Department of Children & Family Services v. John B. , 165 Cal. Rptr. 3d 430 ( 2013 )

Filed 12/11/13
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FOUR
In re JOVANNI B., a Person B246197
Coming Under the Juvenile Court
Law. (Los Angeles County
Super. Ct. No. CK92293)
LOS ANGELES COUNTY
DEPARTMENT OF CHILDREN
AND FAMILY SERVICES,
Plaintiff and Respondent,
v.
JOHN B.,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los Angeles County, Valerie
Skeba, Juvenile Court Referee. Reversed and remanded.
Andrea R. St. Julian, under appointment by the Court of Appeal, for Defendant
and Appellant.
John F. Krattli, County Counsel, James M. Owens, Assistant County Counsel, and
Tracey Dodds, Principal Deputy County Counsel, for Plaintiff and Respondent.
Jovanni B. was born in June 2012 to Andrea F. (mother). Two men claim to be his
father: appellant John B., who was living with mother when Jovanni was born and
signed a voluntary declaration of paternity, and Brian H., Jovanni’s biological father.
When DNA tests showed John was not Jovanni’s biological father, the juvenile court
dismissed John from the proceedings and offered reunification services to Brian. John
appeals from those orders, contending that because he signed a voluntary declaration of
paternity, he is entitled to presumed father status. He also contends that the trial court
erred in failing to require an investigation of mother’s possible Indian ancestry, as
required by the Indian Child Welfare Act (ICWA).
We agree with John that the DNA test results are not dispositive of his right to
participate in these proceedings. We disagree, however, that John is entitled to presumed
father status merely because he signed a voluntary declaration of paternity. We remand
the matter for the juvenile court to consider whether, in view of the DNA test results,
setting aside John’s voluntary declaration of paternity is appropriate under the facts of
this case (Fam. Code, § 7575), whether John is entitled to presumed father status (Fam.
Code, § 7611, subd. (d)), and for investigation of Jovanni’s possible Indian heritage.
FACTUAL AND PROCEDURAL BACKGROUND
I. Petition and Detention
The Los Angeles County Department of Children and Family Services (DCFS)
filed a juvenile dependency petition on August 17, 2012, asserting jurisdiction over
Jovanni pursuant to Welfare and Institutions Code section 300, subdivisions (a) and (b).1
It asserted: (1) Mother and John have a history of engaging in violent altercations in
Jovanni’s presence. On August 11, 2012, John threatened to kill mother, struck her in the
face and body with his fists, struck her arm with a machete, and refused to let mother
leave the home or call law enforcement. John was intoxicated at the time of the attack.
1
All further undesignated statutory references are to the Welfare and Institutions
Code.
2
(§ 300, subds. (a), (b).) (2) John has a history of substance abuse and is a current abuser
of alcohol, which endangers the child’s physical health and safety and creates a
detrimental home environment. (§ 300, subd. (b).)
DCFS filed a detention report on August 17, 2012. It stated as follows. On
June 5, 2012, DCFS received a referral alleging emotional abuse of two-day-old Jovanni.
Mother and John, who were living together with Jovanni, agreed to participate in
voluntary family maintenance and to receive services. Mother identified John as
Jovanni’s father, and John signed the voluntary family maintenance plan as the father.
On August 13, 2012, mother told her social worker that John had been jailed on
August 11 because he became violent while drinking and attacked her with a machete.
She and Jovanni currently were staying at a safe location, and John remained
incarcerated. Mother explained that on the night of August 11, she had wanted to take
Jovanni to her Alcoholics Anonymous (AA) sponsor’s house because John was drinking,
but John would not let her leave. She attempted to call 911, but John took her phone. A
neighbor called 911 and John was arrested. Mother said she had obtained a temporary
restraining order against John and would be seeking a permanent restraining order. She
had moved out of the home where she had been living with John and would not be
returning.
