In re Ezra D.

Filed 8/8/07 In re Ezra D. CA5

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIFTH APPELLATE DISTRICT

THE COURT^*

APPEAL from a judgment of the Superior Court of Tulare County. Charlotte Wittig, Juvenile Court Referee.

Linda K. Harvie, under appointment by the Court of Appeal, for Defendant and Appellant.

Kathleen Bales-Lange, County Counsel, and Amy-Marie Costa, Deputy County Counsel, for Plaintiff and Respondent.

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Appellant is the biological father of dependent child Ezra D., whom the Tulare County Superior Court freed for adoption (Welf. & Inst. Code,  366.26) in December 2006.^[1] Appellant contends the court failed at earlier stages of the dependency proceedings to: make an adequate paternity inquiry of Ezras mother, inform him of his rights as an alleged father and produce him in court.^[2] He also claims Indian Children Welfare Act (25 U.S.C.  1901 et seq.; ICWA) notice violations. On review, we are not persuaded by appellants paternity-related issues. Nevertheless, we will reverse the termination order for a limited remand regarding ICWA notice.

PROCEDURAL SUMMARY

On March 21, 2006, the superior court adjudged Ezra D., born in January 2006, a dependent child of the court and removed him from his mothers custody. Both mother and newborn had tested positive for controlled substances. Ezra also suffered severe symptoms as a result of his in-utero drug exposure and required specialized care following his birth. Although the court ordered reunification services for the mother, she made no effort to comply. Consequently, on September 1, 2006, the court terminated those services and set a section 366.26 hearing to select and implement a permanent plan for Ezra. At a December 29, 2006, hearing, the court found Ezra adoptable and terminated parental rights.

DISCUSSION

I. Paternity Issues

Relevant Procedural and Factual History

Ezras mother made her one and only appearance in these proceedings on February 17, 2006, a month after the baby was born and detained. Up to this point, Ezras father was allegedly unknown.

At the February hearing, the court asked the mother who was the newborns father. She replied: Im not really knowing. It took four questions by the court before the mother answered That might be Cliff or Joe, or whoever. She knew Joes last name but not Cliffs. The court followed up with additional questions about Joes identity and whereabouts. The mothers responses were very vague. The court did not similarly inquire as to Cliff.

As the record would later reveal, Cliff, appellant, was in the county jail on the date of the courts paternity inquiry and had been incarcerated since Ezras birth.

Days after the March dispositional hearing, the mother and appellant met with a social worker then assigned to Ezras case. Appellant and the mother claimed appellant was an alleged father and would be willing to participate in a paternity test. The record is silent as to whether this visit prompted any response by the agency.

Three months later, on July 13, 2006, another social worker subsequently assigned to Ezras case, met with appellant in the county jail. Appellant had been arrested on a number of theft-related charges in June 2006 and would remain incarcerated throughout the remainder of these proceedings. He believed he was Ezras father and requested a paternity test. If Ezra was his son, he would like to participate in reunification services.

As a result of the July 13 jailhouse meeting, respondent Tulare County Health and Human Services Agency (the agency) filed a notice of hearing to request paternity testing for both appellant and the other alleged father. At a July 19, 2006, hearing, which neither appellant nor the other alleged father attended, the court appointed attorneys to represent each of them. The court appointed Tom Moholt to represent appellant. The court noted its belief that appellant was in local custody. According to its information, there had been a July 7th preliminary hearing on appellants pending charges. The judge added, Im going to continue this motion [to August 16th] and order the fathers be transported so that they execute a Statement of Paternity so we can see what their desires are in this matter.

Neither appellant nor the other alleged father attended the August 16th hearing. The court decided to proceed by ordering paternity testing for both men and by continuing the matter. It also would verify with Family Support whether it had a paternity judgment as to Ezra in place. As the court made its orders, someone in the courtroom checked to see if appellant remained in local custody. Appellant still was in local custody but was scheduled to be transported to state prison the following day. His counsel questioned his ability to secure appellants production for the continued hearing date. In response, the court remarked that a status review hearing was set for September 1st and appellant did not have an automatic right to be present at that hearing. The court added that appellant could appear through his attorney. Moholt, appellants attorney, replied He will.

Meanwhile, the agency had served notice of the September 1st status review hearing as well as a copy of its August 2006 status review report by certified mail on appellant. It was in this status review report that the agency revealed its previous meeting with appellant in March 2006. The agency recommended in its report that the court terminate reunification services for the mother, based on her lack of compliance, and set a hearing for a permanent plan of adoption. It made no recommendations as to appellant.

