In re Kristopher D.
Filed 8/7/12 In re Kristopher D. CA2/2
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 This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115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 KRISTOPHER D., a Person
Coming Under the Juvenile Court Law.
B236921
(Los Angeles
County
Super. Ct.
No. CK73674)
LOS ANGELES COUNTY DEPARTMENT
OF CHILDREN AND FAMILY SERVICES,
Plaintiff and Respondent,
v.
LARRY M.,
Defendant and Appellant.
APPEAL from an order of the Superior Court of
County. Sherri Sobel,
Juvenile Court Referee. Reversed and
remanded with directions.
Michael A. Salazar, under
appointment by the Court of Appeal, for Defendant and Appellant.
John F. Krattli, Acting County
Counsel, James M. Owens, Assistant County Counsel, William D. Thetford, Deputy
County Counsel, for Plaintiff and Respondent.
Catherine C. Czar, under appointment
by the Court of Appeal, for Minor.
* * * * * *
Appellant Larry M. appeals from
the order terminating his parental rights
as to the child Kristopher D.
name="_ftnref1" title="">[1] He contends that the juvenile court acted
without subject matter jurisdiction because there was no sustained Welfare and
Institutions Code section 300
name="_ftnref2" title="">[2] petition on file against him. He further contends that a number of
procedural omissions invalidate the termination order. Finally, he claims that substantial evidence
did not support the order.
Though we
must conditionally reverse the order terminating parental rights because of the
juvenile court’s failure to provide proper notice under the Indian Child
Welfare Act (ICWA) (25 U.S.C.
§ 1901 et seq.), we reject appellant’s challenges to the order. The juvenile court properly assumed subject
matter jurisdiction over Kristopher with the filing of a section 300 petition
against his legal guardian, which it later amended to include a count against
appellant pursuant to section 300, subdivision (g). As a biological rather than a presumed
father, appellant was not entitled to the procedural safeguards he argues were
lacking. In any event, appellant
forfeited his right to challenge any procedural deficiencies and any omission
in the advisements appellant received was harmless error. Finally, the juvenile court made the
appropriate findings for and substantial evidence supported the termination of
appellant’s parental rights.
FACTUAL AND PROCEDURAL BACKGROUND
Petition.
In 2005,
the probate court appointed maternal grandmother Mary B. (guardian) as the
legal guardian for Kristopher, born in 2002 with fetal alcohol syndrome. He was developmentally delayed, most likely
as a result of prenatal alcohol exposure.
By 2007, Kristopher’s younger brother Kenneth also resided with the
guardian at the home of her companion, Rudolph S. The children’s mother, Karen D. (mother), had
a history of alcohol and drug abuse, was developmentally delayed and had been
diagnosed as bi-polar. Between 2002 and
2008, the Department received 23 referrals about the family.
On June 23,
2008, the Department received a referral alleging domestic violence between
Rudolph and the guardian which took place in front of Kristopher. The Department also learned that during a
trip mother was allowed to be alone in a hotel room with Kristopher after she
said she was having thoughts of wanting to have sex with him. It appeared that mother was living with the
guardian. Mother was attending a mental
health program, but admitted she continued to have thoughts about molesting
Kristopher and abusing drugs and alcohol.
She added that from age 18 to the present she had a consensual sexual
relationship with Rudolph.
The Department investigated the
prior referrals and, upon reviewing the guardian’s Live Scan results, learned
that she had numerous arrests for child endangerment and a conviction for
incest. Although the guardian initially
denied the arrests and conviction, she later stated that her mother had raised
her four children. The conviction
resulted from an incident where her alcoholic husband forced her at gunpoint to
orally copulate her 14-year-old son.
Determining that the safety of the
children was at risk, the Department detained Kristopher and Kenneth. The guardian identified appellant as
Kristopher’s father, but stated she thought he was deceased, and did not
identify any other relatives for placement.
appellant were unsuccessful.
The
Department filed its original section 300 petition solely against the guardian
on July 16, 2008 (July 2008 petition), which alleged counts under section 300,
subdivisions (b) and (d) on the basis of the guardian’s sexual abuse of the
children’s uncle, history of substance abuse and creation of a detrimental
environment by allowing mother access to the children even though she had
thoughts of molesting Kristopher and had driven him while under the influence
of alcohol. At the detention hearing,
the guardian indicated that the children’s maternal grandfather might have some
unknown Cherokee history. Mother
completed an ICWA-020 form and indicated that she was or may be a member of the
Cherokee tribe. Nonetheless, concluding
there was no evidence that any family member was an enrolled member of a tribe,
the juvenile court deemed the information to be “family lore” and declined to
order that notice be provided under the ICWA.
All subsequent reports adopted the juvenile court’s finding that “no
ICWA exists in this case.”
The juvenile court found a
children and ordered them detained in foster care. It further ordered that a family friend who
appeared in court, Sandra L., be assessed for placement.
and Disposition.
