Opinion
F077502
12-07-2018
In re B.A., a Person Coming Under the Juvenile Court Law. TULARE COUNTY HEALTH AND HUMAN SERVICES AGENCY, Plaintiff and Respondent, v. HERBERT W., Defendant and Appellant.
Liana Serobian, under appointment by the Court of Appeal, for Defendant and Appellant. Deanne H. Peterson, County Counsel, John A. Rozum and Amy-Marie Costa, Deputy County Counsel, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. JJV070740A)
OPINION
APPEAL from orders of the Superior Court of Tulare County. Robin L. Wolfe, Judge. Liana Serobian, under appointment by the Court of Appeal, for Defendant and Appellant. Deanne H. Peterson, County Counsel, John A. Rozum and Amy-Marie Costa, Deputy County Counsel, for Plaintiff and Respondent.
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INTRODUCTION
On July 18, 2017, a petition was filed by the Tulare County Health and Human Services Agency (agency) pursuant to Welfare and Institutions Code section 300 alleging that B.A., then three years old, was at serious risk of physical harm because her mother A.A. (mother) had bound and gagged B.A. by placing socks in her mouth and taping it shut. In addition to the physical abuse she suffered from mother, B.A. was further at risk because her two-year-old cousin had also been abused, hospitalized, unable to breathe on his own, and later died from the physical abuse inflicted by mother, mother's sister, and another adult roommate. There were further allegations against mother for failure to protect, severe physical abuse, cruelty, and inability to care for B.A. due to incarceration.
All statutory references are to the Welfare and Institutions Code unless otherwise designated.
Mother is not a party to this appeal. Because the facts and circumstances leading to this dependency are not relevant to the issues father raises on appeal, we do not review them. There were amended petitions filed and their allegations will be noted to the extent they apply to father.
B.A.'s father, Herbert W. (father), did not have physical custody of B.A. and had not abused her. Father began the proceedings as an alleged father. He contends the juvenile court erred in failing to find him a presumed father at his first court appearance and that the delay in making this finding and granting father visitation earlier in the proceedings violated his Fourteenth Amendment rights as a parent. Father contends the juvenile court and the agency violated the statutory preference for relative placement by not placing B.A. with her paternal grandmother. He argues the juvenile court abused its discretion in denying his petition under section 388 to modify its earlier orders. He also argues the agency failed to adequately investigate his assertion of Native American heritage in violation of the Indian Child Welfare Act (ICWA) (25 U.S.C. § 1901, et seq.). We find no error and affirm the rulings and orders of the juvenile court.
FACTS AND PROCEEDINGS
Initial Proceedings
The initial detention hearing was conducted on July 19, 2017. Mother testified that she and father were going through a child support proceeding and she was waiting for the results of a DNA test. Mother was not married when B.A. was born. She described her relationship with father as a one-night stand. Mother was also dating A.M., but was not certain who B.A.'s father was. No one was listed as B.A.'s father on her birth certificate and neither father nor A.M. was present at B.A.'s birth. Mother said her own father, B.A.'s grandfather, was the only father figure in B.A.'s life. The juvenile court found father to be an alleged father.
Subsequent references to dates are to dates in 2017 unless otherwise stated.
Mother denied Indian heritage, stated that to her knowledge B.A. had no Indian heritage, and the court found there was no evidence that the ICWA applied. Because mother was not recommended to receive reunification services, the right to make educational decisions for B.A. was given to Court Appointed Special Advocate (CASA) Linda Thomas.
In the paternity case, father filed an answer denying he was B.A.'s father. According to the CASA report, B.A. had visitation with her maternal grandparents and maternal great aunt and uncle. These family members were being assessed for placement. The alleged father came forward to request visits with B.A. B.A.'s caretakers expressed their desire to adopt her despite B.A. having some physical health issues as well as problems with communication and problem solving.
On September 6, father appeared at a hearing conducted for an amended petition and was appointed counsel. When asked if B.A. had any Native American ancestry, father replied he believed his mother "was part Native Indian out of Oklahoma." Father did not know which tribe, suggested the court ask his mother, and explained she did not "really brief me about the full heritage thing on her side, but I can find out ...." When asked if any member of father's maternal relatives were registered with a federally recognized tribe, father replied, "No longer."
Father's maternal grandfather was from Arkansas and was registered with a tribe but father did not know the name of the tribe. Father said his grandfather was Freddy Y. and father had possession of his grandfather's Native birth certificate and knew the years of his birth and marriage. When asked if his grandfather was a member of an American Indian tribe, father said he was not really sure but was told this by his parents. Father provided his mother's name and told the court the agency could contact her. Father acknowledged that neither he nor B.A. were members of an American Indian tribe.
Father's counsel explained to the court that father sought to have his status raised from an alleged to a presumed father and he had taken a DNA test through child support services that was not concluded. Counsel stated that father lived with mother and the child and held the child out to be his own. Father testified that he was not married to mother and they had a personal relationship in which they had sex twice leading to B.A.'s birth. Father said he felt responsible for both of them so he provided care to them. Father said they acted like a family unit, though without demands on each other for a social life. Father explained that B.A. was the number one priority.
