In re A.M.

Filed 2/9/09 In re A.M. CA2/7

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

APPEAL from an order of the Superior Court of Los Angeles County. Margaret S. Henry, Judge Dismissed.

Diana W. Prince, under appointment by the Court of Appeal, for Defendant and Appellant.

Raymond G. Fortner, Jr., County Counsel, James M. Owens, Assistant County Counsel, and O. Raquel Ramirez, Deputy County Counsel, for Plaintiff and Respondent.

______________________

S.L., who is the alleged father of A.M., appeals from the order that re-instated the termination of his parental rightsunder Welfare and Institutions Code section 366.26.^[1] Specifically, S.L. assails the juvenile court conclusion that notice of the proceedings was properly given as required by the Indian Child Welfare Act of 1978 (the ICWA) (92 Stat. 3069, 25 U.S.C. 1901-1963). Respondent Department of Children and Family Services (the Department) argues, among other contentions, that S.L. lacks standing to challenge notice under the ICWA. We agree S.L. has no standing to assert the issue because he is an alleged father and there is no evidence before this court S.L. took official action to acknowledge or establish his paternity. Accordingly, we dismiss the appeal.

FACTUAL & PROCEDURAL HISTORY

Background Facts.

Mother, R.M.^[2]gave birth to A.M. in 1997. The minor came to the attention of the Department in 2005, when the boy was found unsupervised and living in filthy conditions. The Department filed a section 300 petition alleging that Mother had abused the child and left him alone without adequate supervision and in unsafe and dirty conditions. The child was detained and placed in foster care.

When interviewed Mother stated that she conceived A.M. after one date and that she was not married to A.M.s father. A father is not listed in A.M.s birth certificate.

At the detention hearing the paternity declaration indicated that S.L. was an alleged father, but no paternity papers had been signed, and that S.L. and the Mother had never been married. It further stated that S.L. was in prison in Minnesota. Mothers counsel represented to the court that in 1998, S.L. had unsuccessfully sought custody of the minor in an action filed in Long Beach, but took no further action in relation to the child thereafter. The juvenile dependency court found that S.L. was the alleged father of A.M.

Mother also told the court that she believed her father had American Indian heritage through the Apache tribe. The court ordered the Department to investigate and provide appropriate notices under ICWA. The Department was unable to locate the maternal grandfather, but sent ICWA notices based on the information Mother had provided.

Ultimately the court sustained the section 300 petition, declared the minor a dependent of the juvenile court and removed him from his mothers custody. The court ordered reunification services for Mother, but denied them as to S.L. because he remained only an alleged father. In April of 2006, the court terminated reunification services and set the matter for a section 366.26 hearing. A.M. was ultimately placed with S.L.s mother.

In the fall of 2006, the Department reported that ICWA did not apply. The Department had lost contact with the Mother at that point and could not follow-up with her on the possible Indian heritage issues in her family. S.L.s mother had denied any American Indian heritage in their family. The Department provided updated responses (and return receipts) from the Bureau of Indian Affairs (BIA) all of which disclosed no American Indian heritage for the child.

In December 2006, at the section 366.26 hearing, the court found the child adoptable and terminated the parental rights of the Mother, alleged father S.L. and identity unknown father.

Prior Appeal and Habeas Petition (B196443).

S.L. appealed from the order terminating his parental rights and making the minor available for adoption. This court appointed counsel to represent S.L. on the appeal. After reviewing the record, appellate counsel filed a brief raising no issues and forwarded the appellate record to S.L. to facilitate his raising any issues he wished this court to consider.^[3]

S.L., still incarcerated in Minnesota, filed a brief, alleging his appointed trial counsel provided inadequate representation by failing adequately to communicate with him and explore whether he could participate in reunification services in prison. Appointed appellate counsel was asked to brief the matter and responded by filing a petition for writ of habeas corpus alleging trial counsel provided inadequate representation. This court ordered the petition and appeal considered together and asked County Counsel to respond. County Counsel conceded S.L. made a sufficient showing of trial counsels inadequacy to warrant a hearing on that issue and also informed this court the record did not show compliance with ICWA. County Counsel requested that this court issue an order to show cause (OSC) returnable before the juvenile court to hold relevant hearings. Thereafter, in July 2007, this court issued the following disposition:

In the habeas petition, all orders by the juvenile court issued on or after August 7, 2006 are vacated. We issue an OSC returnable before the juvenile court at which the court shall appoint new counsel to represent [S.L.] and conduct a hearing to determine if [S.L.s] former trial counsel inadequately represented him after her August 7, 2006 appointment, and, if so, whether he was prejudiced thereby.^[4] The court also shall provide proper notice under the ICWA. If the court determines [S.L.s] former counsel provided prejudicially ineffective representation or should proper notice result in a tribe identifying [A.M.] as a member, the court shall reinstitute appropriate proceedings. If the court finds counsel was not prejudicially ineffective and no tribe identifies [A.M.] as a member, the court shall reinstate the December 5, 2006 order terminating [S.L.s] parental rights and freeing [A.M.] for adoption.

Proceedings on Remand.

In September 2007, the juvenile court ordered the Department to provide proper ICWA notice and submit proof of mailing and responses for the next hearing. At a progress hearing on November 8, 2007, the Department stated it had initiated a due diligence search for Mother and that her whereabouts remained unknown. The Department also stated that it was continuing efforts to locate the maternal grandfather.

