In re Haely B.

Filed 9/6/07 In re Haely B. CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

APPEAL from a judgment of the Superior Court of Stanislaus County. Nancy B. Williamsen, Commissioner.

Therese M. Foley, under appointment by the Court of Appeal, for Defendant and Appellant.

Michael H. Krausnick, County Counsel, and Carrie M. Stephens, Deputy Counsel Counsel, for Plaintiff and Respondent.

-ooOoo-

S.D. (appellant) appeals from an order placing Haely B.^[1]in the legal and physical custody of her father, Erik B. Appellant contends that proper notice was not given under the Indian Child Welfare Act (ICWA; 25 U.S.C.  1901 et seq.) and that the courts findings and orders must be reversed. She argues that, under the ICWA, the presence of an alleged and presumed father required the court to determine biological paternity. Respondent contends that appellants paternity argument was waived and, even so, ICWA compliance was not necessary because the Stanislaus County Community Services Agency (the Agency) and the court never considered termination of parental rights or adoption. Respondent further argues that failure to comply was harmless. We agree with respondent and affirm.

PROCEDURAL AND FACTUAL HISTORY

In September 2006, appellant gave birth to Haely. At Haelys birth, appellant tested positive for cocaine and marijuana, and Haely tested positive for cocaine. As a result of the positive tests, a child protective services referral was made and the Agency began an investigation.

The Agencys investigation revealed Haely was appellants second child who tested positive for controlled substances at birth. In 2003, appellant gave birth to Tristian D. who tested positive for amphetamine and was ultimately adjudged a dependent of the court. Appellant did not complete reunification services and Tristian was subsequently adopted. Appellant also had three older children known to the Agency after appellant utilized voluntary family preservation services. Their father now has custody of those three children in Kentucky.

The Agency conducted a risk assessment of Haely and learned that during appellants pregnancy she was convicted of possession of an illegal substance and ordered to participate in drug treatment. In July 2006, due to appellants failure to participate in drug treatment, her probation was violated.

At the hospital, appellant identified Erik B. as Haelys father.^[2] Erik was not identified on Haelys birth certificate, nor did he sign a voluntary declaration of paternity. At first, Erik was hesitant to acknowledge paternity and requested paternity testing, but after Haelys birth he expressed that he wished to be involved in Haelys life as her father. Erik told social workers that he was involved with appellant during a period of marital separation from his wife, Wendy B. Both Erik and Wendy expressed interest in having Haely placed with them. At the detention hearing, Erik objected to paternity testing.

On September 13, 2006, the Agency conducted a team decision-making meeting. Appellant, Erik, and social workers were present. At that meeting, a case plan emerged which outlined the filing of a Welfare and Institutions Code^[3]section 300 petition, placed Haely with Erik, and assisted appellant in entering a residential substance abuse treatment program.

The Agency filed a dependency petition seeking jurisdiction over Haely under section 300, subdivisions (b) and (j). The petition alleged that appellant failed to protect Haely and failed to provide regular care for her as a result of maternal substance abuse (id., subd. (b)) and that a substantial risk of harm arose out of the neglect of Tristian (id., subd. (j)). The petition further alleged that Erik did not have sole custody and was consequently unable to protect Haely from risks posed by appellants drug abuse.

On September 18, 2006, a detentional hearing was held. In a report prepared for the hearing, the Agency recommended that Haely be detained from appellant and released to the custody of Erik under Agency supervision. The Agency considered Erik the presumed father because he held Haely out to the community as his own and received her into his home. The court followed the Agencys recommendations and set a jurisdictional/dispositional hearing for October 11, 2006.

At the detentional hearing the court learned of Eriks possible Blackfeet Indian ancestry and appellants possible Cherokee Indian ancestry. The court consequently instructed the Agency to comply with notice provisions of the ICWA.

Also, at the detentional hearing, appellant requested an order for paternity testing, identifying Joey B. (Joseph) as another possible father. Appellant was unable to provide a way for the court to contact Joseph. She was able to provide information pertaining to the last time she saw him. The court declined to order paternity testing with no prejudice and invited appellant to present, with points and authorities, a motion for paternity testing. The court noted that without a way to contact Joseph or have knowledge of his whereabouts there was no reason to consider paternity testing.

