Opinion
A113848
12-13-2006
In re TRE J., a Person Coming Under the Juvenile Court Law. SAN MATEO COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Petitioner and Respondent, v. MARIO V., Objector and Appellant.
INTRODUCTION
In prior related appeal No. A113100, Mario V. appealed the juvenile courts order denying his petition under Welfare and Institutions Code section 388 after a contested hearing on January 23, 2006. In his section 388 petition, Mario sought presumed father status and requested reunification services with his infant son, Tre J. Mario V. also contended the juvenile courts orders should be reversed for failure to comply with the notification requirements of the Indian Child Welfare Act ("ICWA").
Further statutory references are to the Welfare & Institutions Code.
In our recent decision in Marios prior appeal, we concluded the juvenile court did not abuse its discretion by denying his section 388 petition and his request for reunification services. (In re Tre J. (No. A113100, November 28, 2006.) However, we vacated the juvenile courts order, and remanded to the juvenile court for findings on the applicability of the ICWA. We instructed that if the juvenile court concludes the tribes were properly notified under the ICWA, and that no tribe indicated Tre is an Indian child within the meaning of the ICWA, then the juvenile court may reinstate its order denying Marios section 388 petition. We affirmed the judgment in all other respects. (Id.)
Mario now appeals the judgment terminating his parental rights after a hearing pursuant to Welfare and Institutions Code section 366.26 on February 28, 2006. Mario also reiterates his ICWA claim. We shall affirm.
BACKGROUND
We incorporate by reference our earlier opinion in this case, In re Tre J., A113100, and attach it as an Appendix to this opinion.
In our decision in related appeal No. A113100, we recited the pertinent factual and procedural background up to the juvenile courts denial of Marios section 388 petition and request for reunification services on January 23, 2006. Accordingly, we need not reiterate that history here.
After the section 388 hearing, an addendum report was prepared for the section 366.26 hearing. The report stated that the foster/adopt family Tre has been with since March 1, 2005, "is the only consistent, stable family that Tre has experienced. [¶] Tre does not have a relationship with his biological father or relatives as he had minimal contact with them prior to being made a Dependent Child of the Juvenile Court. The undersigned does not believe there is any detriment to Tre to terminate the parental rights of his biological father. The mothers parental rights were terminated at the October 12, 2005, hearing. Tres need for permanence and stability outweigh a need to establish a connection with his biological family at this time in his life." The report recommended the court terminate Marios parental rights, find the permanent plan of adoption is appropriate and that it is likely to be finalized by August 28, 2006.
Mario appeared with counsel at the section 366.26 hearing on February 28, 2006. Marios counsel submitted the matter because counsel could provide "no exception to the rule of the [sic] adoption" given the courts prior denial of visitation. The juvenile court continued dependency and found clear and convincing evidence Tre will be adopted. The court terminated Marios parental rights and set an adoption review for August 17, 2006. Mario filed a timely notice of appeal on April 11, 2006.
DISCUSSION
A. Section 366.26 Hearing
Mario contends the juvenile court violated his due process rights when it proceeded with the section 366.26 hearing after erroneously denying his section 388 petition for presumed father status and reunification services. Mario argues an order terminating parental rights must be vacated when entered after an erroneous denial of a section 388 petition. Indeed, the entire thrust of Marios argument on this appeal is that because the juvenile court erred in its section 388 determination, it necessarily violated his due process rights by proceeding with the section 366.26 hearing. However, in related appeal No. A113100, we discussed in full the merits of Marios contentions challenging the juvenile courts denial of his section 388 petition, and found no error in the juvenile courts decision. Accordingly, because the section 388 order was legal in all respects, we reject Marios contention the juvenile court violated his due process rights by proceeding with the section 366.26 hearing.
Mario also suggests the juvenile courts denial of his section 388 petition made it a forgone conclusion that he would be unable to meet the exception to termination of parental rights under section 366.26, subdivision (c)(1)(A). On this point Mario relies on In re Hunter S. (2006) 142 Cal.App.4th 1497 (Hunter).
Section 366.26, subdivision (c)(1) provides in pertinent part: "If the court determines . . . by a clear and convincing standard, that it is likely the child will be adopted, the court shall terminate parental rights and order the child placed for adoption. . . . A finding . . . that reunification services shall not be offered . . . shall constitute a sufficient basis for termination of parental rights unless the court finds a compelling reason for determining that termination would be detrimental to the child due to one or more of the following circumstances: [¶] (A) The parents or guardians have maintained regular visitation and contact with the child and the child would benefit from continuing the relationship." (Ibid. [italics added].)
