In re K.F.
Filed 4/25/13
In re K.F. CA2/4
California Rules of Court, rule 8.1115(a), prohibits courts
and parties from citing or relying on opinions not certified for publication or
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publication or ordered published for purposes of rule 8.1115
IN
THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND
APPELLATE DISTRICT
DIVISION
FOUR
In re K.F., a Person Coming
Under the Juvenile Court Law.
B243454
LOS ANGELES COUNTY DEPARTMENT
OF CHILDREN AND FAMILY SERVICES,
Plaintiff and Respondent,
v.
CALVIN G.,
Defendant and Appellant.
(Los Angeles
County
Super. Ct.
No. CK39018)
APPEAL from
orders of the Superior Court
of
County, Philip L. Soto, Judge. Reversed and remanded with directions.
Suzanne
Davidson, under appointment by the Court of Appeal, for Defendant and
Appellant.
John F.
Krattli, County Counsel, James M. Owens, Assistant County Counsel, and Navid
Nakhjavani, Deputy County Counsel for Plaintiff and Respondent.
Calvin G. appeals from juvenile court orders denying his
request for presumed father status and terminating
daughter, K.F. He argues the court
violated his due process rights as a
parent. He also argues that the Los
Angeles Department of Children and Family Services (the Department) failed to
comply with inquiry and notice requirements of the
1901 et seq., ICWA). We find no due
process violation of father’s parental rights, but we conclude that information
provided by father was sufficient to trigger the inquiry and notice
requirements of ICWA and remand for that purpose.
FACTUAL AND PROCEDURAL SUMMARY
K.F. was
born to mother, M.F., on September 28,
2011. The next day, the
Department received a referral claiming that the infant girl was a victim of
general neglect. The staff of the
hospital where mother and child were admitted expressed concern to the Department
about mother’s ability to care for K.F.
Mother had told them that her parental rights as to her two older
children had been terminated due to her substance abuse and mental health
issues. A social worker visited mother
in the hospital. Mother was upset and
hostile, and claimed that the worker assumed she was using illegal substances
because of her history. Mother said she
had been diagnosed with Schizoaffective Disorder in 2000. She last saw a psychiatrist in early
2010. She stopped taking her medication
during her pregnancy with K.F. to protect the baby. She said she had a history of using
marijuana, cocaine, and alcohol, and had been arrested in 2008 for drug
possession. Mother refused to provide
the name of K.F.’s father. Mother refused
to sign a safety plan for K.F. A nurse
and a physician reported mother had not fed K.F. as scheduled, placing the baby
at risk of dehydration. She also let the
child cry and interfered with the efforts of nurses to care for the baby,
including preventing them from taking the baby to be washed and cleaned. Mother tested negative for drugs at the
hospital. The child was placed in
protective custody. The Department
confirmed that mother’s parental rights to her two older children were
terminated because of her mental health and substance abuse issues.
The
Department filed a petition on behalf of K.F. under Welfare and Institutions
Code section 300
title="">[1] based on mother’s loss of rights as to her two
older children, and her continuing substance abuse and mental health
problems. At the detention hearing,
mother identified Calvin G. as the father of K.F., but said she did not know
where he was. She did not know whether
he had Indian ancestry, but said she did not.
She said father came to the hospital the day K.F. was born. The court found him to be an alleged
father. The child was detained. In the event that father contacted the
Department, the court said it would allow him
A first
amended dependency petition was filed in November 2011, naming Calvin G. as
father of K.F. It alleged that father
had a history of substance abuse, including cocaine, which rendered him unable
to care for the child and endangered the child’s physical and emotional health
and safety, placing the child at risk of harm.
In the jurisdiction/disposition report, the Department reported that
father had a burglary conviction in 1974, a fine for obstruction of justice in
1978, probation arising out of a fight in public in 1982, a fine for failure to
appear on a charge of possession of a controlled substance in 1999, and
unspecified municipal code infractions in 2004.
In addition, between 1974 and 2011, he had one arrest for indecent
exposure, one for lewd crimes against children, eight for narcotics-related
charges and eight for spousal abuse or assault.
