In re A.P. CA4/1

Filed 8/30/23 In re A.P. CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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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or ordered published for purposes of rule 8.1115.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
In re A.P., A Person Coming Under
the Juvenile Court Law.
D082003
SAN DIEGO COUNTY HEALTH
AND HUMAN SERVICES
AGENCY, (Super. Ct. No. J520010C)
Plaintiff and Respondent,
v.
R.E.,
Defendant and Appellant.
APPEAL from an order of the Superior Court of San Diego County,
Marissa A. Bejarano, Judge. Affirmed.
William D. Caldwell, under appointment by the Court of Appeal, for
Defendant and Appellant.
Claudia G. Silva, County Counsel, Lisa M. Maldonado, Chief Deputy
County Counsel, and Natasha C. Edwards, Senior Deputy County Counsel,
for Plaintiff and Respondent.
R.E. (Mother) appeals the juvenile court’s order terminating her
parental rights to her minor son, A.P., under Welfare and Institutions Code1
section 366.26. The sole issue on appeal is whether the San Diego County
Health and Human Services Agency (Agency) failed to conduct an adequate
section 224.2, subdivision (b) initial inquiry into A.P.’s possible status as an
“Indian child” under the Indian Child Welfare Act (ICWA; 25 U.S.C. § 1901 et
seq.). Specifically, Mother contends that the Agency failed to ask B.P.’s
(alleged father’s) family members about potential Native American ancestry
and that this was prejudicial error. The Agency asserts it had no duty to
inquire of alleged father’s relatives because alleged father was not a “parent”
under ICWA. We agree with the Agency, conclude there was no error, and
affirm.
FACTUAL AND PROCEDURAL BACKGROUND
In August 2022, the Agency petitioned the juvenile court under section
300, subdivision (b)(1) on behalf of newborn A.P., alleging that he was at
substantial risk of serious physical harm because of Mother’s substance
abuse. The Agency alleged that A.P. tested positive for fentanyl at birth,
Mother admitted using drugs during pregnancy, and she tested positive the
day before A.P.’s birth.
According to the Agency’s detention report, the Agency interviewed
Mother in July 2022, and she denied having any Native American ancestry.
Maternal grandmother and maternal great-grandmother also denied Native
American ancestry. The report noted that the Agency made efforts to engage
with alleged father but that he “ha[d] not made himself available to the
Agency.” In July 2022, for example, the Agency reached alleged father by
1 Undesignated statutory references are to the Welfare and Institutions
Code.
2
phone and scheduled an appointment with him, but he failed to show. About
a week later, the Agency again called alleged father, who expressed that he
could not talk at that time. Although the Agency asked that he promise to
call back later that day, he did not.
The following month, alleged father denied having any Native
American ancestry. Despite the Agency’s efforts, he also declined to provide
various information and stated that “he did not want to be involved as he was
not sure the baby was his.”
At the August 15, 2022 detention hearing, alleged father answered the
phone but hung up before the hearing began. Mother appeared
telephonically and again denied having any Native American ancestry.
The Agency also conducted inquiries with maternal grandfather and
maternal uncle Ru.E, both of whom denied Native American ancestry.
Although Ru.E. reported a small percentage of Native American ancestry
discovered through a DNA test, he denied knowing the tribe name or having
family associated with a reservation. The Agency attempted to contact
maternal uncle M.M. but did not receive a call back.
In late August 2022, the Agency invited alleged father to join a Child
Family Team Meeting, but he responded that he did not “ ‘want anything to
do with this.’ ” The Agency later conducted a parent search for alleged
father, sent certified letters to the addresses associated with his name, and
filed a declaration of due diligence with the juvenile court. Based on the
results of the parent search, the Agency additionally mailed letters to
potential relatives of alleged father, including his mother Be.P., sister R.P.,
and brother Ro.P. The Agency also left a voicemail for alleged father’s
mother but did not receive a call back.
3
At the September 7, 2022 jurisdiction and disposition hearing, alleged
father again did not appear. The juvenile court found the Agency had
diligently tried to contact him and notice him of hearings.