In order to comply with ICWA, Judicial Council form JV‑135 (Notice of Involuntary Child Custody Proceedings for an Indian Child) was sent to the applicable tribes and to the Bureau of Indian Affairs (BIA). The form did not list Joseph as an alleged father but referenced Erik as the birth father and indicated that it was unknown if a birth father was named on the birth certificate. All applicable Indian Tribes received notice in excess of 10 days before the hearing, and the BIA received notice in excess of 15 days.

On October 11, 2006, the case was called and the court determined that proper notice was provided, including notice under the ICWA. Appellant again requested paternity testing and stated that Joseph was Haelys father. The court again denied paternity testing without prejudice, but identified Joseph as an alleged father and ordered proper service. The dependency petition was subsequently amended to include Joseph as an alleged father. At appellants request the matter was set for a contested jurisdiction and disposition hearing on November 3, 2006.

On November 1, 2006, the court heard a motion for continuance of the November 3 hearing. At that time, the court learned that Joseph had been located, was asking for counsel, and claimed possible Native American ancestry. The court continued the hearing until November 30, 2006, and directed the Agency to provide proper notice of the continued hearing, including the requisite notice under the ICWA.

Notices of the November 30, 2006, hearing were sent to the BIA and to the tribes to which appellant and Joseph had possible affiliations. In the section relating to Erik, the Agency reported that a letter from the Blackfeet Tribe indicated that the minor is not an Indian Child according to the [ICWA]. There is nothing in the record from the Blackfeet Tribe. The BIA received notice on November 14, 2006. The Eastern Band of Cherokee Indians received notice on November 21, 2006. The United Keetoowah Band of Cherokee received notice on November 16, 2006. The Cherokee Nation of Oklahoma received notice on November 15, 2006.^[4] The notice described Erik as the presumed father and Joseph as the other alleged father. The notice reported on only Eriks acknowledgement of paternity and represented that the Agency did not know if there had been a determination of Haelys paternity.

The social study report prepared for the dispositional hearing reported Haely was in the care of Erik and doing well in his home. The report noted appellants extensive history of substance abuse and recommended a sustained period of treatment before consideration of a return of custody. The Agency recommended Haely be adjudged a dependent of the court, removed from appellants custody and released to Erik, who should have sole legal and physical custody. The report evaluated Erik, noting he identified himself as Haelys father since her birth, acted in that capacity, and was committed to raising her.

On November 30, 2006, the juvenile court convened and determined that notice, including the ICWA notice, was proper. On the courts own motion, the matter was continued to December 18, 2006. Due to court congestion, the hearing was again rescheduled for December 22, 2006. The court invited the parties to submit briefs on the paternity issue; none were submitted.

The court heard and decided the contested jurisdictional/dispositional hearing on December 22, 2006. At the hearing, the court made no orders regarding whether the ICWA notice was proper or applicable to the proceedings. With respect to jurisdiction, the court found Haely was properly described by section 300, subdivisions (b) and (j).

In the dispositional phase of the hearing, both Joseph and appellant testified. Joseph testified that he believed he was the father of Haely. He also testified that although he had been in and out of custody, he was out of custody between the months of July 2006 and October 2006 and visited appellant in the hospital following Haelys birth. (RT 28-29)! He also testified he was presently incarcerated and would be released sometime in April or the beginning of May 2007. Joseph further claimed to have supported appellant somewhat during her pregnancy explaining somewhat as meaning whatever I could do.

Appellant testified that she was participating in a recovery treatment program the Agency referred her to. She said that she did not inform the Agency of all possible fathers earlier in the proceedings because she thought she was going to lose [her] baby. She also testified the Agency was aware of the paternity issue early on because at the team decision-making meeting, a social worker said if I let [Erik] take this baby home, I dont want DNA to be a question later. [He]ll be the presumed father, and I dont want to hear no more about it.

At the close of testimony, the court found Erik to be Haelys presumed father and that there was no evidence to find that Joseph was Haelys presumed father. The court explained that there was no indication in the record that demonstrated that Joseph had a desire to be a presumed father nor that he was a psychological father. The court declared Haely a dependent for the purposes of entering custody orders. It removed Haely from appellants custody, finding there would be a substantial danger to Haely if she were in appellants custody. The court granted Erik sole physical and legal custody and granted appellant regular, supervised visits conditioned on her sobriety. The court then dismissed the dependency and terminated jurisdiction.

On January 24, 2007, appellant filed a timely notice of appeal.