Father testified his sexual relationship with mother was not exclusive. Father said that mother lived with him after B.A. was born until five months before the hearing, or about two and a half years without interruption. Father explained he did not support mother and B.A. after they left his home because he did not know where mother went. Father took care of B.A. while mother attended college classes. When mother did not finish college, father said he cared for B.A. while mother worked. Father said he experienced B.A.'s first steps, her first words, and he gave B.A. her name. Father admitted he was not at the hospital for B.A.'s birth but explained this was because he did not know if she was his child.
The juvenile court reserved a finding on father's status until the DNA test was completed. The court's tentative ruling was that if the DNA test showed father as B.A.'s biological parent the court would find him a presumed father. Although the court did not believe there was sufficient reason to believe the ICWA applied, it noted the agency was going to investigate further.
The social worker's report noted father had been involved in two prior dependency cases in 2001 and 2003 involving a son and two daughters. His son was eventually placed in a guardianship and father's parental rights to him were terminated. Father received reunification services for his two daughters. One daughter was returned to father on a plan of family maintenance services and the dependency was ended but the other daughter refused to live with father and was placed in a guardianship. Father last saw B.A. about four weeks before her dependency was initiated at which time she looked normal with no injuries. When father contacted social workers after B.A.'s dependency began, he told them mother had moved out of his home in September 2016 and was living with maternal relatives.
The agency filed a second amended petition on October 23. The allegations against mother were the same. The petition added allegations that father was unable to or had failed to protect B.A. from mother's serious physical abuse. The petition further alleged father failed to provide B.A. with adequate food, clothing, shelter, or medical services. The petition included the information concerning father's involvement in two prior dependency actions with three older children and alleged B.A. was at risk of neglect pursuant to subdivision (j) of section 300 because father had failed to address the issues, including substance abuse, that led to the earlier dependency actions.
The social worker's report noted the DNA test results received on October 13 confirmed father is B.A.'s biological parent. Mother reported that father had held B.A. out to be his child to family and friends. The social worker recommended that father be found a presumed father. Father said he tried to help mother as much as he could by encouraging her to attend college but it did not work out. Father stated mother did not use illegal drugs and he felt that overall she was a very good parent. Inconsistent with other statements father had made, he told the social worker that mother and B.A. lived with him until April 2017. He also said the last time he saw B.A. was not a month before her dependency but two months before in mid-May 2017. Father said he had been clean of drugs for some time but did use marijuana for pain management. Father had not had any overnight visits with B.A. since she and mother moved out.
The agency recommended father be denied family reunification services because he had received services in the past, reunification services had been terminated (§ 361.5, subd. (b)(10)) and parental rights to a child had been terminated (§ 361.5, subd. (b)(11)). The agency recommended one two-hour supervised visit between father and B.A. per month.
On the question of Indian ancestry, father said he believed his paternal grandmother M.S. had such ancestry, was unsure of the name of the tribe, but believed it was Black Apache. The social worker spoke with M.S. in late October concerning her Native American ancestry. M.S. shared there was a family story that a first cousin learned he had Native American ancestry and was supposed to share this information with M.S. but the cousin died from a heart attack. M.S. said she did not know the name of any tribe her ancestors may have descended from. The social worker recommended a finding that the ICWA does not apply.
Father sought a continuance of the October 27 hearing. Based on the agency's concession in its own report, the juvenile court found father to be a presumed father. Father's counsel argued his client could produce evidence contrary to the agency's allegation that he failed to reunify with his older children after dependency cases were filed on their behalf. Father sought visitation with B.A. Counsel for the agency argued it was recommending once a month for two hours with discretion to the agency to increase the length and frequency of visits. Counsel for mother, however, objected to father having visitation because B.A. did not know father and he was like a stranger to her. The CASA worker agreed with the agency's recommendation. Father requested more frequent visitation than in the recommendation. Based on B.A.'s best interests, the juvenile court ordered visitation as recommended by the agency and continued the hearing.
B.A.'s care providers reported that during his first visit with B.A., father placed a picture of mother on a toy he presented to B.A. as a gift. The care providers thought this was inappropriate because it had taken B.A. nearly three months to open up about what had happened to her and her cousin. B.A. was still having major behavioral issues and seemed particularly disturbed after her visit with father.
A contested jurisdiction/disposition hearing was held on December 8. Father testified that he was B.A.'s biological father and when mother came home from the hospital, she told father B.A. was his baby. Father said he was not with mother when she gave birth to B.A. because mother assumed her boyfriend was B.A.'s father. According to father, mother and B.A. came to live with him. He met mother almost a year before B.A. was born and helped mother when she started seeking help with social services and attending community college. When mother started living with father they were friends and not romantically involved.
Father explained he was living with mother before B.A. was born as well as after she returned from the hospital. Father said he took care of B.A. as his own child. Father could not remember when mother left his residence but estimated it was in June 2017. Mother brought B.A. to father's house a couple of times. Father said he initiated proceedings through child support services to try to get visitation with B.A. Father never saw any marks or bruises on B.A. during their visits although he noticed her skin looked dry and brittle. B.A. never said anything about what was happening in her new residence. Father said he fed, washed, and potty trained B.A. Father said he cared for B.A. five to six hours a day during the month and a half mother attended college. Thereafter, mother worked and father continued caring for B.A. eight hours a day for two years.
