Opinion
C066536 Super. Ct. No.JD229724 Super. Ct. No JD229725
09-12-2011
In re E.S. et al., Persons Coming Under the Juvenile Court Law. SACRAMENTO COUNTY DEPARTMENT OF HEALTH AND HUMAN SERVICES, Plaintiff and Respondent, v. B.A., Defendant and Appellant.
NOT TO BE PUBLISHED
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
Presumed father B.A. (father) appeals the denial of his petition to modify and the termination of his parental rights as to his presumptive daughter, E.A. (minor) and her younger half sibling, E.S. (sister; collectively children). He contends (1) the juvenile court abused its discretion by denying his petition to modify the termination of his reunification services, (2) the juvenile court erred in terminating his parental rights because the parental bond exception applied and there was no finding he was an unfit parent, and (3) the Department of Health and Human Services (the Department) did not comply with the notice provisions of the Indian Child Welfare Act (ICWA).
We hold that father does not have standing to raise the issues regarding sister. Accordingly, we dismiss the appeal as to her.
As to minor, county counsel takes no position on father's contention that the trial court erred in denying his petition to modify. We find that county counsel has effectively failed to brief this issue and has thus conceded error. We reverse the juvenile court's denial of the father's petition to modify and its order terminating parental rights as to minor. We find no prejudicial error on the ICWA notices.
FACTUAL BACKGROUND AND PROCEDURAL HISTORY
The relevant facts underlying the ICWA issue are recounted along with the analysis of that claim.
Mother had a history of prostitution, domestic violence, and mental health problems. In April 2009, she left the children at a crisis nursery and did not return to pick them up. After an unsuccessful placement with the maternal grandmother, the children were taken into protective custody. The Department filed petitions under Welfare and Institutions Code section 300, seeking to have the children declared dependents. The children had lived together their entire lives and were closely and positively bonded. They were detained and placed in foster care together.
Mother is not a party to the appeal, and the facts relating to her are not relevant to the disposition of any issue on appeal. Therefore, facts related to mother are detailed only insofar as they give context to the facts relevant on appeal.
Undesignated statutory references are to the Welfare and Institutions Code.
Father, a noncustodial and nonoffending parent, was not living with mother at the time the children were placed in protective custody. He was, however, present at the hospital when minor was born, and was named as the father on her birth certificate and on a declaration of paternity. Two subsequent paternity tests excluded father as minor's biological father. Father lived with mother and minor for approximately 18 months after minor was born. During that time, "he was the [minor's] natural father for all intents and purposes and had the child in his home and supported the child with a home and the basics of food and clothing." The declaration of paternity was rescinded in 2007, based on a paternity test. When the relationship between mother and father ended, he continued to regularly visit minor three to five times a week until approximately February 2009. On October 28, 2009, father was declared the presumed father of minor. The juvenile court ordered father to address his homelessness, life choices and other factors before he could be considered for placement.
In November 2009, the juvenile court sustained the allegations of the first amended petitions. The petitions alleged that mother had a history of substance abuse from which she had failed or refused to rehabilitate, that she had failed to maintain consistent contact with the children, and that she had failed to provide them with adequate food, clothing, and shelter. The children were declared dependents of the court and reunification services were ordered for mother and father. Father was ordered to submit to drug testing and to attend general counseling and parenting classes. He was also advised to maintain regular visitation with the children.
In May 2010, a six-month review hearing was held. Father did not appear at the hearing because of confusion about the dates. His counsel's request for a continuance was denied.
At the time of the review hearing, the children were happy and content in their foster home, where they had been placed in October 2009. They had a good bond with each other. According to the social worker's report, they appeared to be bonded with the foster mother. No information was provided indicating the basis of the social worker's opinion of apparent bonding between the foster mother and the children. The social worker referenced only one visitation she supervised.
The children were observed to be bonded with father. Father had two-hour visits with the children twice a week. The children were excited and happy to see father, sad when he left, and asked about him often. Father maintained regular and consistent contact with the children. He complied with court-ordered random drug testing, and all tests were negative. Father also advised the social worker he had completed parenting classes, was receiving support from his family, and was attending college. The social worker believed father had demonstrated the capacity and ability to complete the objectives of his plan and to reunify with the children. However, father remained homeless. Father attended his monthly face-to-face meetings with the social worker in four of the five months preceding the social worker's April 2010 report, but his homelessness created difficulties in contacting him. In addition, father's homelessness and lack of income continued to represent barriers in his ability to reunify with the children.
