Opinion
G057418
09-12-2019
In re IVY D., a Person Coming Under the Juvenile Court Law. ORANGE COUNTY SOCIAL SERVICES AGENCY, Plaintiff and Respondent, v. B.F., Defendant and Appellant.
Richard L. Knight, under appointment by the Court of Appeal, for Defendant and Appellant. Leon J. Page, County Counsel, Karen L. Christensen and Jeannie Su, Deputy County Counsel, for Plaintiff and Respondent. No appearance for Minor.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 18DP0572) OPINION Appeal from orders of the Superior Court of Orange County, Dennis J. Keough, Judge. Affirmed. Richard L. Knight, under appointment by the Court of Appeal, for Defendant and Appellant. Leon J. Page, County Counsel, Karen L. Christensen and Jeannie Su, Deputy County Counsel, for Plaintiff and Respondent. No appearance for Minor.
* * *
INTRODUCTION
This is an appeal from a juvenile dependency action involving now nine-year-old Ivy D. (Ivy). Ivy's biological father, B.F., challenges the denial of his request for presumed parent status and the summary denial of his Welfare and Institutions Code section 388 petition renewing his request for such status. None of B.F.'s contentions of error has merit. Substantial evidence showed that A.C. was entitled to presumed parent status as he raised Ivy as his daughter and she identified him as her father. We therefore affirm.
All further statutory references are to the Welfare and Institutions Code unless otherwise specified.
BACKGROUND
I.
THE JUVENILE DEPENDENCY PETITION
In June 2018, the Orange County Social Services Agency (SSA) filed a juvenile dependency petition on behalf of then eight-year-old Ivy and her 16-year-old sister L.F. (the petition), alleging the children came within the jurisdiction of the juvenile court under section 300, subdivision (b)(1) (failure to protect), and that Ivy also came within the court's jurisdiction under section 300, subdivision (j) (abuse of a sibling).
We refer to Ivy and L.F. collectively as "the children." No issues regarding L.F.'s dependency are raised in this appeal. Our references to L.F., therefore, are for the purpose of providing relevant background.
The petition, as amended a few months later, (the amended petition) contains allegations that the children's mother, L.D. (Mother), B.F., identified as the children's alleged father, and A.C., also identified as Ivy's alleged father, failed to protect the children from harm due to (1) Mother's long-term and unresolved abuse of methamphetamine; (2) B.F.'s long-term and unresolved abuse of methamphetamine and prescription medications; (3) Mother's and B.F.'s histories of unresolved mental health and anger management issues; and (4) Mother and B.F.'s history of engaging in domestic violence.
Although not stated in the amended petition, the record shows Mother and B.F. had been married; a copy of the judgment of dissolution of their marriage shows it was entered about eight months after Ivy was born. --------
The amended petition summarized the events leading up to the children being taken into protective custody. On May 25, 2018, law enforcement found Mother under the influence of methamphetamine and locked outside of B.F.'s apartment; the children, along with their older sibling D.F., were inside the apartment at the time. B.F. was not present. Mother admitted she had used methamphetamine the previous day and stated that both she and B.F. used methamphetamine outside the apartment while the children were in the front yard and that B.F. had given her an injection of methamphetamine; B.F. denied using drugs with or giving drugs to Mother. A few days later, Mother was again found under the influence of methamphetamine. Mother's backpack, which contained a baggie of methamphetamine, was found "in proximity of the child Ivy."
The amended petition contains D.F.'s and L.F.'s reports of Mother's and B.F.'s drug-related activity, including observations of Mother's and B.F.'s "different[]" behavior when they were using drugs; L.F. seeing a syringe near B.F. while he slept; L.F. seeing a needle near Mother while she slept; and an incident in which D.F. observed B.F. mix powder and water in a small cap, put the mixture on a spoon, and inject the mixture. The children were taken into protective custody.
In support of the abuse of sibling count, the amended petition summarizes D.F.'s and L.F.'s history, before Ivy's birth, of being taken into protective custody and becoming dependents of the juvenile court, as well as B.F.'s and Mother's substance abuse issues, mental health problems, and domestic violence incidents underlying those dependency proceedings.
The amended petition states that, according to Mother, B.F. was Ivy's biological father but that B.F. was not present at Ivy's birth in 2000. B.F. reported he did not know whether he was Ivy's biological father; according to family court records, at some point in time, B.F. was ordered to pay support for Ivy.