Mother also disclosed to the social worker that Brian, not John, was Jovanni’s
biological father. Mother said she had been six months pregnant with Jovanni when she
met John. Brian had visited Jovanni, but always in her presence. Mother also said she
has Vergo Native American heritage, but was not registered with a tribe.
John admitted to the social worker that mother had been pregnant when he met
her, but said that admission was “off the record.” He said he was willing to take a
paternity test, that he would consent to Jovanni’s detention, and that “if you guys (DCFS)
want me out of Jovanni’s life, I am willing to do that.”
Brian told the social worker that he was not sure if he was Jovanni’s father, but he
was willing to take a paternity test and would like to be involved in Jovanni’s life if he
were the father. On August 17, 2012, he filed a “Statement Regarding Parentage,” in
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which he stated that he did not know if he was Jovanni’s father and requested a paternity
test. The same day, mother filed a notice of Indian status, stating that she may have
Indian ancestry but was not sure of the name of the tribe to which she might be eligible
for membership.
The juvenile court held a detention hearing August 17, 2012. The court found a
prima facie case that Jovanni was a child described by section 300, subdivision (b), and
ordered Jovanni released to mother. It ordered Brian to submit to a DNA test and
deferred making paternity findings pending receipt of the DNA test results. With regard
to Indian heritage, the court said any Indian heritage appeared “very remote,” but ordered
DCFS to interview mother. Finally, it denied John visitation and granted Brian
monitored visits.
The court held a further hearing on September 17, 2012. At that time, the court
entered a temporary restraining order against John, ordered John to submit to a DNA test,
and said it would find John the father “only . . . if it [paternity test] establishes there is a
biological link.”
II. Adjudication
In a last minute information for the court filed November 27, 2012, DCFS
informed the court that Brian had submitted to a DNA test but had not otherwise been in
contact with DCFS. The DNA test showed Brian was Jovanni’s father. Mother reported
that she and Brian were living in sober living residences and Brian saw Jovanni every
other day at AA meetings. Mother monitored those visits. Brian was reported to have
been convicted of domestic violence in 1999 and of conspiracy in 2004. He had a 2001
drug-related arrest but had not been convicted. DCFS recommended that Brian have no
contact with Jovanni until he contacted DCFS, that any visits thereafter be monitored by
a DCFS-approved monitor, and that Brian be required to submit to random drug and
alcohol testing.
The court held an adjudication hearing on November 27, 2012. At the hearing, the
court excused John from the proceedings because “the DNA tests have shown that you
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are not the father of the child.” It accepted mother’s no contest plea to the amended
petition, sustained as true by a preponderance of the evidence the amended count B-1,
and dismissed counts A-1 and B-2 without prejudice. It then ordered Jovanni placed with
mother under DCFS supervision.
Brian sought a contested hearing as to whether he was entitled to share custody
with mother, and the court set that matter for hearing on January 7, 2013. The court
further found Brian to be Jovanni’s biological father, but declined to find him the
presumed father.
John timely appealed.
DISCUSSION
John asserts: (1) the juvenile court erred in denying him presumed father status
and excluding him from the proceedings solely because he is not Jovanni’s biological
father; (2) he is entitled to presumed father status as a matter of law because he executed
a voluntary declaration of paternity shortly after Jovanni’s birth; and (3) DCFS did not
conduct a proper ICWA inquiry.
DCFS agrees that excluding John from the proceedings merely because Brian was
determined to be the biological father was error, and it does not oppose remand with
directions to the juvenile court to provide John an opportunity to be recognized as
Jovanni’s presumed father. DCFS also agrees that a proper ICWA inquiry was not made,
and it does not object to the matter being remanded to the juvenile court for DCFS to
conduct such an inquiry and report its findings to the court. We consider these issues
below.