The Department assessed Sandra’s
home to be suitable for placement and the children were placed with her on July
25, 2008.
The
Department’s August 6, 2008 jurisdiction/disposition report indicated that
appellant was identified as Kristopher’s father on his birth certificate;
mother also verbally identified him as Kristopher’s father. The report outlined the family’s prior
referrals and the extensive criminal histories of appellant, mother and the
guardian. At the time of the initial
report, appellant’s whereabouts remained unknown. Attached to the report was a first amended
section 300 petition which added allegations against appellant under
subdivision (b) concerning his criminal history and under subdivision (g) for
his failure to provide support for Kristopher.
The Department served notice of the hearing on the petition and the
first amended petition.
In a
last-minute information submitted on August 6, 2008, the Department reported it
had located appellant. He appeared at
the hearing the same day. Though the
juvenile court observed that appellant was not a party to the initial petition,
it did not discuss or make any rulings related to the proposed first amended
petition. It set the matter for a
contested jurisdictional hearing.
In
September 2008, the Department filed a section 388 petition seeking to rescind
the legal guardianship. It thereafter
filed a motion pursuant to section 728 to terminate the legal
guardianship. Appellant appeared at the
September 16, 2008 hearing on those matters.
He indicated that a DNA test had confirmed his paternity of Kristopher
and the juvenile court declared appellant to be Kristopher’s biological father. He requested reunification services and the juvenile
court permitted him monitored visitation.
With
respect to the termination of the legal guardianship, the juvenile court made
findings that it was in the children’s best interests to set aside the
guardianship and stated: “I set aside
the legal guardianship of these children.
I have no underlying petition.
Having read the reports before me, I will amend to proof and file the
underlying. There is an underlying
petition, and I will dismiss that petition in its entirety, however, amend
according to proof under a (g); that there’s no appropriate parent or guardian
ready, willing, and able to have these children at this time. So that (g) is sustained by a preponderance
of the evidence.” The juvenile court
continued: “The (g) petition that has
been sustained can be fought by the parents in two ways: One, that they are in fact ready, willing,
and able to have their children; or, two, simply the dispositional portion,
that they would like their children returned to them.” On the face of the July 2008 petition, the
clerk noted “dismissed” on September 16, 2008, but then crossed that out and
wrote “re-instated” on the same date. The petition was not otherwise physically
amended to reflect that only the count under section 300, subdivision (g) had
been sustained.
At the hearing, the juvenile court
then proceeded to set the matter for disposition. It directed the Department “to interview the
parents and determine whether any other petitions will be filed. If not, and we’re only working off the (g),
then the Department needs to look at the parents as to their suitability.”
On October 1, 2008, the Department
filed another section 300 petition, containing allegations under subdivisions
(b), (d) and (j) against mother, and under subdivisions (b) and (g) against
appellant on the ground he had “failed to provide the child with the
necessities of life including food, clothing, shelter and medical
treatment.” It also filed a detention
and an addendum report that summarized its investigation of the family’s prior
referrals and criminal history. At the
October 1, 2008 hearing, the juvenile court indicated that the Department had
the right to file the petition, deemed it filed, received appellants’ and
Mother’s denials and joined all issues for the upcoming dispositional
hearing. At that time, appellant signed
a statement indicating that he had no information regarding any Indian ancestry
affecting Kristopher.
On October 7, 2008, the Department
filed a first amended section 300 petition which added allegations under
subdivision (b) against appellant that his criminal history, history of
substance and alcohol abuse, and mental and emotional problems, including
hospitalization in August 2008 for suicidal ideation, placed Kristopher at
risk. The Department’s report filed in
connection with that petition contained a statement from an interview with
appellant in which he denied many of the petition’s allegations but admitted to
not having seen Kristopher during the past five years.
At the
October 7, 2008 hearing, the juvenile court prefaced its rulings by stating
that it and the parties had engaged in a “lengthy chambers conference” which
resulted in the Department’s request to dismiss the section 300 petition
without prejudice. After the Department
confirmed that it sought to dismiss all the petitions against the parents at
that time, the juvenile court stated that “[a]ll of the petitions are being
dismissed” and added that “[p]ursuant to 366.3, again I’m retaking jurisdiction
of these children. The parents have a
right dispositionally to request the children be placed back with them. They have asked to be heard on that
issue.” The juvenile court set the
matter for a contested disposition hearing.
The minute
order from the October 7, 2008 hearing indicated that the juvenile court
dismissed the two petitions filed in October 2008, but left intact the July
2008 petition, and the Department’s November 17, 2008 report for the
disposition hearing confirmed that only the count under section 300,
subdivision (g) remained against appellant.
At the disposition hearing, the juvenile court summarized its
position: “The Department—the parents
are asking that I go to long-term foster care and provide six months of
services with a (g) at this point. I
would automatically go to a permanent plan or set a .26. I think what is appropriate here is to simply
set a .26 and allow the parents to file their 388 if they wish to have the
children.” Counsel for the Department,
the children and Mother agreed with the juvenile court’s ruling to set the
matter for a permanency planning hearing
under section 366.26, and appellant objected.
