In re J.M.

Filed 10/9/08 In re J.M. 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 a judgment of the Superior Court of Los Angeles County, Stephen L. Berman, Juvenile Court Referee. Dismissed.

Linda J. Vogel, under appointment by the Court of Appeal, for Defendant and Appellant.

Raymond G. Fortner, Jr., County Counsel, James M. Owens, Assistant County Counsel, and Keith Davis, Principal Deputy County Counsel, for Plaintiff and Respondent.

James M. appeals from the order of May 12, 2008, terminating parental rights to J. under Welfare and Institutions Code section 366.26.^[1] James contends the dependency court failed to direct the Department of Children and Family Services to sufficiently inquire into whether J. had Indian heritage in violation of the Indian Child Welfare Act (ICWA) (25 U.S.C.  1901-1963). The Department argues James lacks standing to challenge compliance with the ICWA. We agree James has no standing, because he is merely an alleged father who did not acknowledge or establish paternity. (See In re Daniel M. (2003) 110 Cal.App.4th 703, 706, 709.) Accordingly, we dismiss the appeal. (Ibid.; Grosset v. Wenaas (2008) 42 Cal.4th 1100, 1104.)

FACTS AND PROCEDURAL BACKGROUND

J. was detained at the hospital at birth because she had amphetamines in her system. J.s mother^[2]alleged that James was the father. James has a history of substance abuse for over 30 years and criminal convictions. He was in jail when J. was born, was not named on the birth certificate, did not sign paternity papers, and was not married to mother. James remained incarcerated during the proceedings below, except for a one-month period in early 2007. He had no contact with J.

At the detention hearing on October 25, 2006, the dependency court found James was an alleged father. Jamess status never changed. James had doubts about whether J. was his child.

After having been removed from her second foster care placement in May 2007 due to medical neglect and failure to thrive, J. was placed, along with a half-sibling, in a new foster home that wanted to adopt both children. The children thrived in the new home and quickly bonded to their prospective adoptive parents.

On June 6, 2007, J. was declared a dependent of the court based on sustained allegations under section 300, subdivision (b),^[3]and custody was taken from James and mother. No reunification services were ordered. The Department was ordered to provide permanent placement services, and the matter was set for a permanent plan hearing under section 366.26.

At the section 366.26 hearing, the dependency court noted that James had no standing to object to termination of parental rights or to adoption as he was an alleged father only, but permitted James to testify. James testified he took a D.N.A. test and in L.A. County Jail, and I wrote back to the firm that came down to see me in L.A. County Jail. It was . . . on October 5th, 2007. And I was notified while I was there in Lancaster in December that it came back positive. No one saw this alleged test. The dependency court did not rule on a hearsay objection, stating, well, its . . . been done now. Parental rights were terminated, and this appeal followed.

DISCUSSION

Only the Indian child, parent, or Indian custodian from whom the child was removed and a childs tribe have standing to assert an ICWA violation. (In re Daniel M.,supra, 110 Cal.App.4th at pp. 707-708; 25 U.S.C. 1914; 224, subd. (e).) 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, at p. 709.) Pursuant to title 25 of the United States Code section 1903(9), 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. (See also 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, at pp. 708-709.)

James did not request, and the dependency court did not make, a finding that he is the biological father. James did not acknowledge or establish paternity. Thus, James has no standing to assert an ICWA violation.

James mistakenly argues that his testimony about a DNA test he took while incarcerated at the Los Angeles County Jail establishes he is the biological father. To the contrary, his testimony does not constitute substantial evidence that he is the biological father. His testimony is not evidence no reasonable trier of fact could have rejected. (See In re Sheila B. (1993) 19 Cal.App.4th 187, 200 [definition of indisputable evidence].)

It is true the dependency court did not expressly exclude Jamess testimony on hearsay and foundational grounds, although it clearly could have done so. But the fact remains that James produced no evidence of paternity that is reasonable, credible, and of solid value . . . . [Citations.] (In re Angelia P. (1981) 28 Cal.3d 908, 924.) There was no compliance with the foundational requirements for the admission of paternity test results into evidence. (See Fam. Code, 7552.5.) James did not make the showing required by Family Code section 7552that the testing was performed by an approved laboratoryin order to establish paternity. He did not explain how a DNA sample was obtained from J., when the dependency court did not order paternity testing, James had no contact with J., and James had no authority to authorize a testing company to obtain a DNA sample from J. James produced no test results. No reasonable trier of fact could believe Jamess testimony that a DNA test was conducted at all. Accordingly, we reject Jamess contention that he established he is the biological father, and we conclude he has no standing to challenge compliance with the ICWA.

DISPOSITION

The appeal is dismissed.

KRIEGLER, J.

We concur:

TURNER, P. J.

MOSK, J.

Publication courtesy of California free legal advice.

Analysis and review provided by Carlsbad Property line attorney.

San Diego Case Information provided by www.fearnotlaw.com

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

^[2] Mother, who has a 20-year history of substance abuse and drug-related criminal convictions, did not appeal.

^[3] Section 300, subdivision (b) describes a child who, inter alia, has suffered, or there is a substantial risk the child will suffer, serious physical harm or illness due to the parents failure to protect or inability to provide regular care due to substance abuse.