There, a dependency petition was filed in November 2001 regarding five-year-old Hunter S. after his mother Charmaine K. left him alone in a filthy hotel room. (Hunter, supra, 142 Cal.App.4th at p. 1500.) Hunter was returned to his mothers care in May 2002. In June 2002, Charmaine was incarcerated on felony charges and Hunter went to live with his maternal grandmother. During this time, "Charmaine and Hunter maintained the `loving close relationship they had shared since Hunters birth." (Id. at p. 1501.) Subsequently, Hunter was placed with his parental grandmother, Dyan S. In May 2003, the maximum period for reunification services expired. In July 2003, Charmaine was released from prison, and began living in a rehabilitation center where she was required to stay for one year. Reunification services were terminated in July 2003 and a section 366.26 hearing was scheduled, but the juvenile court ordered the Department of Family Services "to set up `visitation for [Charmaine] as can be arranged through her program. " (Ibid.) Over the next few months "Charmaine remained sober and employed, and made every effort to be stable and productive. She persevered in her efforts to visit Hunter, who refused almost all contact with her." (Id. at p. 1502.) Charmaines efforts for visitation or joint therapy with her son were ongoing, and in November 2005 she filed a section 388 petition seeking reinstatement of reunification services. (Id. at pp. 1502-1503.) In December 2005, the juvenile court held a combined section 388 and section 366.26 hearing. The court denied the section 388 petition, finding although Charmaine had shown a substantial change of circumstances she failed to show it was in Hunters best interest to be returned to her care. The court also found Hunter adoptable, concluded Charmaine failed to establish any exception to termination under section 366.26, subdivision (c), and terminated her parental rights. (Id. at pp. 1503-1504.)
The court of appeal reversed. The court concluded the juvenile courts visitation order was "illusory" because it granted visitation without ensuring visitation could take place. (Hunter, supra, 142 Cal.App.4th at p. 1505.) "Instead, the court impermissibly abdicated its duty, delegating to Hunters therapist and to Hunter the power to decide, whether, when and how the case would `move forward with visitation." (Ibid.) The court noted the visitation order "was never enforced because Hunter continued to refuse any contact with his mother. This failure to enforce the order was error." (Ibid.) Accordingly, the court of appeal agreed with Charmaines assertion the juvenile court abused its discretion by denying her section 388 petition because "it was the courts last opportunity to rectify three years of errors in failing to enforce the visitation orders, errors which led inexorably to erosion of the intimate bond she once shared with her son." (Id. at p. 1506.)
As our review of the facts makes clear, Hunter has no application whatsoever to this case. In Hunter, the court denied a section 388 petition and terminated parental rights after failing to enforce its own visitation order over a period of almost three years. The courts failure to enforce its own visitation order allowed a mothers once "loving close relationship" with her five-year old son to atrophy while he grew to nine-years old in the care of his parental grandmother. (See Hunter, supra, 142 Cal.App.4th at p. 1501.) Here, by contrast, Mario had minimal contact with Tre at birth, has been incarcerated during Tres entire dependency, and remains incarcerated. At no time has Mario established a close relationship with Tre. In this case there was no failure by the juvenile court to enforce a visitation order, because the juvenile court denied visitation as being against Tres best interests. In sum, the juvenile court did not abuse its discretion by terminating Marios parental rights after denying his section 388 petition. (In re Aaliyah R. (2006) 136 Cal.App.4th 437, 449 [reviewing the juvenile courts decision whether to apply the parental relationship exception to termination of parental rights for abuse of discretion].)
B. ICWA
As he did in related appeal No. A113100, Mario asserts in this appeal the Department of Child and Family Services did not comply with the notice requirements of the ICWA. We adopt our resolution of this issue in related appeal No. A113100 as the rule of the case here. Accordingly, we remand for the same findings on the applicability of the ICWA.
DISPOSITION
The juvenile courts order of February 28, 2006 is vacated, and the matter is remanded to the juvenile court for findings on the applicability of the ICWA. If the juvenile court concludes the tribes were properly notified under the ICWA, and that no tribe indicated Tre is an Indian child within the meaning of the ICWA, then the juvenile court may reinstate its order terminating parental rights pursuant to section 366.26. In all other respects, the judgment is affirmed.
We concur:
McGuiness, P. J.
Pollak, J.