At the hearing, appellant was served a copy of a form notice of intent
to file a writ petition pursuant to California Rules of Court rules 39.1B and
1436.5, but he did not file it.
Efforts.
On November
24, 2008, appellant filed a section 388 petition requesting increased and
unmonitored visitation, inclusion on educational and medical decisions affecting
Kristopher and information about Kristopher’s special needs and regional center
workers. The juvenile court denied the
petition, finding it neither set forth new evidence or changed circumstances,
nor showed that any change of order would be in Kristopher’s best interest.
Appellant
filed a second section 388 petition in January 2009, seeking both the changes
he sought in his first petition as well as the receipt of reunification
services under section 366.22. In
addition, mother filed a petition for reconsideration on the grounds that
proper notice had not been given of the termination of the probate guardianship
under section 728 and Probate Code section 1511, and that the dismissal of the
section 300 petitions rendered the juvenile court without jurisdiction to
set the matter for a permanency planning hearing under section 366.26. Mother also asserted that proper ICWA inquiry
and notice had not been provided.
At the January 21, 2009 hearing,
the juvenile court declined to set the section 388 petition for a hearing,
asserting that the Department should have filed a section 300, subdivision (g)
petition for it to retain jurisdiction over the children. It further asserted it had erroneously
retained jurisdiction under section 366.3 given that the terminated
guardianship was a probate guardianship.
It directed the Department to file a section 300 petition. The Department did not do so. On January 30, 2009, the juvenile court
reconsidered its previous rulings, finding that a section 300, subdivision (g)
petition had already been sustained and determining that appellant and mother
were entitled to six months of reunification
services. Effectively granting both
appellant’s section 388 petition and mother’s motion for reconsideration, it
vacated the section 366.26 hearing date, directed the Department to prepare a
disposition case plan, and ordered appellant and mother to undergo mental
health evaluations under Evidence Code section 730.
In February 2009, appellant and
mother signed a court-ordered disposition case plan. Appellant was ordered to participate in
domestic violence counseling, parent education, an alcohol abuse program with
random testing and individual counseling
to address case issues, and directed to complete his mental health
evaluation. He received monitored
visitation twice a week. Appellant filed
another section 388 petition in March 2009, seeking unmonitored and overnight
visitation. Following a hearing during
which appellant testified, the juvenile court ruled that while the requested
change of order would not be in Kristopher’s best interest at that point, the
Department had the discretion to liberalize appellant’s visitation.
The
Department’s July 31, 2009 report for the six-month review hearing
characterized Kristopher as “a well adjusted child despite evident
developmental delays affecting both his speech and motor skills
development.” The report added that he
was thriving in his placement with Sandra and that appellant was generally in
compliance with his case plan. The
Department recommended that appellant’s and mother’s reunification services be
terminated. With respect to appellant,
the Department opined that his substance abuse, mental health problems and
criminal behavior were indicators that he did not possess either the stability
or the parenting skills required to handle a special needs child such as
Kristopher. Moreover, appellant’s mental
health evaluation revealed his potential risk for alcohol abuse relapse.
Both the
Department’s six-month review report and an August 14, 2009 interim review
report referred to the petitions that had been dismissed by the juvenile court
rather than the July 2008 petition. At
the contested six-month review hearing on August 24, 2009, the juvenile court
admitted those reports into evidence and took judicial notice of prior findings
and orders in the case. Appellant’s
counsel objected to the termination of appellant’s reunification services and
asked for the Department to provide conjoint therapy between appellant and
Kristopher. Against the Department’s
recommendation, the juvenile court offered six additional months of
reunification services to appellant and mother, finding that they were in compliance
with their case plan and that they showed the potential capacity to provide for
the safety and well-being of their children.
In its
February 22, 2010, 12-month review report, the Department indicated that while
appellant remained largely in compliance with his case plan, there were signs
he had been consuming alcohol and his visitation with Kristopher had become
less frequent. The Department
recommended that reunification services be terminated. Appellant opposed the recommendation. In a last-minute information submitted before
the March 10, 2010 contested review hearing, the Department reported that
appellant had appeared to be under the influence of alcohol during a telephone
conversation, which was uncharacteristic for him.
At the
beginning of the hearing, appellant withdrew his contest; his counsel stated
that appellant had no legal basis to go forward but was requesting additional
visitation with Kristopher. After
admitting prior reports into evidence, the juvenile court terminated reunification
services and found by a preponderance of the evidence that return to appellant
would create a substantial risk of detriment to Kristopher. It set the matter for a permanency planning
hearing pursuant to section 366.26. In
view of appellant’s recent relapses, the juvenile court ordered that while
visitation could be increased, it must remain monitored. At the conclusion of the hearing, the clerk
mailed to appellant copies of the documents necessary to challenge the juvenile
court’s ruling by extraordinary writ.
