In re T.P. CA5

Filed 1/11/23 In re T.P. CA5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIFTH APPELLATE DISTRICT
In re T.P., a Person Coming Under the Juvenile
Court Law.
KERN COUNTY DEPARTMENT OF HUMAN F084522
SERVICES,
(Super. Ct. No. JD141278-00)
Plaintiff and Respondent,
v. OPINION
J.B.,
Defendant and Appellant.
THE COURT*
APPEAL from an order of the Superior Court of Kern County. Susan M. Gill,
Judge.
Elaine Forrester, under appointment by the Court of Appeal, for Defendant and
Appellant.
Margo A. Raison, County Counsel, and Kelli R. Falk, Deputy County Counsel, for
Plaintiff and Respondent.
-ooOoo-
* Before Levy, Acting P. J., Peña, J. and Snauffer, J.
Appellant J.B. (mother) is the mother of T.P. (the child), who is the subject of a
dependency case. Mother challenges the juvenile court’s order terminating her parental
rights at a Welfare and Institutions Code1 section 366.26 hearing. Mother contends the
juvenile court committed reversible error by failing to find that D.P. was the child’s
biological father. Based upon that argument, she further argues that the juvenile court
failed to make proper findings and inquiry under the provisions of the Indian Child
Welfare Act of 1978 (25 U.S.C. § 1901 et seq. (ICWA)). We affirm.
FACTUAL AND PROCEDURAL BACKGROUND2
In August 2020, the child was taken into protective custody, shortly after her birth,
as a result of mother’s ongoing issues with mental illness, substance abuse, and domestic
violence. Mother had an open dependency case involving the child’s five older siblings
(collectively “the siblings”). At the hospital, mother indicated the child’s alleged father,
D.P., would not be involved in the child’s life, and she denied having contact information
for him. Mother and D.P. had a history of domestic violence with D.P. identified as the
perpetrator, and she denied being in a relationship with D.P. for the last two years. A
social worker attempted to locate D.P., but she was not successful at contacting him at his
last known address and phone number.
The department filed a petition alleging the child was at substantial risk of
suffering serious physical harm under section 300, subdivisions (b) and (j). The petition
identified D.P. as the child’s alleged father without any allegations pertaining to him.
At the initial detention hearing held on August 25, 2020, mother was present while
D.P. was not. Mother testified regarding paternity and identified D.P. as the father of the
child. D.P. was not married to mother, and he did not sign any paperwork to be placed
1 All further statutory references are to the Welfare and Institutions Code unless
otherwise stated.
2 The sole issue on appeal concerns ICWA; therefore, we primarily restrict our facts
to those bearing on that issue.
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onto the birth certificate. Mother also testified that D.P. told her and others that he was
the child’s father. She was not aware of any court rulings declaring D.P. to be the child’s
father and he was not ordered to pay child support for the child. D.P. never lived with the
child, and mother denied that there were other possible fathers. All counsel declined the
juvenile court’s request for any follow-up questions of mother regarding paternity.
Mother completed a Parental Notification of Indian Status form (ICWA-020),
which indicated she had no Indian ancestry. The juvenile court found ICWA was not
applicable as to mother. The detention hearing was continued at the request of D.P.’s
counsel. D.P. was not present for the continued hearing, and his counsel submitted on
detention and the reasonable efforts to provide him notice. The juvenile court reserved
the issues of paternity and ICWA, and it found reasonable efforts to provide notice to
D.P. were not successful. The juvenile court ordered the child detained from mother and
set a combined jurisdiction and disposition hearing on October 27, 2020.
The social study prepared for the jurisdiction hearing recommended that the
allegations in the original petition be found true. D.P.’s whereabouts remained unknown,
and the child’s birth certificate did not list any person as the child’s father. At the initial
jurisdiction and disposition hearing, D.P. was not present, and the juvenile court granted
his counsel’s request for a continuance due to untimely notice. A paralegal with the
department located D.P. at a local grocery store to provide him notice of the continued
jurisdiction and disposition hearing. D.P. indicated he was homeless and provided the
maternal grandmother’s residence as his mailing address. The paralegal also provided
D.P. with contact information for his attorney and court worker.