The status review report disclosed appellant claimed a willingness to help the mother and himself do what was necessary to reunite the mother with Ezra. Besides this information and appellants March and July requests for paternity testing, the only other information in the report regarding appellant was a description of his criminal history. That history dated back to the early 1980s and included numerous probation and parole violations over the years. The timing of his first prison commitment was unclear. In 1998, he was sentenced to a four-year prison term on drug-related counts. Most recently, he had been arrested in early June 2006 on burglary-and drug-related charges and was awaiting a court hearing.

With regard to eight-month-old Ezra, the agency reported he had severe problems with Stridor (a floppy airway) which made his breathing very labored and nosy. He continued to have some problems with gastro-esophageal reflux, but it was controlled with medication. In addition, he had been weaned off of Phenobarbital for drug withdrawal. The physical signs of his drug exposure were also diminishing. Developmentally, Ezra suffered from global delays and was a client of the Central Valley Regional Center. Fortunately, he was a very happy baby. The agency had located a specialized prospective adoptive home for him. Although the maternal grandmother previously requested placement, her request had been denied.

The status review hearing on September 1st was uncontested. Although appellants counsel was present, appellant was not. The court made the requisite findings and set a section 366.26 hearing for December 29, 2006. The court ordered its clerk to serve writ remedy notice on both alleged fathers and the mother at their last known addresses.

Further, the court ordered the social worker to pursue the paternity inquiry sent August 17th to Family Support and obtain an expedited response. If there was no judgment or executed POPS declaration, the agency was to immediately refer the alleged fathers for paternity testing.

The next court day, a deputy clerk of the court submitted a certificate of mailing, verifying she mailed a Notice of Necessity to Seek Writ Review JV-820 and JV-825 to appellant, with reference to his Department of Corrections identification number, at the North Kern State Prison. Appellant did not subsequently pursue writ relief from this court.

According to the record, in the later part of September 2006, a phlebotomist drew blood from both Ezra and appellant. Test results dated October 11, 2006, revealed the probability of appellant being the childs father was 99.99%. The agency mailed the lab results to appellant later that same month. It also mailed the results to all counsel in November 2006.

In advance of the section 366.26 hearing, the agency prepared a 366.26 WIC Report in which it recommended the court find Ezra adoptable and order parental rights terminated. Relevant to this appeal, the agency social worker, who authored the report, wrote under a heading of History of Contacts Between Child and Family:

On 11/27/2006 the alleged father, Clifton [M.] called this worker. He stated he had recently learned he was the biological father of the child and wanted Reunification Services and visitation. He stated he had approximately six more months before he would be released from prison, and an additional three months before he would be released from a residential drug treatment program. He was encouraged to be present at the Hearing on 12/29/2006 and address his concerns with the Court and to contact his attorney. He stated he could not reach his attorney. This worker informed him a call[] would be placed to his attorney letting him (the attorney) know that Mr. [M.] was having difficulty reaching him. This worker did make the call and spoke to the attorney regarding his clients concerns.

The court conducted its section 366.26 hearing on the scheduled December 2006 date. Appellant appeared in court with his attorney. The hearing commenced with the court finding the man referred to as Joe was not Ezras father. The agency submitted the matter on its reports.

Appellant took the witness stand to claim it would be in Ezras best interest if the court did not terminate parental rights. However, appellant did not explain the basis for his opinion. Instead, he testified he never had an opportunity to reunify with Ezra. He added he was incarcerated when Ezra was born and was released a month later. Appellant, who was still in state prison, testified he was scheduled for release in the latter part of June 2007. He claimed he then would be in a position to care for Ezra.

Appellant further testified he did everything to the best of [his] ability to maintain contact with Ezra but the agency frustrated him. He explained he tried to get tested for paternity and tried to go to the hospital when the child had several surgeries.^[3] In fact appellant had never seen Ezra and the record was silent as to any request by appellant to see the child.

In closing arguments, attorneys for Ezra and the agency argued appellant had no relationship with his son and therefore there was no basis for finding termination would be detrimental to Ezra. Appellants attorney countered his client was the Ezras biological father and had attempted to establish a relationship with him since he was one month old. Counsel urged the court not to terminate parental rights. The court remarked as it rejected appellants argument:

While Im certainly not unsympathetic to Mr. [M.]s position, the Court notes that Mr. [M.] has been incarcerated and unavailable to visit this child due to his own actions, not any actions of anyone else.

Additionally, the paternity results were delivered in late October. I believe it was October 30th, that the notice was given. There was no subsequent 388 filed. The Court disagrees with the analysis that Mr. [M.] did everything he could, because it does not appear that he did. His own actions placed him in custody.