APPENDIX TO IN RE TRE J., A113848
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FIRST APPELLATE DISTRICT DIVISION THREE ------------------------------------------------------------------------- |In re TRE J., a Person Coming Under the | | |Juvenile Court Law. | | |----------------------------------------|--------------------------------| |SAN MATEO COUNTY DEPARTMENT | | |OF CHILDREN AND FAMILY SERVICES, | | | Petitioner and Respondent, | A113100 | | | | |v. | (San Mateo County | | | Super. Ct. No. 74095) | |MARIO V., | | | Objector and Appellant. | |
Mario V. appeals the juvenile courts denial of his petition under Welfare & Institutions Code section 388 and his request for reunification services. He also contends the juvenile courts orders should be reversed for failure to comply with the notification requirements of the Indian Child Welfare Act ("ICWA"). We will reverse to ensure compliance with the ICWA.
Further statutory references are to the Welfare & Institutions Code.
BACKGROUND
Tre J. was born in July 2004. The Santa Clara County Social Services Agency, Department of Family and Childrens Services ("Agency") filed a section 300 juvenile dependency petition on in March 2005, alleging the mother, Jolaunda J., abandoned Tre at the San Jose Family Shelter on February 26, 2005. Tre was placed into protective custody on March 1, 2005. The petition stated the mother has a history of substance abuse and of abandoning her other five children, three of whom are in permanency planning in San Mateo County. The petition also noted Tres biological fathers identity and whereabouts were unknown.
The initial Agency report stated neither parent was available to be interviewed regarding Native American heritage. The report also noted the identity and whereabouts for the father was unknown. On March 2, 2005, the juvenile court sustained the petition and set the next hearing for March 25, 2005. In a jurisdictional report filed March 29, 2005, the Agency recommended the case be transferred to San Mateo County because of the mothers last known address and the fact Tre had three older half siblings in permanency planning in San Mateo. The report noted Tre was currently placed with foster parents in an Emergency Satellite Home, the mother had not been located, and no information had been obtained about the identity or whereabouts of Tres father. The Santa Clara juvenile court ordered transfer of the case to San Mateo County on March 29, 2005. During the pendency of the transfer, the Santa Clara Court authorized the foster parents to take Tre with them by car on their vacation to Donner Lake.
On May 2, 2005, San Mateo County approved the transfer and set a dispositional hearing for June 15, 2005. The section 388 petition for modification filed by the San Mateo County Human Services Agency ("Agency") notes Tre had been placed into foster care on March 1, 2005, and requests Tre be allowed to accompany the foster parents to their cabin in the Lake Tahoe area on an ongoing basis after notifying the social worker. The Agencys dispositional report, filed on June 13, 2005, notes no information had been obtained from Tres mother on the identity and whereabouts of the father. However, it also noted Earlie Johnson, the maternal great-grandmother, stated Hope Johnson, maternal aunt, had received a letter "from a man named Mario who stated he was incarcerated and might be the father of Tre." The man also stated in the letter he wished to take a DNA paternity test and that his grandmother would be willing to take the child if he was the father. The report added Hope Johnson has been unable to find the letter but thought the man might be in the Redwood City Jail but did not remember his last name. The mothers whereabouts were still unknown and no statement had been obtained from her. The report also stated Tre was doing well in his foster home and the family had expressed an interest in adopting him. The report recommended continued placement in foster care with supervised visitation permitted with the mother and father if they were located. An accompanying Declaration of Due Diligence detailed the Agencys unsuccessful attempts to locate Tres mother. The juvenile court entered an order on June 15, 2005, declaring Tre a dependent child of the Court, continuing the placement in the foster home, and granting the modification for Tre to accompany his foster parents on vacation.
On July 28, 2005, the Agency filed a section 388 petition requesting the court issue an order for the Department of Vital Statistics to issue a birth certificate for Tre. The petition stated Tres mother was arrested and brought into custody on a probation violation on June 30, 2005, and the mother reported she delivered Tre at a home in East Palo Alto. The petition lists the fathers full name as Mario V., whereabouts unknown. An order establishing the fact of Tres birth was issued by the juvenile court on October 12, 2005.
The Agency first established contact with appellant on August 15, 2005, after Tres mother received a letter from appellant and informed the Agency he was in San Quentin State Prison. On August 17, 2005, a paternity declaration was mailed to appellant at San Quentin and the declaration of paternity signed by appellant was returned to the social worker on September 12, 2005. On September 7, 2005, appellant completed a Statement Regarding Paternity, in which he requested an attorney be appointed to represent him, stated he believed he was Tres father, and consented to a DNA test to determine paternity. In response, the Agency brought a section 388 modification petition on September 16, 2005, noting the alleged father had been located at San Quentin State Prison, subsequently been transferred to Corcoran State Prison, and had requested appointment of an attorney and paternity testing. The juvenile court granted the modification petition on September 23, 2005.
