In re Miley S.



















Filed 8/15/12 In re Miley S. CA4/1



















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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115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





COURT
OF APPEAL, FOURTH APPELLATE DISTRICT



DIVISION
ONE



STATE
OF CALIFORNIA






>

In re MILEY S., a Person Coming Under the Juvenile Court Law.
IMPERIAL COUNTY DEPARTMENT OF SOCIAL SERVICES, Plaintiff and Respondent, v. KRYSTAL S., Defendant and Appellant.	D061307 (Super. Ct. No. JJP02237)

APPEAL from
orders of the Superior Court
of Imperial
County, Christine V. Pate, Judge. (Retired judge of the San Diego Sup. Ct.
assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal.
Const.) Affirmed.



Krystal S.
appeals orders terminating her parental rights to her daughter, Miley S. She contends the juvenile court's finding
that Miley is not an Indian child under the Indian Child Welfare Act (ICWA) (25
U.S.C. § 1901 et seq.) was not supported by substantial evidence because
Miley's alleged father, B.G., was never asked whether he has Indian
heritage. We hold there is no merit to
her contention and affirm the orders.

FACTUAL AND
PROCEDURAL BACKGROUND

On September 14, 2009, one-year-old
Miley was taken into protective custody
after Gabriella G., who is B.G.'s sister, took her to the Imperial County Department of Social Services
(the Department) offices. Gabriella had
been providing care for Miley since August 3 when Krystal left Miley with
her. Krystal had been arrested at the
United States/Mexican border for child desertion and being under the influence
of drugs on August 8.

The
Department petitioned on Miley's behalf under section 300, subdivisions (b) and
(g),[1] alleging
Krystal had left her with Gabriella without any provision for her support. Krystal indicated she had no Indian
ancestry. The court ordered Miley
detained. Gabriella applied for
licensing and placement, as did Miley's maternal great-aunt. On September 25, the court ordered Miley
detained with Gabriella.

At the jurisdictional hearing on October 14, 2009, neither Krystal
nor B.G. was present. The court found
the allegations of an amended petition to be true and found the provisions of
ICWA did not apply.

The social
worker reported B.G. was wanted for violating parole, and family members said
he was hiding from law enforcement in Mexico. At the dispositional hearing in November
2009, the court removed Miley from parental custody and ordered reunification
services and supervised visits for Krystal.
It ordered B.G., as an alleged father, would not receive services. The court ordered Miley placed with
Gabriella.

In early
2010, Krystal tested negative for drug use and had regular weekly visits with
Miley. At the six-month review hearing
in May, the court continued services. In
June, however, Krystal was arrested for attempting to smuggle drugs into the United
States, and in November she was sentenced to
prison.

At the
12-month review hearing on November 1,
2010, the court terminated Krystal's services and set a section
366.26 hearing. On November 5, B.G.
contacted the Department and said he wanted to reunify with Miley.

At the
permanency review hearing on May 2,
2011, B.G. appeared in court for the first time and the court
appointed counsel for him. B.G.'s
counsel said B.G. told her he had had a paternity test through child support
services which indicated he is Miley's biological father. The court granted a continuance. At B.G.'s request, he had one supervised
visit with Miley. On May 16, the court
held the continued hearing, but B.G. did not appear and his counsel offered no
evidence to support B.G.'s claim of paternity.
The court set the matter for further review in six months. In November, Krystal petitioned under section
388, requesting her services be reinstated.

The court
combined Krystal's section 388 petition with the section 366.26 hearing on December 28, 2011. B.G. did not attend, and Krystal testified
from prison by telephone. After
considering the evidence and argument by counsel, the court denied Krystal's
section 388 petition, terminated parental rights and set the matter for adoption.



DISCUSSION

Krystal
contends the juvenile court's finding that Miley is not an Indian child under
ICWA was not supported by substantial evidence because B.G. was never asked
whether he had Indian heritage. She
argues ICWA inquiry and notice were required because during the course of
Miley's dependency, B.G. was treated as a biological father and as a presumed
father. Krystal points to Miley being
placed with B.G.'s sister, Gabriella, at the detention hearing; the court continuing
the placement at the dispositional hearing; and the Department's argument at
disposition that Gabriella should be Miley's caregiver because she is Miley's
"paternal aunt" and "an extended family member[] who is important
to the child . . . ."
She claims Gabriella cannot be considered a nonrelative extended family
member because Miley lived with her much longer than the maximum 15 days that a
child may be placed with a nonrelated extended family member under sections
319, subdivision (f)(1) and 362.7.

A
biological tie to a tribe through a biological parent or parents must be shown
in order to trigger ICWA requirements.
(25 U.S.C. § 1903(9); In re
E.G. (2009) 170 Cal.App.4th 1530, 1533.)
Until biological parentage is established by an alleged father's
biological connection, the minor cannot claim Indian heritage through the
alleged father. (In re E.G., at p. 1532.)
"The ICWA defines 'parent' as 'any biological parent or parents of
an Indian child or any Indian person who has lawfully adopted an Indian
child . . . .'
[Citation.] The ICWA expressly
excludes from the definition of 'parent' an 'unwed father where paternity has
not been acknowledged or established.' "
(In re Daniel M. (2003)> 110 Cal.App.4th 703, 708.) "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." (>Id. at p. 709.) An alleged father may establish or
acknowledge paternity by voluntarily signing a declaration of paternity at the
time of the child's birth or through scientific testing. (Id.
at pp. 708-709.)

Krystal's
contention that the social worker and the court were required to inquire
whether B.G. had Indian heritage lacks merit.
No evidence was ever presented to show B.G. is Miley's biological
father. Krystal had named him as the
father, but he had not been involved in Miley's life, and it was reported he
was hiding from law enforcement authorities in Mexico. He appeared in court only one time and, at
that hearing, he said he had taken a paternity test through child support
services that indicated he is Miley's biological father. The court appointed counsel for him to
investigate and to report to the court, but B.G. never presented any evidence
of the results of a genetic test to show he is Miley's biological father. His assertion to his attorney that a genetic
test showed they shared a biological connection without proof is insufficient
to raise his status from alleged father to biological father.

The fact
the court ordered Miley placed with Gabriella and that Miley remained with
Gabriella from the time Krystal left her there also did not elevate B.G.'s
status. Although the social worker referred
in reports to Gabriella as B.G.'s sister and as the paternal aunt, counsel for
the Department noted that even though reports referred to her as a paternal
aunt, B.G.'s status had never been elevated and he is legally an alleged
father. Counsel stated that Gabriella
being labeled a paternal aunt or extended family member was irrelevant to
B.G.'s status. The recommendation to
place Miley with Gabriella was based not on a biological connection, but
primarily on Miley's preexisting relationship with her. Also, Gabriella promptly applied to be
licensed as a foster parent. The record
does not show any biological evidence was ever presented in the juvenile court
to show B.G. is Miley's biological father to trigger ICWA inquiry and notice
requirements.

Krystal's
argument the court's appointment of counsel for B.G. constructively raised his
status from alleged father to biological father or presumed father is
unfounded. The court's appointment of
counsel for the purpose of aiding in establishing whether or not B.G. is the
biological father comports with the court's duty under California Rules of
Court, rule 5.635(h) to determined whether an alleged father is a biological
father or a presumed father. It did not
elevate his position from that of alleged father. On this record, Krystal has not shown that
ICWA inquiry or notice was required.

DISPOSITION

The orders
are affirmed.





O'ROURKE, J.



WE CONCUR:







McDONALD, Acting P.
J.







McINTYRE, J.