A.C., who was married to Mother for an unspecified amount of time since Ivy was born, was present at Ivy's birth. Although not included in the amended petition, the record explains that Ivy was raised by A.C., having lived almost her entire life with A.C. in his home until he separated from Mother within a year before Ivy was taken into protective custody; Ivy stated she wants to be with A.C. wherever he wants to live and that he is one of the most important people in her life. A.C. considers Ivy his only child. Days after Ivy was taken into protective custody in May 2018, A.C. asserted that he was Ivy's father and wanted custody of her. After the marriage fell apart, Mother admitted she kept Ivy from A.C. because Mother was angry with him.
The amended petition alleged A.C. agreed that Mother have custody of Ivy upon their separation; he requested visitation with Ivy every other weekend. In April 2018, A.C. moved to Delaware. The amended petition alleged A.C. was aware of Mother's substance abuse history. The amended petition further stated that both B.F. and A.C. denied having any Native American heritage. Mother, however, stated that she might have Native American heritage but she did not know the name of the tribe.
II.
THE DETENTION REPORT AND THE DETENTION HEARING
In addition to providing information supporting the allegations of the amended petition, the detention report clarified that Mother and B.F. married in "2001 or 2003" and later divorced and that Mother and A.C. married in 2015 or 2016 and that A.C. thereafter filed for divorce. The report stated that Mother informed the social worker that B.F. was Ivy's biological father, Mother and B.F. were not living together at the time Ivy was born, and no father is named on Ivy's birth certificate. It further stated A.C. maintains that he is Ivy's father and his name appears on her birth certificate. A.C. explained that when he and Mother separated, he did not request custody of Ivy due to his long work hours but stated that he has since secured a better job and would be able to take custody of her. The detention report also includes B.F.'s and A.C.'s respective statements to the social worker that they do not have Native American heritage.
At the detention hearing, A.C. requested that he be deemed Ivy's presumed father under Family Code section 7611, subdivision (d). A.C.'s counsel argued that A.C. "has basically raised Ivy as his daughter. She has lived . . . 95 percent of her life with [A.C.]. He has financially supported her, emotionally supported her, and he has held himself out to be the child's father." B.F. requested that he also be deemed Ivy's presumed father on the grounds he is Ivy's biological father, he was married to Mother at the time of Ivy's conception and her birth, and that although Mother lived with A.C. "during this time period," B.F. has known Ivy her entire life. The court asked if B.F. requested a paternity test; his counsel responded in the negative but added that B.F. would take one if it would "settle the controversy."
The juvenile court announced its indicated ruling that it found B.F. to be L.F.'s presumed father; the court also found B.F. to be Ivy's biological father and A.C. to be Ivy's presumed father. The court noted: "[T]here are what appear to be disputed issues of fact in terms of when the dissolution of the prior marriage was, and some factual disputes, and so the court would also, if there's a request for paternity hearing, would grant that, and . . . today's orders would be without prejudice as to that hearing." The court denied B.F.'s request that the children be placed in his care.
III.
THE JURISDICTION AND DISPOSITION REPORT AND THE JURISDICTION HEARING
The jurisdiction and disposition report contains A.C.'s statements regarding his relationship with Ivy. A.C. stated that he and Mother were together between 2008 and 2017, and that Ivy, since she was born in 2010, "always lived with us." He last saw Ivy on Father's Day in 2017 before he moved to Delaware in April 2018 for a job. He also stated he did not see Ivy after the marriage broke down because Mother would not allow it; in June 2018, Mother acknowledged that Ivy had not seen A.C. "in a while" because Mother was angry with him. A.C. stated that when he tried to talk to Mother about Ivy she "explode[d] on me right away," and when he spoke with Ivy on the telephone Mother would listen in. A.C. explained that when he filed for divorce, he gave Mother custody because he was working so much and could not take care of Ivy, but he requested visitation with Ivy every other weekend. He stated Ivy is his only child and further stated, "I took care of Ivy, to Ivy, I am her father." He stated that Ivy, his parents, and his siblings are the most important people in his life. A.C. stated that he is able and willing to provide for Ivy and would like her placed in his care. Ivy "identified her father, A[.C.] and her mother as the most important people in her life."