Although father admitted his parental rights had been terminated for an older son, now 19, father maintained the son had come to live with him for about a year and a half "a little over two years ago." Adding to his narrative, father said the son got into legal trouble and the probation department allowed son to live with father when he was 16 years old under a legal guardianship. Father denied having been arrested in Kern County, explaining he had only been brought in for questioning. He also denied having criminal convictions. Later, father admitted having been convicted for being in possession of a controlled substance and serving 300 days in jail. Father said he was in a drug rehabilitation program for three months. Father stated B.A. had a room in his home. Father conceded that since B.A.'s detention, he had visited her only once. Father said he provided no financial support to mother for B.A. because mother had a higher income than his.
Father admitted he pled nolo contendere in 2008 in Tulare County to a felony allegation of possession of a controlled substance and was required to register as a controlled substance offender. Father tried to minimize the conviction, saying he pled no contest on the advice of his attorney. Father further admitted that he completed the drug treatment program that the court had ordered him to attend. Father had another felony drug conviction in Tulare County in 2003.
The juvenile court found the allegations in the petition true as to father with the exception that father knew of B.A.'s abuse and neglect by mother, though the court found father reasonably should have known about the abuse and neglect. The court found true the allegations that father failed to reunify with his older child and denied him reunification services based on subdivision (b)(10) and (11) of section 361.5. Visitation with B.A. was to continue as before. The court found insufficient reason to believe B.A. was covered by the ICWA. The court set a date for a hearing pursuant to section 366.26.
Hearing on Section 388 Petition and Termination of Parental Rights
On December 19, father filed a notice of intent to file writ petition with this court in case No. F076708, but did not file a subsequent petition and this court dismissed the matter as abandoned on January 17, 2018.
The agency's section 366.26 report was filed March 14, 2018, and recommended both parents' parental rights be terminated and B.A. be adopted with her current care providers, referred to in the report as resource parents. The report indicated there were no new claims of Native American Indian heritage. B.A. was described as healthy and not developmentally delayed. B.A. has a speech delay, only speaking in one word or short sentences. An Individual Education Plan (IEP) was being prepared for her. B.A. was not participating in mental health services at the time the section 366.26 report was written. B.A. had been in the same placement since her release from the hospital on July 18, 2017.
Father attended three of four scheduled monthly visits. The prospective adoptive family are a legally married couple who are also fostering two infants who were in reunification. The care providers have been very attentive to B.A.'s needs, including all necessary appointments. They were committed to adopting her.
Concerning father's visits, the social worker explained that during the visits, father interacts appropriately with the child and will count and practice shapes with her. B.A. appeared happy to see father. She hugs father and is excited when she sees him. B.A. seeks her care providers when she is in need of comfort. A CASA report submitted for the hearing noted B.A.'s care providers were seeking to have therapy reinstated for B.A. due to concerning statements she recently had made, including: "My tummy mommy tie real tight. I tell her stop. She not stop." "She need to say sorry." And, "why I not die?" (regarding the news of her cousin's death). Asked what they enjoy about her, the care providers stated "Everything. Her laugh. Her smile. Her personality. everything, her laugh, her smile, her personality. She is caring. She prays every night and is sure not to miss anyone when she prays for her loved ones." The CASA report stated the maternal grandparents and father ceased visiting within the last month.
At the scheduled hearing on March 28, 2018, father requested a contested section 366.26 hearing. Father indicated he expected increased visitation. The court declined to increase father's visitation and indicated he could file a section 388 petition. The contested section 366.26 hearing was set for May 9, 2018. Father reported he was scheduled for a visit that day and did not want to miss it because of court. The court directed the agency to be sure father did not miss a visit due to a court appearance.
Father filed a section 388 petition on April 24, 2018, seeking either custody of B.A. or reunification services. Father alleged he had begun parenting classes and was almost finished. He had visited B.A. regularly and was putting what he learned in classes into practice at visits. The court ordered the section 388 petition to be heard in conjunction with the section 366.26 hearing.
The agency filed a report noting father's section 388 petition attached a letter dated March 20, 2018, from his parenting instructor stating he had completed 11 of 18 classes and should be finished by April 4, 2018. The adoption social worker contacted father's parenting instructor on May 7, 2018, and was informed father had not completed parenting classes. Father stopped attending classes without telling anyone, and although the parenting instructor tried to contact him, she was unable to reach him. The parenting class was the only service father mentioned in his section 388 petition. Father presented no evidence or information that he addressed the substance abuse issue for which he had been denied reunification services and his parental rights terminated in the past.
The adoption social worker disagreed with father's characterization of his relationship with B.A. as being "deeply bonded." The social worker observed father had visited B.A. only three times since she was detained. Although B.A. enjoyed the visits, she was not distressed when she left father, and she did not speak about father after visits.
At the hearing on May 9, 2018, B.A.'s paternal grandmother appeared with father. Because several of father's witnesses were not present, he requested a continuance which the juvenile court denied because the witnesses had not been subpoenaed. The court noted the hearing had already been continued several times. Father testified he had not dropped his parenting classes, asserting he had attended all of the classes but had three makeup classes because of a transportation problem. Father said he had been visiting B.A. regularly until two months before the hearing. Father described B.A. as jumping up and happy to see him during visits. Father said he was bonded with B.A. and had her pictures all over his house. Father explained that after mother left, she brought B.A. to visit five or six times with the last visit at his mother's house. Father described several photographs showing B.A. with father's family members. Father explained that B.A. had relationships with father's family.