Planning.
The
Department’s July 7, 2010 section 366.26 report indicated that the current
caregiver Sandra was no longer interested in adoption. The Department maintained that the children
were adoptable notwithstanding their special needs. The juvenile court
continued the hearing for six months to enable the Department to locate another
adoptive family. Six months later in
January 2011, the juvenile court ordered an additional six-month continuance
for the same purpose. In April 2011, the
juvenile court permitted the Department discretion to move the children to a
prospective adoptive home with the concurrence of their counsel.
At the end
of April 2011, Kristopher and his brother were placed in a prospective adoptive
home with a family having an approved homestudy on file. In July 2011, the Department reported that
Kristopher was adjusting well to his new placement. The juvenile court declined to grant
appellant’s request to increase his visitation, instead specifying that it be
restricted to two times per month.
In an
October 2011 report, the Department described an incident where appellant
became angry following a visit and the social worker felt fearful. The social worker had also noted that
appellant smelled of alcohol during more than one visit. The Department recommended that parental
rights be terminated. At the October 12,
2011 hearing, the juvenile court received the Department’s reports into
evidence. Appellant testified that he
opposed the Department’s recommendation.
He stated that he had been visiting Kristopher regularly, even after
reunification services had been terminated, and that Kristopher called him
“daddy” and called his mother “nana.” He
testified that he had a strong relationship with Kristopher and loved him very
much; he hoped to change to be a good father to him. He added that he thought it was important for
Kristopher to remember his mother and father.
The
juvenile court found by clear and convincing evidence that Kristopher was
adoptable and that no exceptions to termination had been shown. Accordingly, it terminated appellant’s
parental rights and implemented a permanent plan of adoption for Kristopher.
Appellant
timely appealed.
Appellant
challenges the order terminating his parental rights on three grounds—the
juvenile court’s lack of subject matter jurisdiction and failure to comply with
procedural rules, and insufficient evidence.
We find no merit to his challenges.
I. The Juvenile Court
Properly Assumed Subject Matter Jurisdiction Over Kristopher.
Appellant contends that the order terminating his
parental rights is void because the juvenile court lacked subject matter
jurisdiction to proceed. To support his
claim, he contends the juvenile court dismissed all petitions involving him
prior to termination. We independently
determine the presence or absence of subject
(In re A. C. (2005) 130
Cal.App.4th 854, 860.) Appellant’s claim
fails both on the basis of the law and the record.
As
explained in In re Claudia S. (2005)
131 Cal.App.4th 236, 245 to 246: “‘Lack
of jurisdiction’ is a term used to describe situations in which a court is
without authority to act. [Citation.] The Uniform Child Custody Jurisdiction and Enforcement
Act (the Act) (Fam. Code, § 3400 et seq.) is the exclusive method for
determining subject matter jurisdiction for custody proceedings in California,
and its provisions apply to
juvenile dependency proceedings. (Fam.
Code, § 3402, subd. (d); In re Stephanie
M. (1994) 7 Cal.4th 295, 310.) Under
the Act, a California court has jurisdiction in a dependency case if California
was the child’s home state when the proceeding commenced, with ‘home state’
defined
child lived with a parent for at least six consecutive months immediately
before the commencement of the proceeding.
[Citations.]” Here, it was
undisputed that Kristopher had been living with his guardian in California for
several years before the Department filed its section 300 petition. Thus, the subject matter jurisdiction
requirements for a dependency proceeding
were satisfied. (See
1170 [“The filing of A.R.’s dependency petition vested the juvenile court with
subject matter jurisdiction”].)
Appellant’s
argument that the absence of a petition rendered the juvenile court without
subject matter jurisdiction could be compared to a personal jurisdiction
challenge. “The court does not take
jurisdiction over the parent; it takes jurisdiction over the child.
[Citation.] Personal jurisdiction
over a parent in dependency proceedings is obtained when the parent is properly
noticed, because notice gives the parent the choice whether to appear in the
dependency proceeding.
[Citations.]” (
903, 916, fn. omitted; see also In re
Claudia S., supra, 131 Cal.App.4th at p. 247 [“the absence of due process
notice to a parent is a ‘fatal defect’ in the juvenile court’s
jurisdiction”].) But appellant does not
dispute that he received notice of all proceedings and actively participated in
the dependency proceedings for well over three years.
The sole
basis for appellant’s subject matter jurisdiction claim is his contention that
the juvenile court dismissed all petitions against him. By characterizing the record in this manner,
he hopes to fall within In re A.R.,
supra, 203 Cal.App.4th at page 1170, where the appellate court determined
that the juvenile court lacked jurisdiction to make a visitation order for a
child after it had dismissed the section 300 petition involving him. The key problem with appellant’s argument is
that the record does not support it.