The social worker testified at the review hearing based on memory and apparently without having refreshed her recollection. She did not have father's case plan in front of her when she testified. While father told the social worker and his attorney that he had completed his parenting classes, the social worker testified that she was unable to verify completion prior to the hearing. She testified that she had left a message with the agency, but had not yet heard back. Nevertheless, the social worker recommended father receive further reunification services "in order to be given more time in which to obtain housing and employment."
When asked what father's case plan entailed, the social worker answered, "Um, just off the top of my head, I believe it was the parenting classes. He had drug uranalysis [sic] testing for a specified time. I don't remember what else. I don't have it in front of me. I'm sorry."
Counsel for the children argued that the inability to confirm that father had completed parenting classes indicated he had not. Despite the fact that father was a noncustodial and nonoffending parent, counsel for the children argued that "there has been no movement or progress to alleviate the circumstances that brought these children before the court. There is no indication of when those circumstances might have changed. There is no evidence that he is on some trajectory to alleviate any of those circumstances. There is, essentially, no indication in the evidence before the Court today that in another six months we are going to be in any different position than we are [in] today."
The court noted the report was "extremely brief in describing what the father has done or not done," there was no verification of father participating in parenting classes, and father had been vague about his source of income, his living situation and his education. The court specifically noted father's homelessness as a reason to deny an extension of services. The court said, "As far as we can tell, he's still homeless. Not able to provide a place for the children to live. He's not here today. Basically, what I'm going to conclude by a preponderance of the evidence is that he has not made any efforts other than possibly testing on a regular basis for 60 days to have the right to extend services to the 21F hearing." (Italics added.) Accordingly, the court found father's progress in alleviating the cause necessitating placement was minimal. Reunification services for both parents were terminated and the matter was set for a section 366.26 hearing.
On August 23, 2010, father filed section 388 petitions to modify the court's order as to both children, requesting they be placed with him or that he be offered further reunification services. Father provided evidence he actually had completed parenting classes in November 2009, stated he had tested clean on drug tests, and had had good visits with the children. He also provided evidence that he had rented a two-bedroom apartment. The juvenile court denied the petition as to sister without a hearing because father was not her legal father and lacked standing as to her. A hearing was set on the petition regarding minor; the parties stipulated to continue the hearing to October 25, 2010.
On October 21, 2010, father filed another set of modification petitions as to the children. In the petitions, he stated that he had completed his case plan, addressed his homelessness, visited the children consistently, and the children were very bonded with him. Again, the petition as to sister was denied on the ground that he was not her father. As to minor, the matter was set for hearing.
On October 25, 2010, the juvenile court held a hearing on father's petition to modify as to the minor. Counsel for father stated she wanted both modification petitions concerning the minor to remain active. At the outset, the Department indicated it agreed that reunification services should be reinstated for father and maintained that position at the conclusion of the hearing. Counsel for the children opposed the petitions as to the minor.
Father was prepared to call the family reunification social worker who had prepared the earlier report and testified at the May 2010 review hearing to clarify what was not clear at the review hearing and to establish that [father] had actually "done everything that he was asked" prior to the termination of services. Counsel for the children objected. The court sustained the objection, noting that even though father had not been present at the review hearing, his attorney "had a right to question the social worker about what services [father] was directed or referred to and what services he completed or didn't complete and how he participated." The court stated, ". . . I've already listened to what he did before" and observed that "the only testimony [the social worker] could provide would be what [father] did or didn't do prior to the contested 366.21E hearing." "You will either be asking her questions that were asked of her in May, or you'd be asking the questions that weren't. Father had an opportunity to ask those questions then, I don't think it's right to give him that opportunity now." The court assured counsel for father that it would consider the prior reports in the case.