Father was
reluctant to “get the mother in trouble,†when interviewed by the Department,
but said she had anger issues. He
thought K.F. would be “‘okay’†if returned to mother, if mother takes her
medication. Aside from mother’s anger,
he had not observed any mental health symptoms in mother. Father had told mother he wanted a paternity
test. When they spoke by telephone a few
days after K.F. was born, mother did not tell him about the Department’s
involvement. Father tested positive for
cocaine on November 2, 2011. He wanted K.F. to be placed in his care.
Father
first appeared on November 16, 2011. At the hearing he filed a parental
notification of Indian status form, indicating that he may have Indian ancestry
in the Cherokee tribe through his grandmother, who was not herself a tribe
member but who had Cherokee roots. The
court found that ICWA did not apply.
Father requested presumed father status.
To facilitate that request, he asked for a DNA test to prove his
paternity. The court ordered a paternity
test, which established that he is K.F.’s biological father.
Father
failed to appear at the adjudication hearing.
The first amended petition was sustained as alleged. The court postponed ruling on father’s
renewed request for presumed father status until the next hearing. Father also failed to appear for the
contested dispositional hearing. He told
a dependency investigator that he had not submitted to drug and alcohol tests
because he had been out of state for a few weeks and had just returned in early
January 2012. Father said he had not
enrolled in any programs recommended by the investigator, such as substance
abuse and parenting classes because no programs had been ordered by the
court. The Department asked that father
not be given family reunification services because he was an alleged father and
had not attained presumed father status.
In addition, father had never visited the baby. Counsel for K.F. joined with the Department
in requesting that father not receive reunification services because he had
done nothing to change his status and had not visited the child. The juvenile court declared K.F. a dependent
of the court. Reunification services
were denied to father because his status was that of alleged father, not
presumed father. A permanency planning
hearing was set for May 4, 2012. Father appeared at that hearing, which was
continued for proper notice to mother.
On May 7,
2012, father filed a section 388 petition, asking the court to declare him the
presumed father of K.F., order home reunification services, and place the child
in the home of a paternal cousin. Father
said that “unbeknownst to counsel†he had regularly been visiting K.F. For the first time, father filled out a
Judicial Council form JV-505, Statement Regarding Parentage. He checked boxes on the form asking for
appointment of counsel,
name="_ftnref2" title="">[2] stating that he believed he is K.F.’s parent
and requesting a judgment of parentage or presumed father status. Father also asked the court to find that he
is the presumed parent. The form
provides spaces to indicate that the child had lived with father, listing
persons that father had told that K.F. was his, and listing activities with the
child. All of these were left blank
except father listed visitation as an activity with K.F.
The
Department opposed the section 388 petition on the grounds that no changed
circumstances were demonstrated. In
addition, counsel for the Department represented that father had not visited
K.F., contrary to father’s claim.
name="_ftnref3" title="">[3] The court agreed, finding no visitation and
no changed circumstances. The petition
was summarily denied.
The
Department recommended termination of parental rights. At the request of parents, a contested
section 366.26 permanency planning hearing was held. The parties stipulated that if father was
called to testify, he would state that he was unable to visit because the
social worker and caregiver had not helped facilitate visits. Father objected to termination of his
parental rights, claiming the parental relationship exception of section
366.26, subdivision (c)(1)(B)(i) since he had unsuccessfully tried to visit
K.F.
The court
found by clear and convincing evidence that K.F. is adoptable and that it would
be detrimental to return her to her parents.
The court found that no exception to adoption applied. Father and mother’s parental rights were terminated. K.F.’s custody was transferred to the
Department for adoptive planning and placement.
Father filed a timely appeal from the order terminating his parental
rights and the July 6, 2012 order denying his request for presumed father
status.
DISCUSSION
I
“Dependency
law recognizes four types of fathers:
alleged, de facto, biological, and presumed. [Citation.]
Only a presumed father is entitled to appointed counsel, custody (if
there is no finding of detriment) and reunification services. [Citation.]