I. John’s Request for Judicial Notice
As a preliminary matter, we note that John requested, and we granted, judicial
notice of the voluntary declaration of paternity he and mother executed June 5, 2012, two
days after Jovanni’s birth. The voluntary declaration of paternity contains the following
5
statement, which John signed under penalty of perjury: “I am the biological father of the
child named on this declaration . . . . I understand that by signing this form I am
consenting to the establishment of paternity, thereby waiving those rights. I am assuming
all of the rights and responsibilities as the biological father of this child. I wish to be
named as the father on the child’s birth certificate.” The voluntary declaration also
contained mother’s statement under penalty of perjury, as follows: “I am the unmarried
natural mother of the child named on this declaration . . . . I certify that the man signing
this form is the only possible father of this child. I know that by signing this form I am
establishing the man signing this form as the biological father of this child with all the
rights and responsibilities of a biological father under the laws of California. I consent to
the establishment of paternity by signing this form.” The form was witnessed on June 5,
2012, and was processed by the California Department of Child Support Services on
June 19, 2012.
II. The Juvenile Court Erred in Denying John Presumed Father Status and
Excluding Him From the Proceedings Solely Because He Is Not Jovanni’s
Biological Father
A. Biological, Presumed, and Alleged Fathers
The child dependency statutes distinguish between “biological,” “presumed,” and
“alleged” fathers. (E.g., §§ 290.2 [notice shall be given to “[t]he father or fathers,
presumed and alleged”], 291 [same], 292 [notice shall be given to “[t]he presumed father
or any father receiving services], 293 [same], 361.5 [child welfare services shall be
provided to “statutorily presumed father,” and may also be provided to “the biological
father”]; see also In re Zacharia D. (1993) 6 Cal. 4th 435, 448.) A biological father is one
“‘who is related to the child by blood.’” (In re E.T. (2013) 217 Cal. App. 4th 426, 438,
citing § 361.3, subd. (c)(2).) A “presumed father” is one “‘who “promptly comes
forward and demonstrates a full commitment to . . . paternal responsibilities—emotional,
financial, and otherwise.”’ (In re Jerry P. [(2002)] 95 Cal.App.4th [793,] 801-802.) A
natural father can be a presumed father, but is not necessarily one; and a presumed father
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can be a natural father, but is not necessarily one. (Id. at p. 801.)” (In re A.A. (2003) 114
Cal. App. 4th 771, 779.) An “alleged father” “may be the father of a dependent child.
However, he has not yet been established to be the child’s natural or presumed father.”
(Ibid.)
“Presumed fathers are accorded greater rights [in dependency proceedings] than
are mere natural fathers. (In re Zacharia D., supra, 6 Cal.4th at pp. 448-449.) For
example, section 361.5, subdivision (a) of the Welfare and Institutions Code provides that
except in circumstances not relevant here, ‘whenever a child is removed from a parent’s
or guardian’s custody, the juvenile court shall order the social worker to provide child
welfare services to the child and the child’s mother and statutorily presumed father or
guardians. Upon a finding and declaration of paternity by the juvenile court or proof of a
prior declaration of paternity by any court of competent jurisdiction, the juvenile court
may order services for the child and the biological father, if the court determines that the
services will benefit the child.’ (Italics added.)” (In re A.A., supra, 114 Cal.App.4th at
pp. 779-780.) Further, “[o]nly a statutorily presumed father is entitled to appointed
counsel[.]” (In re P.A. (2011) 198 Cal. App. 4th 974, 980.)
B. Biological Paternity Is Not Dispositive of Presumed Father Status
In In re Nicholas H. (2002) 28 Cal. 4th 56, our Supreme Court considered whether
a man who is not a child’s biological father can nevertheless be a presumed father.
There, Nicholas’s mother met Thomas when she was pregnant; mother and Thomas never
married, but they lived together with Nicholas for several years. (Id. at p. 60.) After
mother and Thomas’s relationship ended, Nicholas lived with Thomas for a period of
time. Thomas “has provided Nicholas with significant financial support over the years,
and he has consistently referred to and treated Nicholas as his son. ‘In addition, there is
undisputed evidence that Nicholas has a strong emotional bond with Thomas and that
Thomas is the only father Nicholas has ever know[n].’” (Id. at p. 61.) Under these
circumstances, the Supreme Court held that Thomas’s admission that he was not
Nicholas’s biological father did not defeat his presumed father status. (Id. at p. 63.)