Father testified at the modification hearing that he had been involved with minor since mother was pregnant and had always considered her his daughter, irrespective of biology. During visits, the minor would hug and kiss him. Father would feed minor and her sister, give them gifts, take them to the park, sing the alphabet with them, count, build names, and talk. Minor was playful with him and did not misbehave or have tantrums when she was with him. When minor spoke with father about her experiences in foster care, father would advise her on how to handle issues. After the review hearing in May 2010, father's visitation was reduced to once a month. Father believed minor's behavior had regressed since she had been in the foster home and she appeared sad.
Father testified that he was not financially stable at the time of the review hearing, but began receiving student aid thereafter. He is in college studying business, real estate and marketing. While in school, he supports himself with student aid and loans. He testified that he provided his parenting class certificate to the Department in November of 2009.
Janet Vang, a social worker assistant, testified about the supervised visitations she observed between father and the children for the nine-month period between June 2009 and March 2010. Vang supervised about 30 weekly visits between father and the minor during that time period. Minor was excited to see father and visits were playful and appropriate. Vang noted minor and father shared a "good father-daughter-type relationship."
Adoption social worker Tangerie Shells also observed an hour-long visit between father and the children. Father had not been previously informed that the visit would be supervised. The children called father "Daddy" and were comfortable and secure with him. They told him their needs and he responded appropriately. The interactions were very loving and relaxed. He was affectionate and nurturing and engaged in age-appropriate conversations with them. In Shells' opinion, minor was bonded with father.
Shells noted in her addendum report that upon review of the case file, she determined that father had "previously provided the Department" a copy of his parenting class certificate of completion. The file also included verification of successful compliance with drug testing. Father provided evidence of adequate financial resources to support himself and told Shells he had procured a two-bedroom apartment and had faxed a copy of the agreement to his counsel. He was attending college. He provided documentary verification of financial aid and student loans for the 2009-2010 school year and verification of financial aid for the 2010-2011 school year. He had not completed the general counseling required in his plan, but many of the issues sought to be addressed by the general counseling had been addressed in the parenting classes he had completed. Father had understood that parenting classes and drug testing were all that were required of him.
Shells assessed father's housing. She visited the home and found there was a room for minor and bunk beds that needed to be assembled. For the most part, it was child friendly. Once the bed was assembled, father would be approved to move to overnight and weekend visits. Thereafter, assuming the visits were appropriate, placement of the minor with father would be "imminent." Shells recommended the section 388 petition be granted and father be provided additional reunification services.
Overall, the children were well-adjusted to the foster home and had formed positive attachments to, and a loving relationship with, the foster parents. However, Shells had never observed the children with the foster father and the appellate record reveals no such observations by anyone else. The children were in good physical health and developmentally on target. However, after termination of father's reunification services in May 2010 and the corresponding reduction in visits with father, minor began exhibiting behaviors such as extreme tantrums, ripping her clothes and biting holes in them, and kicking walls. She also displayed self-injurious behaviors and sister was beginning to emulate some of those behaviors. As late as May 21, 2010, the foster parents had said they were not willing to adopt the minors, but indicated they knew someone else who would. At some point thereafter, the foster parents changed their minds and expressed an interest in adopting the minors, although the process of adoption had not yet been started. Nevertheless, Ms. Shells recommended that the sisters could be separated because the foster parents had stated a willingness to allow visitation between minor and her sister if minor reunified with father. The Department requested an order to effectuate these visitations.
The court noted that despite problems with the handling of the case regarding reunification services, and a suspicion that the Department had not properly handled the matter at the six-month review hearing, it could not utilize the section 388 hearing to correct those errors. Specifically, the court stated, "unfortunately I'm not in a position today to re[]open services because somehow the father got a raw deal in May. It was a contested hearing. [T]here was a lot of presented evidence [sic], and . . . I don't think I can legally go back and say . . . [w]e made a mistake in May. Therefore, he's really done his services. He should have got [sic]continued services then or returned them [sic]. That's the problem I am having with the argument. That's why I didn't let the social worker testify. . . . He may very well have not gotten a fair shake by the Department. But the evidence was there at that time, and I can't go back and look at it in that framework now."
Counsel for the mother argued that the changed circumstances included the verification that father had completed parenting classes the social worker was unable to provide at the review hearing, and that father had stabilized his life. The court rejected these arguments.