At the jurisdiction hearing, B.F. pleaded no contest to the allegations of the amended petition; Mother and A.C. submitted. The juvenile court stated that it found a factual basis for the plea and waivers. The court found ICWA notice was provided and that ICWA did not apply as to Ivy or L.F. The court found the allegations of the amended petition true by a preponderance of the evidence, bringing the children within the provisions of section 300, subdivision (b) and Ivy also within section 300, subdivision (j).
IV.
THE DISPOSITION HEARING BEGINS
At the November 2018 disposition hearing, B.F. requested that he be granted presumed parent status as to Ivy under Family Code section 7611, subdivisions (a) and (c)(2). B.F.'s counsel argued B.F. should be granted presumed parent status because he and Mother were married when Ivy was born, the judgment of divorce having been entered about eight months later. Mother had told B.F. he was not Ivy's father, and he did not find out Ivy was his child until 2017 when Mother informed him she would be seeking a child support order against him. B.F. stated that before 2017, he had met Ivy a few times when Mother "would be on break with her husband at the time or boyfriend at the time and would come stay with him for a month or two or three months." After he found out he was Ivy's father, B.F. stated he tried to visit her but Mother did not allow it until May 2018 when she dropped off the children at B.F.'s residence a couple of weeks before they were taken into protective custody. B.F.'s counsel argued that Ivy would not suffer detriment from having two presumed fathers.
Ivy's counsel countered: "It's my understanding that Ivy had no visits with [B.F.] almost her entire childhood until maybe around the time this case came in. I'm not even sure she saw him then. [A.C.] was at the birth. He is on the birth certificate. She looks to [A.C.] as her father. [¶] He's been the only stable parent she ever had. She requested from the beginning to be placed with him. Psychologically she sees him as the father, not [B.F.]."
The juvenile court denied B.F.'s request to be granted presumed parent status regarding Ivy and renewed its finding A.C. is Ivy's presumed father. The court continued the disposition hearing.
The following month, Ivy was placed with A.C. in Delaware. The month after that, A.C. and Ivy moved back to Anaheim to live with A.C.'s parents. An addendum report stated that Ivy expressed she liked living in Delaware and loved the snow, but she "would be content wherever her father [A.C.] wanted to live." A.C. told the social worker she wanted to remain with A.C.; she stated she enjoyed bowling and fishing with him. Ivy's maternal grandmother told the social worker that "she was very impressed with how well Ivy was doing in the care of [A.C.]," Ivy's behavior "was very much improved," and that Ivy stopped having tantrums. The maternal grandmother stated that A.C. "has made a positive impact on Ivy's life."
V.
B.F. FILES A SECTION 388 PETITION SEEKING PRESUMED PARENT STATUS.
In February 2019, B.F. filed a section 388 petition seeking presumed parent status as to Ivy. The petition states B.F. sought such status because he "has provided support for Ivy through child support since 2017. Additionally, prior to official court ordered support, [B.F.] provided support to Ivy through her mother for a significant period of her early years, maintained contact with Ivy. It would not be harmful to her to have the court find two presumed fathers."
The section 388 petition was solely supported by the declaration of B.F.'s counsel who stated that based on information and belief: (1) Ivy was conceived while B.F. and Mother were married and cohabitating; (2) B.F. and Mother's divorce was not finalized until August 13, 2010; (3) between March and September 2010, Mother was asked to leave A.C.'s home and she and Ivy came to live with B.F.; (4) Mother and Ivy moved back in with A.C. in December 2010; (5) Ivy was hospitalized in March 2011 and B.F. "was present and cared for her when she was in the hospital and paid for her medical bills"; (6) after that period and until 2016, B.F. visited with Ivy when Mother visited their two older daughters on Sundays; (7) while Ivy was living with Mother and A.C., B.F. provided support by sending them money periodically and helping them pay utility bills when he was able to; (8) B.F. was found to be Ivy's presumed father in a different proceeding in November 2016 and started paying child support for Ivy in 2017; and (9) during the summer of 2017, the children and D.F. lived with B.F. for four months.