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The court reached a similar result in In re Jerry P., supra, 95 Cal. App. 4th 793.
There, mother and J.R. had a relationship for about a year, and Jerry was conceived
during that period. (Id. at p. 797.) Jerry was detained shortly after his birth because he
tested positive for cocaine; J.R. appeared at the section 366.26 hearing and sought
presumed father status. The juvenile court ordered a paternity test, which revealed that
J.R. was not Jerry’s biological father. (Id. at p. 798.) The court thereupon entered an
order that J.R. was not Jerry’s presumed father and denied his motion for reunification
services. (Id. at p. 801.)
The Court of Appeal reversed, concluding that lack of a biological relationship to
a child does not necessarily defeat presumed father status. (In re Jerry P., supra, 95
Cal.App.4th at p. 803.) It explained: “Presumed fatherhood, for purposes of dependency
proceedings, denotes one who ‘promptly comes forward and demonstrates a full
commitment to his paternal responsibilities—emotional, financial, and otherwise[.]’ As
one court put it: ‘The purpose of reunification services is to “reunite the family in a
situation where the best interests of all concerned, the child, the parent and society as a
whole, are well served.”’ Therefore, ‘[w]e doubt, in light of the statutory purpose, that
the Legislature intended to mandate reunification services solely based on the status of
being the biological father. For example, we think it highly unlikely the Legislature
intended to give a right of reunification services to a rapist or an anonymous sperm donor
simply because the man is the biological father of the child.’” (Id. at pp. 801-802, fn.
omitted.) Further, the court said, presumed fatherhood status is not necessarily rebutted
by evidence that the “presumed father” is not the “natural father” because “in the
dependency context the term ‘presumed father’ is not an evidentiary term but a term of
convenience used to identify a preferred class of fathers by reference to the familial
bonds described in [Family Code] section 7611 which the Legislature has determined
reasonably approximates the class of fathers it wishes to benefit.” (Id. at p. 805, fn.
omitted.)
Taken together, Nicholas H. and Jerry P. stand for the proposition that biological
paternity is not determinative of presumed father status because a man may be a child’s
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presumed father even if he is not that child’s biological father. The trial court erred in
concluding otherwise and in dismissing John from the proceedings solely because he is
not Jovanni’s biological father.
III. John Is Not Entitled to Presumed Father Status as a Matter of Law
Our conclusion that John should not have been dismissed from the proceedings
merely because he is not Jovanni’s biological father is not dispositive of the second
question John raises on appeal—whether he is entitled to presumed father status. John
urges that he is entitled to such status as a matter of law because he executed a voluntary
declaration of paternity after Jovanni’s birth. He urges: “Family Code, § 7570 et seq.
and California Rules of Court, Rule 5.635, subdivision (c) specifically state that an
executed and filed voluntary declaration of paternity acts as a judgment finding the male
signatory to be the subject child’s presumed father.” For the following reasons, we do
not agree.
A. Establishment of Paternity by Voluntary Declaration
Pursuant to Family Code section 7570, the Legislature “hereby finds and declares”
that there is a “compelling state interest in establishing paternity for all children.
Establishing paternity is the first step toward a child support award, which, in turn,
provides children with equal rights and access to benefits, including, but not limited to,
social security, health insurance, survivors’ benefits, military benefits, and inheritance
rights. . . . [¶] . . . A simple system allowing for establishment of voluntary paternity
will result in a significant increase in the ease of establishing paternity, a significant
increase in paternity establishment, an increase in the number of children who have
greater access to child support and other benefits, and a significant decrease in the time
and money required to establish paternity due to the removal of the need for a lengthy
and expensive court process to determine and establish paternity and is in the public
interest.” (Subds. (a), (b).)