In mid-September 2022, Mother reported that alleged father’s mother
received the Agency’s letters but did not want to be involved. The Agency did
not receive any other responses from any of alleged father’s relatives. It also
obtained A.P.’s birth certificate, which did not list a father.
At the contested jurisdiction and disposition hearing on October 17,
2022, the juvenile court found ICWA did not apply. Alleged father again did
not appear.
The Agency reached maternal uncle M.M. in January 2022, and he
denied having any Native American ancestry. The same month, the Agency
filed a declaration of due diligence outlining its attempts to reach alleged
father, including trying to reach some of his relatives. Based upon the
Agency’s search efforts, the juvenile court ordered notice dispensed to alleged
father.
At the April 17, 2023 contested section 366.26 hearing, the juvenile
court found ICWA did not apply, terminated parental rights, and ordered
adoption as A.P.’s permanent plan.
Mother appeals that order but challenges only the juvenile court’s
finding that ICWA does not apply.
DISCUSSION
Congress enacted ICWA to address concerns regarding the separation
of Indian children from their tribes through adoption or foster care placement
with non-Indian families. (In re Isaiah W. (2016) 1 Cal.5th 1, 7.) Under
California law adopted pursuant to ICWA, the juvenile court and Agency
have an “affirmative and continuing duty to inquire” whether a child “is or
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may be an Indian child.” (§ 224.2, subd. (a); see In re Isaiah W., supra, at p.
9.)
“[S]ection 224.2 creates three distinct duties regarding ICWA in
dependency proceedings.” (In re D.S. (2020) 46 Cal.App.5th 1041, 1052
(D.S.).) The first duty—that of conducting an initial inquiry2—requires the
Agency to “ask all involved persons whether the child may be an Indian
child.” (D.S., supra, at p. 1052.) “If [the] child is placed into the temporary
custody of a county welfare department pursuant to Section 306 or county
probation department pursuant to Section 307,” this duty includes “asking
the child, parents, legal guardian, Indian custodian, extended family
members, others who have an interest in the child, and the party reporting
child abuse or neglect, whether the child is, or may be, an Indian child . . .”
(§ 224.2, subd. (b).) ICWA defines “ ‘extended family member’ ” by “the law or
custom of the Indian child’s tribe” or, absent such law or custom, as “a person
who has reached the age of eighteen and who is the Indian child’s
grandparent, aunt or uncle, brother or sister, brother-in-law or sister-in-law,
niece or nephew, first or second cousin, or stepparent.” (25 U.S.C. § 1903(2);
§ 224.1, subd. (c) [“ ‘extended family member’ . . . defined as provided in [§]
1903” of [ICWA]].)
2 Because the Agency’s initial inquiry is the only duty at issue on appeal,
we limit our discussion accordingly. The remaining duties required by
section 224.2 are as follows. “[I]f th[e] initial inquiry creates a ‘reason to
believe’ the child is an Indian child, then the Agency ‘shall make further
inquiry regarding the possible Indian status of the child, and shall make that
inquiry as soon as practicable.’ (Id., subd. (e).) . . . [I]f that further inquiry
results in a reason to know the child is an Indian child, then the formal notice
requirements of section 224.3 apply.” (D.S., supra, 46 Cal.App.5th, at p.
1052.)
5
Here, Mother challenges only the sufficiency of the Agency’s initial
inquiry. She contends section 224.2, subdivision (b) required the Agency to
question alleged father’s relatives—who Mother asserts qualify as A.P.’s
“extended family members”—about A.P.’s possible Native American ancestry,
and that the Agency failed to do so.3 We disagree.
Mother’s argument is belied by ICWA’s statutory definition of “parent.”
Under ICWA, a “parent” is defined 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); see
also § 1903(4), italics added [defining “Indian child” as “any unmarried
person who is . . . eligible for membership in an Indian tribe and is the
biological child of a member of an Indian tribe”].) The statute expressly
excludes from the definition of “parent” an “unwed father where paternity
has not been acknowledged or established.” (Id., § 1903(9); see also In re C.A.
