In re D.R.
Filed 11/8/13 In re D.R. CA2/5
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 This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115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
In re D.R. et al., Persons
Coming Under the Juvenile Court Law.
B248495
(Los Angeles
County
Super. Ct.
No. CK95369)
LOS ANGELES COUNTY DEPARTMENT
OF CHILDREN AND FAMILY SERVICES,
Plaintiff and Respondent,
v.
MARC C.,
Defendant and Appellant.
APPEAL from
orders of the Superior Court
of
County, Veronica McBeth, Temporary Judge. (Pursuant to Cal.
Const., art. VI, § 21.) Affirmed.
Julie E.
Braden, under appointment by the Court of Appeal, for Defendant and Appellant.
John F.
Krattli, County Counsel, James M. Owens, Assistant County Counsel and Jacklyn
K. Louie, Deputy County Counsel for Plaintiff and Respondent.
Appellant
Marc C., the alleged father of eight-year-old D.R., appeals the juvenile court’s
findings and orders with respect to D.R.’s dependency proceedings. Specifically, appellant maintains the
juvenile court violated the mandate of rule 5.635 of the California Rules of
Court
when it denied his request for genetic testing and further contends the court
failed to comply with the notice provisions of the
We conclude appellant’s oral request
for genetic testing at the jurisdiction hearing did not trigger the juvenile
court’s obligation to determine parentage when an alleged father submits a “Statement
Regarding Parentage†form (JV-505), and in any event, any error was harmless. We also determine appellant has no standing
to raise an ICWA notice violation. We
therefore affirm the orders.
I. FACTUAL AND PROCEDURAL BACKGROUND
D.R., born in 2005, and her
half-brother J.R., born in 2007, were the subjects of a Welfare and Institutions
Code
section 300 petition filed by the Los Angeles County Department of Children and
Family Services (DCFS) on September 7, 2012.
The petition alleged, among other things, the children were at risk of
serious physical harm pursuant to section 300, subdivision (b) due to substance
abuse by their mother, R.R. (mother).
Mother named appellant as D.R.’s father.
Mother indicated she and appellant were not married, registered as
domestic partners or living together when D.R. was conceived or born. She maintained appellant was not present at D.R.’s
birth, did not sign her birth certificate, had not received her into his home,
had not declared his paternity and had never supported the child. Mother also completed a “Parental
Notification of Indian Status†form, indicating she may have Apache Indian
heritage through her grandmother.
At the detention hearing, the juvenile
court found appellant to be an alleged father of D.R. The court ordered the children detained,
granted visitation to mother and ordered DCFS to investigate mother’s claim of
Indian heritage.
Appellant was served with notice of
the jurisdiction hearing at the Lovelock Correctional Center in Lovelock, Nevada, where he was serving a
life sentence, having been convicted in 2008 of murdering a three-year-old
child.
On October
22, 2012, counsel was appointed to represent appellant. The jurisdiction hearing was continued to
October 25, 2012, at which time DCFS filed an amended petition adding an
allegation under section 300, subdivision (f), alleging the “physical abuse and
murder of an unrelated child by the father endangers the child’s physical
health and safety, and places the child at risk of physical harm, damage,
danger and death.†The court ordered
DCFS to notify the parents of the amended petition and continued the hearing to
January 17, 2013.
At the continued hearing, appellant’s
counsel appeared on his behalf stating: “We
made a special appearance for the last hearing.
[Appellant] is incarcerated in the state of Nevada, and my goal was to make
contact with him by way of telephone and he is requesting a DNA test regarding [D.R.]. And obvious[ly] that will require an order
for him to be tested at his place of incarceration in Nevada and we would like the
opportunity to raise his paternity status at this point. I believe he is just alleged and he would
like the opportunity to elevate that status to at least biological.†Counsel indicated appellant sought “to
elevate his status, including possible placement of [D.R.] with relatives, if
he can elevate his status.†Appellant
also asked to be dismissed from the petition:
“The father has in fact never met [D.R.] and he is serving a life
sentence, and we don’t believe that is a basis to find that [D.R.] is at risk.â€
D.R.’s counsel requested that the
court sustain the petition as pled. She
opposed appellant’s request for paternity testing and asked that the child
remain as placed with her half-brother J.R. and his paternal aunt, as she
considered the two children a sibling group who should not be separated.
The juvenile court agreed D.R. and
J.R. formed a sibling group. The court
sustained the petition as to mother based on her substance abuse and failure to
protect, and as to appellant based on his conviction for causing the death of a
child through abuse. At a subsequent
disposition hearing, the court found appellant was not entitled to
reunification services pursuant to section 361.5, subdivisions (b)(4) and
(e)(1).
II. DISCUSSION
A. The juvenile court did not err in declining
to order a paternity test
As noted, appellant’s counsel orally
requested the juvenile court to order genetic testing to determine whether
appellant is D.R.’s biological father.
Appellant contends the court’s denial of his request requires that we
reverse and remand this matter with instructions to the juvenile court to make
the required determination of his parentage.
Section 316.2, subdivision (b)
states, in pertinent part: “If,
after the court inquiry, one or more men are identified as an alleged father,
each alleged father shall be provided notice at his last and usual place of
abode by certified mail return receipt requested alleging that he is or could
be the father of the child. The notice
shall state that the child is the subject of proceedings under Section 300 and
that the proceedings could result in the termination of parental rights and
adoption of the child. Judicial Council
form Paternity-Waiver of Rights (JV-505) shall be included with the notice.â€
Rule
5.635 addresses determination of parentage in juvenile court proceedings. Subsection (e) of the rule provides, in part:
“(1) The alleged father and his counsel
must complete and submit Statement Regarding Paternity (Juvenile Dependency)
(form JV-505). . . . [¶] (2) To determine parentage, the juvenile court
may order the child and any alleged parents to submit to genetic tests and
proceed under Family Code section 7550 et seq.