During cross-examination, father admitted his parental rights to an older son had been terminated. As he was being cross-examined, father was argumentative with counsel. Asked how many visits he had with B.A. at the agency, father replied, "not enough to remember." Father then said he had five or six visits. Father insisted that when mother and B.A. left his home, he went to CPS to report she was gone. Asked why he did not go to law enforcement, he responded he did not think they would be gone long. They had an argument before she left.
When asked if he filed a response under oath in July 2017 stating he did not believe he was B.A.'s father, father replied he did not recall saying that. He added he did not want to be a partial father but a 100 percent proven father of B.A. Father said he would never deny being B.A.'s father. Father said he did not go to the hospital when mother gave birth to B.A. because mother told him it would be inappropriate. Father never noticed that B.A. had any difficulty in her speech and was not aware of her speech delay. Father did not remember telling a social worker that mother and B.A. moved out of his home in September 2016.
In denying father's section 388 petition, the juvenile court noted the one change in circumstance was that father had attended parenting classes, though he did not complete them. The court observed father had visits with B.A. and was a substantial person in her life early on, but the court could not find a change in circumstances that was so substantial it would be in B.A.'s best interests for the court to modify its prior orders. The court thought father had a bond with B.A. and loved her, but based on the totality of the circumstances it was not in B.A.'s best interests to grant the petition. The court found B.A.'s stable environment outweighed the time she spent with father during only eight visits even though the visits were two hours long. The court did not believe father had shown by a preponderance of the evidence that there was a change in circumstance substantial enough to outweigh the stability B.A. had in her current placement.
In addition to father's testimony, the court heard testimony from father's mother, M.A., on the issue of whether father's parental rights should be terminated. M.A. explained she was B.A.'s grandmother and participated with father in visits with B.A. on four occasions. M.A. read stories to B.A. and observed B.A.'s interactions with father. M.A. described father and B.A. as being "very bonded." They played together, father would play games and read to B.A., and M.A. tried to teach B.A. to play the piano. According to M.A., father and B.A. spent a considerable amount of time together before B.A. was detained. M.A. said father would cook for B.A. and they had a "very closely bonded relationship." M.A. saw father bathing and dressing B.A.
The juvenile court found the agency met its burden in showing that B.A. was adoptable.
PRESUMED FATHER STATUS
Introduction
Father contends his Fourteenth Amendment right to association with his child was violated by the juvenile court because it did not declare him to be a presumed father at his first court appearance on September 6, 2017. Father argues the juvenile court erred in waiting for the results of his paternity test before finding him to be a presumed father, which does not depend on biological paternity. The agency replies that father waived this issue by failing to challenge the juvenile court's findings at the jurisdiction/disposition hearing and further that the argument fails on its merits. Father further asserts that the agency unilaterally terminated his visitation with B.A. We reject these contentions.
Forfeiture
An order setting a section 366.26 hearing is not appealable unless a petition for extraordinary writ review is timely filed after the juvenile court has given an oral advisement to the parent of the right to appeal. Failure to do so precludes subsequent orders made pursuant to section 366.26. (§ 366.26, subd. (l); In re Cathina W. (1998) 68 Cal.App.4th 716, 719; see In re Hannah D. (2017) 9 Cal.App.5th 662, 678-679 [finding oral advisement requirement directory rather than mandatory].) The Legislature adopted this procedure with the intent to ensure that resolution of the challenges to setting orders are resolved prior to the section 366.26 hearing. (In re X.Z. (2013) 221 Cal.App.4th 1243, 1248-1249.)
Father was orally notified by the juvenile court of the necessity to challenge any of the court's orders by writ petition and was told copies of the necessary appellate forms would be provided in court. Father filed a writ petition with this court but later abandoned his appeal. The juvenile court's earlier order postponing a ruling on his presumed parent status was appealable after the jurisdiction/disposition hearing and has now been forfeited on appeal.
As we discuss below, forfeiture also applies to father's argument that the agency unilaterally terminated his visitation with B.A.
Analysis of Merits
Although juvenile courts are required to make their jurisdictional findings by clear and convincing evidence, we review the record in the light most favorable to respondent to determine whether it discloses substantial evidence to support the juvenile court's finding, bearing in mind the heightened standard employed by the juvenile court. (In re Kristin H. (1996) 46 Cal.App.4th 1635, 1654.) We indulge all legitimate and reasonable inferences to uphold the juvenile court's orders. When two or more inferences can be reasonably deduced from the facts, either deduction is supported by substantial evidence and a reviewing court is without power to substitute its deductions for those of the trial court. If substantial evidence supports the juvenile court's finding, we will not disturb it. (In re Misako R. (1991) 2 Cal.App.4th 538, 545 (Misako R.).) Our task is not to reweigh the evidence if there are two or more inferences that can be reasonably deduced from the facts and we do not substitute our decision for that of the juvenile court. (In re Stephanie M. (1994) 7 Cal.4th 295, 318-319 (Stephanie M.).)
