In re R.J.

Filed 1/23/08 In re R.J. CA1/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIRST APPELLATE DISTRICT

DIVISION ONE

R.J. and her five siblings were removed from their parents home after it was determined that the parents engaged in serious domestic violence and failed to maintain a safe and sanitary home. The childrens alleged biological father, James J. (Father), appealed the juvenile courts dispositional order, contending that plaintiff San Francisco Department of Human Services (Agency) failed to provide adequate notice under the Indian Child Welfare Act (ICWA) (25 U.S.C.  1901 et seq.). We affirm, concluding that Father failed to demonstrate that he has standing to raise ICWA compliance issues.

I. BACKGROUND

The Agency detained and filed juvenile dependency petitions with respect to R.J. and five of her siblings on October 2, 2006. (Welf. & Inst. Code,  300.) The petition designated Father as an alleged father. Although he and the childrens mother (Mother) have never been married, his claim to be the biological father of these six children is not disputed.[1] The petition alleged that the children had been witness to, and to a lesser extent suffered, domestic violence, had lived in an unsafe and unsanitary home, and exhibited behavioral and emotional problems.

The next day, a detention hearing was held. The children were ordered detained, and a jurisdictional hearing was scheduled. At the time, Father filled out form JV-130, used for ICWA compliance. In the form, Father noted that he may have Indian ancestry. Later that month, the Agency mailed ICWA notification forms, form JV-135, to three specific Cherokee Indian tribes. The forms contained the names of Mother, Father, the children, and Mothers grandfather, who was identified in the notice as a potential member of the Cherokee tribe. The form contained no other information about the childrens grandparents and great-grandparents. Based on the information in the forms JV-135, the tribes responded that the children were not known to be Indian child[ren] for purposes of the ICWA.

At the jurisdictional hearing on March 6, 2007, the trial court sustained some of the jurisdictional allegations and declared the children to be persons described by Welfare and Institutions Code section 300. A contested dispositional hearing was held on March 13, 2007. On the basis of the ICWA notification and response forms in the record, the juvenile court concluded that the ICWA did not apply to this proceeding. The children were removed from Mothers and Fathers custody and placed with relatives, and reunification services were ordered provided to the parents.

II. DISCUSSION

Father has appealed the courts dispositional and jurisdictional orders, contending that the orders must be reversed because the Agency failed to comply with ICWA notification requirements. Father argues that because he specified no particular Indian heritage on his form JV-130, the Agency was required to send notice to the Bureau of Indian Affairs. He also contends that the forms JV-135, sent in response to Mothers identification of a possible Cherokee ancestor, were inadequate because they named only one of the childrens various grandparents and great-grandparents, even though information about these relatives was readily available to the Agency.

The Agency argues as an initial matter that Father, an alleged father who has made no attempt to become a presumed father, has no standing to challenge ICWA compliance.[2] ICWA compliance may only be challenged by the dependent child, a parent or Indian custodian from whose custody the child was removed, and the Indian childs tribe. (In re Daniel M. (2003) 110 Cal.App.4th 703, 707708 (Daniel M.); 25 U.S.C.  1914.) For purposes of ICWA, a parent is a biological parent, except that the term does not include the unwed father where paternity has not been acknowledged or established. (25 U.S.C.  1903(9).) Accordingly, an unmarried biological father lacks standing to raise ICWA compliance issues unless he has acknowledged or established his paternity. (Daniel M., at p. 708.)

In Daniel M., the court considered what actions constitute sufficient paternal acknowledgment of parentage to satisfy the ICWA. The court concluded that because the ICWA does not provide a standard for the acknowledgment or establishment of paternity, courts have resolved the issue under state law. [Citations.] Courts [from other states] 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). (Daniel M., supra, 110 Cal.App.4th at pp. 708709.)

There is no evidence in the record that Father has taken any official action to establish his paternity. (Daniel M., supra, 110 Cal.App.4th at p. 708.) As noted by Daniel M., Father could have signed voluntary declarations of paternity at the time of each childs birth, which would have the same force and effect as a judgment of paternity. (In re Liam L., supra, 84 Cal.App.4th at pp. 744745; Fam. Code,  7573.) If Father signed such declarations, however, they are not in the record, which contains copies neither of the childrens birth certificates nor the voluntary declarations. Similarly, there is no evidence of a blood test or any other attempt to achieve presumed father status.

Father argues, in effect, that he should be granted standing because, while he has not taken the steps necessary to acquire recognition as the childrens presumed father, he could acquire that status if he chose to do so. Father claims that he has always acknowledged his paternity, meaning that he has consistently claimed biological parentage, that he is named as the father on each childs birth certificate, and that he has resided with the children most, if not all, of their lives.

We need not decide whether mere eligibility for presumed father status would suffice to grant standing to Father, for there is insufficient evidence in the record to support Fathers claim that he qualifies as a presumed father. Although the mere presence of his name on the birth certificates might permit an inference of eligibility for presumed father status (see In re Raphael P. (2002) 97 Cal.App.4th 716, 737), the birth certificates have not been made a part of the record. The evidence in the record bearing on Fathers residence with the children and his claimed assertions of paternity is incidental and incomplete. The evidence cited consists primarily of a series of descriptions of unfortunate events in the childrens lives that do not clearly state where or with whom the children were living when the events occurred. While it may be true that Father has receive[d] the child[ren] into his home and openly holds [them] out . . . as his natural child[ren], as required by Family Code section 7611, subdivision (d), the evidence before us on this issue is insufficient to permit such a conclusion. Accordingly, Father has not demonstrated that he has standing to raise ICWA compliance issues.[3]

III. DISPOSITION

The juvenile courts orders are affirmed.

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Margulies, J.

We concur:

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Marchiano, P.J.

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Stein, J.

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[1] A seventh, older child by another father was also detained, but he is not a subject of this appeal.

[2] An alleged father is [a] man who may be the father of a child, but whose biological paternity has not been established, or, in the alternative, has not achieved presumed father status. (In re Liam L. (2000) 84 Cal.App.4th 739, 745.) A presumed father is a man who satisfies the requirements of Family Code section 7611. (Liam L., at p. 745.) Section 7611 states several circumstances under which a man will be deemed a childs presumed father, even though he was not married to the childs mother at the time of the birth. Mere biological parentage, standing alone, is not mentioned. (See Fam. Code,  7611.)

[3] As a result, we deny as moot the Agencys motion to consider additional evidence or take judicial notice.