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Consistent with the legislative purpose set out in Family Code section 7570,
Family Code section 7571 requires hospitals to provide voluntary declarations of
paternity to “the natural mother and . . . the man identified by the natural mother as the
natural father.” The voluntary declaration of paternity must contain, at a minimum, the
names of the mother, father, and child, the child’s date of birth, “[a] statement by the
mother that . . . the man who has signed the voluntary declaration of paternity is the only
possible father,” and “[a] statement by the father that . . . he is the biological father of the
child, and that he consents to the establishment of paternity by signing the voluntary
declaration of paternity.” (Fam. Code, § 7574, subd. (b).)
“[A] completed voluntary declaration of paternity . . . that has been filed with the
Department of Child Support Services shall establish the paternity of a child and shall
have the same force and effect as a judgment for paternity issued by a court of competent
jurisdiction. The voluntary declaration of paternity shall be recognized as a basis for the
establishment of an order for child custody, visitation, or child support.” (Fam. Code,
§ 7573.) However, if genetic tests demonstrate that the man who signed the voluntary
declaration of paternity is not “the father of the child,” the court may set the declaration
aside. (Fam. Code, § 7575, subd. (b)(1).)
B. A Completed Voluntary Declaration of Paternity Is Not Dispositive of
Presumed Father Status in a Dependency Proceeding
In In re Brianna (2013) 220 Cal. App. 4th 1025, we considered whether an
executed voluntary declaration of paternity entitles a man to presumed father status in a
dependency proceeding.2 We concluded that although a voluntary declaration of
paternity gives rise to an evidentiary presumption that the declarant is the child’s
biological father, it does not entitle him to presumed father status. We began by
discussing In re E.O. (2010) 182 Cal. App. 4th 722, in which N.M. urged he was entitled
to presumed father status in a dependency proceeding because a judgment entered in a
2
On November 6, 2013, we invited the parties to address the effect of In re Brianna
in supplemental letter briefs.
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separate action had found him to be the father of the dependent children and ordered him
to pay child support. N.M. noted that Family Code section 7636 provides that a
“‘judgment . . . of the court determining the existence . . . of the parent and child
relationship is determinative for all purposes’”; thus, he contended, the paternity
judgment “‘required the juvenile court to consider [him] the children’s presumed father.’”
(In re E.O., supra, 182 Cal.App.4th at p. 727.) The Court of Appeal disagreed,
explaining as follows: “[A]ppellant’s argument on this point misconstrues the nature of
the prior judgment. A paternity judgment is, as the name implies, a judicial
determination that a parent-child relationship exists. It is designed primarily to settle
questions of biology and provides the foundation for an order that the father provide
financial support. For example the judgment at issue here declared appellant to be one of
E.O. and Y.O.’s ‘parents’ and states he had the obligation to provide them ‘$0.00’ in
monthly child support. Presumed father status, by contrast, is concerned with a different
issue: whether a man has promptly come forward and demonstrated his ‘“full
commitment to his parental responsibilities—emotional, financial, and otherwise.”’ (In
re Jerry P., supra, 95 Cal.App.4th at pp. 801-802.) We would endorse ‘an interpretation
that would lead to absurd consequences’ if we were to conclude that a paternity judgment
that is focused narrowly on biological and financial issues is determinative on subsequent
issues that are unrelated to and far beyond its scope. (In re M.B. (2009) 174 Cal. App. 4th
1472, 1477.) We decline to read the applicable statutes in an absurd manner.” (In re
E.O., supra, 182 Cal.App.4th at pp. 727-728.)