The
Department initially filed the July 2008 petition against Kristopher’s
guardian. When appellant first appeared
in September 2008, the juvenile court had before it a proposed first amended
petition that added allegations against him under section 300, subdivision (g)
for his failure and inability to provide support for Kristopher. At the September 16, 2008 hearing, the
juvenile court terminated Kristopher’s guardianship and then stated: “Having read the reports before me, I will
amend to proof and file the underlying.
There is an underlying petition, and I will dismiss that petition in its
entirety, however, amend according to proof under a (g); that there’s no
appropriate parent or guardian ready, willing, and able to have these children
at this time. So that (g) is sustained
by a preponderance of the evidence.” The
September 16, 2008 minute order likewise reflected the sustaining of a petition
under section 300, subdivision (g). Also
consistent with the juvenile court’s ruling, the clerk wrote “dismissed” on the
face of the July 2008 petition, crossed out that word and wrote “re-instated”
as of September 16, 2008. In view of the
minute order and the juvenile court’s oral ruling sustaining the petition as
amended under section 300, subdivision (g), we decline to infer a contrary
intent from the absence of any interlineation on the petition itself. (See, e.g., In re Merrick V. (2004) 122 Cal.App.4th 235, 249 [“Conflicts
between the reporter’s and clerk’s transcripts are generally presumed to be
clerical in nature and are resolved in favor of the reporter’s transcript
unless the particular circumstances dictate otherwise”]; In re Josue G. (2003) 106 Cal.App.4th 725, 731, fn. 4 [conflicts in
the record harmonized in favor of the reporter’s transcript].)
Subsequently,
the Department filed a section 300 petition on October 1, 2008 and a first
amended petition on October 7, 2008, both of which included additional
allegations against appellant. At the
October 7, 2008 hearing, following what the juvenile court characterized as a
“lengthy chambers conference,” the Department indicated that it sought to
dismiss its petitions against Kristopher’s parents and—in a phrase often cited
by appellant—the juvenile court stated “[a]ll of the petitions are being
dismissed.” The juvenile court indicated
that it was retaining jurisdiction, however, under section 366.3 and set the
matter for a contested disposition hearing.
The October 7, 2008 minute order provided that the juvenile court’s
dismissal applied only to the two petitions filed in October 2008, and that the
children remained subject to the court’s jurisdiction under section 300,
subdivision (g). Similarly, the clerk
wrote “Dismissed 7 Oct 2008” on the face of the October 2008 petitions
only. While conflicts in the record are
generally harmonized in favor of the reporter’s transcript, an ambiguity in the
reporter’s transcript may be clarified by the clerk’s transcript. (In re
Byron B. (2004) 119 Cal.App.4th 1013, 1018 [clerk’s transcript included
limiting phrase that prevented probation condition from being unconstitutionally
vague].) Here, the minute order and
clerk’s notations clarified that the dismissal of “all” petitions applied to
those filed by the Department immediately preceding the October 7, 2008
hearing.
Though there was some confusion
about the status of the case in early 2009, subsequent events likewise
confirmed the juvenile court’s intent to leave the section 300, subdivision (g)
petition intact. At a January 21, 2009
hearing, the juvenile court acknowledged that it had erroneously stated jurisdiction
could be sustained under section 366.3 and directed the Department to file
a section 300 petition. A few days
later, however, at a January 30, 2009 hearing, the juvenile court reconsidered
its previous direction on the basis that a section 300, subdivision (g)
petition had already been sustained. It
determined that appellant should receive at least six months of reunification
services and directed the Department to prepare a disposition case plan.
Accordingly, the record showed that
at all times a section 300 petition containing allegations under subdivision
(g) against appellant was on file, providing the juvenile court “with subject
matter jurisdiction, i.e., the inherent authority to deal with the case or the
matter before it.” (In re A.R., supra, 203 Cal.App.4th at p. 1170.)
II. Appellant May Not Challenge Rulings
Preceding the Termination of His Parental Rights.
Appellant’s next complaint is
that the juvenile court failed to comply with several procedural requirements
embodied in the California Rules of Court
either to adjudicate the petition or hold a disposition hearing. We find no merit to his claims.
Preliminarily,
we agree with the Department and Kristopher that appellant was not entitled to
the procedures he asserts were lacking because he was never declared to be
Kristopher’s presumed father. Rather, he
was initially found to be Kristopher’s alleged father and later declared to be
his biological father. “In dependency
proceedings, ‘fathers’ are divided into four categories—natural [or biological], presumed, alleged, and de facto. [Citation.]”
(In re A.A. (2003) 114
Cal.App.4th 771, 779.) “A biological
father is one whose paternity is established, but who does not qualify as a
presumed father.” (In re J.O. (2009) 178 Cal.App.4th 139, 146.) “‘A father’s status is significant in dependency
cases because it determines the extent to which the father may participate in
the proceedings and the rights to which he is entitled. [Citation.]’”