Exhibits attached to B.F.'s counsel's declaration included a minute order from B.F. and Mother's marital dissolution case in which the court stated judgment of marital dissolution was entered August 13, 2010, a January 2017 judgment in a case initiated by the Orange County Department of Child Support Services requiring B.F. to pay child support for the children, miscellaneous receipts showing B.F. made a payment in the amount of $34.99 to Mother for an unspecified reason, and a payment by B.F. in the amount of $87.63 to Southern California Edison.
At the hearing, SSA's counsel informed the court that SSA had received paternity test results showing that B.F. is in fact Ivy's biological father.
The juvenile court summarily denied B.F.'s section 388 petition on the ground it showed neither a change of circumstances nor that the requested relief would be in Ivy's best interest. The court concluded the disposition hearing by declaring Ivy a dependent child under section 360, subdivision (d), and found, under section 361, subdivision (d), reasonable efforts had been made to prevent or eliminate the need for Ivy's removal from Mother's home. The court also found, by clear and convincing evidence, that section 361, subdivision (c)(1) applied. The court concluded that vesting custody with Mother would be detrimental to Ivy and instead vested custody of Ivy with A.C. The court denied B.F.'s request for visitation at that time but authorized B.F. to send "written expressions of sentiment" to Ivy through the social worker who, along with Ivy's therapist, would determine if such expressions should be given to Ivy. B.F. appealed.
DISCUSSION
I.
PRESUMED PARENT RULINGS
B.F. argues the juvenile court erred when it denied B.F.'s presumed parent status but granted presumed parent status to A.C. B.F.'s arguments have no merit.
A.
The Applicable Statutory Framework and Standard of Review.
"The Uniform Parentage Act (UPA) (§ 7600 et seq.) 'provides the framework by which California courts make paternity determinations. [Citation.]' [Citation.] [Family Code s]ection 7611 sets forth various rebuttable presumptions for determining a child's natural parent. [Citation.] A [presumed parent] presumption under [Family Code] section 7611 generally 'is a rebuttable presumption affecting the burden of proof and may be rebutted in an appropriate action only by clear and convincing evidence.' [Citation.] 'A person who claims entitlement to presumed parent status has the burden of establishing by a preponderance of the evidence the facts supporting the entitlement.'" (In re L.L. (2017) 13 Cal.App.5th 1302, 1309, 1310.)
"On appeal, we independently interpret statutes and apply the substantial evidence standard in reviewing a juvenile court's finding whether a person is a presumed parent. [Citations.] In so doing, we consider the evidence and all reasonable inferences therefrom in favor of the court's finding and do not reweigh the evidence or credibility of witnesses." (In re L.L., supra, 13 Cal.App.5th at p. 1310.) If there is substantial evidence to support the decision it will not be disturbed on appeal, even if there is other evidence to support a different ruling. (In re Alexander P. (2016) 4 Cal.App.5th 475, 492.)
B.
Sufficient Evidence Supported A.C.'s Presumed Parent Status.
Under subdivision (d) of Family Code section 7611, a person may qualify as a presumed parent if he or she "receives the child into his or her home and openly holds out the child as his or her natural child." In determining whether a person has met the statutory requirement of Family Code section 7611, "the court may consider a wide variety of factors, including the person's provision of physical and/or financial support for the child, efforts to place the person's name on the birth certificate, efforts to seek legal custody, and the breadth and unequivocal nature of the person's acknowledgement of the child as his or her own. [Citation.] No single factor is determinative; rather, the court may consider all the circumstances when deciding whether the person demonstrated a parental relationship by holding out the child as his or her own and assuming responsibility for the child by receiving the child into his or her home." (R.M. v. T.A. (2015) 233 Cal.App.4th 760, 774.)
Here, the record contains sufficient evidence to support the juvenile court's determination that A.C. is Ivy's presumed father. A.C.'s relationship with Mother began before Ivy was born and he was present when Ivy was born. Ivy lived with him and Mother for almost all of her life and he has thus supported her. Ivy identifies A.C. as her father and one of the most important people in her life and A.C. considers Ivy his only child and one of the most important people in his life. Although a copy of Ivy's birth certificate is not included in our record, counsel's discussions at the hearings suggest that it is the ultimate consensus of the parties that A.C. is identified as Ivy's father on the birth certificate. A.C.'s absence from Ivy's life, beginning in mid-2017, was triggered by the breakup of his marriage to Mother and Mother making it difficult for A.C. to communicate with Ivy. Nevertheless, A.C. pursued ongoing contact and visitation with Ivy. He moved to Delaware because he was offered a job there. After Ivy was taken into protective custody, A.C. has expressed his desire to assume responsibility for her and has since assumed custody of her. After custody of Ivy was vested in A.C., she thrived in his care and stated that she would be happy to live with A.C. wherever he chose to live. Substantial evidence, therefore, supported A.C.'s presumed parent status under Family Code section 7611, subdivision (d).
