In re Jacob R.

Filed 3/13/08 In re Jacob R. CA2/5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

APPEAL from the orders of the Superior Court of Los Angeles County, Stephen Marpet, Juvenile Court Referee. Dismissed.

Lori A. Fields, under appointment by the Court of Appeal, for Defendant and Appellant.

Raymond G. Fortner, Jr., County Counsel, James M. Owens, Assistant County Counsel, and Judith A. Luby, Principal Deputy County Counsel, for Plaintiff and Respondent.

Daniel R. (Daniel), who is the alleged father of Jacob R., appeals from the order terminating his parental rights^[1]under Welfare and Institutions Code section 366.26.^[2] Daniel contends notice of the proceedings was not 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 Daniel lacks standing to challenge notice under the ICWA. We agree Daniel has no standing to assert the issue, because he is an alleged father who took no official action to acknowledge or establish his paternity. Accordingly, we dismiss the appeal.

FACTS AND PROCEDURAL BACKGROUND

Jacob was born in January 2005 to Marcy M. (mother), who was in a relationship with Daniel. Daniel was not married to mother or named on Jacobs birth certificate, and he did not financially support Jacob. Daniel inflicted domestic violence on mother. When she was pregnant with Jacob, he beat her and cut her with a knife. In July 2005, Daniel was taken into custody following an incident of domestic violence.^[3] On December 2, 2005, Daniel was convicted of assault with a deadly weapon, infliction of corporal injury on mother, and two counts of assault without a firearm on a peace officer or fireman. He was sentenced to state prison for three years.

Beginning in April 2006, Jacob and his older half-sister, Monique A., lived in the home of mother and Moniques father, Leonard A., with whom mother had a ten-year relationship. Leonard financially supported Jacob. On June 13, 2006, the Department detained the children because mother failed to cooperate with voluntary services to address her drug use and other risks to the childrens safety.

At the detention hearing, mother stated that Jacobs father was Daniel. The dependency court found that Daniel was an alleged father, issued a statewide removal order for the next court date, and appointed counsel to represent Daniel. Daniel appeared at the pretrial resolution conference hearing on July 28, 2006, and the dependency court again found he was an alleged father of Jacob.

On August 23, 2006, Jacob was declared a dependent of the court based on sustained allegations under section 300, subdivisions (a) (substantial risk of serious physical harm inflicted nonaccidentally) and (b) (substantial risk of serious physical harm as a result of a parents failure to supervise or protect and substance abuse). No reunification services were offered to Daniel pursuant to section 361.5, subdivision (a), because he was only an alleged father.

Mother was offered reunification services. Mothers reunification services were terminated on February 21, 2007, and a section 366.26 hearing was set for June 20, 2007.

Daniel was released from prison on March 13, 2007. In the months that followed, he filed motions in the dependency court and a petition for a writ of habeas corpus in the Court of Appeal, seeking presumed father status and reunification services. The Court of Appeal ordered the dependency court to conduct an evidentiary hearing on the habeas corpus petition. The first motion and habeas corpus petition were denied after hearings.^[4]

After a hearing on August 23, 2007, parental rights were terminated. Daniel filed a notice of appeal on September 12, 2007.

DISCUSSION

Daniel contends the order terminating parental rights should be reversed for lack of compliance with notice requirements of the ICWA, in that notice to the tribes mother claimed heritage in was deficient^[5]and the Department failed to ask Daniel if he had Indian heritage. The Department argues that Daniel lacks standing to assert a violation of the ICWA because he is merely an alleged father. We agree that Daniel 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, Daniel is an alleged father. There is no evidence he signed a declaration of paternity or participated in paternity blood testing. Thus, he did not acknowledge or establish paternity under California law. Daniel therefore lacks standing to assert the ICWA was not complied with.

DISPOSITION

The appeal is dismissed.

KRIEGLER, J.

We concur:

ARMSTRONG, Acting P. J.

MOSK, J.

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^[1] As listed in Daniels notice of appeal, the orders appealed from also include prior orders denying two Welfare and Institutions Code section 388 motions and setting the hearing under Welfare and Institutions Code section 366.26. Daniel raises no appellate issues as to these orders.

^[2] Hereinafter, all statutory references are to the Welfare and Institutions Code unless otherwise specified.

^[3] Daniel had prior convictions: infliction of corporal injury on mother (June 2004); and taking a vehicle without the owners consent (September 2004).

^[4] The subsequent motions were denied summarily as duplicative and lacking in new evidence.

^[5] Mother claimed a belief she had Apache and Cherokee heritage. After notice was sent to the tribes, the dependency court found the ICWA did not apply.

^[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.