California's dependency statutory scheme has been described as a remarkable system of checks and balances designed to preserve the parent-child relationship and to reduce the risk of erroneous findings of fact by juvenile courts. (In re R.T. (2017) 3 Cal.5th 622, 637; In re Zeth S. (2003) 31 Cal.4th 396, 410, citing Cynthia D. v. Superior Court (1993) 5 Cal.4th 242, 254-255 [upholding the preponderance standard of proof in juvenile court findings in termination of parental rights hearings against due process challenge]; In re Meranda P. (1997) 56 Cal.App.4th 1143, 1146-1157 [upholding findings of juvenile court against a series of due process challenges by the parent and finding waiver doctrine applicable to issues not timely raised].)
In dependency proceedings, fathers are divided into four categories: de facto fathers, alleged fathers, natural fathers, and presumed fathers. A stepfather who has assumed the role of parent can be a de facto father. A man who may be the father of the dependent child but who has not established he is a natural or presumed father is an alleged father. A man who has been established to be the biological father is a natural father. A man who has held the child out as his own and received the child into his home is a presumed father. A natural father can be, but is not necessarily, a presumed father and a presumed father can be, but is not necessarily, a natural father. For the purposes of dependency proceedings, presumed fatherhood denotes one who promptly comes forward to demonstrate a full commitment to his paternal responsibilities—emotional, financial and otherwise. (In re Jerry P. (2002) 95 Cal.App.4th 793, 801-802.) Only presumed fathers are entitled to receive reunification services under section 361.5, and custody of the child under section 361.2.
The question of what constitutes a parental relationship is controlled by the Uniform Parentage Act (Fam. Code, § 7600 et seq.) (UPA), and, more specifically applicable to this case, Family Code section 7611, subdivision (d) which provides that a person is 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." (Fam. Code, § 7611, subd. (d); Adoption of Michael H. (1995) 10 Cal.4th 1043, 1051-1052.) Biological fatherhood does not by itself qualify a man for presumed father status under Family Code section 7611. Presumed father status is based on the familial relationship between the man and the child rather than a biological connection. (In re J.L. (2008) 159 Cal.App.4th 1010, 1018.) A man who is not legally married nor who has not attempted to legally marry the child's natural mother cannot become a presumed father unless he: (1) receives the child into his home and openly holds out the child as his natural child, or (2) both he and the natural mother execute a voluntary declaration of paternity. (Francisco G. v. Superior Court (2001) 91 Cal.App.4th 586, 595-596.)
At the initial detention hearing on July 19, 2017, father was not present. Mother told the court they were awaiting a DNA test through child support services, had not yet gotten the results, and mother was not married when B.A. was born. Mother described her relationship with father as a one-night stand and named another man as B.A.'s possible biological father. When mother was asked if anyone acted as a father to B.A., she replied that her own father was the only father figure in B.A.'s life.
Father appeared at the hearing on September 6, 2017, and asserted he was B.A.'s biological father. Father conceded he only had sex with mother twice but felt responsible for mother and B.A. Father denied being served with a complaint by child support services but acknowledged he had undergone genetic testing three weeks prior to the hearing. Father went on to describe how mother and B.A. lived with him until five months prior to the dependency case. He admitted that he did not provide support for B.A. after mother left his home. Father asserted he had a relationship with B.A., but in the paternity case he filed an answer denying he was B.A.'s father. Also, father had told social workers at the beginning of the dependency that he believed he was B.A.'s biological father. Father then explained that mother and B.A. had moved out of his home in September 2016 which conflicted with his testimony that they had moved out five months before the dependency case was filed. The evidence presented at the September 6 hearing that father held B.A. out to be his child was not overwhelming.
The juvenile court decided to wait until the results of the paternity test had been received to determine father's parental status. Ultimately, at the hearing on October 27, the juvenile court found father to be a presumed father and ordered visitation with B.A. Father's status as a natural father was not as relevant as his actual relationship with B.A. on the question of whether he was a presumed father. Father was not listed on B.A.'s birth certificate, was not at the hospital with mother when B.A. was born, and denied being B.A.'s father in his answer to the paternity case. These facts are inconsistent with his claim that he held B.A. out to be his daughter. Whether father should be elevated to presumed father status was not particularly clear in September 2017, and the juvenile court cannot be faulted for waiting to see father's DNA test results. Father notes his first visit with B.A. was not until November 29, and he describes the delay in seeing B.A. as "mind boggling." There is nothing in the record, however, to suggest any intentional delay by the agency in scheduling father's first visit with B.A., which may well have been due to scheduling issues beyond the agency's control.
Even if we assume the juvenile court and agency erred in waiting to grant father visitation after his first court appearance in early September 2017, father missed visits after they had been granted by the juvenile court. Missing these visits did not change the trajectory of the proceedings and did not meaningfully alter father's relationship with B.A. Father's statements to the agency about when mother and B.A. left his home are inconsistent with his testimony in these proceedings. Mother's testimony is at odds with father's description of his relationship with B.A. Mother stated her own father was a father to B.A. and mother's relationship with father consisted of a one-night stand.
