In re K.P.

In re K.P.

Filed 10/3/08 In re K.P. CA2/2

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 TWO

In re K.P., a Person Coming Under the Juvenile Court Law.	B204412 (Los Angeles County Super. Ct. No. CK67762)
LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent, v. DARRYL D., Defendant and Appellant.

APPEAL from orders of the Superior Court of Los Angeles County.

Stephen C. Marpet, Commissioner. Affirmed and remanded with directions.

Daniel G. Rooney, under appointment by the Court of Appeal, for Defendant and Appellant.

Raymond G. Fortner, Jr., County Counsel, James M. Owens, Assistant County Counsel, and Fred Klink, Deputy County Counsel, for Plaintiff and Respondent.

_

Darryl D. (father) challenges the juvenile courts orders denying him a paternity test, finding him to be the alleged father of K.P. (minor), finding that he could not care for the minor, and denying reunification services. Father also contends that the notice required by the Indian Child Welfare Act (ICWA) was not satisfied. On the substantive claims, we find no basis for reversal. But we conclude that this matter must be remanded so that the juvenile court can review the ICWA notices to determine whether they complied with the law. (In re Brooke C. (2005) 127 Cal.App.4th 377, 385 (Brooke C.).) If the notices complied with ICWA, this case may proceed under the applicable dependency law. If the notices did not comply with ICWA, then the juvenile court must ensure compliance. If, after further notices are sent, it is determined that the minor is an Indian Child, the minor or any parent may petition the juvenile court to invalidate its prior orders. (Cal. Rules of Court, rule 5.486(a).)

FACTS

Background

The minor was born in February 1994. She was abandoned at birth by K.W. (mother) and left in the care of L.P. L.P. and her male companion sexually abused the minor. The minor was detained in December 2006. A Welfare and Institutions Code section 300[1]petition was filed on the minors behalf in April 2007.

The social worker located father in prison. He expected to be released in March 2008. Though he had been unaware that mother had a child, he thought it possible that he was the father. He requested a paternity test.

The section 300 petition was amended to include allegations under section 300, subdivision (b) that father could not care for the minor and that his criminal history and incarceration placed the minor at risk of physical and emotional harm. It also alleged, in part, that father was incarcerated on charges of drug sales and not scheduled for release until October 29, 2008.

ICWA notice

Father reported that he was unaware of any Native American heritage. Mother reported her belief that her family has Cherokee heritage. The Department of Children and Family Services (Department) claimed that it sent ICWA notice to mother, father, the Secretary of the Interior, the Bureau of Indian Affairs in Washington D.C. and Sacramento, and three Cherokee tribes. However, copies of the notices were not filed with the juvenile court. The Cherokee tribes responded by indicating that the minor was not eligible for enrollment.

The hearings in October 2007

On October 4, 2007, the juvenile court determined that father was an alleged father and denied his request to have his paternity tested. According to the juvenile court, Any request to have a paternity test for a 15-year-old is denied. It is not timely.

On October 23, 2007, the juvenile court ruled that the minors case was not an ICWA matter. The section 300 petition was sustained and the minor was declared a dependent. Father was denied reunification services pursuant to section 361.5, subdivision (a).[2] The juvenile court explained that because father was incarcerated and could not participate in the case plan, reunification services would not be in the minors best interest.

This appeal

On December 4, 2007, father appealed from the October 23, 2007 jurisdiction order and October 23, 2007 disposition order.

DISCUSSION

1. The order denying a paternity test is not subject to review because it is not within the scope of the notice of appeal.

California Rules of Court, rule 8.100(a)(2)[3]provides that a notice of appeal shall be liberally construed, and that a notice of appeal is sufficient if it identifies the order being appeal. Father did not identify the October 4, 2007, order denying his request for a paternity test as an order being appeal. Not only did his notice of appeal state that he was appealing only orders from October 23, 2007, it specifically stated that he was appealing only the jurisdiction order and disposition order. In cases such as this, the notice cannot be construed to include other orders. (Unilogic, Inc. v. Burroughs Corp. (1992) 10 Cal.App.4th 612, 625.) We are precluded from reviewing the juvenile courts order denying fathers request for a paternity test. (Glassco v. El Sereno Country Club, Inc. (1932) 217 Cal. 90, 92.)

2. The order that father was only an alleged father is not subject to review because it is not within the scope of the notice of appeal.

In the introduction to his opening brief, father contends that he is challenging the juvenile courts finding that he is an alleged father. And in the argument portion of his opening brief, he argues that the denial of a paternity test prevented him from reaching presumed father status. This finding and order occurred on October 4, 2007. Because father did not appeal from the order of October 4, 2007, we lack appellate jurisdiction. (Polster, Inc. v. Swing (1985) 164 Cal.App.3d 427, 436.) Consequently, we lack the power to entertain fathers arguments.

3. The jurisdictional order was supported by substantial evidence.

Father contends that the juvenile court erred when it sustained the amended section 300 petition and declared the minor a dependent after finding that he posed a danger to the minor because he could not provide her care, and due to his criminal history and incarceration.

We review challenges to jurisdictional orders under the substantial evidence test. (In re Rubisela E. (2000) 85 Cal.App.4th 177, 194.) In juvenile cases, as in other areas of the law, the power of an appellate court asked to assess the sufficiency of the evidence begins and ends with a determination as to whether or not there is any substantial evidence, whether or not contradicted, which will support the conclusion of the trier of fact. All conflicts must be resolved in favor of the respondent and all legitimate inferences indulged in to uphold the verdict, if possible. (In re Brison C. (2000) 81 Cal.App.4th 1373, 13781379.)