Contentions

According to appellant, the court committed three errors which effectively denied him notice and foreclosed him from elevating his position to that of presumed father and receiving reunification services. Specifically, he contends the court failed to: (1) conduct an adequate paternity inquiry ( 316.2, subd. (a)) of the mother in February 2006, when it did not ask her the same questions about appellant as it had about the other alleged father; (2) provide him (appellant) with written notice of his rights as an alleged father once it became aware of his identity in July 2006 ( 316.2, subd. (b)); and (3) insure his appearance at the August and September 2006 hearings.^[4] As discussed below, even assuming these claims are reviewable, any error was harmless even under a heightened standard of prejudice.

Analysis

Appellants claims of error relate to events which predated the courts decision to set a section 366.26 hearing. Once the court issued its setting order, the clerk served appellant with timely notice of his writ remedy ( 366.26, subd. (l); Cal. Rules of Court, rules 8.450 & 8.452, formerly rules 38 & 38.1). In order to preserve his right to appellate review, appellant had to at least file, in a timely manner, a petition for extraordinary writ which substantively addressed the specific issues to be challenged. ( 366.26, subd. (l)(1)-(2).) However, he did not pursue his writ remedy. Consequently, his inaction forecloses him from raising these issues on appeal from the subsequent termination order. ( 366.26, subd. (l); In re Anthony B. (1999) 72 Cal.App.4th 1017, 1022-1023.)

Remarkably, appellant overlooks all of this and assumes his claims are reviewable on appeal from the termination order. Why, we do not know and will not speculate. However, even assuming on some theory unknown to us that appellants claims were reviewable on this appeal, we would not grant any relief, as explained below.

As previously summarized, the superior court did not ask the mother during its paternity inquiry whether she knew Cliffs address or his whereabouts. Once appellant was identified as an alleged father, the judge apparently intended that he receive the Judicial Council form when, in July, it stated: Im going to continue this motion and order the fathers be transported so that they execute a Statement of Paternity so we can see what their desires are in this matter. However, there is no record appellant ever received the notice.

In 2006, the Judicial Council form JV-505 advised:

As an alleged father of the child, you are not automatically entitled to services to reunify with the child or have the child placed with you or one of your relatives. If the court determines that you are the father of the child and issues a judgment of paternity, the court may order services, but is not required to do so. If you deny that you are the father of the child and do not consent to scientific tests to indicate the probability or lack of probability that you are the father, and do not wish to participate in services that may be provided, you may so indicate on this form and voluntarily withdraw from the case concerning this child. You have the right to a court trial to determine paternity, at which you will have the right to be represented by an attorney. If you cannot afford an attorney, the court may appoint one for you. At a trial you have the right to cross-examine witnesses and to present evidence on your behalf. If you wish the court to determine paternity or if you wish to admit that you are the father of the child, complete this form according to your intentions.

In this way, the form notified an alleged father of his legal options, in particular his right to compel a court to determine his paternity and his right to be represented by court-appointed counsel, if need be.

Because appellant was incarcerated for the balance of the proceedings, he would have to be transported to court in order to personally attend the hearings. However, the law did not require the court to order and secure his appearance at the hearings in August and September regarding paternity and Ezras status review. (Pen. Code,  2625; In re Jesusa V. (2004) 32 Cal.4th 588, 599-601.)

Penal Code section 2625 requires a court to order a prisoner-parents temporary removal and production before the court only where the proceeding seeks to terminate the parental rights of [the] prisoner under Welfare and Institutions Code section 366.26 or Family Code section 7800 et seq. or to adjudicate the child of a prisoner a dependent child. (Pen. Code,  2625, subds. (b)(d); In re Barry W. (1993) 21 Cal.App.4th 358, 368-369 & fn. 7.) A proceeding to identify the presumed father, which seeks merely to identify the man who has a legal entitlement to reunification services and/or custody (In re Zacharia D. (1993) 6 Cal.4th 435, 439), is neither of these. (In re Jesusa V., supra, 32 Cal.4th at p. 599.)

The court did have discretion to order appellants production (Pen. Code,  2625, subd. (e)) which it appears from the record the court was willing to exercise in July. In August, when the hearing was again continued, the court reminded counsel that appellant could appear through his attorney and the attorney acquiesced. On this record, we find no abuse of discretion.

