In re Jesse Y. CA2/6

Filed 11/16/22 In re Jesse Y. CA2/6
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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
SECOND APPELLATE DISTRICT
DIVISION SIX
In re JESSE Y., A Person 2d Juv. No. B320613
Coming Under the Juvenile (Super. Ct. No. J072972)
Court Law. (Ventura County)
VENTURA COUNTY HUMAN
SERVICES AGENCY,
Plaintiff and Respondent,
v.
JUAN C.,
Defendant and Appellant.
Juan C. appeals orders of the juvenile court denying his
status as a presumed father, declaring that his biological minor
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child is adoptable, and terminating parental rights. (Fam. Code,
§ 7611, subd. (d); Welf. & Inst. Code, § 366.26, subd. (c)(1).)1
This appeal concerns Juan C.’s presumed father status and
the adequacy of initial inquiries regarding Indian ancestry of
dependent child Jesse Y. We conclude that substantial evidence
supports the juvenile court’s denial of Juan C.’s presumed father
status. We also decide that error in failing to make initial
inquiries of extended family members pursuant to the Indian
Child Welfare Act of 1978 (ICWA) (25 U.S.C. § 1901 et seq.) and
related California law was error, and we conditionally reverse.
(In re Benjamin M. (2021) 70 Cal.App.5th 735, 744 [discussing
the “readily obtainable information” rule].)
FACTUAL AND PROCEDURAL HISTORY
S.S. (Mother) gave birth to Jesse Y. in October 2021. When
she gave birth, Mother had positive toxicology results for
amphetamine. In 2019, Mother’s two older children became
dependents of the juvenile court due to her substance abuse and
incidents of domestic violence. Mother then failed to engage in
family reunification services and her parental rights to the two
older children were terminated.
The Ventura County Human Services Agency (HSA) took
Jesse Y. into protective custody at birth. In response to questions
from the HSA social worker, Mother declined to name the
biological father of Jesse Y. The social worker also questioned
Mother regarding possible Indian ancestry. Mother denied that
either she or Jesse Y. were members or eligible to become
members of an Indian tribe. The social worker later signed and
1 All further statutory references are to the Welfare and
Institutions Code unless otherwise stated.
2
submitted an ICWA-020 form, on behalf of Mother, in which
Mother denied any Indian membership or ancestry.
On October 19, 2021, the juvenile court held a detention
hearing. Mother did not appear at the hearing or at any further
court hearings regarding Jesse Y. The court ordered Jesse Y.
detained and granted temporary custody and care of the infant to
HSA. The juvenile court judge also stated: “[W]e have a history
with this mother, and . . . we need to check the siblings’ files on
the issue of ICWA given that mom is not present and that there
may be relatives that we have contact with or can contact to
gather that information. But right now, there’s no reason to
believe this is an Indian child, and right now, ICWA does not
apply.”
Although Mother refused to name Jesse Y.’s biological
father, she informed the HSA social worker that the father’s first
name was “Juan,” and that he was incarcerated. Through
research of Mother’s arrest records, the social worker learned
that Mother had resided with Juan C. and they had been
involved in a domestic dispute.
Prior to the jurisdiction and disposition hearing, the HSA
social worker contacted Juan C. who confirmed that he had been
in a relationship with Mother, had lived with her during her
pregnancy, and could be Jesse Y.’s biological father. Juan C. was
not present at Jesse Y.’s birth because he was incarcerated from
July 2021 through November 2021. He requested that the
juvenile court order a paternity test and appoint an attorney to
represent him. Juan C. informed the social worker that he would
like to be involved in Jesse Y.’s life if paternity was confirmed.
On December 20, 2021, the juvenile court held a
jurisdiction and disposition hearing at which Juan C. attended as
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an alleged father. The court ordered a paternity test and
appointed counsel for Juan C., but denied visitation with Jesse Y.
pending paternity test results. The court then sustained the
allegations of the dependency petition. (§ 300, subds. (b), (j).)
The court also found that Mother and Juan C. each had two other
minor children (with different partners) who were dependent
children and with whom they had failed to reunify. The court
then ordered that family reunification services not be provided to
Mother and a permanent plan hearing for Jesse Y. be scheduled.
(§§ 361.5, subd. (b)(10), (11), (13) [reunification services bypass
provisions], 366.26.)
During the pendency of the permanent plan hearing, the
paternity test revealed that Juan C. was Jesse Y.’s biological
father. Juan C.’s attorney informed the juvenile court that
Juan C. did not “have any facts to present to the court at the time
regarding presumed father status.” The attorney added that
Juan C. would file a modification petition prior to the permanent
plan hearing. The court then found that Juan C. was Jesse Y.’s
biological father and, based upon an ICWA-20 form signed and
submitted on Juan C.’s behalf, that neither he nor Jesse Y. are
members of or eligible for membership in an Indian tribe. The
juvenile court judge stated: “[T]here’s no reason to believe this is
an Indian child and that ICWA does not apply.”