Section 300, subdivision (b) provides that a child comes within the jurisdiction of the juvenile court if, inter alia, there is a substantial risk that the child will suffer serious physical harm or illness as a result of the inability of a parent to adequately supervise and protect the child, or by the inability of the parent to provide regular care due to the parents substance abuse. The evidence supports the juvenile courts finding that the minor is a child described in section 300, subdivision (b). Father was convicted of, among other crimes, assault with a firearm, issuing a criminal threat, violating a protective order to prevent domestic violence, tampering with a vehicle, possessing cocaine base for sale, and stalking. He had numerous arrests, many involving allegations of domestic violence. In 1990, he was sentenced to four years in prison for his conviction for assault with a firearm. He violated parole on numerous occasions and was returned to prison to finish his term. In 2003, he was sentenced to six years in prison for his drug charge. He was still incarcerated when the juvenile court sustained the section 300 petition. These facts lead to the reasonable inference that based on fathers criminal history and incarceration, he could not protect and supervise the minor because of his absence, poor judgment and inability to be a stable parental figure.

Father argues that the evidence is insufficient to demonstrate that he is unable to provide care or support for the minor because he showed concern for her and wanted to be part of her life. Also, he testified that if he had known about the minor before he was incarcerated, he would have provided for her. Similarly, he testified that he would have provided for the minor even after he was incarcerated. Father cites In re S.D. (2002) 99 Cal.App.4th 1068, 1077 (In re S.D.) for the proposition that if he could arrange for the minors care while he was incarcerated, then there was no basis for the juvenile court to find jurisdiction.

The mother in In re S.D. was incarcerated for credit card fraud. The juvenile court sustained a section 300, subdivision (g) petition on the childs behalf. That subdivision defines a child as a dependent if the childs parent has been incarcerated or institutionalized and cannot arrange for the care of the child. ( 300, subd. (g).) The appellate court reversed because there was no evidence that the mother could not arrange for the childs care. In contrast, there was evidence that the mother could have made arrangements with one of her two sisters to take custody. (In re S.D., supra, 99 Cal.App.4th at pp. 10781079.)

We have three responses to fathers reliance on In re S.D. First, that case involved section 300, subdivision (g) and the case at bar involves section 300, subdivision (b), so our inquiry is different. Second, even though father suggested he could arrange for the minors care, he never stated how. Thus, on this record, there is no evidence that he had the ability to make proper arrangements. For example, there was no evidence that he has a relative who was available to house the minor during his incarceration. Third, the mother in In re S.D. was incarcerated for credit card fraud, whereas father was incarcerated for a violent act and then possession of cocaine base for sale. Furthermore, he was arrested numerous times for domestic violence related crimes. These facts support an inference that if father had custody of the minor, there was a substantial risk that she would suffer physical harm or illness based on his instability and the presence of drugs and criminal associates.

4. The denial of reunification services was supported by substantial evidence.

On the first page of fathers opening brief, he contends that the juvenile court erred when it denied reunification services. But he did not address this point in the discussion section of his brief. It is not our responsibility to develop an appellants argument. (Alvarez v. Jacmar Pacific Pizza Corp. (2002) 100 Cal.App.4th 1190, 1206, fn. 11.) Our analysis could stop here.

Under section 361.5, subdivision (a), a juvenile court may grant reunification services for the child and the biological father if it determines that the services will benefit the child. It is a well established rule of statutory construction that the word shall connotes mandatory action and may connotes discretionary action. (In re Marriage of Fini (1994) 26 Cal.App.4th 1033, 1039.) As a result, we must review the juvenile courts order for an abuse of discretion.

Father never had a relationship with the minor, and he was incarcerated. He had a very short relationship with mother, and his paternity had not been established after nearly 14 years. At the time the order was issued, father had limited, if any, ability to participate in the case plan. Moreover, the minor had special psychological needs due to her sexual abuse. We cannot say that the juvenile court abused its discretion when it declined to insert father into the minors life at this time.

5. The ICWA defect.

The record does not contain copies of the notices sent to the Cherokee tribes or the Bureau of Indian Affairs. Nor does it contain proofs of service. All the record contains is return receipts from the Bureau of Indian Affairs and the Secretary of the Interior, and the responses from the Cherokee tribes. It cannot be ascertained from the record whether the proper information required by ICWA was included in the notices. Father contends that we must reverse the juvenile courts jurisdictional and dispositional orders. The Department concedes that proper ICWA notice cannot be ascertained from the record. According to the Department, we should remand pursuant to Brooke C. so that the juvenile court can ensure compliance.

Brooke C. establishes that a reversal of jurisdictional and dispositional orders is not required. (Brooke C., supra, 127 Cal.App.4th at p. 385 [other than an order terminating parental rights, juvenile court orders need not be reversed due to lack of ICWA notice].) Following Brooke C., this case must be remanded for the sole purpose of determining and ensuring ICWA compliance.

DISPOSITION

The orders of October 23, 2007, are affirmed. The matter is remanded for the juvenile court to determine whether the ICWA notice requirements were met. If not, proper notice shall be given. If a tribe indicates that the minor is an Indian child, then this matter must proceed under ICWA and minor or any parent may petition the juvenile court to invalidate its prior orders.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.

, J.

ASHMANN-GERST

We concur:

_, P. J.

BOREN

_, J.

DOI TODD

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[1] All further statutory references are to the Welfare and Institutions Code unless otherwise indicated.

[2] Section 361.5, subdivision (a) provides in part: 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.

[3] California Rules of Court, rule 8.400(c)(1), which applies to notices of appeals in juvenile matters, is substantially the same.