To the extent there was error related to the paternity inquiry and the form notice, we conclude any error was harmless. 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 Zacharia D., supra, 6 Cal.4th at p. 449, fn. 15.) Due process requires only that he be given notice and an opportunity to appear and assert a position as well as attempt to change his paternity status. He is not entitled to appointed counsel or to reunification services. (In re Kobe A. (2007) 146 Cal.App.4th 1113, 1120, citing  316.2, subd. (b) & In re Paul H. (2003) 111 Cal.App.4th 753, 760.)

Here, the record reveals appellant was aware of the dependency proceedings in March and began receiving formal notice of the proceedings in August. The court also appointed counsel to appear on his behalf and pursue the paternity issue. In addition, the court did order paternity testing which eventually established his status as the childs biological father.

Further, had appellant received the Judicial Council paternity notice form, he would not have been able to meet the statutory elements to be declared a presumed father under the Family Code (Fam. Code,  7611) and therefore be entitled to reunification services. He and the mother were not married nor did they attempt to marry. Although a court may also declare a man a presumed father if he receives the child into his home and openly holds out the child as his natural child (Fam. Code, 7611, subd. (d)), appellant, who was incarcerated for the majority of the proceedings, obviously did not receive Ezra into his home and thus could not qualify as Ezras presumed father. We also note, as did the superior court, even after appellant and his attorney received notice of the paternity test results and the agency assisted the two in making contact with each other, appellant made no effort to pursue the paternity issue by formally petitioning the court to litigate the issue.

Finally, even were we to assume for the sake of his argument that appellant was entitled to presumed father status, the court properly could have denied appellant reunification services given his incarcerated status and Ezras high-risk health status. ( 361.5, subd. (e).)^[5] Therefore, under all of these circumstances, even were we to apply a heightened standard of prejudice (cf. In re Kobe A., supra, 146 Cal.App.4th at p. 1123), we conclude the error in this case was harmless beyond a reasonable doubt.

II. ICWA

Relevant Procedural and Factual History

At its dispositional hearing in March 2006, the court found Ezra might be covered by ICWA. Initially, members of the mothers family reported Ezras maternal great-grandfather was Cherokee, if not a registered member, who had lived on a reservation when he was young. There was also possible Blackfeet and Apache ancestry on the mothers side of the family. As a result, the agency served ICWA notices on the Bureau of Indian Affairs (BIA), the Blackfeet Tribal Council, seven Apache tribal councils, and three Cherokee tribes. None of those Indian entities responded that Ezra was a member of or was eligible for membership in their tribe.

In March, as the agency received these negative responses, Ezras grandmother clarified that her father, grandfather and grandmother were all registered in the Chickasaw Village of the Blackfeet and Creek. Her great grandmothers were also Indian; one was purportedly Blackfeet and Creek.

At the dispositional hearing, the court had the benefit of expert witness evidence recommending Ezras removal from his mothers custody, as required under ICWA. In addition, based on Ezras precarious health, the court found that good cause existed to deviate from ICWA placement preferences and place him in a specialized foster home.

After the dispositional hearing, the agency sent new ICWA notices based on the additional information received. The agency once again served the BIA, the Blackfeet Tribal Council, six of the Apache tribal councils, two of the Cherokee tribes and the Chickasaw Nation. It failed to mention in its notice that Ezras great-grandfather purportedly lived on a reservation as a young child. Each of the Indian entities responded in writing that Ezra was not an Indian child for purposes of ICWA.

At the status review hearing in September 2006, the agency asked the court to find that ICWA did not apply to the proceedings. However, the court made no such finding. When appellant made his first appearance at the December 2006 permanency planning hearing, the court did not ask him if he had any Indian heritage nor did it make any findings pursuant to ICWA.

Contentions

Appellant contends the court erred when it failed to ask him if he had any Indian heritage. He also criticizes the agency for not serving all the federally-recognized Apache, Cherokee, and Creek tribes with notice and for omitting certain information, particularly that one of the mothers relatives had lived on a reservation. In addition, he argues the court erred by never specifically ruling that the agency served proper ICWA notice.

Analysis

We assume, for the sake of argument, that appellant, as Ezras biological father, has standing to raise these claims and they are timely under the circumstances of this case. We also note it is conceded the court erred when it failed to ask appellant at the December hearing whether he had any Indian heritage and thus remand is necessary.^[6] On remand, the court should instruct appellant to complete the Parental Notification of Indian Status (Jud. Council form, JV-130).

