’s response to any inquiry would be, however, and instead remand the matter to the trial court with directions . . . .” (In re J.N., supra, 138 Cal.App.4th at p. 461, fn. omitted.)
In the case before us, father, citing In re J.N., supra, 138 Cal.App.4th 450, insists that the matter must be remanded for inquiry into his possible Indian heritage, because of noncompliance with current California Rules of Court, rule 5.664, formerly California Rules of Court, rule 1439. We disagree. There is a compelling difference between that case and the one before us. In In re J.N., the child was placed in foster care. Here, S.P. was temporarily removed from mother’s custody, and ultimately returned to mother’s custody, after her successful completion of a drug program. There is no reason for the involvement of any potential Indian tribe when the child has been returned to the parent, not taken from the parent.
“In 1978, Congress passed the ICWA, which is designed ‘to promote the stability and security of Indian tribes and families by establishing minimum standards for removal of Indian children from their families and placement of such children “in . . . homes which will reflect the unique values of Indian culture . . . .”’ [Citations.] [¶] Among the procedural safeguards included in the ICWA is a provision for notice, which states in part: ‘In any involuntary proceeding in a State court, where the court knows or has reason to know that an Indian child is involved, the party seeking the foster care placement of, or termination of parental rights to, an Indian child shall notify the parent or Indian custodian and the Indian child’s tribe, by registered mail with return receipt requested, of the pending proceedings and of their right of intervention.’ (25 U.S.C. § 1912(a).)” (In re D. T. (2003) 113 Cal.App.4th 1449, 1453-1454.) In this case, the child was not removed from her family. No purpose would be served in remanding this case for inquiry into father’s possible Indian heritage, when the child has been returned to her mother’s custody and the dependency proceedings have been terminated. Father concedes he has found no authority to the contrary.
Furthermore, father has given no indication whatsoever that he could have any possible Indian heritage. Given this particular situation, the case of In re Rebecca R. (2006) 143 Cal.App.4th 1426 is persuasive. In that case, the court stated: “Father complains that he was not asked below whether the child had any Indian heritage. Fair enough. But, there can be no prejudice unless, if he had been asked, father would have indicated that the child did (or may) have such ancestry. [¶] Father is here, now, before this court. There is nothing whatever which prevented him, in his briefing or otherwise, from removing any doubt or speculation. He should have made an offer of proof or other affirmative representation that, had he been asked, he would have been able to proffer some Indian connection sufficient to invoke the ICWA. He did not. [¶] In the absence of such a representation, the matter amounts to nothing more than trifling with the courts. [Citation.] The knowledge of any Indian connection is a matter wholly within the appealing parent’s knowledge and disclosure is a matter entirely within the parent’s present control. The ICWA is not a ‘get out of jail free’ card dealt to parents of non-Indian children, allowing them to avoid a termination order by withholding secret knowledge, keeping an extra ace up their sleeves. Parents cannot spring the matter for the first time on appeal without at least showing their hands.” (Id. at p. 1431.) “The burden on an appealing parent to make an affirmative representation of Indian heritage is de minimis. In the absence of such a representation, there can be no prejudice and no miscarriage of justice requiring reversal.” (Ibid.)
B. Reunification Services:
(1) Background
One week after the court granted mother a 60-day trial visit with S.P., the court found that father was the presumed father of S.P. At that time, it ordered: (1) S.P. “to enroll in therapy to address issues with the father;” (2) “the therapist to have the authority to introduce the father with [S.P.] if it is appropriate and not to [S.P.’s] detriment;” and (3) “father . . . to give the therapist letters for [S.P.] to be introduced by the therapist as appropriate.” (Capitalization omitted.)
On August 18, 2006, father left a voicemail message for the social worker, requesting the name, address and telephone number of the therapist. When the social worker returned the call on August 31, 2006, she got a message stating that the number was not in service. She got the same recording when she tried again on September 8, 2006 and September 14, 2006. Aside from the one voicemail message, father made no other attempts to reach the social worker. In the September 19, 2006 interim review report, the social worker stated that S.P. had been informed that father was her biological father, but that she had shown no interest in meeting him and in fact had expressed disappointment at the news.
Father had requested that a progress review hearing be set for September 19, 2006, to see how S.P. was doing in therapy and how she was responding to any letters from him. But father did not send any letters prior to that hearing, and even though the court had ordered father to return to court on that date, he did not show. At the May 22, 2007 contested hearing, he testified that the matter had “slipped [his] mind.”
On October 25, 2006, at the six-month review, the parties stipulated that S.P. should be returned to mother. They also stipulated that reasonable services had been provided or offered to the parents. That same date, the court entered an order accordingly.