The court also noted that father was not present at the review hearing, saying "where was Dad at the hearing? That's a bigger concern. He says chronological notes he got the dates confused. [Sic.] That's unfortunate. This case was tried, and the Court made a ruling. I do not recall independently from today if the ruling was based upon housing, in other words, did I terminate services because we are only at a 21E Hearing[?] I really believe that the Court had to base its decision to terminate services at that hearing based upon the father's failure to participate in services and to establish that there is a substantial likelihood to produce at an F hearing. But I can't go back and redo this. It's unfortunate. Because I suspect that things were not done properly, they were not done properly by the Department at that time."
The court determined that there were no changed circumstances. The court found that although father had provided evidence regarding the successful completion of drug testing and parenting classes, those had been completed prior to the six-month hearing and therefore did not represent changed circumstances. In concluding there were no changed circumstances, the court did not mention anything about father's recently obtained housing, stabilized financial situation or his efforts to obtain a college education.
The court also found there was no evidence it was in minor's best interest to order further reunification services for father. The court stated, "I don't think that the relationship the father has with [minor] is described as a bond. It's described by one visit that Ms. Shells . . . observed with [minor] and her father that was very loving and a good visit. That doesn't rise to the level of stopping the permanent plan for these two children, because [minor's] bond with father outweighs the ability for these two girls to live together in a permanent adoptive home. That's the problem I find myself in." The court did not comment on the approximately 30 visitations Vang had observed over a nine-month period.
After ruling on father's modification motion, the court found minor generally adoptable and terminated parental rights.
DISCUSSION
I. Denial of Section 388 Petition
Father contends the trial court erred in denying his section 388 petitions to modify as to both children because he demonstrated changed circumstances by establishing he had an apartment and adequate financial resources and by demonstrating that their best interests would be served by modifying the order because of their strong bond and beneficial relationship. Father also contends he has standing to seek relief as to both minor and sister "because he is a 'person having an interest' in them." The county contends father does not have standing as to sister. We agree and dismiss the appeal as to sister. As to the merits of the petitions regarding minor, county counsel takes no position on this issue. Finding the county has effectively failed to file a brief and thereby conceded this issue, we reverse.
A. Standing -- Sister
Only a "party aggrieved" by an order has standing to appeal from that order. (Welf. & Inst. Code, § 395; Code Civ. Proc, § 902; In re J.T. (2011) 195 Cal.App.4th 707, 717.) "'To be aggrieved, a party must have a legally cognizable immediate and substantial interest which is injuriously affected by the court's decision. A nominal interest or remote consequence of the ruling does not satisfy this requirement.' [Citation.]" (In re J.T., supra, 195 Cal.App.4th at p. 717.) "Standing to challenge an adverse ruling is not established merely because a party takes a position on an issue that affects the minor. [Citation.] Without a showing that the party's personal rights are affected by a ruling, the party does not establish standing. [Citation.]" (Ibid.)
Father's assertion that he has "an interest" in sister does not establish he has standing. Father is not sister's alleged, biological, or presumed father. Not having attained presumed father status as to sister, father was not a parent entitled to either reunification services or custody of the child. (In re Zacharia D. (1993) 6 Cal.4th 435, 451; §§ 361.5, 361.2.) Because he had no right to reunification services or custody as to sister, his personal rights are not affected by the order denying his modification petitions as to sister. He does not have standing as to sister. (See In re Margarita D. (1999) 72 Cal.App.4th 1288, 1298.) Accordingly, father's appeal as to the sister is dismissed.
B. Denial of Section 388 Petition -- Minor
Father argues the court abused its discretion in denying his section 388 petition, as he established both changed circumstances and the best interests of minor. The county has taken no position on this issue. Instead, it has laid out general legal principles governing the determination of section 388 petitions without relating them to any specific facts, circumstances, or evidence before the juvenile court -- that is, without making any legal argument. The county then deigns to "defer[] to this court" to determine the propriety of the ruling. Every party that comes before any appellate court defers to the court's opinion as to whether there was error in the trial court. In spite of this deference, parties still are required to file briefs that cite authority and provide legal argument on the issues. (Cal. Rules of Court, rule 8.220(a).) In this case, we find that the failure to provide any legal argument on this issue is effectively a failure to file a brief on the issue and a concession of the merits of father's claim.
