Opinion
NOT TO BE PUBLISHED
Alameda County Super. Ct. No. OJ-08-010025
Dondero, J.
Appellant, Todd L., appeals the judgment terminating his parental rights to his minor son, T. L., under Welfare and Institutions Code section 366.26. Appellant contends the juvenile court erred by summarily denying his section 388 petition. He also claims the court failed to comply with the notice provisions of the Indian Child Welfare Act (ICWA). We affirm.
All subsequent statutory references are to the Welfare and Institutions Code unless otherwise stated.
FACTUAL BACKGROUND AND PROCEDURAL HISTORY
T. L. was born in June 2008.
On June 4, 2008, respondent the Alameda County Social Services Agency (the Agency) filed a dependency petition, alleging that T. L.’s mother, T. N., had a chronic substance abuse problem that interfered with her ability to parent her child, in that she and T. L. tested positive for cocaine after his birth and she admitted she had smoked crack cocaine almost daily throughout her pregnancy. The petition named appellant as the alleged father. The Agency further alleged the whereabouts of both parents were unknown.
T. N. is not a party to this appeal.
On June 5, 2008, the juvenile court ordered T. L. detained.
The jurisdictional and dispositional hearings were held on August 22, 2008. The juvenile court found T. L. to be a person described by section 300, subdivisions (b) and (g). The court removed him from T. N.’s custody and denied her reunification services. The court further noted that the Agency was not required to provide reunification services to appellant because he was an alleged father, unless and until he established a legal basis for receiving those services. Because the whereabouts of both parents were unknown, the court set a due diligence hearing for October 2, 2008. The court set the section 366.26 hearing for December 22, 2008.
Section 300, subdivision (b), provides that a child may be declared a dependent of the court if “The child has suffered, or there is a substantial risk that the child will suffer, serious physical harm or illness, as a result of... the inability of the parent or guardian to provide regular care for the child due to the parent’s or guardian’s mental illness, developmental disability, or substance abuse.” Subdivision (g) allows a child to be declared a dependent if “The child has been left without any provision for support....”
At the time of T. L.’s birth, T. N. had five children for whom she did not provide any care.
On September 19, 2008, the Agency filed an interim report indicating that it had located appellant on September 3, 2008, at Santa Rita Jail. He was personally served notice of the proceedings on September 10, 2008. The Agency also reported that in an earlier proceeding involving one of T. L.’s siblings, T. N.’s mother had stated that she had heritage with the Shasta Wintu tribe. Subsequently, T. N. was located and the due diligence hearing was taken off calendar.
On October 2, 2008, the juvenile court appointed counsel for appellant. That same day, the Agency sent notices under the ICWA to seven Native American tribes and to the Bureau of Indian Affairs. With respect to the notice sent to the Colusa Rancheria tribe, the Agency’s social worker stated that as of November 4, 2008, she had not received a return receipt. Subsequently, five of the tribes sent letters to the Agency indicating that T. L. was not eligible for membership or enrollment.
On October 10, 2008, the court granted the Agency’s request for authorization to conduct a paternity test to determine if appellant is T. L.’s biological father. The test revealed that appellant is the biological father.
On November 7, 2008, the juvenile court granted the Agency’s request to place T. L. in a foster home with potentially adoptive parents.
On December 11, 2008, the Agency filed its section 366.26 report. The report states a social worker met with appellant, who admitted that he was aware T. N. was pregnant and that the child could be his, although he was not sure. He had been incarcerated shortly before T. L.’s birth and had not had any contact with the either the child or T. N. He also stated that he had at least six other children who were not in his care, though he was not sure if all of them were his biological children.
On December 22, 2008, the juvenile court continued the section 366.26 hearing to January 6, 2009.
On January 6, 2009, appellant’s attorney filed a form JV-180, requesting a change to the court’s order setting the section 366.26 hearing. The court denied the request, on the ground that the proposed change of order did not promote the best interest of the child. During the hearing on the petition, the court also found the petition to be untimely. The court filed its order terminating T. N.’s and appellant’s parental rights and found by clear and convincing evidence that T. L. was adoptable. The court also found the Agency had complied with the inquiry and notice requirements of the ICWA and that T. L. was not an Indian child as defined under that act. This appeal followed.
Judicial Council Forms, form JV-180.
DISCUSSION
I. The Section 388 Petition
Appellant claims that the juvenile court erred in denying his section 388 petition without a hearing. We disagree.
Section 388 provides, in relevant part: “(a) Any parent or other person having an interest in a child who is a dependent child of the juvenile court... may, upon grounds of change of circumstance or new evidence, petition the court in the same action in which the child was found to be a dependent child of the juvenile court... for a hearing to change, modify, or set aside any order of court previously made or to terminate the jurisdiction of the court. The petition shall... set forth in concise language any change of circumstance or new evidence which are alleged to require the change of order or termination of jurisdiction. [¶]... [¶] (d) If it appears that the best interests of the child may be promoted by the proposed change of order,..., the court shall order that a hearing be held and shall give prior notice....” The parent need make only a prima facie showing to trigger the right to a full hearing. (In re Aljamie D. (2000) 84 Cal.App.4th 424, 431–432.)
Preliminarily, contrary to appellant’s contention, it is well established that the summary denial of a section 388 petition is reviewed for abuse of discretion. (In re Brittany K. (2005) 127 Cal.App.4th 1497, 1505; In re Angel B. (2002) 97 Cal.App.4th 454, 460.) We thus decline his invitation to apply the de novo standard of review.