Meanwhile, on August 26, 2005, the Agency filed notice of a section 366.26 hearing to select a permanent plan for Tre set for October 12, 2005, in which the Agency recommended termination of parental rights and implementation of a plan of adoption. The juvenile court directed an order to the Warden of San Quentin for appellants appearance at a custody hearing on October 12, 2005. The Agency also sent notice of the hearing to appellant at San Quentin. Upon appellants transfer to Corcoran State Prison, notice of hearing and order of appearance were sent there on September 20, 2005. Appellant waived his right to be present and authorized his attorney to represent him at the hearing. Appellant stated his presence was not required because Tre could not be placed with him. Appellant requested Tre be placed back with Tres mother or with his mother or grandmother. Appellant stated he was focusing on his drug program "so I can be a better person and parent."
The Agencys section 366.26 report, filed on October 5, 2005, notes Tres mother identified appellant as the biological father. Also, the report states the presumed father is Monroe B: Tres mother married Monroe B. in 1998 in the State of Nevada and the marriage was never dissolved; Monroe B. was found via the inmate locator service, and would be notified of the hearing by his prison counselor. Further, the report noted Tre was up to date in his medical care; within normal limits in all areas of development; and a "happy and outgoing baby" who exhibited "a healthy bond" with his foster parents. It identified Tre as a "highly adoptable child," whose present foster parents have expressed a strong desire to adopt him. The report noted Tre demonstrates "a secure bond with his new family and looks to them for attention and comfort." Regarding appellant, the report states he "is currently incarcerated at Corcoran State Prison and will not be released until 2007. The undersigned spoke with Mr. V. on September 21, 2005. Mr. V. stated he was not present when Tre was born and has had minimal contact, stating he `took care of him for a day, then Jolaunda started with the games. He stated Ms. J. would not communicate with him regarding her whereabouts, therefore, he did not have consistent contact with Tre." Due to appellants "lack of previous relationship and extensive period of incarceration," the report recommended visitation with appellant was not in Tres best interests. The report also recommended "the parental rights of the mother, the alleged father, and the legal father be terminated, and that a permanent plan of adoption be ordered."
In a Statement Regarding Paternity and accompanying handwritten letter sent from Soledad Prison in October, 2005, Monroe B. stated he was still married to Tres mother and believed he was Tres father. In response, the Agency filed a section 388 modification petition on October 28, 2005, designating Monroe B. as presumed father of Tre and seeking appointment of counsel. Subsequently, Monroe B. stated in court he was not the father; moreover the presumption of paternity was rebutted by appellants test showing his probability of paternity was 99.99 percent.
In its Findings and Orders entered after the October 12 hearing, the juvenile court appointed counsel for appellant; continued Tre as a dependent child of the court and continued his placement with the foster parents; found clear and convincing evidence that it is likely the child will be adopted; terminated the rights of the mother, Jolaunda J; and continued the matter to November 1, 2005. The Agency requested the matter be further continued to December 1, 2005, in order to allow time to arrange paternity testing and results for appellant, and to have the alleged and presumed fathers transported from their respective prisons to court. Appellant received notice of the December 1 hearing but declined appearance because paternity testing had not been completed. The juvenile court ordered appellant held at county jail until paternity testing was completed and continued the matter to February 28, 2006.
On December 28, 2005, results of the paternity test established appellant as Tres biological father. The test results indicate samples were collected from Tre J. on November 28, 2005 and from appellant on December 15, 2005. In response to the positive test results, the Agency filed a section 388 modification petition on January 10, 2006, asking the court to find appellant is the biological father of Tre; placement with the biological father is against the childs best interests; reunification services for the biological father is against the childs best interests; and visitation with the biological father is against the childs best interests. Counsel for appellant also filed a modification petition requesting reunification services and asking Tre be placed with paternal relatives in the meantime. Appellant stated he searched for Tre in February 2005, but could not find him or his mother because she did not return his calls. Appellant claimed Tres mother always knew where his grandmother and brother lived, so she could have left Tre with them instead of abandoning him to a stranger. Also, appellant claimed he did not come forward earlier because Tres mother hid the fact Tre was in the custody of Child Protective Services. Appellant stated he did not want his parental rights terminated and would like Tre to be placed with his grandmother until he is released.