[¶] (3) The court may make its
determination of parentage or nonparentage based on the testimony,
declarations, or statements of the alleged parents.†Subsection (h) of the rule states: “If a person appears at a hearing in [a] dependency
matter or at a hearing under section 601 or 602 and requests a judgment of
parentage on form JV-505, the court must determine: [¶] (1)
Whether that person is the biological parent of the child; and [¶] (2) Whether that person is the presumed
parent of the child, if that finding is requested.â€
Appellant
acknowledges he did not submit form JV-505 to the juvenile court. He contends DCFS did not provide him with the
form, and indeed, the form does not appear in the record on appeal. He was, however, represented by counsel who
was obligated to advise appellant of his legal rights as an alleged father. Appellant made no claim that counsel failed
in his responsibilities. In order to
obtain a determination of parentage, appellant and his counsel were obliged to
timely provide a properly completed form JV-505, or seek additional time to do
so. They did neither.
determination of biological paternity based on an oral request made at the
jurisdiction hearing.
Moreover,
the outcome of the proceedings would not have been impacted had such a change
in status occurred. Appellant does not
qualify as a presumed father. He was
never married to mother and he readily admits he had never met the child, much
less accepted her into his home and provided for her needs. While a biological father who has not
established presumed father status may receive reunification services if the
juvenile court determines they would be in the child’s best interest (§ 361.5,
subd. (a)), the court in this case ruled out any such services because of appellant’s
conviction for murdering a child. And
appellant cites no authority for the proposition that a parent has input into
the child’s placement based on the mere fact that he is the biological father. Thus, any error in failing to determine D.R.’s
parentage was harmless.
Appellant
relies on In re B.C. (2012) 205 Cal.App.4th
1306, to argue that the failure to make a paternity determination when
requested in a dependency proceeding
is not subject to a harmless error analysis.
In that case, the appellate court concluded the juvenile court erred in
failing to determine whether the alleged father was the minor’s biological
father. The court cited with approval
the holding of In re Baby Boy V. (2006)
140 Cal.App.4th 1108: “[A] juvenile
court is required to determine biological paternity of a dependent child if
such a determination is requested. ‘This
is a mandatory, not a discretionary, rule.’
(Id., at p. 1118; [Citations.])†(In re
B.C., supra, 205 Cal.App.4th at p.1312.) The court disagreed with the conclusion of
that “the juvenile court’s obligation to determine biological paternity turns
on whether the man claiming paternity can demonstrate such a determination
would benefit the child.†(
not a discretionary rule,†a juvenile court’s failure to follow the rule
necessarily constitutes reversible error.
Nor have we been directed to any other authority which suggests that a
harmless error analysis is not applicable to the claimed error in this
case.
B. Appellant has no standing to raise an ICWA
notice claim
ICWA
provides “where the court knows or has reason to know that an Indian child is
involved, the party seeking the foster care placement of, or termination of
parental rights to, an Indian child shall notify the parent or Indian custodian
and the Indian child’s tribe, by registered mail with return receipt requested,
of the pending proceedings and of their right of intervention.†(25 U.S.C., § 1912(a).) If the tribe is unknown, the notice must be
given to the Bureau of Indian Affairs as the agent for the Secretary of the
Interior. (Ibid.; 25 C.F.R., §
23.11 (2003); In re Edward H. (2002) 100 Cal.App.4th 1, 4.) “‘No foster care placement or termination of
parental rights proceeding shall be held until at least ten days after receipt
of notice by the . . . tribe of the [Bureau].’ (25 U.S.C., § 1912(a).)†(In re
Daniel M. (2003) 110 Cal.App.4th 703, 707.)
Appellant
contends the juvenile court failed to comply with the foregoing notice
provisions. He argues: “Failure to comply with the statutory
directives constitutes a denial of due process both to the minor and to the
tribes. The findings and orders must be
voided and the juvenile court must be directed to comply with the notice
provisions as required by law.â€
As
an alleged father, appellant has no standing to raise this issue on
appeal. (In re Daniel M., supra, 110 Cal.App.4th at p. 707.) As explained by the Daniel M. court, the juvenile court order “may be challenged on the
ground of lack of ICWA notice by the dependent child, a parent or Indian
custodian from whose custody the child was removed, and the Indian child’s
tribe. (25 U.S.C., § 1914; rule 1439(n)
[repealed].) 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, including adoptions under tribal law
or custom.’ (25 U.S.C., § 1903(9).)
The ICWA expressly excludes from the
definition of ‘parent’ an ‘unwed father where paternity has not been acknowledged
or established.’ (Ibid.)†(In re
Daniel M., supra, 110 Cal.App.4th at pp. 707-708.)
DISPOSITION
The
juvenile court’s jurisdictional and dispositional findings and orders are
affirmed.
NOT TO BE
PUBLISHED IN THE OFFICIAL REPORTS
KUMAR,
J.
We concur:
TURNER, P.
J.
KRIEGLER, J.
name="_ftn1" title=""> [1]
All further rule references are to the
California Rules of Court.
name="_ftn2" title=""> [2]
All further statutory references are to
the Welfare and Institutions Code.
