In re A.P. CA2/8

Filed 5/22/14 In re A.P. CA2/8
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION EIGHT
In re A.P., Person Coming Under the Juvenile B251593
Court Law.
(Los Angeles County
LOS ANGELES COUNTY DEPARTMENT Super. Ct. No. CK89723)
OF CHILDREN AND FAMILY SERVICES,
Plaintiff and Respondent,
v.
Y.A.,
Defendant and Appellant.
Appeal from an order of the Superior Court of Los Angeles County. Tony L.
Richardson, Judge. Affirmed.
Jesse McGowan, under appointment by the Court of Appeal, for Defendant and
Appellant.
John F. Krattli, County Counsel, James M. Owens, Assistant County Counsel, and
Jacklyn K. Louie, Principal Deputy County Counsel, for Plaintiff and Respondent.
__________________
Mother, Y.A., appeals the juvenile court’s order terminating her parental rights to
her son, A.P. She contends the Department of Children and Family Services failed to
inquire into whether A.P.’s father, R.P., had any Indian ancestry under the Indian Child
Welfare Act (ICWA; 25 U.S.C. § 1901 et seq.). We find that because father was merely
an alleged father, inquiry into father’s Indian heritage under ICWA was not required.
BACKGROUND
Because this appeal concerns only whether the requirements of ICWA were
satisfied, we will limit our factual summary to those facts relevant to ICWA.
On September 14, 2011, then 15-month-old A.P. was detained by the Department
after mother was arrested for physically abusing him in a thrift store in Covina. Mother’s
two older children were in a guardianship with their maternal grandmother because of
mother’s drug use. During an interview with a Department social worker and a Sheriff’s
detective, mother identified R.P. as A.P.’s father, but indicated that father “is not
involved in [A.P.’s] life and does not provide . . . any financial support.”
When mother was seven months pregnant with A.P., she and father were arrested
(mother for driving under the influence of a controlled substance, and father for
possessing a controlled substance and violating his parole). At the time of A.P.’s
detention, father was in custody at the West Valley Detention Center. Father was being
held, without bail, on a U.S. Marshall’s hold.
On September 19, 2011, mother filed a Parental Notification of Indian Status,
indicating that she had no Indian ancestry. She also completed a Parentage
Questionnaire, identifying father as A.P.’s father, but indicating that he was not present
for A.P.’s birth, did not sign A.P.’s birth certificate, that he had not held himself out as
A.P.’s parent, that no paternity testing had been completed, and that there were no child
support or family law orders establishing father’s paternity. Accordingly, at the
September 19, 2011 detention hearing, the trial court found father to be only an alleged
father, and that ICWA did not apply to mother.
The Department’s investigation revealed other children of father had been
declared dependents of the court. A February 28, 2005 sustained petition found that
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father neglected a son, I.P., and a daughter, D.G. because of his history of substance
abuse. Father’s family reunification services were terminated on February 27, 2006, and
I.P. was placed in a legal guardianship with his maternal grandmother (it is unclear what
happened to D.G.). An April 9, 2007 sustained petition for a different child, M.P.,
alleged that father’s “history of substance abuse and drug related criminal history” placed
M.P. at risk of harm. Family reunification services were terminated on April 21, 2008,
and father’s parental rights to M.P. were terminated on May 28, 2010.
A search into father’s criminal background revealed an “extensive drug related
criminal record dating back to 1998” and that father was serving a two-year prison
sentence for violating his parole for sales of controlled substances. He was also awaiting
trial on federal drug charges, and faced at least five to ten years in federal prison.
A Department social worker interviewed father on October 3, 2011, while he was
in custody at the West Valley Detention Center. Father reported that he was not present
for A.P.’s birth, and was not sure if mother received prenatal care during her pregnancy,
as she was using drugs. He “has seen his son once since his birth as he has been
incarcerated” for the last year. Father believed he would be unable to reunify with A.P.,
but his hope was that mother could obtain custody of their son. The social worker’s
report is silent about whether the social worker asked father about any Indian heritage.
The Department recommended that no reunification services be ordered for father, as he
was merely an alleged father and had failed to reunify with A.P.’s half siblings.
The Department filed a first amended petition on October 26, 2011 (which
included new allegations of substance abuse by mother) on which father was named, with
a check mark appearing next to the “biological” designation on the petition’s cover sheet.
At the January 23, 2012 adjudication hearing, mother filed a waiver of rights,
submitting on the petition, and the petition was sustained as amended. The court ordered
that father was not to receive reunification services.
On July 16, 2012, father was in federal custody, in the Leavenworth Penitentiary
in Kansas.