At the modification hearing on January 23, 2006, the juvenile court commenced proceedings by finding the presumption of paternity as to Monroe B. had been rebutted by appellants DNA test. Appellants counsel confirmed appellant sought reunification services, and at the very least wished his family to be considered as a placement for Tre. Tres counsel opposed that option, stating shed "been to the home several times and observed Tre with the fost/adopt family. These are his parents, as far as Tre knows; the only parents he remembers. [¶] He will have been in the home for a year in about a month, and thats mommy and daddy and sister to him. [¶] I am extremely eager to see permanency for my very young client who is very strongly bonded to the only family that he knows."
Appellant testified in support of his request for reunification services. Appellant stated he found out Tre was born about four days after the birth, on July 17, 2004. Appellant stated he went to where Tres mom was staying at the time and "spent time with my child." He stated he continued to have regular visits with Tre until Tres mom gave his family false phone numbers and failed to return his calls once he got out of prison for violating parole. At that point, appellant learned Tres mom was in East Palo Alto and he searched for her on a daily basis. Appellant said his family would be willing to care for Tre. He believed his grandmother and his brother had established a relationship with Tre before he was taken into protective custody. Appellant stated in August 2005 he learned through a friend Tres mom was in county jail, so he wrote to her there, and she told him to contact the Agency. After he contacted the Agency in late September or early October, he was told paternity testing would be arranged, but that did not take place until mid-December. He didnt request any visits with Tre between August and December because he didnt know it was within his rights to request visitation until he applied for reunification. Appellant stated he would be out of jail in 12 months and in the meantime wanted "a chance to attempt at some bonding before the finalized hearing because he is my child." Upon questioning by the court, appellant stated he had seen Tre about 30 times, and Tre was five months old the last time he saw him. Appellant stated he cared for Tre once overnight, when Tre was five months old.
This suggests appellant was not in prison when Tre was born, went to prison on a parole violation, was released, and was re-incarcerated by the time Tre was taken into protective custody. The record does not establish a time-line on these events.
Appellants mother, Ms. D., testified shed seen Tre three times, for about an hour or two on each occasion. She stated she couldnt spend much time with Tre because Tres mother was at the shelter and had to be back at a certain time. She had not seen appellant with Tre. She was willing to help care for Tre, and have him live in her home where she lived with her boyfriend. However, under this arrangement, she stated the primary caregiver would be her mother, Tres great-grandmother.
Appellants grandmother Ms. S., stated she was willing to take Tre and care for him. She kept Tre overnight about two or three times and took him shopping with her. On cross-examination, she stated "my understanding is if I would get Tre and Mario would get out [of prison], Tre would continue to be with me and Mario would have just as much rights if he, if Tre was with him all the time." Ms. S. stated she raised eight children of her own and helped with five (Marios brothers and sisters), plus seven nieces and nephews, adding, "Ive been here 68 years. Ive been here longer than most of you guys, and Ive been through it and seen a lot. I am able to deal with anything. [¶] I can understand your guys position, worried about him going through a trauma and stuff like that [if Tre was removed from his foster parents], but I figure bread (sic) is thicker than water. Thats my outlook."
The juvenile court delivered its ruling as follows: "Regrettable as your situation might be Mr. V., you have not been out of jail long enough to come within any of the statutory guidelines whatsoever and still remain incarcerated for an additional 12 months. [¶] But lets put that aside for a moment. The reality of the situation is that Tre has been, for a year, with a fost/adopt family with whom he has bonded, with whom he considers to be his family. [¶] The contact between you and Tre—even giving you the benefit of the doubt about the 30 times you testified to today as opposed to the one time that you stated to the social worker, which is contained in the report—those 30 contacts occurred at such a time in his life where they do not really amount to much compared to the one year that he has been in the care, and exclusive care, of his fost/adopt family. [¶] . . . [¶] So pursuant to 361.5(a) of the code, I am going to find that reunification services neednt be ordered for you, as it is not in the best interests of the child and would, in this Courts view, cause him immeasurable and traumatic pain from which he would, in my view, never recover emotionally. [¶] There will be no visitation or any contact between you or any of your relatives with Tre." The juvenile courts Findings and Orders on the competing modification petitions were filed on January 24, 2006. The Findings and Orders reflect the courts oral decision, and also ordered appellant to appear at the next hearing, scheduled for February 28, 2006. On January 25, 2006, appellant timely filed a Notice of Appeal against the juvenile courts Findings and Orders of January 23, 2006.