In In re Brianna, supra, 220 Cal. App. 4th 1025, we applied the analysis of In re
E.O. to conclude that, like a paternity judgment, a voluntary declaration of paternity is
not dispositive of presumed father status. We explained as follows:
“Were we to conclude that executing a voluntary declaration of paternity
automatically entitles a man to presumed father status in the dependency context, we
would make precisely the error the court eschewed in In re E.O., supra, 182 Cal. App. 4th
722. Like a paternity judgment, a voluntary declaration of paternity is ‘designed
primarily to settle questions of biology.’ (Id. at p. 727.) It is for this reason that a
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voluntary declaration of paternity must include ‘[a] statement by the mother that . . . the
man who has signed the voluntary declaration of paternity is the only possible father’ and
‘[a] statement by the father that . . . he is the biological father of the child.’ (§ 7574,
subd. (b).) It is also for this reason that a court may set aside a voluntary declaration of
paternity if genetic tests establish that ‘the man who signed the voluntary declaration [of
paternity] is not the father of the child.’ (§ 7575, subd. (b)(1).) As the court noted in In
re E.O., we would ‘endorse “an interpretation that would lead to absurd consequences” if
we were to conclude that a [voluntary declaration of paternity] that is focused narrowly
on biological and financial issues is determinative on subsequent issues that are unrelated
to and far beyond its scope.’ (182 Cal.App.4th at p. 728.) Like the E.O. court, we
decline to read the statute in such a manner.
“Moreover, were we to conclude that a voluntary declaration of paternity entitled a
man to presumed father status in a dependency action, we would elevate it above a
paternity judgment, in violation of [Family Code] section 7573’s mandate that a
completed voluntary declaration of paternity ‘shall have the same force and effect as a
judgment for paternity issued by a court of competent jurisdiction.’ (Italics added.) As
we have seen, a paternity judgment does not entitle a man to presumed father status in a
dependency action. (In re E.O., supra, 182 Cal. App. 4th 722; In re Cheyenne B. [(2012)]
203 Cal. App. 4th 1361.) If a voluntary declaration of paternity were to give a man
presumed father status in such an action, the voluntary declaration would not have ‘the
same force and effect’ as a judgment—it would have a force and effect different than, and
superior to, a judgment.
“Finally, there is no suggestion in the dependency statutes that the Legislature
intended to grant preferred status in a dependency action to a man who has completed a
voluntary declaration of paternity, but has not otherwise established a relationship with
his child. Such a conclusion would have the effect of mandating reunification services to
a biological father who, as in this case, has had virtually no contact with his child in
many years and whom the child does not know as her father. There is no suggestion in
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the Welfare and Institutions Code that the Legislature intended such a result.” (In re
Brianna, supra, 220 Cal.App.4th at pp. 1048-1049.)
C. This Matter Must Be Remanded for the Juvenile Court to Determine
Whether John Should Be Granted Presumed Father Status
In re Brianna is dispositive of John’s contention that he is entitled to presumed
father status in this proceeding as a matter of law. As we have said, In re Brianna holds
that a voluntary declaration of paternity does not entitle a man to presumed father status
in a dependency proceeding. The juvenile court did not err in so concluding.
Our conclusion that John is not Jovanni’s presumed father as a matter of law is
not, however, dispositive of his status in this proceeding. Because the juvenile court
believed the DNA tests were determinative of John’s right to participate in this action, it
appears not to have determined whether John fulfills the statutory criteria that give rise to
a presumption of paternity pursuant to Family Code section 7611, subdivision (d)—i.e.,
he has “receive[d] the child into his home and openly [held] out the child as his natural
child.” The juvenile court must make this determination on remand.3
If the court determines that John alone fulfills the statutory criteria, it shall declare
him the presumed father. If the court determines that both John and Brian fulfill the
statutory criteria, it shall resolve their competing claims pursuant to Family Code section
7612 (addressing conflicting presumptions of paternity). And, should the court determine
3
If it has not already done so, the juvenile court also may need to determine
whether Brian fulfills the statutory criteria of Family Code section 7611, subdivision (d).