(In re Kobe A. (2007) 146
Cal.App.4th 1113, 1120.) Only a
presumed father is entitled to custody or a reunification plan. (Ibid.)
A
biological father who claims entitlement to presumed
father status has
the burden of establishing by a
supporting his entitlement. (
672, 679; In re T.R. (2005) 132
Cal.App.4th 1202, 1210.) Below, the
evidence showed that appellant’s name appeared on Kristopher’s birth
certificate. Though appellant did not
offer this argument below, he contends that this evidence established his
entitlement to presumed father status.
He cites Health and Safety Code section 102425, subdivision (a)(4),
which provides in part that “[i]f the parents are not married to each other, the
father’s name shall not be listed on the birth certificate unless the father
and the mother sign a voluntary declaration of paternity at the hospital before
the birth certificate is prepared.” In
turn, “[a] voluntary declaration of paternity entitles the man who signs it to
presumed father status.
[Citation.]” (
Cal.App.4th 155, 163.) Though no
voluntary declaration of paternity appears in the record, appellant contends
that the fact his name appears on the birth certificate created a presumption
that he signed such a declaration, thereby entitling him to presumed father
status.
The court in
826, recently rejected this precise contention.
There, the appellate court concluded that the fact the mother’s
boyfriend’s name appeared on her child’s birth certificate did not entitle the
boyfriend to presumed father status.
Observing that the record did not contain a voluntary declaration of
paternity executed by the boyfriend, the appellate court summarized his
position, which was that Health and Safety Code section 102425, subdivision
(a)(4), together with Evidence Code section 664, entitled him to a presumption
that he executed a declaration because his name appeared on the child’s birth
certificate. (In re D.A., supra, at p. 826.)
Though acknowledging that such a presumption had been applied in
716, 736–739, the court determined: “No
such presumption applies here, however, because
hospital staff (or any members at all) were aware that mother and E.A. were not
married.” (In
re D.A., supra, at pp. 826–827.)
Likewise, because appellant offered no evidence to suggest that anyone
involved in the preparation of Kristopher’s birth certificate was aware that he
and mother were not married, there is no factual basis in the record to support
the presumption. Accordingly, appellant
failed to meet his burden to show his entitlement to presumed father status.
Nonetheless,
appellant contends that even as Kristopher’s biological father, he was entitled
to certain advisements during the initial stages of the proceedings, including
a reading of the petition (rules 5.668(a), 5.682(a)) and a recitation of his
hearing rights (rules 5.534(k), 5.682(b)).
We conclude that appellant has forfeited this contention for several
reasons. First, he did not object to the
manner in which the juvenile court conducted any hearings. “A party forfeits the right to claim error as grounds for
reversal on appeal when he or she fails
to raise the objection in
the trial court. [Citations.]
Forfeiture, also referred to as ‘waiver,’ applies in juvenile
intended to prevent a party from standing by silently until the conclusion of
the proceedings. [Citations.]” (In re
Dakota H. (2005) 132 Cal.App.4th 212, 221–222; accord, In re Levi U. (2000) 78 Cal.App.4th 191, 201 [rejecting due process
claim not raised below]; see also In re
Seaton (2004) 34 Cal.4th 193, 198 [forfeiture applies to claims of
statutory error and to claims of violation of fundamental constitutional
rights].) Second, appellant actively
participated in Kristopher’s dependency proceedings for over three years. (See In
re Jessica C. (2001) 93 Cal.App.4th 1027, 1037 [father waived any defects
in petition by proceeding to litigate the matter on the merits].) Finally, appellant failed to appeal from
either the jurisdictional or dispositional orders. It is well settled that “‘“an unappealed disposition or
postdisposition order is final and binding and may not be attacked on an appeal
from a later appealable order.”
[Citation.]’ [Citation.]” (In re
S.B. (2009) 46 Cal.4th 529, 532.)
Even if appellant had not forfeited his claims, they
would afford no basis for reversal of the termination order. The failure to provide
adequate
dependency proceeding is typically reviewed for harmless error. (In re
Monique T. (1992) 2 Cal.App.4th 1372, 1377–1378; see also
400, 406–407 [reviewing adequacy of advisements in connection with a no contest
plea to a dependency petition under the same test used to review those required
for a voluntary and knowing guilty plea].)
While the record indicated intermittent uncertainty during the initial
stages of the matter regarding what section 300 count or counts had been
sustained against appellant in the July 2008 petition, by January 2009 the
juvenile court clarified that only a single count under section 300,
subdivision (g) had been sustained and exercised its discretion to provide
reunification services to appellant.
Represented by counsel throughout the proceedings, appellant availed himself
of reunification services and made significant efforts to reunify with
Kristopher. Ultimately, however, he was
unable to do so after having an angry confrontation with a social worker and
exhibiting behavior consistent with alcohol abuse. In view of this record, any failure to
provide complete advisements as specified by the California Rules of Court was
harmless error.