C.
Sufficient Evidence Supported the Juvenile Court's Refusal to Grant B.F.
Presumed Parent Status.
B.F. asserted that he qualified for presumed parent status, like A.C., under Family Code section 7611, subdivision (d). He also contended he qualified to be elevated from biological parent status to presumed parent status under Family Code section 7611, subdivision (a), which provides for presumed parent status when "[t]he presumed parent and the child's natural mother are or have been married to each other and the child is born during the marriage, or within 300 days after the marriage is terminated by death, annulment, declaration of invalidity, or divorce, or after a judgment of separation is entered by a court." B.F. contends that because judgment of marital dissolution of his marriage to Mother was not entered until after Ivy was born, he qualifies as Ivy's presumed parent.
Even if we were to assume B.F. established eligibility for presumed parent status under Family Code section 7611, the trial court did not err by denying him that status after finding under Family Code section 7612 that A.C. "is, in fact, by weight and reason, the child's father, the functional father [who] would have precedence and standing over [B.F.]."
Family Code section 7612, subdivision (b) provides a procedure for resolving conflicting presumptions of parentage: "If two or more presumptions arise under [Family Code s]ection 7611 that conflict with each other . . . the presumption that on the facts is founded on the weightier considerations of policy and logic controls." Here, the juvenile court found that weightier considerations of policy and logic favor A.C. as Ivy's presumed parent instead of B.F. Substantial evidence supported that finding. Unlike A.C., Ivy has not lived with B.F. most of her life. B.F. has not occupied a parental role in Ivy's life; he asserted he did not know he was Ivy's biological father until 2017, when Ivy was already seven years old. Ivy does not look to B.F. as a father figure but considers A.C. to be one of the most important people in her life. Ivy has been placed in A.C.'s care and that placement has been successful.
Citing subdivision (c) of Family Code section 7612, B.F. argues the juvenile court should have allowed him to have presumed parent status in addition to A.C. having presumed parent status instead of limiting Ivy to one presumed parent. "'As a general rule, "'there can be only one presumed father.'"' [Citation.] However, effective January 1, 2014, section 7612 was amended to add new subdivision (c), which allows for the designation of a third parent for a child in an appropriate case. Section 7612, subdivision (c), provides: 'In an appropriate action, a court may find that more than two persons with a claim to parentage under this division are parents if the court finds that recognizing only two parents would be detrimental to the child. In determining detriment to the child, the court shall consider all relevant factors, including, but not limited to, the harm of removing the child from a stable placement with a parent who has fulfilled the child's physical needs and the child's psychological needs for care and affection, and who has assumed that role for a substantial period of time. A finding of detriment to the child does not require a finding of unfitness of any of the parents or persons with a claim to parentage.' In enacting [Family Code] section 7612, subdivision (c), the Legislature expressed its intent that it 'only apply in the rare case where a child truly has more than two parents, and a finding that a child has more than two parents is necessary to protect the child from the detriment of being separated from one of his or her parents.'" (In re L.L., supra, 13 Cal.App.5th at pp. 1315-1316.)
The appellate court in In re L.L., supra, 13 Cal.App.5th at page 1316 stated: "[In re] Donovan L. [(2016)] 244 Cal.App.4th 1075, we examined the legislative history of [Family Code] section 7612, subdivision (c), and harmonized it with the UPA, concluding: 'There is no indication the Legislature intended [Family Code] section 7612, subdivision (c) to apply to a person . . . who, at the time of the contested disposition hearing on parentage, lacked an existing relationship with the child. A person who lacks an existing parent-child relationship is not a child's "parent in every way." [Citation.]' [Citation.] We further concluded: '"[A]n appropriate action" for application of [Family Code] section 7612, subdivision (c) is one in which there is an existing parent-child relationship between the child and the putative third parent, such that "recognizing only two parents would be detrimental to the child." [Citation.]' [Citation.] In that case, the juvenile court found the putative third parent '"does not have a strong relationship,"' with the child. [Citation.] Because the court found the putative third parent did not have an existing parent-child relationship with the child, we concluded there was no substantial evidence to support a finding of detriment under [Family Code] 7612, subdivision (c)."