On April 13, 2022, the juvenile court intended to hold a
permanent plan hearing. Juan C. was present and requested a
contested hearing. The court denied his request because he was
a biological, not a presumed father. The court continued the
hearing, however, to allow Juan C. to file a modification petition
regarding presumed father status.
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On April 22, 2022, Juan C. filed a modification petition
alleging changed circumstances. (§ 388.) Among other things, he
stated that he had visited Jesse Y. seven times, during which he
fed him, provided clothing and toys, and changed his diapers.
Juan C. also stated that he had complied with his probation
terms, including drug testing. He requested presumed father
status and reunification services.
During an evidentiary hearing prior to the permanent plan
hearing, the juvenile court addressed Juan C.’s modification
petition. Juan C. testified that he learned that Mother was
pregnant while he was incarcerated. She gave birth while he
remained incarcerated. When Juan C. was released from jail, he
contacted Mother but she would not provide information about
Jesse Y., who was then detained and living in foster care.
Juan C. requested a paternity test after the HSA social worker
contacted him. He admitted that he had recently failed two drug
tests for methamphetamine and had missed three drug tests.
Also, Juan C. was again confined in local custody.
The juvenile court denied Juan C.’s modification petition,
deciding that he did not meet the statutory requirements to be
declared a presumed father and that providing him with
reunification services would not be in Jesse Y.’s best interests.
The court then proceeded to the permanent plan hearing, found
that Jesse Y. was adoptable, and terminated parental rights.
(§ 366.26.) Jesse Y. had been placed with a non-relative extended
family member who had adopted Mother’s two older children
(half-siblings of Jesse Y.) and the family member intended to
adopt Jesse Y.
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ICWA Compliance
During HSA’s investigation of the events giving rise to the
dependency, Mother and Juan C. informed the HSA social worker
that neither they nor Jesse Y. nor any lineal ancestors were
enrolled in an Indian tribe or eligible for membership in an
Indian tribe. The HSA social worker filed completed ICWA-020
forms on behalf of Mother and Juan C. to that effect. At the
conclusion of the detention hearing, the juvenile court found that
ICWA did not apply to Jesse Y., but that HSA should check the
dependency files of the half-siblings “on the issue of ICWA
[because] . . . there may be relatives that we have contact with or
can contact to gather that information.” Neither Mother nor
other family members appeared at the detention hearing. One
month later, the court commented that the extended family
caretaker for the half-siblings had not yet been interviewed and it
was unknown whether the half-siblings’ dependency files had
been reviewed. Approximately five months later, however, the
court found that “[n]o new information [regarding ICWA] has
been discovered to change the previous finding that there’s no
reason to believe or know that this is an Indian child.”
Juan C. appeals and contends that the juvenile court erred
by: 1) denying his request for presumed father status, and 2)
finding that ICWA was not applicable because HSA and the court
did not fully comply with their initial duties of inquiry regarding
Indian ancestry. (§§ 224.2, subd. (b), 224, subd. (c).)
DISCUSSION
I.
Juan C. argues that the juvenile court erred by denying his
petition for presumed father status. (Fam. Code, § 7611, subd.
(d) [“presumed parent” is one who “receives the child into their
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home and openly holds out the child as their natural child”].) He
points out that Mother delayed in revealing his identity but that
following the finding of paternity, he visited Jesse Y. weekly,
purchased him toys and supplies, and cared for him during the
visits.
The Uniform Parentage Act (Fam. Code, § 7600 et seq.)
provides the statutory framework by which California courts
make paternity determinations. (In re J.L. (2008) 159
Cal.App.4th 1010, 1018, superseded by statute on other grounds,
as stated in In re Alexander P. (2016) 1 Cal.App.5th 1262, 1274.)
Pursuant to this statutory scheme, California law distinguishes
“alleged,” “biological,” and “presumed” fathers. (Ibid.) A father
whose biological paternity has not been established or who has
not achieved presumed father status is an “alleged” father.
(Ibid.) “Presumed” fathers are accorded greater parental rights
than “alleged” or “biological” fathers. (Ibid.) Biological
fatherhood does not in and of itself qualify a person for presumed
father status. (Ibid.) Rather, “[a] man who has held the child out
as his own and received the child into his home is a ‘presumed
father.’ ” (In re Jerry P. (2002) 95 Cal.App.4th 793, 801.)
Presumed fatherhood for purposes of dependency proceedings
denotes a man who promptly comes forward and demonstrates a
full commitment to his paternal responsibilities – emotional,
financial, and otherwise. (Id. at pp. 801-802.) A statutorily
presumed father and the child’s mother are entitled to family
reunification services in juvenile dependency proceedings.
(§ 361.5, subd. (a); Jerry P., at p. 801.)
A man who claims presumed father status has the burden
of establishing that status by a preponderance of the evidence.