A biological father who is not a presumed father may be granted services
but it is not mandatory. (Welf. &
Inst. Code, § 361.5, subd. (a); In re
Zacharia D. (1993) 6 Cal.4th 435, 451.)â€
(In re D.M. (2012) 210
Cal.App.4th 541, 544 (
To attain status as a presumed father, a man must fit within one of the
categories of Family Code section 7611.
The only one available to father here was to receive the child into his
home and openly hold her out as his natural child. (Fam. Code, § 7611, subd. (d).) Here, father remained an alleged father
throughout these proceedings; he never attained presumed father status.
Father
argues he “did everything he could to demonstrate his full commitment to his
parental responsibilities in order to qualify as a presumed father so that he
may be given the opportunity to regain custody of K.F.†He cites his one visit to the hospital when
the child was born, at which point he told mother that he would assume
responsibility for the child after a paternity test established he was the
parent. He also cites his appearance at
the first hearing after the petition was filed, at which time he requested a
paternity test. He claims that as “an
unwed biological father who promptly came forward and demonstrated a commitment
to K.F.,†his parental rights should not have been terminated absent a showing
of his unfitness as a parent, citing In
re Julia U. (1998) 64 Cal.App.4th 532, 540–541 (Julia U.).
That case
is distinguishable. In
father was eliminated by paternity testing did mother identify Ramon O. as an
alleged father. They were not married
and had a casual relationship involving sexual intercourse only twice. He believed another man was the biological
father. There was a three-month delay
before the social services department notified the court that the first alleged
father was not the biological father. It
took two more months for the department to contact Ramon after mother first
identified him. Ramon consistently expressed
his desire for a relationship with the child if paternity testing showed he was
the biological father. The child
services department delayed the paternity testing for Ramon for three to four
months and denied him visitation with the child in the meantime. He was not appointed counsel before the
delayed test. At the department’s
request, the court in Julia U.
terminated all reunification services two to three months before the paternity
test was performed. The trial court set
a section 366.26 hearing on the same day Ramon first appeared in court and
paternity testing was ordered. The court
did not give Ramon an opportunity to establish his right to paternity or to
prove his presumed father status. The
Court of Appeal found Ramon’s due process rights were violated when the court
terminated reunification services before it considered Ramon’s commitment to
the child and his fitness as a parent. (
Zacharia D., supra,
6 Cal.4th at p. 450, which held:
“‘[I]f an unwed[, biological] father promptly comes forward and
parental responsibilities[,] . . . his federal
constitutional right to due process prohibits the termination of his parental
relationship absent a showing of his unfitness as a parent.†(Italics added.)
In
contrast, here father was given a full opportunity to participate in this case
with the assistance of appointed counsel.
Mother identified him as the alleged father at the October 5, 2011
hearing and he was found to be an alleged father. He was interviewed by the Department on
November 1, 2011. He appeared at the
next hearing, on November 16, and was appointed counsel. At his request, the court ordered a paternity
test. The results were received a month
later and father was found to be K.F.’s biological father. Father failed to appear at the adjudication
and contested dispositional hearings. He
told a dependency investigator that he had missed drug tests because he had
been out of state for a few weeks and had returned in early January 2012. Father did not file the statement regarding
paternity form until May 7, 2012, but failed to explain how he had established
paternity, whether he lived with the child, or how he had supported her.
The only
changed circumstance cited by father in his section 388 petition to attain
presumed father status is that, unbeknownst to counsel, he had regularly
visited the child “at the time of the I/S orderâ€. But he had few visits with K.F. during the
course of this case. He was admittedly
absent from the state for a period of several weeks up to January 3,
2012. Only two visits occurred after
January 9, 2012, one in May and one in July.
Father’s excuse was that the Department and the caregiver did not
facilitate his visitation. He does not
point to any record of his efforts to compel them to allow him to visit. Father had been participating in these
proceedings for 10 months when his parental rights were terminated.