After an additional continuance, the juvenile court proceeded to find the
allegations in the original petition true at the hearing held on February 22, 2021. D.P.
was not present. The disposition portion of the hearing was continued for the department
to file a report.
3.
The department’s report for the disposition hearing, dated March 22, 2021,
recommended that the child be removed from mother’s custody, mother not be provided
family reunification services pursuant to section 361.5, subdivision (b)(10), and a
section 366.26 hearing be set. It was also recommended that D.P. not be provided family
reunification services because he was merely an alleged father who did not seek to
establish paternity in the case. The report noted that D.P. claimed possible Blackfeet and
Cherokee Indian ancestry in the past. D.P. was identified as the presumed father of three
of the child’s siblings, and his mother, C.P., lived in Bakersfield. The report provided a
detailed history of the siblings’ prior dependency proceedings, and the juvenile court
previously found that ICWA was not applicable to the siblings. D.P.’s family
reunification services were terminated as to two of the siblings in November 2018, and he
was denied family reunification services as to another sibling pursuant to section 361.5,
subdivision (b)(10) in April 2019.
A contested disposition hearing was held on April 29, 2021, after an additional
continuance, where D.P. also failed to appear. Mother testified in support of her request
to be provided family reunification services, and D.P.’s counsel submitted in his absence.
The juvenile court ordered the department to provide mother family reunification
services, and it declined to provide reunification services to father based upon his status
as an alleged father. Father was authorized to have monthly visits with the child for one
hour. A 12-month review hearing was set for October 19, 2021.
The department prepared a report for the 12-month review hearing, which
recommended that mother’s family reunification services be terminated. During the
reunification period, law enforcement responded to mother’s home on multiple occasions,
and one of the incidents involved domestic violence between mother and D.P. D.P.
stayed at mother’s home often and there had been multiple incidents in the past. At the
12-month review hearing held on October 19, 2021, mother and father were not present.
The juvenile court terminated mother’s reunification services and set a section 366.26
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hearing. A notice of intention to file a writ petition was mailed to mother and father, and
neither parent filed a writ petition.
In advance of the section 366.26 hearing, the department made numerous attempts
to locate D.P. to provide him with notice. A department paralegal contacted D.P.’s aunt,
who was only able to provide the name of a social media profile for D.P. D.P.’s aunt
indicated he had no family in Bakersfield, and she had no idea how to contact him. The
paralegal sent messages to the social media profile provided, but D.P. did not respond.
The paralegal also contacted the child’s maternal grandmother at her residence in an
effort to locate D.P. The maternal grandmother indicated only she and her mother lived
at the home and they had not had any contact with D.P. in almost two years.
A section 388 petition was filed by mother on April 4, 2022, requesting return of
the child on a plan of family maintenance. The report for the section 366.26 hearing
recommended that the parental rights of mother and D.P. be terminated, and the child be
freed for adoption. The child remained placed in the same resource family home with
three of her siblings throughout the case. The ICWA section of the report indicated that
the department had received no additional information regarding ICWA. D.P. was
referred to as the child’s alleged father, and the department was continuing to complete a
diligent search for him. D.P. did not attend any visits with the child, and there was no
documented relationship between D.P. and the child.
On May 6, 2022, a contested section 366.26 hearing was held in combination with
a hearing on mother’s section 388 petition for modification. Mother was present and
testified, and D.P. was not present. After hearing mother’s testimony and argument of
counsel, the juvenile court denied mother’s section 388 petition and terminated the
parental rights of mother and D.P.
DISCUSSION
Mother contends the juvenile court’s finding that ICWA did not apply was not
supported by sufficient evidence because the juvenile court did not designate D.P. as the
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child’s biological father and make an ICWA finding regarding the child’s paternal
lineage. Mother also argues that D.P.’s past disclosure of Blackfeet and Cherokee
ancestry in the siblings’ cases provided a reason to believe the child may be an Indian
child such that the duty of further inquiry was triggered.