Furthermore, father failed to challenge by writ petition the juvenile court's visitation order limiting him to one two-hour visit per month. Father also failed to qualify for reunification services because his parental rights had been terminated for at least one older child and the juvenile court adopted the agency's recommendation that father be bypassed for reunification services. B.A.'s best interests were served by staying in a stable home with care providers who were seeking to adopt her. Any error by the juvenile court in waiting for father's DNA test results before finding him a presumed father and ordering visitation was harmless.
Under subdivision (c)(2) of section 361.5, the court shall not order reunification for a parent or guardian described in several paragraphs of subdivision (b), including paragraphs (10) and (11) which were found applicable to father for having his parental rights formerly terminated, unless the court finds reunification is in the best interests of the child by clear and convincing evidence.
Finally, father argues the agency unilaterally suspended his visits. Father concedes the juvenile court's order allowing the agency to increase father's visitation did not itself improperly delegate authority to the agency, but argues the agency's unilateral actions violated his due process rights. Father did not raise the issue of visitation or the agency terminating visitation to the juvenile court. His failure to do so forfeits this claim of error as a ground for reversal on appeal. (In re Dakota H. (2005) 132 Cal.App.4th 212, 221-222.) Although we can still review questions of law and claimed constitutional violations de novo (see In re T.G. (2013) 215 Cal.App.4th 1, 13-14), father's claim rests on factual assertions for which there is no support in the current record and that could have been clarified had his claim been brought to the juvenile court's attention.
We agree with the agency's position that although it is clear father stopped visiting B.A., father points to nothing in the record to support his assertion that the agency ended his visitations with B.A. The social worker's report prepared in late March 2018 for the section 366.26 hearing indicated father had attended three of four scheduled visits with B.A. and acted appropriately with her. Father himself did not clearly remember whether he last visited B.A. in March 2018 or two months earlier in January, admitting he was not perfect with dates.
RELATIVE PLACEMENT
Father contends the juvenile court and the agency failed to consider his mother, M.A., for relative placement pursuant to sections 309 and 361.3. Father argues the agency did not meet its obligation to investigate the identity and location of suitable adult relatives to be B.A.'s caretaker. We find no merit to this contention.
Section 309, subdivisions (a), (d), and (e)(1) create a preference for placement of a detained minor with a close adult relative. Section 361.3 also creates preferential placement with a close adult relative after a child is taken from his or her parents and placed outside the home pending a determination whether reunification is possible. (In re Sarah S. (1996) 43 Cal.App.4th 274, 285 (Sarah S.).) A relative presumably has a broader interest in family unity and is more likely than a stranger to be supportive of parent-child relationships and less likely to develop a conflicting emotional bond with the child. (Cesar V. v. Superior Court (2001) 91 Cal.App.4th 1023, 1032 (Cesar V.).) Preferential placement does not guarantee placement because the relative seeking placement must be considered and investigated under section 361.3, subdivision (c)(1). (See Sarah S., supra, at p. 285; In re Joseph T. (2008) 163 Cal.App.4th 787, 798.)
The preference for relative placement also applies to placements made after the dispositional hearing, even after reunification efforts are no longer ongoing whenever a child must be moved. (§ 361.3, subd. (d); Cesar V., supra, 91 Cal.App.4th at pp. 1031-1032.) The preference for relative placement does not apply to an adoptive placement. (In re K.L. (2016) 248 Cal.App.4th 52, 65-66.) Once the juvenile court has determined that reunification is no longer possible, the most pronounced reason for trying to maintain family ties ends as well. (Samantha T. v. Superior Court (2011) 197 Cal.App.4th 94, 113.) Relative placement preference does not supersede the overriding concern of dependency proceedings of the child's best interests whose bond with a foster parent may require rejection of placement of the child with a relative. (In re Lauren R. (2007) 148 Cal.App.4th 841, 854-855.)
Father ignores the fact that at the time of B.A.'s initial detention and placement he was no more than an alleged parent. Despite father's testimony, it was not clear at the time of the detention hearing that father had any relationship with B.A. or that he held B.A. out to be his child. Indeed, just prior to B.A.'s detention, father filed an answer in the paternity case denying he was B.A.'s father. During this initial phase of the proceedings, the agency had to find a safe and stable home for B.A. and did consider her placement with maternal relatives. Father failed to unequivocally hold himself out to be B.A.'s parent and the agency was not required to begin seeking out father's relatives.
Citing In re Isabella G. (2016) 246 Cal.App.4th 708, 715, father argues a relative may seek placement of a child by way of a section 388 petition. The agency agrees but points out no such petition was filed in this case. Father's section 388 petition sought reunification services and custody of B.A. for himself, not his mother. During father's initial appearance in this case, he noted that with regard to the ICWA, the agency could contact his mother. He added that his mother was in the system because she was trying to get custody of B.A. M.A. testified she was out of town when the dependency began, but she began to call the agency in September 2017. M.A. apparently never applied for B.A.'s custody though two other maternal relatives had done so.
As the agency points out, this issue was never brought before the juvenile court for evaluation or decision. Father failed to file a writ petition challenging the court's placement order. B.A.'s placement was an issue at the section 366.26 hearing only on the questions of whether B.A. was adoptable and whether the care providers sought to adopt her. At this juncture, it was in B.A.'s best interest to stay with the family that had cared for her and sought to adopt her.