DISCUSSION
A. Denial of Section 388 Petition
We review the juvenile courts ruling denying the section 388 petition for an abuse of discretion. (In re Stephanie M. (1994) 7 Cal.4th 295, 318; In re Angel B. (2002) 97 Cal.App.4th 454, 460.) In Stephanie M., the Supreme Court observed that "when a court has made a custody determination in a dependency proceeding, `a reviewing court will not disturb that decision unless the trial court has exceeded the limits of legal discretion by making an arbitrary, capricious, or patently absurd determination [Citations.]" (Stephanie M., supra, 7 Cal.4th at p. 318.) Thus, " `[t]he appropriate test for abuse of discretion is whether the trial court exceeded the bounds of reason. When two or more inferences can reasonably be deduced from the facts, the reviewing court has no authority to substitute its decision for that of the trial court. [Citation.]" (Id. at pp. 318-319.)
In our view, the juvenile court properly evaluated the evidence, and focusing on Tres safety, protection, and physical and emotional well-being, determined that Tre should remain with the foster family in whose constant care he had been for almost a year and to whom he had formed a strong bond. By comparison, appellant was in no position to care for Tre because he faced incarceration for another 12 months after the hearing. And if we focus on the evidence of the possible effects on the child of placement with appellants family, it is clear that the juvenile court was well within its discretion in deciding that a change of placement was not in Tres best interests. The evidence at the hearing showed appellants mother had only seen Tre about three times and had spent only an hour or two with him on each occasion. Tres great-grandmother also had a very limited contact with Tre even before Tre was taken into protective custody, and had kept him overnight only two or three times. And appellants family had no contact whatsoever with Tre after his placement in the foster home. In sum, the record shows Tre lacked any significant bond to appellant, appellants grandmother, or anyone in his family, and no abuse of discretion by the juvenile court in denying reunification services.
Accordingly, we need not rely on the fact appellant was still incarcerated when the maximum statutory period for reunification services expired in September 2006. (See section 361.5, subds. (a), (d), & (e)(1) [limiting availability of reunification services to maximum of 18 months from the time a child was removed from the physical custody of a parent].)
Additionally, we reject appellants contention the Agency failed to exercise due diligence in locating him. The record reflects the Agency first contacted Tres mother after she was arrested on June 30, 2005. At that point, Tres mother obviously did not know appellants whereabouts. This is reflected in the section 388 petition filed by the Agency on July 28, 2005, after the mothers arrest, which states appellants full name but still lists his whereabouts as unknown. The Agency first established contact with appellant on August 15, 2005, after Tres mother received a letter from appellant. This comports with appellants own testimony he first contacted the Agency in late August after he discovered Tres mother was in county jail and contacted her there. Accordingly, we conclude the Agency acted with all due diligence.
Accordingly, we need not address respondents contention appellant forfeited any challenge to lack of due diligence by failing to raise it below.
We also reject appellants contention the trial court failed to follow the provisions of section 316.2 and California Rules of Court, rule 1413. Appellant bases this contention on the assertion that "[w]hen the [Agency] received appellants declaration of paternity in September 2005 it should have submitted that information to the court, and allowed the court to declare him the presumed father." Appellant claims he was prejudiced in his ability to establish presumed father status under which he would have been entitled to reunification services.
Section 361.2 provides that after a child has been removed from a parent under section 300, the court must determine where there is another parent "who desires to assume custody of the child" and describes the procedures to be followed if there is another such parent. Rule 1413 describes the duties of the juvenile court in establishing parentage. Further references to rules are to the California Rules of Court.
In support of this contention, appellant relies principally on In re Paul H. (2003) 111 Cal.App.4th 753 (Paul H.). Paul H. is entirely inapposite. Paul H. noted California law "differentiate[s] between `alleged, `natural, and `presumed fathers." (Id. at p. 760.) Moreover, "[t]he 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. . . . [¶] . . . An alleged father does not have a current interest in a child because his paternity has not yet been established. As such, an alleged father is not entitled to appointed counsel or reunification services. [¶] Due process for an alleged father requires only that the alleged father be given notice and `an opportunity to appear and assert a position and attempt to change his paternity status. The statutory procedure that protects these limited due process rights is set forth in section 316.2." (Ibid. [citations omitted].) The Paul H. court concluded the juvenile court violated appellants rights as an alleged father by failing to follow the procedures outlined in section 316.2, subdivision (b), and rule 1413, because: "There is no evidence in the record that appellant was served with Judicial Council form JV-505, either by certified mail as required by section 316.2, subdivision (b), or otherwise. Thus, he was denied access to a procedure by which he could have compelled court-ordered paternity testing, as well as assistance from the social services agencies in arranging for such testing. Instead, appellants extensive, if ineffective, efforts to obtain paternity testing on his own were met with repeated roadblocks and, ultimately, were unsuccessful." (Id. at 761.)