A. Legal Principles
ICWA reflects a congressional determination to protect Indian children and to
promote the stability and security of Indian tribes and families by establishing minimum
federal standards that a state court, except in emergencies, must follow before removing
an Indian child from his or her family. (25 U.S.C. § 1902; see In re Isaiah W. (2016) 1
Cal.5th 1, 7–8.) In any “proceeding for 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 a right to intervene” (25 U.S.C. § 1911(c)), and may petition the court to
invalidate any foster care placement of an Indian child made in violation of ICWA
(25 U.S.C. § 1914; see § 224, subd. (e)). An “ ‘Indian child’ ” is defined in ICWA as an
unmarried individual under 18 years of age who is either (1) a member of a federally
recognized Indian tribe, or (2) is eligible for membership in a federally recognized tribe
and is the biological child of a member of a federally recognized tribe. (25 U.S.C.
§ 1903(4) & (8); see § 224.1, subd. (a) [adopting federal definitions].)
In every dependency proceeding, the department and the juvenile court have an
“affirmative and continuing duty to inquire whether a child … is or may be an Indian
child .…” (Cal. Rules of Court, rule 5.481(a); see § 224.2, subd. (a); In re W.B. (2012)
55 Cal.4th 30, 53; In re Gabriel G. (2012) 206 Cal.App.4th 1160, 1165.) The continuing
duty to inquire whether a child is or may be an Indian child “can be divided into
three phases: the initial duty to inquire, the duty of further inquiry, and the duty to
provide formal ICWA notice.” (In re D.F. (2020) 55 Cal.App.5th 558, 566.)
The initial duty to inquire arises at the referral stage when the reporting party is
asked whether it has “any information that the child may be an Indian child.” (§ 224.2,
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subd. (a).) Once a child is received into temporary custody, the initial duty to inquire
includes asking the child, parents, legal guardian, extended family members, and others
who have an interest in the child whether the child is, or may be, an Indian child.
(§§ 224.2, subd. (b), 306, subd. (b).) The juvenile court has a duty at the first appearance
of each parent to ask whether he or she “knows or has reason to know that the child is an
Indian child.” (§ 224.2, subd. (c).) The court must also require each parent to complete
form ICWA-020. (Cal. Rules of Court, rule 5.481(a)(2)(C).)
Next, a duty of further inquiry arises when the department or the juvenile court has
“reason to believe” the proceedings involve an Indian child but “does not have sufficient
information to determine that there is reason to know that the child is an Indian child.”
(§ 224.2, subd. (e).) As recently clarified by the Legislature, a “reason to believe” exists
when the juvenile court or department “has information suggesting that either the parent
of the child or the child is a member or may be eligible for membership in an Indian
tribe.” (Id., subd. (e)(1).)
If there is a reason to believe an Indian child is involved, the juvenile court or the
department “shall make further inquiry regarding the possible Indian status of the child,
and shall make that inquiry as soon as practicable.” (§ 224.2, subd. (e).) Further inquiry
includes, but is not limited to, “[i]nterviewing the parents, Indian custodian, and extended
family members,” and contacting the Bureau of Indian Affairs (BIA), the State
Department of Social Services, and the tribes and any other person who may have
information. (§ 224.2, subd. (e)(2)(A)–(C).)
The final duty component arises when the court or department has “ ‘ “reason to
know” ’ ” the child is an Indian child. (In re D.F., supra, 55 Cal.App.5th at p. 567.) A
“reason to know” exists if one of the following circumstances is present: “(1) A person
having an interest in the child … informs the court that the child is an Indian child[;] [¶]
(2) The residence … of the child [or] the child’s parents … is on a reservation or in an
Alaska Native village[;] [¶] (3) Any participant in the proceeding … informs the court
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that it has discovered information indicating that the child is an Indian child[;] [¶]
(4) The child … gives the court reason to know that the child is an Indian child[;] [¶]
(5) The court is informed that the child is or has been a ward of a tribal court[;] [or] [¶]
(6) The court is informed that either parent or the child possess[es] an identification card
indicating membership or citizenship in an Indian tribe.” (§ 224.2, subd. (d)(1)−(6).)