"Although it is the appellant's task to show error, there is a corresponding obligation on the part of the respondent to aid the appellate court in sustaining the judgment. 'It is as much the duty of the respondent to assist the court upon the appeal as it is to properly present a case, in the first instance, in the court below.'" (9 Witkin, Cal. Procedure (5th ed. 2008) Appeal, § 719, p. 787.) If a respondent fails to file a brief, "the court may decide the appeal on the record, the opening brief, and any oral argument by the appellant." (Cal. Rules of Court, rule 8.220(a)(2).) "We may, in our discretion, treat [the County's] failure to file a brief as an acknowledgement that the appeal is well taken and reverse the trial court's orders. (Bennett v. California Custom Coach, Inc. (1991) 234 Cal.App.3d 333, 338; see Cal. Rules of Court, rule 8.220(a)(2).)" (Goldstein v. Barak Construction (2008) 164 Cal.App.4th 845, 849, fn. 1.) "Where the respondent does not file any brief we are under no duty to look up the law, nor are we required to make any search for evidence. . . . [W]e may assume, as is apparently correct in this case, that the [county] has abandoned any attempt to support the judgment, and we may also assume that the points made by the [father] are meritorious." (Mann v. Andrus (1959) 169 Cal.App.2d 455, 458-459; see also Zeigler v. Bonnell (1942) 52 Cal.App.2d 217, 218.) The county's failure to brief this issue imposes an unfair, improper, and "unnecessary burden on this court, and at least raises the inference that respondent concedes that the appeal is meritorious." (Yarbrough v. Yarbrough (1956) 144 Cal.App.2d 610, 612; Zeigler, supra, 52 Cal.App.2d at p. 218.) If a respondent is unwilling to search the record for evidence to support a challenged finding, it should not expect an appellate court to do so without its assistance.
A parent may seek to modify an order of the juvenile court by filing a section 388 petition alleging changed circumstances or new evidence and that the proposed modification is in the child's best interests. (§ 388, subds. (a) & (d); In re Jasmon O. (1994) 8 Cal.4th 398, 414-415.) The parent requesting the change of order has the burden of establishing by a preponderance of the evidence that the change is justified. (In re Michael B. (1992) 8 Cal.App.4th 1698, 1703.) In evaluating a modification petition, the court should consider factors such as: "(1) the seriousness of the problem which led to the dependency, and the reason for any continuation of that problem; (2) the strength of relative bonds between the dependent children to both parent and caretakers; and (3) the degree to which the problem may be easily removed or ameliorated, and the degree to which it actually has been." (In re Kimberly F. (1997) 56 Cal.App.4th 519, 532.)
The county expressly concedes that father demonstrated changed circumstances. As the juvenile court found, it is true that father had successfully completed the drug testing and parenting classes before reunification services were terminated. Thus, father providing documentation of those successes did not establish changed circumstances. However, the court erred in finding the change in father's homelessness and financial resources were not changed circumstances.
Nor was the revelation that father had, in fact, long since completed his parenting classes "new evidence." As this court has held, "'new evidence' in section 388 means material evidence that, with due diligence, the party could not have presented at the dependency proceeding at which the order, sought to be modified or set aside, was entered." (Italics added.) (In re H.S. (2010) 188 Cal.App.4th 103, 105.)
It appears that counsel who represented father at the review hearing (a different attorney represented father at the modification hearing) relied upon the Department to provide evidence that father had completed his parenting classes instead of providing a copy of the certificate to the court. That reliance was apparently misplaced. The failure of the Department and counsel to provide the certificate to the court or otherwise verify program completion prior to the hearing was a disservice to the court, minor and father.
We note, however, that the court actually had the discretion to modify or change its order sua sponte, notwithstanding the requirements of section 388. "[T]he juvenile court has the statutory authority, pursuant to section 385, to change, modify, or set aside '[a]ny order made by the court in the case of any person subject to its jurisdiction' sua sponte, after providing the parties with notice and the opportunity to be heard. (Nickolas F. v. Superior Court (2006) 144 Cal.App.4th 92, 98, fn. omitted.)