Here, by contrast, the record shows the Agency mailed to appellant a paternity declaration as soon as it learned he was housed at San Quentin. After appellant completed that form and returned it to the Agency, the Agency immediately filed a section 388 petition for modification, alerting the juvenile court to the fact he was an alleged father, requested appointment of counsel and paternity testing. The juvenile court granted the petition on September 23, 2005, samples were collected from Tre J. on November 28. 2005 and from appellant on December 15, 2005, and the result of the paternity test was delivered on December 28, 2005. Appellant complains the paternity test should have been completed sooner, but even so, that does not amount to the wholesale denial of process due an alleged father evidenced in Paul H. Moreover, unlike the mother of the child in Paul H., Tres mother was married to Monroe B. at the time Tre was born. By law, therefore, Monroe B. was the childs presumed father, and initially Monroe B. asserted that claim. (See Family Code section 7540.) It was not until Monroe B. appeared in court with counsel on December 1, 2005, that he conceded he was not the father of the child and did not want to participate further in the proceedings. Furthermore, biological fatherhood alone is not sufficient to establish presumed father status. (In re T.R. (2005) 132 Cal.App.4th 1202, 1209-1210 ["Presumed fatherhood, for purposes of dependency proceedings, denotes one who promptly comes forward and demonstrates a full commitment to his parental responsibilities—emotional, financial, and otherwise"].)
Indeed, appellants own section 388 petition lists the presumed father as Monroe B.
In sum, the record does not support appellants contention he established he was entitled to presumed father status. (Ibid. ["One who claims he is entitled to presumed father status has the burden of establishing, by a preponderance of the evidence, the facts supporting that entitlement"].)
Appellants extensive reliance in his reply brief on In re Baby Boy V. (2006) 140 Cal.App.4th 1108 is also misplaced. There, the alleged father contacted the Agency as soon as he learned of the existence of the baby (which the mother had given up for adoption at birth eight months before), but the Agency failed to inform the Court an alleged father had come forward, and the juvenile court subsequently terminated parental rights without ordering a paternity test. (Id. at pp. 1114-1115.) The court of appeal agreed the alleged father was entitled to presumed father status and reunification services because "it is undisputed that Jesus, a non-offending, stable, employed, and financially responsible adult, came forward at the earliest possible moment. . . ." (Id. at p. 1117.) By contrast, appellant knew of Tre four days after the birth, yet the record is devoid of any evidence appellant promptly demonstrated a "full commitment to his parental responsibilities-emotional, financial, and otherwise." (Id. at p. 1117.) Rather, appellant promptly got himself re-incarcerated in prison, where he now remains.
B. Notice Under the ICWA
Appellant contends the trial court committed reversible error by failing to ensure the notice requirements of the ICWA were met. We agree the juvenile court failed to comply with the ICWAs notice requirements.
Proper and effective ICWA notice is critically important in dependency cases. (In re Samuel P. (2002) 99 Cal.App.4th 1259, 1264.) Social service agencies and courts are responsible for ensuring that the law is rigorously followed. (Ibid.; see also rule 1439(d).) "Under the ICWA, where a state court `knows or has reason to know that an Indian child is involved, statutorily prescribed notice must be given to any tribe with which the child has, or is eligible to have, an affiliation. (25 U.S.C. § 1912(a).) The court and the social services agency have `an affirmative duty to inquire whether a child for whom a petition under section 300 is to be, or has been, filed is or may be an Indian child. [Citation.]" (In re Samuel P., supra, 99 Cal.App.4th at p. 1264.) Because the determination of a childs Indian status is a matter for the tribe, "the juvenile court needs only a suggestion of Indian ancestry to trigger the notice requirement. [Citations.] Both the court and the county welfare department have an affirmative duty to inquire whether a dependent child is or may be an Indian child. [Citation.]" (In re Nikki R. (2003) 106 Cal.App.4th 844, 848.) In order "to satisfy the notice provisions of the [ICWA] and to provide a proper record for the juvenile court and appellate court, [the Agency] should follow a two-step procedure. First it should identify any possible tribal affiliations and send proper notice to those entities, return receipt requested. (Rule 1439(f).) Second, [the Agency] should provide to the juvenile court a copy of the notice sent and the return receipt, as well as any correspondence received from the Indian entity relevant to the minors status." (In re Marinna J. (2001) 90 Cal.App.4th 731, 739, fn. 4.) "It is for the juvenile court, not the [Agency] or its social workers, to determine whether the [ICWA] applies under a given set of circumstances." (Id. at p. 739.)