(In re T.R. (2005) 132 Cal.App.4th 1202, 1210.) In determining
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whether presumed father status has been established, courts
consider whether the father: actively helped the mother in
prenatal care, paid pregnancy and birth expenses consistent with
his financial abilities, sought to have his name placed on the
child’s birth certificate, cared for the child and for how long,
acknowledged the child and to whom, or provided for the child,
among other things. (Id. at p. 1211.) We review the juvenile
court’s paternity finding for substantial evidence. (In re
Cheyenne B. (2012) 203 Cal.App.4th 1361, 1371.)
The juvenile court properly found that Father did not
establish that he is a presumed father. Juan C. never received
Jesse Y. into his home for even temporary visits and did not
request the juvenile court to enter a voluntary declaration of
parentage. Juan C. informed the court that he did not have
appropriate housing for Jesse Y. or the means to provide for him.
Juan C. did not provide evidence that he helped Mother pay for
prenatal care or birth expenses despite living with her for many
months before Jesse Y.’s birth and knowing that she was
pregnant. He also made no attempt to have his name placed on
Jesse Y.’s birth certificate or provide evidence that he
acknowledged Jesse Y. as his son. Juan C.’s visits with Jesse Y.
were limited to weekly one-hour supervised visits in a
department store. This presumed father evidence falls short of
proof of “a fully developed parental relationship” with a child.
(R.M. v. T.A. (2015) 233 Cal.App.4th 760, 776.)
Although Mother may have withheld birth information
from Juan C., Jesse Y. was removed at birth by HSA and placed
in a confidential foster home. Juan C. was not released from
incarceration until approximately one month following Jesse Y.’s
birth. Based upon the HSA social worker’s sleuthing, Juan C.
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learned of Jesse Y.’s birth and dependency approximately one
month following release from incarceration. Any delay
occasioned by Mother’s refusal to name Jesse Y.’s father was
minimal and could not have prejudiced Juan C.
II.
Juan C. argues that insufficient evidence supports the
juvenile court’s ICWA finding because HSA and the court did not
fully comply with their initial duties of inquiry. He asserts that
the court and HSA should have inquired of him when he
appeared in court, reviewed the maternal and paternal half-
siblings’ dependency case files, and inquired of the pre-adoptive
parent who has adopted the maternal half-siblings. Juan C.
contends that the termination of parental rights order must be
conditionally reversed to ensure compliance with the initial
inquiry requirements of ICWA and related California law.
An “Indian child” is defined as an unmarried individual
under 18 years of age who is either 1) a member of a federally
recognized Indian tribe, or 2) 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);
§§ 224.2, subd. (e)(1).) The juvenile court and the county child
welfare department have an affirmative and continuing duty to
inquire whether a child subject to dependency proceedings is or
may be an Indian child. (§ 224.2, subd. (a); Cal. Rules of Court,
rule 5.481.) The duty includes asking the child, parents,
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).) The court must also inquire of the parties and
participants appearing in court whether the child may be an
Indian child. (§ 224.2, subd. (c).) We examine the juvenile court’s
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ICWA findings for substantial evidence. (In re H.V. (2022) 75
Cal.App.5th 433, 438.)
Here the HSA social worker completed and signed the
ICWA-020 forms on behalf of Mother and Juan C., but neither
HSA nor the juvenile court queried Juan C. when he appeared in
court; the pre-adoptive mother when she briefly appeared in court
at the jurisdiction and disposition hearing; or reviewed the
dependency files of the half-siblings.
The failure to inquire constitutes reversible error only if
there was readily available information that was likely to bear
meaningfully upon whether the child is an Indian child. (E.g., In
re Benjamin M., supra, 70 Cal.App.5th 735, 744 [“the readily
obtainable information” rule].) Here the information was readily
available from juvenile court appearances and the court and HSA
dependency files.
DISPOSITION
The order terminating parental rights is conditionally
reversed. The matter is remanded to the juvenile court with
directions to comply with the inquiry provisions of ICWA and
sections 224.2 and 224.3. Following the inquiry, if neither HSA
nor the court has reason to believe or to know that the minor
child is an Indian child, the order terminating parental rights
shall be reinstated.
NOT TO BE PUBLISHED.
GILBERT, P. J.
I concur:
BALTODANO, J.
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YEGAN, J., Dissenting:
I agree with the determination that affirms the order
regarding “presumed father” status. But I dissent from the
conditional reversal for the reasons stated in In re J.K. (2022) 83
Cal.App.5th 498 (dis. opn. of Yegan, J.).
NOT TO BE PUBLISHED.
YEGAN, J.
1
Manuel J. Covarrubias, Judge
Superior Court County of Ventura
______________________________
Donna P. Chirco, under appointment by the Court of
Appeal, for Defendant and Appellant.
Tiffany N. North, County Counsel, Joseph J. Randazzo,
Principal Assistant County Counsel, for Plaintiff and
Respondent.