Finally, we reject appellant’s other
procedural contention that the juvenile court failed to hold either an
adjudication or a disposition hearing.
The record showed that the juvenile court adjudicated the matter at the
September 16, 2008 hearing—at which appellant was present and represented by
counsel—stating “that there’s no appropriate parent or guardian ready,
willing, and able to have these children at this time. So that (g) is sustained by a preponderance
of the evidence.” The juvenile court set
the matter for a disposition hearing.
Appellant appeared at the initial November 2008 disposition hearing when
the juvenile court terminated his reunification services. He was again present at the January 2009
hearing when the juvenile court reconsidered its prior disposition and
permitted him to participate in a court-ordered disposition case plan. The record establishes that the juvenile
court properly entered both adjudication and disposition orders after holding
hearings in which appellant participated.
III. Substantial Evidence Supported the
Termination of Appellant’s Parental Rights.
Appellant also challenges the
order terminating his parental rights on the grounds that the juvenile court
failed to make the requisite findings and there was insufficient evidence to
support the order. Though his arguments
are premised primarily on his contentions about the absence of a filed petition
and inadequate advisements which we have already rejected, we briefly address
his claims.
Appellant
contends that his parental rights could not be terminated without any finding
that it would be detrimental for Kristopher to be placed with him. But because appellant never achieved presumed
father status, no finding of detriment was required; rather, the juvenile
court’s sole focus was Kristopher’s best interests. (Fam. Code, § 7664, subd. (b) [where a biological
father claims parental rights, “[t]he court shall then determine if it is in
the best interest of the child that the father retain his parental rights, or
that an adoption of the child be allowed to proceed”]; In re A.S. (2009) 180 Cal.App.4th 351, 362 [where biological father
not found to be the presumed father, “the court was not required to make a
particularized finding of unfitness or detriment before terminating his
parental rights and instead was entitled to focus on [the child’s] best
interests”]; Adoption of Arthur M. (2007)
149 Cal.App.4th 704, 722 [rejecting argument that biological father has a
finding of unfitness and emphasizing “no finding of detriment or parental
unfitness is required” because “‘[t]he child’s best interest is the sole
criterion where there is no presumed father’”].) In any event, at
the disposition hearing and again at each review hearing the juvenile court
found that appellant was not prepared to have custody of Kristopher and that it
would be detrimental to Kristopher to place him with appellant.
Finally, substantial evidence supported the
juvenile court’s termination of appellant’s parental rights and, specifically,
its finding that appellant failed to demonstrate the existence of any exception
to termination. Appellant advocated for
the application of the beneficial parental relationship exception to
termination of parental rights found in section 366.26, subdivision
(c)(1)(B)(i), which provides for an exception to the preferred permanent plan
of adoption where a parent has “maintained regular visitation and contact with
the child and the child would benefit from continuing the relationship.” At the termination hearing, appellant
testified that he had a strong relationship with Kristopher. He visited him regularly and Kristopher
called him “daddy.” He believed
it was important for Kristopher to know his father.
Appellant
had the burden to establish the beneficial
relationship exception (In re Fernando M.
(2006) 138 Cal.App.4th 529, 534) and we agree with the juvenile court that
he failed to meet his burden. Though the
evidence showed that appellant had maintained regular visitation, he never
progressed beyond monitored visitation.
(See In re Andrea R. (1999) 75
Cal.App.4th 1093, 1108–1109.) Moreover,
appellant failed to show that Kristopher would benefit from maintaining their
relationship. As explained in
Cal.App.4th 184, 207: “A parent must
show more than frequent and loving contact or pleasant visits. [Citation.]
‘Interaction between natural parent and child will always confer some
incidental benefit to the child. . . . The parent must show he or she occupies a
parental role in the child’s life, resulting in a significant, positive,
emotional attachment between child and parent.
[Citation.]” (Fn. omitted.) Beyond Kristopher calling appellant “daddy,”
appellant failed to offer evidence that he occupied a parental role in
Kristopher’s life. (See
71, 81 [children calling mother “Mom” and mother’s demonstrated love for her
children held insufficient to show mother could meet children’s needs].) On the other hand, the Department offered
evidence that Kristopher was thriving with his prospective adoptive parents,
who were willing and able to address Kristopher’s special needs. Appellant failed to demonstrate the type of
parent-child relationship that triggers the exception because it “‘promotes the
well-being of the child to such a degree as to outweigh the well-being the
child would gain in a permanent home with new, adoptive
parents. . . .’
[Citation.]” (
1530, 1534.)
IV.
The
Juvenile Court Failed to Provide Proper Notice Under the ICWA.
At the detention hearing, the guardian—Kristopher’s
maternal grandmother—indicated that her deceased husband might have some
Cherokee history. Mother likewise
averred on an ICWA-020 form that she was a member or may be eligible for
membership in a Cherokee tribe, she may have Indian ancestry and one or more of
her ancestors was a member of the Cherokee tribe. Notwithstanding these representations by the
guardian and mother, the juvenile court stated:
“At this point I have no reason to know this is an American Indian case
for the Cherokee Nation. There is some
family lore and no way of getting any further information, and no information
that either of these children or the mother or the grandfather was an enrolled
member of the nation. . . .