If the juvenile court makes a finding that proper and adequate further inquiry and
due diligence have been conducted and there is no reason to know whether the child is an
Indian child, the court may make a finding that ICWA does not apply, subject to reversal
if the court subsequently receives information providing reason to believe the child is an
Indian child. If the court receives such information, it must direct the social worker or
probation officer to conduct further inquiry. (§ 224.2, subd. (i)(2).)
B. Standard of Review
Where the juvenile court finds ICWA does not apply to a child after completion of
an initial inquiry, “[t]he finding implies that … social workers and the court did not know
or have a reason to know the children were Indian children and that social workers had
fulfilled their duty of inquiry.” (In re Austin J. (2020) 47 Cal.App.5th 870, 885.) We
review the juvenile court’s ICWA findings for substantial evidence. (In re Hunter W.
(2011) 200 Cal.App.4th 1454, 1467.) We must uphold the juvenile court’s orders and
findings if any substantial evidence, contradicted or uncontradicted, supports them, and
we resolve all conflicts in favor of affirmance. (In re Alexzander C. (2017) 18
Cal.App.5th 438, 446.) The appellant “has the burden to show that the evidence was not
sufficient to support the findings and orders.” (Ibid.)
C. Analysis
“Juvenile courts and child protective agencies have ‘an affirmative and continuing
duty to inquire’ whether a dependent child is or may be an Indian child.” (In re Michael
V. (2016) 3 Cal.App.5th 225, 233; see also Isaiah W., supra, 1 Cal.5th at pp. 9–11;
§ 224.2, subd. (a).) An “Indian child” is “any unmarried person who is under age
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eighteen and is either (a) a member of an Indian tribe or (b) is eligible for membership in
an Indian tribe and is the biological child of a member of an Indian tribe.” (25 U.S.C.
§ 1903(4); see also § 224.1, subd. (a) [adopting federal definition of “ ‘Indian child’ ”].)
The necessity of a biological connection is evident in ICWA’s definition of
“Indian child” and “parent.” In the present case, mother has denied that she has Indian
ancestry and because she makes no claim of error regarding the department’s inquiry of
her own ancestry, ICWA can only apply through the child’s alleged father, D.P.
Therefore, it must be determined whether there was sufficient evidence that D.P. is the
child’s biological father to require an investigation of his previously claimed Indian
ancestry.
ICWA’s definition of “ ‘parent’ ” includes “any biological parent or parents,” but
expressly excludes unwed fathers “where paternity has not been acknowledged or
established.” (25 U.S.C. § 1903(9); see also § 224.1, subd. (c) [adopting federal
definition].) The statute does not specify how paternity may be “acknowledged or
established” for purposes of applying ICWA, and the BIA declined to adopt a federal
standard when it issued ICWA regulations in 2016. Instead, the BIA’s comments
accompanying the final regulations explained as follows:
“The final rule mirrors the statutory definition and does not provide a Federal
standard for acknowledgment or establishment of paternity. The Supreme Court
and subsequent case law has already articulated a constitutional standard regarding
the rights of unwed fathers, see Stanley v. Illinois, 405 U.S. 645 (1972); Bruce L.
v. W.E., 247 P.3d 966, 978–979 (Alaska 2011) (collecting cases)—that an unwed
father who ‘manifests an interest in developing a relationship with [his] child
cannot constitutionally be denied parental status based solely on the failure to
comply with the technical requirements for establishing paternity.’ Bruce L., 247
P.3d at 978−979. Many State courts have held that, for ICWA purposes, an unwed
father must make reasonable efforts to establish paternity, but need not strictly
comply with State laws. Id. At this time, the Department does not see a need to
establish an ICWA-specific Federal definition for this term.” (Indian Child
Welfare Act Proceedings 81 Fed.Reg. 38796 (June 14, 2016).)