Minor was placed in protective custody because she was left without care by mother. Father's homelessness prevented him from requesting minor be immediately placed with him under section 361.2 as the noncustodial parent, when minor was detained. Father's homelessness precluded him from progressing to the next stage in reunification services and establishing his readiness to reunify with minor by having overnight visits with her. At the time reunification services were terminated, father remained homeless and his financial situation was uncertain. His homelessness and financial insecurity were specifically identified as the barriers to his ability to reunify with minor. His homelessness was also specifically relied upon by the court as a reason for terminating services, as father was unable to provide a place for minor to live. By the time of the section 388 hearing, father had a child-friendly, two-bedroom apartment and adequate financial resources to support himself. He was attending college. As Ms. Shells noted, father was "working to try to better himself to make a better life for [minor.]" As the noncustodial parent when minor was placed in custody, father did not create the circumstances that led to dependency. His only contribution to minor being placed in custody was his homelessness at the time of detention. To the extent his homelessness was a factor that contributed to the dependency, father had ameliorated that problem. This was a significant changed circumstance that directly related to the reason minor was placed in custody.
As to the best interests of minor, the record before us is limited, but supports a finding that providing father further reunification services was in minor's best interests. Father has a strong parental bond with minor.
Contrary to the court's statement, the evidence that father and minor shared a strong parental bond was not solely based on a single, hour-long visit observed by a social worker. It is true that the adoptions social worker had observed only one visit between father and minor and noted their bond, but there was significantly more evidence of bonding. The court made no reference whatsoever to any of the other evidence in finding the evidence of bonding insufficient.
The social worker assistant supervised over 30 visits between father and minor over the course of nine months. Her descriptions of her observations suggest a strong bond between father and minor. She characterized the relationship as a "good father-daughter-type relationship."
The social worker who wrote the report the court considered at the May review hearing wrote that the children had been observed to be bonded with father and discussed observations that supported that conclusion. At the beginning of the modification hearing, the court told counsel it would consider the previous reports in the case.
Father was at the hospital when minor was born, he lived with her for the first 18 months her life, parented her, provided her with a home, and supported her. After he no longer lived with her, he maintained regular and significant visitation with minor, three to five times per week until shortly before these proceedings commenced. He continued to have significant and consistent visitation with minor throughout these proceedings. During visits, he was affectionate and nurturing with minor. She was comfortable and secure with father, excited to see him, asked about him, and did not display any negative behaviors before or after visits. Minor was able to express her needs to father and he responded to them appropriately and she sought advice from him on issues she faced in foster care.
There is little evidence as to the strength of relative bonds between minor and both father and the foster parents. In fact, there is little evidence at all in the appellate record relative to the foster parents. At the time of the hearing, minor had lived with the foster parents for about one year, about six months less than the amount of time she lived with father. Minor had adjusted well to the foster home and had formed positive attachments with the foster family. The adoptions social worker had only observed minor with the foster mother for about an hour on two occasions. She never saw minor and the foster father together. Based on her observations and conversations with minor, the adoptions social worker concluded that minor had a close and loving relationship with the foster parents. However, minor had begun to display escalating tantrums and destructive and self-injurious behavior. The timing of this behavior coincided with the reduction in the frequency of father's visits. At both the six-month review hearing and the section 388 hearing, the Department agreed with father that it was in minor's best interests for him to be provided additional reunification services. Now on appeal, based on the county's failure to attempt to support the judgment, it appears they again agree and have conceded the issue. Accordingly, we reverse and remand for further proceedings.
We have, of course, reviewed this case based on the facts and record as they stood at the time of the hearing on the petition to modify. We are cognizant, however, that nearly 10 months have passed since the court denied father's section 388 petitions. We cannot presume that circumstances have not changed in the interim. Thus, although we reverse the judgment and remand for a new section 388 hearing at which the court shall determine whether father has established the elements of section 388 by a preponderance of the evidence, we note that in making this determination, the juvenile court must consider minor's current situation and father's current circumstances.
In reversing the order denying father's section 388 petitions and requiring a new hearing, we are necessarily vacating "the section 366.26 hearing and the orders from the hearing terminating parental rights and selecting adoption as the permanent plan" for minor. (In re A.L. (2010) 190 Cal.App.4th 75, 80.) Accordingly, we need not address father's contentions regarding the termination of parental rights. If the court denies the section 388 petition, it must hold a new section 366.26 hearing. (Ibid.)