In his supplemental letter brief, John urges that he must be designated the
presumed father because “he is the only individual who so qualifies.” We cannot agree,
as the juvenile court has not yet addressed presumed father status. In any event, none of
the three cases John cites supports the proposition that “[a] juvenile court’s refusal to
designate a man as a child’s presumed father when he is the only individual who so
qualifies is prohibited.” Instead, these cases hold that where a presumption of paternity
has arisen, it should not be rebutted under Family Code section 7612, subdivision (a),
where the result would be to leave a child with fewer than two parents. (See In re
Jesusa V. (2004) 32 Cal. 4th 588, 615; In re J.O. (2009) 178 Cal. App. 4th 139, 148;
Librers v. Black (2005) 129 Cal. App. 4th 114, 122-123.)
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that neither man fulfills the statutory criteria, it shall determine whether either is
nonetheless entitled to reunification services pursuant to the Welfare and Institutions
Code.
Further, on remand the juvenile court shall determine whether John’s voluntary
declaration of paternity shall be set aside pursuant to Family Code section 7575. As
noted above, a completed voluntary declaration of paternity filed with the Department of
Child Support Services establishes the paternity of a child and has the same force and
effect as a paternity judgment. (Fam. Code, § 7573.) However, if the court finds “that
the conclusions of all of the experts based upon the results of the genetic tests performed
pursuant to Chapter 2 (commencing with Section 7550) are that the man who signed the
voluntary declaration is not the father of the child, the court may set aside the voluntary
declaration of paternity unless the court determines that denial of the action to set aside
the voluntary declaration of paternity is in the best interest of the child, after
consideration of all of the following factors: [¶] (A) The age of the child. [¶] (B) The
length of time since the execution of the voluntary declaration of paternity by the man
who signed the voluntary declaration. [¶] (C) The nature, duration, and quality of any
relationship between the man who signed the voluntary declaration and the child,
including the duration and frequency of any time periods during which the child and the
man who signed the voluntary declaration resided in the same household or enjoyed a
parent-child relationship. [¶] (D) The request of the man who signed the voluntary
declaration that the parent-child relationship continue. [¶] (E) Notice by the biological
father of the child that he does not oppose preservation of the relationship between the
man who signed the voluntary declaration and the child. [¶] (F) The benefit or detriment
to the child in establishing the biological parentage of the child. [¶] (G) Whether the
conduct of the man who signed the voluntary declaration has impaired the ability to
ascertain the identity of, or get support from, the biological father. [¶] (H) Additional
factors deemed by the court to be relevant to its determination of the best interest of the
child.” (§ 7575, subd. (b).)
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In the present case, the juvenile court ordered genetic tests and made a finding that
Brian is Jovanni’s biological father, but it did not expressly set aside John’s voluntary
declaration of paternity. On remand, the juvenile court shall consider, pursuant to Family
Code section 7575, whether setting aside the voluntary declaration of paternity is
appropriate under the facts of this case.
IV. The Minute Order Erroneously States That ICWA Notice Was Not Required
At the commencement of the case, mother was asked about possible Indian
heritage and said she might have Vergo Indian ancestry. On the parental notification of
Indian status, filed August 17, 2012, mother said she might have Indian ancestry, but did
not know to what tribe she might belong. The same day, the court said any Indian
heritage appeared “very remote,” but it ordered DCFS to interview mother. The minute
order does not accurately reflect this order to interview mother; instead, it states: “Court
finds no reasons to believe ICWA applies to this case.”
Because the juvenile court never made an ICWA finding, we remand the matter
for DCFS to conduct an appropriate inquiry and report its findings to the court. At that
time, the juvenile court shall either find that ICWA does not apply or order DCFS to
provide the appropriate ICWA notice.
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DISPOSITION
The matter is reversed and remanded for additional findings and orders consistent
with the views expressed herein.
CERTIFIED FOR PUBLICATION
SUZUKAWA, J.
We concur:
EPSTEIN, P. J.
MANELLA, J.
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