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There is no indication in the present record that D.P. has “manifest[ed] an interest
in developing a relationship” with the child such that he cannot constitutionally be denied
parental status. Mother’s reliance upon evidence that she believed D.P. was the only
possible father, her request that D.P. attend the child’s birth, the child’s sharing his
surname, and the juvenile court authorizing monthly visits between D.P. and the child is
insufficient to establish father’s status as either a biological or presumed father of the
child. In fact, it is not disputed that mother initially claimed D.P. would not be a part of
the child’s life, D.P. did not attend the child’s birth, and he never appeared in the
dependency proceedings to seek visitation or custody of the child. There is no evidence
that D.P. ever met the child or made any efforts to establish himself as the child’s father.
Accordingly, D.P. does not have a constitutionally protected interest in a relationship
with the child.
Furthermore, D.P. has not acknowledged or established paternity in any of the
ways prescribed by statute. (In re Daniel M. (2003) 110 Cal.App.4th 703, 708 (Daniel
M.) [because ICWA does not provide a standard for the acknowledgment or
establishment of paternity, “courts have resolved the issue under state law”].) The
framework for paternity determinations in California is set out in several provisions of
the Welfare and Institutions Code and the Family Code. D.P. did not seek a judgment of
paternity, sign a voluntary declaration of paternity, admit parentage in a pleading, or
submit to genetic testing. (See Fam. Code, §§ 7636, 7571, 7554.) He is not married to
mother, and he never received the child into his home or held her out as his child. (Fam.
Code, § 7611.) To the contrary, he has never made an appearance of any kind in these
proceedings despite being served with notice.
Despite D.P.’s failure to meet any of the statutory conditions for acknowledging or
establishing paternity, mother contends D.P.’s claims of Cherokee and Blackfeet ancestry
in prior proceedings triggered ICWA’s duty of further inquiry because D.P. allegedly
“acknowledged” his paternity to mother. However, mother cites no authority, and we are
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not aware of any, suggesting that an informal acknowledgment of paternity to a
third party establishes D.P. as a “parent” for purposes of ICWA.
In response, the department primarily relies on the case of Daniel M., which held
that an alleged father lacked standing to challenge ICWA compliance. That case
involved an appeal by a father who claimed some Indian heritage, but who had not yet
completed paternity testing. The court had asked the alleged father to bring the ICWA
issue to its attention if he established biological paternity. (Daniel M., supra, 110
Cal.App.4th at p. 706.) Father appealed the termination of parental rights, arguing that
ICWA’s notice requirements were violated. The appellate court dismissed father’s
appeal, explaining: “The ICWA defines ‘parent’ as ‘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.’ (25 U.S.C. § 1903(9).) The ICWA expressly
excludes from the definition of ‘parent’ an ‘unwed father where paternity has not been
acknowledged or established.’ (Ibid.)” (Daniel M., at p. 708.) Because paternity had
neither been acknowledged or established, the alleged father lacked standing to raise
ICWA compliance issues. (Id. at pp. 708–709.)
Here, any information D.P. previously provided regarding possible Indian ancestry
is not relevant in these proceedings absent evidence that his paternity was acknowledged
or established. (Daniel M., supra, 110 Cal.App.4th at pp. 707–708; compare In re
Gabriel G. (2012) 206 Cal.App.4th 1160, 1166 & fn. 5 [ICWA inquiry and notice
requirements triggered because the minor’s birth certificate designated father as the
biological father].) Similarly, the department had no obligation to interview D.P.’s
relatives because his relatives were not “extended family members” within the meaning
of ICWA.
In sum, mother’s appeal is premised on the requirements of ICWA being triggered
by D.P.’s prior disclosure of Indian ancestry because she identified D.P. as the child’s
biological father. However, she has failed to establish that the juvenile court erred in
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determining that D.P. was an alleged father, or that the department neglected a duty to
establish D.P.’s paternity. Thus, the requirements of ICWA were not triggered and the
juvenile court’s order terminating mother’s parental rights must be affirmed. (In re E.G.
(2009) 170 Cal.App.4th 1530, 1533.)
DISPOSITION
The order appealed from is affirmed.
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