On April 24, 2007, the matter of contested custody orders re visitation was set for hearing on May 22, 2007. Also on April 24, 2007, father did, for the first time, deliver to the social worker a letter intended for S.P. The social worker received a second letter on May 4, 2007 and a package on May 8, 2007, both intended for S.P. On May 22, 2007, the court ordered the return of S.P. to mother and the termination of the dependency proceedings.
(2) Analysis
Father complains that the court did not institute a reunification plan for him. He draws our attention to In re Baby Boy H. (1998) 63 Cal.App.4th 470, which provides: “[Welfare and Institutions Code] [s]ection 361.5, subdivision (a) explicitly directs the juvenile court to order child welfare services for the minor and the minor’s parents whenever a minor is removed from a parent’s custody. This requirement implements the law’s strong preference for maintaining the family relationship if at all possible. [Citation.]” (Id. at p. 474.)
However, father stipulated, at the October 25, 2006 six-month review hearing, that reasonable services had been offered. That being the case, father has waived the right to argue that he did not receive reasonable services up until that date. (In re Cody W. (1994) 31 Cal.App.4th 221, 231.) Father’s citation to In re Jesse W. (2001) 93 Cal.App.4th 349, 360 does not convince us otherwise. The only issue then, is the provision of services between that date and the termination of the dependency proceedings in May 2007.
Welfare and Institutions Code section 361.5, subdivision (a) provides that, with certain exceptions, “whenever a child is removed from a parent’s . . . custody, the juvenile court shall order the social worker to provide child welfare services to the child and the child’s mother and statutorily presumed father . . . . Upon a finding and declaration of paternity by the juvenile court or proof of a prior declaration of paternity by any court of competent jurisdiction, the juvenile court may order services for the child and the biological father, if the court determines that the services will benefit the child. . . .”
In this case, S.P. was returned to mother for a 60-day trial visit as of August 8, 2006, before father was even determined to be the presumed father. Moreover, the parties stipulated to the return of S.P. to mother as of October 25, 2006 and the court so ordered. Father cites no case interpreting Welfare and Institutions Code section 361.5, subdivision (a) as requiring the provision of services to the presumed father after the child has been returned to the mother, who was originally the custodial parent in any event. As stated in In re Erika W. (1994) 28 Cal.App.4th 470, albeit in a different context: “When a child is placed in nonparental custody, reunification services are necessary to promote a possible return of the child to parental custody. However, when a child is placed in parental custody, this goal has already been met and therefore reunification services are not necessary.” (Id. at p. 478.) (See also Welf. & Inst. Code, § 16507, subd. (b) [reunification services to be provided only when child placed in out-of-home care or in care of previously noncustodial parent].)
Of course, as father notes, “‘[i]t is axiomatic that due process guarantees apply to dependency proceedings.’ [Citation.]” (In re Valerie A. (2007) 152 Cal.App.4th 987, 1006.) However, father has not demonstrated any due process violation. This case does not involve a failure to comply with statutorily mandated notice requirements, as in Judith P. v. Superior Court (2002) 102 Cal.App.4th 535, 539-540. It also does not involve a situation where the court ordered a Welfare and Institutions Code section 366.26 selection and implementation hearing despite finding that reasonable services had not been provided to the father, as in In re Dino E. (1992) 6 Cal.App.4th 1768, 1774-1775.
Unlike the situation in In re Dino E., supra, 6 Cal.App.4th 1768, at page 1777, father here was given a “map” to tell him what to do in order to establish the sought-after relationship with his child. He was given a chance to be introduced to S.P. through letters and S.P.’s counseling, as an initial step, but he chose not to avail himself of that opportunity. At the hearing on May 22, 2007, father indicated that he did not see the importance of sending the letters when he had the opportunity, but that, on the eve of termination of the dependency proceedings, he came to understand the importance after all. He said, “You know, I really see the seriousness and I’m not going to justify myself. I should have wrote those letters and I kick myself, you know, for not. Shame on me, bottom line.” He further stated, “I didn’t really understand how serious it was until now.” Father now laments that “the importance of developing a relationship with his daughter” was not more greatly “impressed upon him,” and claims that “a case plan would have given him a ‘road map’ to follow in” developing that relationship. However, the court’s orders concerning providing letters to the therapist for introduction to S.P. constituted a specific road map. Father apparently was not interested in following that map until he realized the dependency proceedings were about to be terminated.
Given that father has demonstrated no error, we need not address his arguments concerning the standard of review applicable to structural errors versus trial errors. (See Judith P. v. Superior Court, supra, 102 Cal.App.4th at pp. 553-558 [structural error triggers automatic reversal]; but see also In re Celine R. (2003) 31 Cal.4th 45, 58-60 [harmless error standard in dependency proceedings].)