(2018) 24 Cal.App.5th 511, 520 (C.A.) [definition of parent does not include an
unwed father where paternity has not been acknowledged or established]; In
re E.G. (2009) 170 Cal.App.4th 1530, 1533 (E.G.) [“[A]bsent a biological
connection, the child cannot claim Indian heritage through the alleged
father.”].) “[B]ecause . . . ICWA does not provide a standard for the
acknowledgment or establishment of paternity, courts have resolved the issue
under state law.” (In re Daniel M. (2003) 110 Cal.App.4th 703, 708.) Thus, in
3 In her opening brief, Mother additionally alleged that the Agency failed
to question maternal uncle Ru.E. about A.P.’s possible Native American
ancestry. However, in her reply brief, Mother conceded to misreading the
record. Our review of the record indicates the Agency questioned Ru.E. about
his Native American ancestry and that, although he disclosed discovering a
small percentage of Native American ancestry through a DNA test, he did not
know the name of the tribe or of any family associated with a reservation.
Accordingly, we accept Mother’s concession on this point.
6
California, an alleged father4 may acknowledge or establish paternity
through blood testing (Fam. Code, § 7551) or by voluntarily signing a
declaration of paternity filed with the child’s birth certificate (Fam. Code,
§ 7571, subd. (a)). (In re Daniel M., supra, at pp. 708–709.)
In support of her contention that alleged father was a “parent” under
ICWA, Mother points to (1) an Agency report indicating that she and
maternal grandmother identified alleged father as A.P.’s father during the
Agency’s interviews and (2) the juvenile court’s order adopting the Agency’s
recommended findings that alleged father was A.P.’s father and that his
parental rights be terminated. We cannot conclude from this record evidence
that alleged father satisfied the definition of a “parent” under ICWA. (See 25
U.S.C. § 1903(9); see also E.G., supra, 170 Cal.App.4th at p. 1533 [“Until
biological paternity is established, an alleged father’s claims of Indian
heritage do not trigger any ICWA notice requirement because, absent a
biological connection, the child cannot claim Indian heritage through the
alleged father.”]; (C.A., supra, 24 Cal.App.5th at pp. 514–515 [ICWA notice to
tribes identified by presumed father not required where father was presumed
by marriage but was not the child’s biological or adoptive father.].)
On the contrary, the record shows that alleged father did not take any
steps to acknowledge or establish his status as A.P.’s father—he never
appeared in the dependency case, and there is no indication that he ever took
a paternity test or signed a declaration of paternity filed with A.P.’s birth
certificate. Moreover, despite the Agency’s efforts to discuss the dependency
proceeding with alleged father, he repeatedly expressed skepticism that he
4 An “alleged father” is a person who may be the father of a child but
whose biological paternity or presumed parent status have not been
established. (In re Zacharia D. (1993) 6 Cal.4th 435, 449, fn. 15.)
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was A.P.’s father and voiced his disinterest in being involved. Indeed, when
the Agency attempted to locate alleged father’s physical address and location,
including by contacting some of his relatives about his whereabouts, alleged
father could not be located. Accordingly, we conclude alleged father was not
A.P.’s “parent” for purposes of ICWA, and thus, the Agency did not have a
duty to conduct ICWA inquiries with alleged father’s relatives.5
In short, because the Agency satisfied its duty of initial inquiry under
section 224.2, subdivision (b), we see no error and affirm.
5 The Agency contends in the alternative that, even if alleged father was
a “parent” under ICWA, the Agency had no duty to conduct ICWA inquiries
with his family members because A.P. was not taken under temporary
custody pursuant to section 306. (See In re Robert F. (2023) 90 Cal.App.5th
492, 504 (Robert F.) review granted July 26, 2023, S279743 [duty to inquire of
extended family members under section 224.2, subdivision (b) is triggered
only when child is taken into temporary emergency custody under section
306]; cf. In re Delila D. (2023) 93 Cal.App.5th953, 962 [disagreeing with
Robert F. and concluding “there is only one duty of initial inquiry, and that
duty encompasses available extended family members no matter how the
child is initially removed from home”].) Because we conclude alleged father
did not meet the definition of a “parent” under ICWA, we need not evaluate
the Agency’s alternative argument, which will ultimately be resolved by the
Supreme Court.
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DISPOSITION
The April 17, 2023 order is affirmed.
KELETY, J.
WE CONCUR:
DATO, Acting P. J.
RUBIN, J.
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