Here, the record does not show that B.F. had a parent-child relationship with Ivy and there is no evidence showing Ivy would suffer detriment within the meaning of Family Code section 7612, subdivision (c) unless B.F. were granted presumed parent status. B.F. argues the juvenile court was required to hold an evidentiary hearing to make that determination. (In re P.A. (2011) 198 Cal.App.4th 974, 977.) The parties argued at length at the disposition hearing whether B.F. should also be granted presumed parent status under Family Code section 7612, subdivision (c). B.F. does not suggest the existence of any evidence or argument that was not before the juvenile court when it denied his request. The court conducted the necessary hearing. We find no error.
D.
The Juvenile Court Did Not Err by Summarily Denying the Section 388 Petition
Renewing B.F.'s Request for Presumed Parent Status.
B.F. contends the juvenile court erred by denying him an evidentiary hearing on his section 388 petition seeking presumed parent status. Section 388, subdivision (a)(1) provides in relevant part: "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." To prevail on a section 388 petition, the moving party must establish by a preponderance of the evidence that (1) new evidence or changed circumstances exist, and (2) the proposed change would promote the best interests of the child. (In re Stephanie M. (1994) 7 Cal.4th 295, 317; In re Ernesto R. (2014) 230 Cal.App.4th 219, 223.) The change in circumstances proven must relate to the purpose of the prior order such that modification of the order is "appropriate." (In re A.R. (2015) 235 Cal.App.4th 1102, 1119.)
"A parent need only make a prima facie showing of these elements to trigger the right to a hearing on a section 388 petition and the petition should be liberally construed in favor of granting a hearing to consider the parent's request." (In re Zachary G. (1999) 77 Cal.App.4th 799, 806.) "However, if the liberally construed allegations of the petition do not make a prima facie showing of changed circumstances and that the proposed change would promote the best interests of the child, the court need not order a hearing on the petition. [Citations.] The prima facie requirement is not met unless the facts alleged, if supported by evidence given credit at the hearing, would sustain a favorable decision on the petition." (Ibid.) In determining whether the petition makes a prima facie showing of changed circumstances, the court may consider the case's "entire factual and procedural history." (In re Jackson W. (2010) 184 Cal.App.4th 247, 258.)
We review the juvenile court's summary denial of a section 388 petition under the abuse of discretion standard. (In re D.R. (2011) 193 Cal.App.4th 1494, 1513; In re C.J.W. (2007) 157 Cal.App.4th 1075, 1079; In re Anthony W. (2001) 87 Cal.App.4th 246, 250.)
Here, even if we were to assume B.F. made a prima facie showing of a change of circumstances or new evidence, he failed to show his proposed order granting him presumed parent status would be in Ivy's best interest. For the reasons discussed ante, substantial evidence supported the juvenile court's finding that A.C., having occupied a parental role in Ivy's life, is her presumed parent and that Ivy would not suffer detriment if B.F. were not also declared a presumed parent. B.F.'s section 388 petition did not make a prima facie case that his sought after relief was in Ivy's best interest. The juvenile court did not abuse its discretion by summarily denying B.F.'s section 388 petition.
II.
THE JUVENILE COURT'S REMOVAL ORDER
B.F. argues the juvenile court erred at the disposition hearing by ordering that Ivy be removed from his care under section 361, subdivision (c)(1). Section 361, subdivision (c) states in part: "A dependent child shall not be taken from the physical custody of his or her parents, guardian or guardians, or Indian custodian with whom the child resides at the time the petition was initiated, unless the juvenile court finds clear and convincing evidence of any of the following circumstances listed in paragraphs (1) to (5), inclusive." Paragraph (1) of section 361, subdivision (c) states: "There is or would be a substantial danger to the physical health, safety, protection, or physical or emotional well-being of the minor if the minor were returned home, and there are no reasonable means by which the minor's physical health can be protected without removing the minor from the minor's parent's, guardian's, or Indian custodian's physical custody."