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The Department interviewed paternal great-grandmother and paternal grandfather
regarding placement of A.P. However, due to paternal grandfather’s job as a long-
distance trucker, and paternal great-grandmother’s health, neither was available for
placement.
Mother had not made progress with her reunification plan, and was incarcerated,
so the court terminated mother’s reunification services and set a Welfare and Institutions
Code section 366.26 hearing. The Department’s section 366.26 report indicated that
“[f]ather has not had any contact with [A.P.] since the case was opened.” An attached
birth certificate did not identify A.P.’s father. The Department recommended that
parental rights be terminated with a permanent plan of adoption, as A.P.’s foster parents
wanted to adopt him.
At the August 2, 2013 contested Welfare and Institutions Code section 366.26
hearing, the trial court terminated the parental rights of mother and father. Counsel for
the Department brought to the trial court’s attention that no ICWA finding had been made
as to father, as a matter of “housekeeping.” The trial court ruled that it would defer
making any findings under ICWA as to father until the next court hearing.
Father was never appointed counsel, and never appeared for any hearings.
Mother filed a timely notice of appeal.
DISCUSSION
Before parental rights may be terminated, “where the court knows or has reason to
know that an Indian child is involved, the party seeking . . . termination of parental rights
to[] an Indian child shall notify the parent or Indian custodian and the Indian child’s tribe,
by registered mail with return receipt requested, of the pending proceedings and of their
right of intervention.” (25 U.S.C. § 1912(a).) 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.” (§ 1903(4).)
A biological connection to a tribe through a biological parent or parents must be
shown in order to trigger ICWA’s requirements. (See 25 U.S.C. § 1903(9) [“ ‘parent’
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means 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”]; In re E.G. (2009) 170 Cal. App. 4th 1530, 1533.) Therefore, a minor cannot
claim Indian heritage through an alleged father until biological parentage is established.
(In re E.G., at p. 1532; see In re Daniel M. (2003) 110 Cal. App. 4th 703, 708.) Moreover,
“[a]n alleged father who has not acknowledged or established he is a parent within the
meaning of title 25 United States Code section 1903(9) lacks standing to challenge a
violation of the ICWA notice provisions.” (In re Daniel M., at p. 709.) An alleged father
may establish or acknowledge paternity by voluntarily signing a declaration of paternity
at the time of the child’s birth or through scientific testing. (Id. at pp. 708-709.)
Mother’s claim that the Department was required to inquire whether father had
Indian heritage lacks merit, because father was only an alleged father. (In re E.G., supra,
170 Cal.App.4th at p. 1532; see In re Daniel M., supra, 110 Cal.App.4th at p. 708.)
Mother concedes no ICWA inquiry is necessary for an alleged father. But mother
contends the juvenile court impliedly found father to be a biological father, reasoning that
father was listed as the biological father on the first amended dependency petition, and
that the Department considered placing A.P. with father’s relatives. Mother also
contends the juvenile court deferred a ruling on father’s ICWA status, which shows the
trial court assumed father was A.P.’s biological father. This argument also is without
merit.
Here, the record reveals that father’s status was never elevated from that of an
alleged father. (See In re Paul H. (2003) 111 Cal. App. 4th 753, 760 [a determination
must be made in order for a father’s status to change].) No steps were ever taken by
father to change his status; genetic testing was never sought and father never signed
A.P.’s birth certificate. (In re Daniel M., supra, 110 Cal.App.4th at pp. 708-709.)
Although mother named R.P. as the father, he was never involved in A.P.’s life. It is
irrelevant that the Department considered placing A.P. with father’s relatives, as
nonrelatives are routinely considered for placement. (Welf. & Inst. Code, §§ 361.2,
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subd. (e), 362.7.) We also cannot infer from the trial court’s order that it would “defer
making an I.C.W.A. finding as to father” as a finding that father was A.P.’s biological
father. The record simply does not show any evidence was ever presented to show
father’s biological connection to A.P. to trigger ICWA inquiry and notice requirements.
Where no biological connection between father and A.P has been established, and
mother claims no Indian heritage, the Department had no “reason to know” that an Indian
child was involved in this proceeding. (25 U.S.C. § 1912(a); see also Welf. & Inst. Code,
§ 224.2, subd. (b).) Therefore, the Department’s obligation to provide notice is not
triggered. (See In re E.G., supra, 170 Cal.App.4th at p. 1533.)
DISPOSITION
The order terminating mother’s parental rights is affirmed.
GRIMES, J.
We concur:
BIGELOW, P. J.
RUBIN, J.
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