SECTION 388 PETITION
Father contends the juvenile court abused its discretion in denying his section 388 petition. We disagree.
A petition to modify a juvenile court order under section 388 must allege facts showing that new evidence or changed circumstances exist, and that changing the order will serve the child's best interests. (§ 388, subd. (a).) The petitioner has the burden of proof by a preponderance of the evidence. (Cal. Rules of Court, rule 5.570(h)(1)(D).) In assessing the petition, the court may consider the entire history of the case. (In re Justice P. (2004) 123 Cal.App.4th 181, 189.) We review the denial of a section 388 petition after an evidentiary hearing for abuse of discretion. (Stephanie M., supra, 7 Cal.4th at p. 318.) Where there is conflicting evidence, we reverse only if the evidence compels a finding for the father as a matter of law. (In re I.W. (2009) 180 Cal.App.4th 1517, 1527-1529.)
The best interests of the child or children are of paramount consideration when, as here, a section 388 petition is brought after reunification services have been denied. (See Stephanie M., supra, 7 Cal.4th at p. 317.) In assessing the best interests of the child at this juncture, the juvenile court's focus is on the needs of the child for permanence and stability rather than the parent's interests in reunification. (In re Marilyn H. (1993) 5 Cal.4th 295, 309.) "A petition which alleges merely changing circumstances and would mean delaying the selection of a permanent home for a child to see if a parent, who has repeatedly failed to reunify with the child, might be able to reunify at some future point, does not promote stability for the child or the child's best interests." (In re Casey D. (1999) 70 Cal.App.4th 38, 47 (Casey D.).)
The " 'escape mechanism' " provided by section 388 after reunification efforts have ceased is only available when a parent has completed a reformation before parental rights have been terminated. (In re Kimberly F. (1997) 56 Cal.App.4th 519, 528 (Kimberly F.).) This is because, if a parent's circumstances have not changed sufficiently to permit placement of the child with that parent, reopening reunification "does not promote stability for the child or the child's best interests" when the child is otherwise adoptable. (Casey D., supra, 70 Cal.App.4th at p. 47.)
The only substantive change of circumstances father relied on in his petition was his attending parenting classes. It was established, however, that he failed to complete the course of instruction despite his protestations to the contrary. Father's showing that his circumstances had changed was insufficient. (Casey D., supra, 70 Cal.App.4th at p. 49.) The juvenile court did not abuse its discretion in finding father failed to show a genuine change in circumstances that would merit considering instituting reunification services or placing B.A. with him. Accordingly, we need not reach the issue of whether it was also in B.A.'s best interests to grant father reunification services and/or to place B.A. in father's custody.
Father contends that because B.A. was over three years old when she was detained, he "would have been entitled to at least 12 months of services had the case progressed through the path of family reunification." Because the bypass provisions of subdivision (b)(10) and (11) of section 361.5 applied to father, he was not entitled to any reunification services.
ICWA
Father contends the juvenile court failed to comply with the requirements of the ICWA. We disagree.
Legal Principles
Congress enacted the ICWA to promote the stability and security of Indian tribes and families by establishing minimum standards for removal of Indian children from their families and the placement of such children in foster or adoptive homes that will reflect the unique values of Indian culture. (In re C.Y. (2012) 208 Cal.App.4th 34, 39; In re Levi U. (2000) 78 Cal.App.4th 191, 195.) An " 'Indian child' is defined as a child who is either (1) 'a member of an Indian tribe' or (2) 'eligible for membership in an Indian tribe and ... the biological child of a member of an Indian tribe ....' (25 U.S.C. § 1903(4).)" (In re Jonathon S. (2005) 129 Cal.App.4th 334, 338 (Jonathon S.).) The ICWA applies only to federally recognized tribes. (25 U.S.C. § 1903(8); Jonathon S., supra, at p. 338; In re B.R. (2009) 176 Cal.App.4th 773, 783 [federal definition of "Indian" includes "Eskimos and other aboriginal peoples of Alaska"; see 25 U.S.C. § 479]; In re Wanomi P. (1989) 216 Cal.App.3d 156, 166-168 [Canadian tribe is not federally recognized tribe under the ICWA].)
In state court proceedings involving the foster care placement of, or termination of parental rights to, an Indian child, the Indian custodian of the child and the Indian child's tribe have the right to intervene at any point in the proceeding. (25 U.S.C. § 1911(c).) But this right is meaningless unless the tribe is notified of the proceedings. (In re Hunter W. (2011) 200 Cal.App.4th 1454, 1466 (Hunter W.).) Notice serves the dual purpose of (1) enabling the tribe to investigate and determine whether a child is an Indian child and (2) advising the tribe of the pending proceeding and its right to intervene. (In re Desiree F. (2000) 83 Cal.App.4th 460, 470.)