Here, the strict requirements of the ICWA were not met. In its report submitted on September 30, 2005, the Agency stated: "The mother, Jolaunda J. reported . . . that the family has Indian heritage and maternal relatives that were of Cherokee descent and paternal relatives that were of Choctaw descent. The Cherokee tribes, including the Eastern band, the Nation of Oklahoma, and the United Keetoowah Band have been notified. The Eastern Band and the United Keetoowah Band have responded stating that there is no record of tribal registry and do not wish to intervene in this matter. A response from the Nation of Oklahoma has not yet been obtained. The Choctaw tribes, including the Mississippi Band, the Nation of Oklahoma, and the Jena Band, have been notified. Ms. J. initially provided an incorrect name of her paternal great grandfather, therefore, the Choctaw tribes were notified again with the corrected information. This second submission was sent on September 9, 2005. The [Agency] previously received responses back from all three Choctaw Bands stating there is no record of enrollment with the Choctaw tribe. The [Agency] is awaiting response to the second submission with the corrected information. The Bureau of Indian Affairs was notified of possible tribal heritage on September 26, 2005."
As of September 30, 2005, therefore, the report reflects the Agency was still awaiting a response from the Nation of Oklahoma Cherokee tribe. The Agency was also still awaiting responses from all of the Choctaw Bands based on the corrected information it provided to them on September 9, 2005. The Agency did attach to the report copies of certified mail return receipts indicating all the Cherokee and Choctaw tribes received initial notification, and that the Nation of Oklahoma and Jena Bands of the Choctaw tribe had received the second notification (with the corrected information). There is no return receipt for a second notification to the Mississippi Band of the Choctaw Tribe, nor is there one for any mailing to the Bureau of Indian Affairs.
Despite these incomplete responses, the juvenile court terminated the parental rights of Tres mother at the section 366.26 hearing held on October 12, 2005. The juvenile courts Findings and Orders do not contain a finding the ICWA does not apply. However, Tres mother did not appeal the termination of her parental rights, and the issue is not before us.
The next report the Agency submitted to the juvenile court was the interim review report filed January 20, 2006 (January 2006 report) in connection with the hearing on appellants section 388 motion for reunification services held on January 23, 2006. The January 2006 report stated: "The Cherokee tribes, including the Eastern Band, the Nation of Oklahoma, and the United Keetoowah Band were all notified. They each responded stating there was no record of tribal registry and that they did not wish to intervene in the matter. The Choctaw tribes, including the Mississippi Band, the Nation of Oklahoma, and the Jena Band were also notified. The undersigned received notification of each tribe that there is no record of registry and that they did not wish to intervene in the matter. The Bureau of Indian Affairs was also notified." However, the report makes no recommendation concerning the applicability of the ICWA, attaches no certified mail return receipts from the tribes or the Bureau of Indian Affairs, and does not include copies of the notice sent to, or the responses received from, the various tribes. The transcript of the January 23, 2006 hearing contains no mention of the ICWA and the juvenile court made no finding in that regard, either at the hearing or in its Findings and Orders.
On this record, we must conclude the juvenile court did not comply with the notice provisions of the ICWA. The Agency essentially asks us to accept the record shows substantial compliance based on the averments contained in the January 2006 report. We decline because substantial compliance does not satisfy the provisions of the ICWA, and because it is for the juvenile court to make the ICWA determination. (See In re Marinna J., supra, 90 Cal.App.4th at pp. 735, 739.)
DISPOSITION
The juvenile courts order of January 23, 2006 is vacated, and the matter is remanded to the juvenile court for findings on the applicability of the ICWA. If the juvenile court concludes the tribes were properly notified under the ICWA, and that no tribe indicated Tre is an Indian child within the meaning of the ICWA, then the juvenile court may reinstate its order. In all other respects, the order is affirmed.
______________________ Parrilli, J. We concur: _________________________ McGuiness, P. J. _________________________ Pollak, J.