The Department also presented a draft ICWA notice that it intended to send out for the next hearing that contained the information the Department then had available concerning the maternal relatives. The Department requested that all counsel review the notice and state any objections to it. After S.L.s counsel stated he had not had an opportunity to review it with his client, the court put the matter on for second call (it was at that point 9:40 a.m.) and the court stated: Okay. Everybody look at the notices and see if there are any . . . errors. Approximately 4:19 p.m. the same day the court called the matter again and inquired whether counsel had any objections to the new proposed ICWA notice. S.L.s counsel stated that he had no objections. The court thereafter ordered the Department to continue its search for the maternal grandfather, and if found, to inquire about his potential American Indian heritage. The court further ordered the Department to send the ICWA notice (and provide proof and any responses) for the progress hearing scheduled in January 2008.

In November of 2007, the juvenile court filed its Findings on Return from this Court on Writ of Habeas Corpus. The court found S.L.s former trial counsel adequately represented him. S.L. has not challenged these findings on appeal.

On January 18, 2008, the court conducted a progress hearing and the Department indicated that A.M.s grandmother remained committed to adopting him. The Department provided proof of the ICWA notices sent to the BIA and various tribes. The Department also provided copies of the various responses it had received none of which showed that the minor had any Indian heritage. The Department also stated that it had finally located the maternal grandfather in December 2007. The maternal grandfather denied any American Indian heritage, and instead stated that his Indian heritage was through the Aztec Indians of West Durango, Mexico. Based on this information the Department concluded that the information Mother had previously provided about her father was incorrect.

After reviewing this evidence during the hearing, the court stated that it found notice had been properly given under ICWA and there is no reason to know or believe that the child is an Indian child as that term is defined by . . . [ICWA]. The court then re-instated the order terminating parental rights. Thereafter, S.L.s counsel stated: Your honor, just given the facts of how I received this case, I think the record should reflect an objection on behalf of the father as to the courts orders today as well as the finding of notice being proper.

S.L. timely filed his notice of appeal.^[5]

DISCUSSION

S.L. contends the order terminating parental rights should be reversed for lack of compliance with notice requirements of the ICWA. He claims that the November 8, 2007, notice to the tribes (for the January 2008 progress hearing) was deficient in several respects including that the notice did not include the place of Mothers birth, the place of birth of the maternal grandmother, date and place of birth of the maternal grandfather and did not include any identifying information for the maternal great grandparents. The Department argues that S.L. lacks standing to assert a violation of the ICWA because he is merely an alleged father. As we shall explain, we agree that S.L. lacks standing to assert a violation of the ICWA.

Only the Indian child, parent, or Indian custodian from whom the child was removed, and the childs tribe have standing to assert an ICWA violation. (In re Daniel M. (2003) 110 Cal.App.4th 703, 707-709; 25 U.S.C. 1914, 224, subd. (e).)^[6] An 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., supra, 110 Cal.App.4th at p. 709.) The term parent 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. (25 U.S.C. 1903(9); see 224.1, subd. (b).) [B]ecause the [ICWA] does not provide a standard for the acknowledgment or establishment of paternity, courts have resolved the issue under state law. [Citations.] Courts [in other jurisdictions] have held an unwed father must take some official action, such as filing a voluntary declaration of paternity, establishing paternity in legal proceedings, or petitioning to have his name placed on the childs birth certificate. [Citations.] Similarly, in California an alleged father may acknowledge or establish paternity by voluntarily signing a declaration of paternity at the time of the childs birth, for filing with the birth certificate (Fam. Code,  7571, subd. (a)), or through blood testing (Fam. Code, 7551). (In re Daniel M., supra, 110 Cal.App.4th at pp. 708-709.)

Here, S.L. was found by the juvenile court to be merely the alleged father of A.M., and on appeal, S.L. has not challenged this finding. In addition, there is no evidence he signed a declaration of paternity or participated in paternity blood testing. Nor has he pointed to any evidence in the record to demonstrate he has officially acknowledged or established legal paternity in these proceedings or at any other point including in connection with his unsuccessful efforts in 1998 to obtain custody of the minor in an action filed in Long Beach. Instead, before this court S.L. claims he has standing based on In re Jonathon S. (2005) 129 Cal.App.4th 334 (Jonathon S.). The case, however, does not support S.L.s argument. In Jonathon S., Division Two of the Fourth District held a non-Indian parent has standing to challenge the sufficiency of ICWA notices. (Id.at pp. 338-339.) Notably, the parent seeking standing in Jonathan S. was the biological mother of the minor. Jonathon S. did not involve an ICWA challenge brought by an alleged parent, nor does the case contain any reasoning that would lend support to S.L.s claim that an alleged father has standing under ICWA.

In short, because he failed to show that he has acknowledged or established paternity under California law, S.L. therefore lacks standing to assert the failure to comply with ICWA.

DISPOSITION

The appeal is dismissed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

WOODS, Acting P.J.

We concur:

ZELON, J. JACKSON, J.

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^[1] Hereinafter, all statutory references are to the Welfare and Institutions Code unless otherwise specified.

^[2] Mother is not a party to this appeal.

^[3]In re Sade C. (1996) 13 Cal.4th 952.

^[4] See In re Eileen A. (2000) 84 Cal.App.4th 1248, 1253-1262.

^[5] S.L.s notice of appeal identified the date of the order appealed from as 1-6-8 rather than January 18, 2008. Thereafter, appellants counsel caught the error and on May 2, 2008, filed a motion in this court to correct the date on the notice of appeal. On May 7, 2008, we granted the motion.

^[6] Section 224, subdivision (e) provides: Any Indian child, the Indian childs tribe, or the parent or Indian custodian from whose custody the child has been removed, may petition the court to invalidate an action in an Indian child custody proceeding for foster care or guardianship placement or termination of parental rights if the action violated Sections 1911, 1912, and 1913 of the Indian Child Welfare Act.