C. Visitation Rights:
Father maintains that the court erred in entering exit orders that denied him visitation with S.P. He claims that the court denied visitation because mother testified that S.P. became anxious, angry and even violent when told the truth about her father, and that S.P. did not want to read letters from father or have communication with him. Father claims the court erred in basing its decision on the child’s wishes. Furthermore, he maintains that it is not in S.P.’s best interests to grow up without knowing her father. Finally, he says that the law favors visits between parent and child and that he, as the noncustodial parent, has a right to visitation.
Father cites In re Julie M. (1999) 69 Cal.App.4th 41, wherein a visitation order was reversed because it gave the children the right to either consent to, or refuse to, see their mother. (Id. at pp. 46, 52.) The appellate court held that “[t]he juvenile court did abuse its discretion in giving the children absolute discretion to decide whether [the mother] could visit with them. The order essentially delegated judicial power to the children – an abdication of governmental responsibility . . . . [Citation.]” (Id. at pp. 48-49.)
In the case before us, however, the juvenile court did not give S.P. the discretion to decide whether to see father. Rather, the court determined to deny visitation. The court, in fashioning its order, was at liberty to consider not only mother’s testimony regarding S.P.’s feelings and behavior in reaction to discussions about father, but also the testimony of the social worker assigned to the case. The social worker also testified as to S.P.’s adverse reaction when informed of possible contact with father. Indeed, the social worker recommended against visitation. She stated that she believed it would not be in S.P.’s best interests to have contact with father. The social worker explained: “[S.P.] has been stable in her environment for at least the past six to eight months and has completed her therapy to deal with the issue of her father and I think that at this time presenting her with that again would be destabilizing to the environment that she has been in.”
Father challenges the portion of the court’s order denying visitation. He does not challenge the portion of the order granting mother certain structured discretion to allow visitation. That being the case, we need not address whether this limited discretion in mother complies with the requirements of In re Julie M., supra, 69 Cal.App.4th at pages 50-51.
The foregoing shows that the testimony of both mother and the social worker was directed to the best interests of S.P. As father acknowledges, “the court must focus on the best interests of the child[] . . . . [Citation.]” (In re Julie M., supra, 69 Cal.App.4th at p. 50.) “This includes the ‘possibility of adverse psychological consequences of an unwanted visit between [parent] and child.’ [Citation.]” (Ibid.)
At the same time, it is true that “a child’s aversion to visiting [a] . . . parent may be a ‘dominant’ factor in administering visitation, but it [cannot] be the sole factor. [Citation.]” (In re Julie M., supra, 69 Cal.App.4th at p. 51.) There is no indication here that S.P.’s feelings were the sole factor in the court’s determination. The record reflects that father had not seen S.P. since she was about two years old. Brian A. was in effect the only father she knew. She had been detained because mother had given birth to another child who tested positive for drugs at birth and mother had subsequently completed a drug program in an exemplary manner. S.P. had been returned to her mother’s care and the arrangement had proceeded well. In other words, S.P. had been returned to her home environment and the risks which had caused her removal had been remediated. Introducing father to S.P. would do nothing to address the risks that had been associated with mother’s drug usage. Although father argues that S.P. should know that she has a father who loves her, and should not grow up believing that her father did not care about her, this is not the determinative factor. Rather, the court “‘must look at the totality of the child’s circumstances’” in evaluating his or her best interests. (In re Chantal S. (1996) 13 Cal.4th 196, 206.)
Of course, father has “[v]isitation rights [that] arise from the very ‘fact of parenthood’ and the constitutionally protected right ‘“to marry, establish a home and bring up children.”’ [Citation.]” (In re Julie M., supra, 69 Cal.App.4th at p. 49.) “But a parent’s liberty interest in the care, custody and companionship of children cannot be maintained at the expense of their well-being. [Citation.]” (Id. at p. 50.) Here, S.P. had no preexisting relationship with father. The court gave father an opportunity to establish a relationship with S.P. via letters and a possible introduction through therapy. S.P. completed six months of therapy to facilitate the process, but father did not take part. He waited until the eve of the termination of dependency proceedings to send any letters and those letters were received by the social worker only after S.P.’s therapy had been concluded and the time for introducing the letters to S.P. in a therapeutic setting had passed. Father’s May 22, 2007 promise to thenceforth take seriously any future court-ordered opportunity to establish a relationship with S.P. was too little too late. The only thing father demonstrated during S.P.’s therapy period was that he was disinterested in her — not that he was a loving parent from whose contact S.P. would benefit. The court did not abuse its discretion in denying father visitation.
III
DISPOSITION
The judgment and orders are affirmed.
WE CONCUR: BEDSWORTH, ACTING P. J. FYBEL, J.