Appellant bases his argument on analogies from In re Jeremy W. (1992) 3 Cal.App.4th 1407, 1416, as well as In re Josiah S. (2002) 102 Cal.App.4th 403, 419, and In re Hashem H. (1996) 45 Cal.App.4th 1791, 1800. While we do not fully address the argument, we note in passing that none of the cited cases is apt. In Jeremy W., the case upon which appellant primarily relies, the appellate court reversed the juvenile court’s summary denial of a mother’s section 388 petition despite the fact that she had made “a strong prima facie showing of a favorable change in the single negative factor on which the referee purported to base his section 366.21 order, if not its complete elimination. On these facts, its summary denial without affording a hearing is not supported by the record.” (Jeremy W., supra, at p. 1416.) This was not a conclusion based on a question of law; it was a tacit acknowledgement that the trial court had in fact abused its discretion because the evidence did not support its decision.
Appellant’s petition was accompanied by his attorney’s declaration, which stated that the attorney discovered after the court had entered its order setting the section 366.26 hearing that the Agency had failed to exercise due diligence in trying to locate appellant. He alleged that he had not been located before September 10, 2008. He asserted that if he had been located earlier, he “would have been afforded the opportunity to make the possible changes in his life within the time allotted to reunify with the child.” He requested that the section 366.26 hearing be set aside and that a new dispositional hearing be set to determine his “potential ‘presumed’ status” and to allow him to receive reunification services. With respect to why the requested change would benefit T. L., the attorney’s declaration stated that appellant was planning on providing “uniquely valuable contributions to the child’s development” as the child’s natural father.
The distinction between the rights of a man who is an alleged, rather than presumed father is significant. “ ‘[O]nly a presumed, not a mere biological, father is a “parent” entitled to receive reunification services under section 361.5.’ [Citation.] ‘ “[P]arental rights are generally conferred on a man not merely based on biology but on the father’s connection to the mother [and/or] child through marriage (or attempted marriage) or his commitment to the child.” ’ [Citation.]” (In re Vincent M. (2008) 161 Cal.App.4th 943, 954.) A natural father may become a presumed father if “He receives the child into his home and openly holds out the child as his natural child.” (Fam. Code, § 7611, subd. (d); see In re Phoenix B. (1990) 218 Cal.App.3d 787, 790, fn. 3 [construing predecessor statute, presumed father status achieved when alleged father “came forward when the Department instituted dependency proceedings, offered to care for his daughter, took her into his home and... held her out as his child”].)
Although a section 388 petition should be liberally construed in favor of its sufficiency, the petition may be summarily denied where it fails to make a prima facie showing of change of circumstances and that it would be in the best interests of the child to modify an existing order. (Cal. Rules of Court, rule 5.570(d); In re Zachary G. (1999) 77 Cal.App.4th 799, 808.) Appellant was thus required to make a prima facie showing of a genuine change of circumstances or new evidence sufficient to justify a finding that providing him with reunification services would be in T. L.’s best interest. (In re Marilyn H. (1993) 5 Cal.4th 295, 310; In re Brittany K., supra, 127 Cal.App.4th 1497, 1504; In re Anthony W. (2001) 87 Cal.App.4th 246, 250.) In evaluating the best interests aspect, a court considers (1) the seriousness of the problem leading to the dependency proceedings, (2) the strength of the relative bonds between the child and both the parent and the caretaker, and (3) the degree to which the problem may be or has been easily removed. (In re Kimberly F. (1997) 56 Cal.App.4th 519, 532.)
In the present case, the problems leading to the dependency proceedings were extremely serious in that T. L. had been exposed to cocaine prior to his birth and neither of his parents was available to care for him. The Agency reported that T. L. had bonded with his potential adoptive parents, and there were no indications that the problems leading to the dependency proceeding would be resolved.
We also observe that the circumstances of this case were extremely time sensitive. “While under normal circumstances a father may wait months or years before inquiring into the existence of any children that may have resulted from his sexual encounters with a woman, a child in the dependency system requires a more time-critical response. Once a child is placed in that system, the father’s failure to ascertain the child’s existence and develop a parental relationship with that child must necessarily occur at the risk of ultimately losing any ‘opportunity to develop that biological connection into a full and enduring relationship.’ [Citation.]” (In re Zacharia D. (1993) 6 Cal.4th 435, 452.)
In the present case, appellant had made no effort to become involved in his child’s life at any time, in spite of knowing that T. N. was pregnant and that he was likely the father. After becoming aware of the dependency proceedings, he waited three more months before filing his petition. During this time, T. L. bonded with his potential adoptive parents. Under the circumstances, we do not find that the court abused its discretion in summarily denying appellant’s section 388 petition.
II. Compliance with the ICWA
Appellant asserts the order must be reversed as there was noncompliance with the ICWA. He claims the Agency and the juvenile court failed to notice all of the federally recognized Wintu tribes. We are not persuaded.
The ICWA provides, in part: “[W]here 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); see In re Shane G. (2008) 166 Cal.App.4th 1532, 1538.) When the tribe cannot be determined, the notice must be given to the Bureau of Indian Affairs. (In re Miguel E. (2004) 120 Cal.App.4th 521, 549; Dwayne P. v. Superior Court (2002) 103 Cal.App.4th 247, 253.)
Appellant claims there is insufficient evidence that the Colusa Rancheria tribe received notice, because the record does not contain a return receipt from that tribe. However, on July 15, 2009, we granted the Agency’s request for judicial notice of the tracking report for a receipt obtained from the Internet website of the U.S. Postal Service, establishing that the ICWA notice at issue was duly delivered to the tribe by certified mail on October 6, 2008. Accordingly, appellant’s claim of error fails.
Appellant’s only other challenge to the order terminating his parental rights was that the erroneous denial of his section 388 petition compels vacation of that order. Since we have concluded the court did not err in denying the petition, we affirm the order terminating his parental rights.
DISPOSITION
The orders denying appellant’s section 388 petition and terminating his parental rights are affirmed.
We concur: Margulies, Acting P. J., Banke, J.