In every dependency proceeding, the agency and the juvenile court have an "affirmative and continuing duty to inquire whether a child ... is or may be an Indian child ...." (§ 224.3, subd. (a); see Cal. Rules of Court, rule 5.481(a); In re W.B. (2012) 55 Cal.4th 30, 53; In re Gabriel G. (2012) 206 Cal.App.4th 1160, 1165 (Gabriel G.).) Because the ICWA was enacted by Congress with the intent to "protect the best interests of Indian children and to promote the stability and security of Indian tribes and families" (25 U.S.C. § 1902), the juvenile court and the agency had an affirmative and continuing duty at the outset of the proceedings to inquire whether a child who is subject to the proceedings is, or may be, an Indian child. (In re A.B. (2008) 164 Cal.App.4th 832, 838-839; see § 224.3, subd. (a); see also Cal. Rules of Court, rule 5.481(a).) The agency must include in the notice all known names of the Indian child's "biological parents, grandparents, and great-grandparents, or Indian custodians, including maiden, married and former names or aliases, as well as their current and former addresses, birthdates, places of birth and death, tribal enrollment numbers, and any other identifying information, if known." (§ 224.2, subd. (a)(5)(C); see Cal. Rules of Court, rule 5.481(a)(4)(A) and Judicial Council form ICWA-030.)
Once the court or agency "knows or has reason to know that an Indian child is involved ... is required to make further inquiry regarding the possible Indian status of the child, and to do so as soon as practicable, by interviewing the parents, Indian custodian, and extended family members to gather the information required in paragraph (5) of subdivision (a) of Section 224.2." (§ 224.3, subd. (c); see Cal. Rules of Court, rule 5.481(a)(4); Gabriel G., supra, 206 Cal.App.4th at p. 1165.) "[I]f the court [or] social worker ... subsequently receive[] any information required under paragraph (5) of subdivision (a) of Section 224.2 that was not previously available or included in the notice issued under Section 224.2, the social worker ... shall provide the additional information to any tribes entitled to notice under paragraph (3) of subdivision (a) of Section 224.2 and the Bureau of Indian Affairs." (§ 224.3, subd. (f).)
The ICWA applies to children who are eligible to become or who are members of a tribe but does not limit the manner by which membership is to be defined. (In re Jack C. (2011) 192 Cal.App.4th 967, 978, questioned on another point in In re Abbigail A. (2016) 1 Cal.5th 83, 96, fn. 3; see Nelson v. Hunter (1995) 132 Or.App. 361, 364, fn. 4 [888 P.2d 124, 126, fn. 4] [observing Congress rejected proposed language limiting the ICWA protection to enrolled members of Indian tribes].) A "tribe's right to define its own membership for tribal purposes has long been recognized as central to its existence as an independent political community." (Santa Clara Pueblo v. Martinez (1978) 436 U.S. 49, 72, fn. 32.) The tribe's determination that a child is a member of or eligible for membership in the tribe is conclusive. (§ 224.3, subd. (e)(1).)
Where, as here, the trial court has made a finding the ICWA is inapplicable, the finding is reviewed under the substantial evidence standard. (In re Rebecca R. (2006) 143 Cal.App.4th 1426, 1430; In re Karla C. (2003) 113 Cal.App.4th 166, 178-179.) Thus, we must uphold the court's orders and findings if any substantial evidence, contradicted or uncontradicted, supports them, and we must indulge all legitimate inferences in favor of affirmance. (In re John V. (1992) 5 Cal.App.4th 1201, 1212.) A juvenile court's ICWA finding is also subject to harmless error analysis. (In re Alexis H. (2005) 132 Cal.App.4th 11, 16.)
Here, both the agency and the juvenile court promptly made inquiries of both parents concerning any American Indian ancestry. Mother consistently denied any such ancestry. Father asserted matrilineal American Indian ancestry, vaguely stating that "she was part Native Indian out of Oklahoma." Father did not know the name of the tribe but referred the court and the agency to his mother, M.A. Father stated that no one in his family was currently registered with a federally recognized tribe but noted his mother's father was from Arkansas and was registered with a tribe. Father did not know the name of the tribe but said M.A. had more information.
Father later told a social worker that the name of his grandfather's tribe might be the Black Apache Tribe, which is not a state or federally recognized tribe. When the social worker contacted M.A., she said there was a first cousin who had information about the family's American Indian ancestry, but he passed away before he could share the information. M.A. did not know the name of any tribe from which her ancestors descended.
A list of state and federally recognized tribes has been compiled by the National Conference of State Legislatures at the following location online: <http://www.ncsl.org/research/state-tribal-institute/list-of-federal-and-state-recognized-tribes.aspx>
Where parents provide vague information concerning tribal identity that cannot be verified through other family members who have been contacted by social services agencies, and the parents or other living family members cannot identify a tribe, the juvenile court has no reason to find the minor was subject to the ICWA. (Hunter W., supra, 200 Cal.App.4th at pp. 1467-1468; In re J.D. (2010) 189 Cal.App.4th 118, 123-125.) Family lore is not a basis for a court to find the ICWA is applicable to a child. (Hunter W., supra, at p. 1469; In re J.L. (2017) 10 Cal.App.5th 913, 921-925 [vague assertions of past American Indian heritage insufficient to trigger a duty of further inquiry by the social services agency].) We conclude the juvenile court did not err in finding the ICWA inapplicable to B.A.
DISPOSITION
The findings and orders of the juvenile court are affirmed.
/s/_________
SNAUFFER, J. WE CONCUR: /s/_________
LEVY, Acting P.J. /s/_________
FRANSON, J.