II. ICWA
Father also claims reversal is required because the Department did not comply with the ICWA notice requirements as to his possible Indian heritage and that as a presumed father, he is a parent for purposes of the ICWA. We find no prejudicial error.
Factual Background
Early in the proceedings, the maternal grandmother indicated she had Cherokee ancestry. At the June 10, 2009, hearing, father also indicated he had both Cherokee and Blackfeet heritage. Notices were mailed to the three Cherokee tribes and to the Bureau of Indian Affairs identifying only the maternal family. No notices were sent to the Blackfeet tribe and no information was included in the notices to the Cherokee tribes regarding father or paternal family members. The tribes declined to intervene based on the information provided.
On June 15, 2009, additional notices were sent as to minor only. These notices were sent to the Cherokee and Blackfeet tribes and the Bureau of Indian Affairs. The notices included father's information. The tribes again declined to intervene. Subsequently, father reaffirmed his Cherokee and Blackfeet heritage. The court ordered him to complete an Indian Ancestry Questionnaire and return it to the Department within two days. No questionnaire was provided to the Department. About a month later, father provided a declaration claiming Cherokee and Blackfeet heritage and was again ordered to complete a questionnaire and return it to the Department within two days. He did not return the questionnaire. In November 2009, the children were found not to be Indian children.
Analysis
The parties, particularly county counsel, focus their arguments on the question of whether father qualifies as a parent under the ICWA. (25 U.S.C. § 1901 et seq.) A parent under the ICWA is "any biological parent or parents of an Indian child or any Indian person who has lawfully adopted an Indian child, including adoptions under tribal law or custom. It does not include the unwed father where paternity has not been acknowledged or established." (25 U.S.C. § 1903(9).) Thus, to be a parent under the ICWA, one does not necessarily have to be biologically related to the child, if the child is an Indian child.
However, whether father is a parent under the ICWA is not the relevant inquiry in this case. Here, the relevant inquiry is whether minor was an Indian child. "ICWA protects the interests of Indian children and promotes the stability and security of Indian tribes by establishing minimum standards for, and permitting tribal participation in, dependency actions. [Citations.] If, after the petition is filed, the juvenile court 'knows or has reason to know that an Indian child is involved,' notice of the pending proceeding and the right to intervene must be sent to the tribe or the Bureau of Indian Affairs if the tribal affiliation is not known. [Citations.]" (In re E.G. (2009) 170 Cal.App.4th 1530, 1533, italics added.)
The statutory language defining an Indian child is unambiguous and must be applied according to its plain terms. (In re Daniel M. (2003) 110 Cal.App.4th 703, 708 ["If a statute is unambiguous, it must be applied according to its plain terms"].) An Indian child is "any unmarried person who is under age eighteen and is either (a) a member of an Indian tribe or (b) is eligible for membership in an Indian tribe and is the biological child of a member of an Indian tribe." (25 U.S.C. § 1903(4), italics added.)
There is no suggestion in the record that minor is a member of an Indian tribe. Thus, to be an Indian child, minor must be eligible for membership in an Indian tribe and the biological child of a member. There is no evidence minor is the biological child of a tribal member.
Whatever father's status is as a parent under the ICWA, minor is not his biological child, and thus she is not an Indian child in the context of this case. In a case such as this, where there is no biological connection between father and minor, information that father was a tribal member or eligible for membership would not give the Department "reason to know that an Indian child[, as the term Indian child is defined by the ICWA,] is involved" (§ 224.2, subd. (b)) in the proceedings. Without that "reason to know," the Department's obligation to provide notice is not triggered. (See In re E.G., supra, 170 Cal.App.4th at p. 1533.) Accordingly, we find no reversible error on the record before us.
DISPOSITION
The appeal relating to sister is dismissed for lack of standing.
As to minor, the case is reversed and remanded to the juvenile court with directions to hold a new section 388 hearing. At the hearing, the court shall determine whether father has established the elements of section 388 by a preponderance of the evidence. If the court denies the section 388 petition, it shall hold a new section 366.26 hearing.
MURRAY, J. We concur:
NICHOLSON, Acting P. J.
BUTZ, J.