Kristopher is not a member.
[Appellant] is not a member. His
mother was not a member, and we have no further information than that.” The minute order for the hearing reflected
the juvenile court’s findings, providing “court finds no reason to believe that
this is an ICWA case.” Thereafter, the Department’s
reports provided that “no ICWA exists in this case.” In connection with her January 2009 motion
for reconsideration, mother contended that proper ICWA inquiry and notice had
not been made and requested “[t]hat the court make proper ICWA inquiry and
findings in this case.” At the hearing
on the motion for reconsideration, the juvenile court did not address the issue
of ICWA notice.
We recently explained in In re Gabriel G. (2012) 206 Cal.App.4th 1160 that “Congress
passed the ICWA in 1978 ‘to promote the stability and
security of Indian tribes and families by establishing minimum standards for
removal of Indian children from their families and placement of such children
“in foster or adoptive homes which will reflect the unique values of Indian culture
. . . .”’
[Citations.]” To ensure a tribe’s
right to intervene to protect the interests of the child in retaining tribal
ties and the interests of the tribe in preserving future generations, “the ICWA
requires ‘where the court knows or has reason to know that an Indian child is
involved,’ the party seeking termination of parental rights must, in relevant
part, notify the Indian child’s tribe of the pending proceedings and its right
to intervene. [Citations.]” (In re
Desiree F. (2000) 83 Cal.App.4th 460, 469.)
Because the right to intervene is meaningless unless the tribe
receives notification, the ICWA’s notice requirements are strictly
construed. (In re Samuel P. (2002) 99 Cal.App.4th 1259, 1267.) We review a juvenile court’s ICWA findings
for substantial evidence. (
404.)
Though appellant has not challenged the termination
order on the ground of inadequate ICWA notice, the Department has candidly
acknowledged that further inquiry into Kristopher’s possible Native American
ancestry is necessary. (See
1189, 1195 [“the forfeiture doctrine does not bar consideration of ICWA notice
issues on appeal”]; In re Nikki R. (2003)
106 Cal.App.4th 844, 849 [adequacy of ICWA notice not waived by appellant’s
failure to raise it].) The law is well
established that only a suggestion of Indian ancestry is sufficient to trigger
the notice requirement under the ICWA. (
at p. 1165; accord, In re Miguel E. (2004)
120 Cal.App.4th 521, 549 [“The showing required to trigger the statutory notice
provisions is minimal” and “[a] hint may suffice for this minimal showing”];
Cal.App.4th 1401, 1408 [“the bar is indeed very low to trigger ICWA
notice”].) The evidence here was far
more than a suggestion or hint—both the guardian and mother represented that
Kristopher had Cherokee ancestry through his maternal grandfather. Their statements were sufficient to trigger
the ICWA’s notice requirement. (E.g.,
[parent’s statement that child may be eligible for membership in Apache and/or
Navajo tribe sufficient to trigger notice requirement, even without information
about tribal affiliation or tribal roll number]; Dwayne P. v. Superior Court (2002) 103 Cal.App.4th 247, 256–258
[parents’
“Cherokee Indian heritage” sufficient to trigger notice under the ICWA].) Substantial evidence did not support the
juvenile court’s contrary conclusion that the information provided was nothing
more than “family lore” inadequate to trigger the notice requirement.
Because the juvenile court did not provide the
notice required under the ICWA, we reach the same conclusion as in
at p. 1168: “[T]he court’s order
terminating parental rights must be conditionally reversed.
mean the trial court must go back to square one,’ but that the court ensures
that the ICWA requirements
are met. [Citations.] ‘If the only error requiring reversal of the
judgment terminating parental rights is defective ICWA notice and it is ultimately determined on remand
that the child is not an Indian child, the matter ordinarily should end at that
point, allowing the child to achieve stability and permanency in the least
protracted fashion the law permits.’
[Citation.]” (Fn. omitted.)
The order terminating parental
rights is reversed and the case is remanded to the juvenile court with
directions to order the Department to provide each of the Cherokee tribes with
proper notice of the proceedings under the ICWA. If, after receiving proper notice, no tribe
indicates Kristopher is an Indian child within the meaning of the
terminating parental rights.
NOT TO BE PUBLISHED IN THE
OFFICIAL REPORTS.
_______________________,
Acting P. J.
DOI TODD
We concur:
_______________________, J.
ASHMANN-GERST
_______________________, J.
CHAVEZ
various places Kristopher has been spelled “Khristopher.” However, we refer to him in accordance with
the spelling in all Los Angeles County Department of Children and Family
Services (Department) records.
otherwise indicated, all further statutory references are to the Welfare and
Institutions Code.