Father
cites Adoption of Kelsey S. (1992) 1
Cal.4th 816 in support of his argument that he was entitled to presumed father
status because he made a sufficient, timely, and full commitment to his
parental responsibilities, including emotional, financial, and other means of
support. The case is inapplicable. As we have discussed, father failed to make a
full commitment to his parental responsibilities. There is little evidence of emotional support
for K.F. and no evidence of financial support.
There is no evidence that mother or the Department precluded father from
attaining presumed father status. Father
saw K.F. in the hospital, but did not sign any paperwork regarding paternity at
that time. As we have seen, father’s due
process rights were not violated since he was appointed counsel at his first
appearance one month into this process and had an opportunity to be heard at
every stage. (In re Zacharia D., supra,
6 Cal.4th at p. 451.)
On this
record, there was neither evidence that father demonstrated a full commitment
to his parental responsibilities nor a violation of his due process
rights. The court did not erroneously
deny father parental rights.
II
Father also
argues that the juvenile court erred in finding ICWA inapplicable because he
provided the court with information that K.F. may have Cherokee ancestry. At the November 16, 2011 hearing, father
filed a parental notification of Indian status form. He checked the box indicating that he “may
have Indian ancestry†and identified the tribe as Cherokee Indian. In the space for the name of the band, the
following appears: “Grandmother—not a
tribe member but had Cherokee roots.†At
the hearing, the trial court acknowledged that father had indicated that his
grandmother may have Cherokee roots but is not a member of the tribe. Counsel for father confirmed this was the
information provided. The trial court
said: “I’m going to find that I.C.W.A.
does not apply in this case.â€
“ICWA is a
federal law giving Indian tribes concurrent jurisdiction over state court child
custody proceedings that involve Indian children living off of a
reservation. [Citations.]†(In re
W.B. (2012) 55 Cal.4th 30, 48 (W.B.).) “Among ICWA’s procedural safeguards is the
duty to inquire into a dependent child’s Indian heritage and to provide notice
of the proceeding to any tribe or potential tribes, . . . and,
under some circumstances, to the Bureau
of Indian Affairs.†(
690.)
The
Department contends that this information was not sufficient to trigger these
obligations. We disagree. In In
re Alice M. (2008) 161 Cal.App.4th 1189, the mother filled out a form
a member of, or eligible for membership in, “‘American Indian,
Navajo-Apache.†(Id. at p. 1194.) The Court
of Appeal held that this information gave the court reason to know that the
child may have been an Indian child. It
concluded: “The ambiguity in the form
and the omission of more detailed information, such as specific tribal
affiliation or tribal roll number, do not negate appellant’s stated belief that
[the minor] may be a member of a tribe or eligible for membership.†(Id.
at p. 1198.) This information was found
sufficient to trigger both a duty to inquire and a duty to give notice. (Id.
at pp. 1198–1201; see also In re J.T. (2007)
154 Cal.App.4th 986, 993–994 [information that biological parents of adopted
mother in dependency case had Sioux and Cherokee Indian ancestry but their
names were unknown found to trigger requirement that notice be sent to all federally
recognized Cherokee and Sioux tribes]; In
re Damian C. (2009) 178 Cal.App.4th 192, 199 [mother’s reference on ICWA
form to Pasqua Yaqui heritage sufficient to trigger inquiry and notice
requirements].)
The
information provided by father was sufficient to trigger the inquiry and notice
requirements of ICWA. We remand for
compliance with those requirements.
DISPOSITION
The order
terminating parental rights is reversed.
The matter is remanded to the juvenile court with directions to vacate
its finding that ICWA does not apply and to instruct the Department to complete
ICWA inquiry and notice. If, after
proper notice, the court finds that K.F. is an Indian child, the court shall
proceed in conformity with ICWA. If,
after proper notice, the court finds that K.F. is not an Indian child, the
order terminating parental rights and selecting adoption as the permanent plan
shall be reinstated.
EPSTEIN,
P. J.
We concur:
MANELLA,
J.
SUZUKAWA,
J.
Welfare and Institutions Code unless otherwise indicated.
had been represented by counsel at all previous hearings.