Here, the juvenile court did not remove Ivy from B.F.'s custody, but from Mother's custody after making findings required under section 361, subdivisions (c)(1) and (d). It is true Mother dropped off the children at B.F.'s residence shortly before they were detained, but B.F. was never Ivy's presumed father and thus not entitled to custody of Ivy in this case. (In re Zacharia D. (1993) 6 Cal.4th 435, 451 ["only a presumed father is entitled to custody of his child; custody is the consequence of either a successful reunification plan or a placement of the child with the father under section 361.2"]; In re T.G. (2013) 215 Cal.App.4th 1, 5-6 [Presumed fathers are vested with greater parental rights than mere biological fathers. A presumed father is a parent entitled to receive custody of the child under section 361.2 and reunification services under section 361.5]; In re Eric E. (2006) 137 Cal.App.4th 252, 258 ["primary purpose of achieving presumed father status in the dependency context is for the presumed father to have the right to reunification services and to custody"].) Regardless of whether sufficient evidence showed vesting custody in B.F. would create a substantial danger to Ivy, which the record contains, the juvenile court did not err by vesting custody of Ivy with A.C.
III.
THE JUVENILE COURT DID NOT ABDICATE ITS AUTHORITY REGARDING B.F.'S
COMMUNICATION WITH IVY.
At the conclusion of the disposition hearing, B.F. asked the court for visits with Ivy or, alternatively, to be allowed to send her written letters or cards or gifts, and to have telephone contact if Ivy were to consent. Ivy's counsel informed the court that "Ivy has not expressed any desire whatsoever to visit with or have contact with [B.F.] at this point. So I would ask the court to deny that request." A.C.'s counsel and Mother's counsel joined in Ivy's counsel's position.
The juvenile court denied B.F.'s visitation request. The court, however, stated that it would "permit written expressions of sentiment to be reviewed with Ivy in the therapeutic setting. The materials that [B.F.] would be expressing or sentiments [he] would be expressing would be subject to review for propriety as to content." The court clarified that both the social worker and Ivy's therapist would review them before they would be given to Ivy and further stated: "Court is not placing the sole discretion with Ivy. Court finds at this juncture because of the totality of the evidence, including expressed reluctance to visit, an additional period of reflection, carefully chosen words by [B.F.] would be in the child's best interests."
B.F. argues the juvenile court improperly delegated its authority by vesting in the social worker and Ivy's therapist the discretion to determine whether B.F.'s written expressions should be given to Ivy. In his opening brief, B.F. acknowledges that as a biological father who was denied presumed father status, he was not entitled to receive reunification services and that visits are a form of reunification services. (See In re Zacharia D., supra, 6 Cal.4th at p. 451 ["[O]nly a presumed, not a mere biological, father is a 'parent' entitled to receive reunification services under section 361.5"]; In re T.G., supra, 215 Cal.App.4th at p. 5 [same].) The juvenile court has discretion to order visits for a biological father if the court determines services would benefit the child. (§ 361.5, subd. (a).) Here, the court exercised its discretion to deny visitation between B.F. and Ivy. That the court provided B.F. the opportunity to send writings to Ivy, subject to prior review by her therapist and the social worker, does not constitute an improper delegation of authority. B.F. offers no relevant legal authority supporting his argument. The juvenile court did not abuse its discretion.
IV.
ICWA NOTICE
The federal Indian Child Welfare Act of 1978 (ICWA; 25 U.S.C. § 1901 et seq.) provides: "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).) This notice requirement is also codified in California law. (§ 224.2.)
Here, B.F. and A.C. consistently maintained throughout the dependency proceedings that they have no Native American heritage. Because Mother informed the court that she might have Native American heritage, ICWA notices were issued on behalf of the children. Although Ivy's ICWA notification did not identify B.F. as her biological father, any such error in that identification was harmless given B.F.'s professed lack of Native American heritage. The lack of prejudice is further confirmed because ICWA notices were also sent out on behalf of L.F., on which B.F. is identified as a parent. After the notice period concluded, the juvenile court found ICWA did not apply to the children. Any error in Ivy's ICWA notices regarding B.F. was, therefore, necessarily harmless.
DISPOSITION
The orders are affirmed.
FYBEL, J. WE CONCUR: O'LEARY, P. J. MOORE, J.