As for the Indian tribes that appellant claims should have received notice, we conclude we will also remand for notice to the Creek Indian tribes which did not previously receive notice. We reach this conclusion in light of the maternal grandmothers clarification in March and the specific information she provided that her heritage was Chickasaw, Blackfeet and Creek. Under these circumstances, we see no reasonable purpose served or need to have re-noticed any of the Apache or Cherokee tribes. The grandmother named a specific Chickasaw entity which, if it exists, is not federally-recognized. She nonetheless claimed Chicksaw, Blackfeet and Creek heritage.

We acknowledge our holding in In re Edward H. (2002) 100 Cal.App.4th 1, 4, that there is no ICWA violation when there is proper notice to some but not all possible tribes in which a dependent child may be eligible for membership provided the BIA also receives notice. Here, the agency served the BIA with notice each time. However, given the need to remand the matter for an ICWA inquiry of appellant, we also note a recent statutory change requiring notice to all tribes of which the child may be a member for eligible for membership. ( 224.2, subd. (a)(3); emphasis added.) Accordingly, we deem it appropriate on remand and to avoid any further claims of error that the court serve the four federally-recognized Creek Indian tribes which did not previously receive notice, namely, Kialegee Tribal Town of the Creek Indian Nation of Oklahoma, The Muscogee (Creek) Nation of Oklahoma, the Poarch Band of Creek Indians of Alabama and the Thlopthlocco Tribal Town of the Creek Nation of Oklahoma. (70 Fed. Reg. 13527.)

As to appellants remaining complaints, it appears the agency substantially complied in providing identifying information to the tribes. The agency in particular provided identifying information about the one relative whom the maternal grandmother was certain was a tribal member and none of the responding tribes requested more information about that individual. Finally, we are unaware of any legal requirement that a court make a specific finding of proper ICWA notice. Although a good practice may be to make such a finding, we will not fault the court in this regard.

DISPOSITION

The order terminating parental rights is reversed, subject to the following limited remand. The matter is remanded to the superior court with directions to promptly conduct an ICWA inquiry of appellant ( 224.3) and proceed accordingly as well as to assure that the agency gives ICWA notice to the Kialegee Tribal Town of the Creek Indian Nation of Oklahoma, The Muscogee (Creek) Nation of Oklahoma, the Poarch Band of Creek Indians of Alabama and the Thlopthlocco Tribal Town of the Creek Nation of Oklahoma. (25 U.S.C.  1913;  224.2.) With regard to notice to the four Creek Indian tribes, respondent shall document its efforts to provide such notice by filing such documentation and any and all responses received with the trial court. ( 224.2, subd. (c).) If any tribe responds by confirming that the child is or may be eligible for membership within 60 days of sending proper notice under ICWA (Cal. Rules of Court, rule 5.664(f)(6)), the court shall proceed pursuant to the terms of the ICWA and is hereby authorized to vacate, in whole or in part, any prior finding or order which is inconsistent with ICWA requirements. If there is no such confirmation within 60 days that the child is or may be eligible for Indian tribal membership, the court shall immediately reinstate the order terminating parental rights.

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^*Before Vartabedian, Acting P.J., Cornell, J., and Kane, J.

^[1] All statutory references are to the Welfare and Institutions Code unless otherwise indicated.

^[2] Appellant was in custody at the time.

^[3] There is no evidence in the record that Ezra has had any surgeries. At most, in late March and May, Ezra underwent out-patient endoscopy procedures to evaluate his breathing difficulties.

^[4] Section 316.2 requires the court to inquire of a childs mother at the earliest practicable stage as to the identity and address of all presumed or alleged fathers. If, after the courts 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. ( 316.2, subd. (b).)

^[5] Section 361.5, subdivision (e)(1) provides that if a parent is incarcerated, the court shall order reasonable services unless the court determines, by clear and convincing evidence, those services would be detrimental to the child. In determining detriment, the court shall consider the age of the child, the degree of parent-child bonding, the length of the sentence, the nature of the treatment, the nature of the crime or illness, the degree of detriment to the child if services are not offered and, for children 10 years of age or older, the childs attitude toward the implementation of family reunification services, and any other appropriate factors. Reunification services to an incarcerated parent remain subject to the six-month time limitation for a dependent child under the age of three, imposed in section 361.5, subdivision (a).

^[6] While appellant specifically claims the court violated section 224.3 which requires such an inquiry, we observe this statutory provision was not in effect at the time of the December 2006 proceedings. Section 224.3 and numerous other sections related to Californias implementation of ICWA took effect January 1, 2007. Nonetheless, caselaw and an existing rule of court support appellants position. (See In re J.M. (2006) 138 Cal.App.4th 450; Cal. Rules of Court, rule 5.664, formerly rule 1439.)