DISCUSSION

1. Any Violation of the ICWA Was Harmless

Appellant contends that we must reverse the courts custody order because the Agency did not comply with the notice provisions of the ICWA. According to her, the Agencys notices to the tribes had a number of defects, including that (1) notice should have been, but was not, sent to the tribes and the BIA for each of the five times the jurisdictional/dispositional hearings were continued, (2) copies of the first amended juvenile dependency petition were not provided with notice, (3) there was an inaccuracy in the notice descriptions of Joseph and Erik, and (4) the Agency did not serve a copy of the form JV‑135 notice on the Blackfeet Tribe in its November 13, 2006, mailing.

Respondent relies on In re Alexis H. (2005) 132 Cal.App.4th 11 (Alexis H.) and argues that we should not reverse because the notice provisions of the ICWA did not apply. We agree and find that the ICWA is inapplicable here, and that in any event, the Agencys failure to comply with the ICWA was harmless error. (Alexis H., supra, 132 Cal.App.4th at p. 14.)

The ICWA is meant to protect the interests of Native American children and promote the security of Native Americantribes and families by establishing certain minimum standards in juvenile dependency actions. (25 U.S.C.  1901(3); In re Kahlen W. (1991) 233 Cal.App.3d 1414, 1421.) To ensure compliance with the ICWA notice requirements, an agency that seeks foster care placement or the termination of parental rights to a child who may be eligible for Indian child status must complete and serve notice pursuant to the terms of 25 United States Code section 1912(a). (In re H.A. (2002) 103 Cal.App.4th 1206, 1215.) By its own terms, ICWA notice is only required where authorities seek foster care or termination of parental rights, it does not require notice anytime a child of possible or actual Native American descent is involved in a dependency proceeding. (Alexis H., supra, 132 Cal.App.4th at p. 14.)

In Alexis H., the childrens father appealed the courts finding of dependency jurisdiction and the placement of his children with their mother. The father claimed Native American ancestry, and notice of the proceedings was sent to the tribes and the BIA. (Alexis H., supra, 132 Cal.App.4th at p. 13.) The father contended, and the Department of Children and Family Services conceded, that the notices contained defects. The court determined that although notice may have been inadequate, failure to comply fully with the ICWA was harmless error. (Alexis H.,at p. 14.) The court reasoned that notice provisions were only triggered when the purpose of the ICWA was implicated, and to apply the ICWA when children were not moved to another family would frustrate the purpose of the ICWA. (Alexis H.,at p. 15.) The Alexis court found that the notice provisions limited scope coincided with the ICWAs purpose of preserving Native American culture. The best interests of Native American children are protected by setting standards for the removal of Indian children from their families and the placement of such children in foster or adoptive homes which will reflect the unique values of Indian culture. (25 U.S.C.  1902.) Yet, as here, if the child is not moved to another family, then the purpose does not come into play. (Alexis H., supra, at p. 15.)

Even if the ICWA applied to the proceedings, any defect in the notice was harmless error. As in Alexis H., the Agency here never pursued foster care or termination of parental rights. Rather, Haely was with Erik from the beginning. The purpose of the ICWA is to protect the interest of Native American families and children, and, the proceedings did not consider placing Haely with a foster family, nor were parental rights terminated. The court awarded sole physical and legal custody to Erik but did not foreclose shared custody at a future date. Consequently, any error in notice was harmless.

As in Alexis H., the facts here should be distinguished from those in In re Jennifer A. (2002) 103 Cal.App.4th 692 (Jennifer A.). (Alexis H., supra, 132 Cal.App.4th at p. 15.) The Court of Appeal in Jennifer A. reversed the juvenile courts custody order, finding that failure to provide notice pursuant to the ICWA was not harmless error even though the child did not end up in foster care or with termination of parental rights. (Jennifer A., supra, at p. 697.) In Jennifer A., the child was removed from her mothers custody and placed in an emergency shelter. (Id. at p. 698.) Jennifers unmarried parents told authorities of their Native American heritage but proper notice was not provided. (Ibid.) Child welfare authorities recommended foster care but the court placed Jennifer with her father. (Ibid.) The court found that the recommendation for foster care and Jennifers residency in foster care placed the issue squarely before the juvenile court, and therefore the ICWA procedures should have been followed. (Id.at p. 700.) Here, unlike in Jennifer A., Haely was never placed in foster care and the Agency never recommended foster care or termination of parental rights, and thus the issue of possible foster care placement was not squarely before the juvenile court. (Ibid.)

Any violation of the ICWA notice provisions was harmless error. In consideration of the purposes of the ICWA, failure to provide proper notice in the manner claimed by appellant was harmless because the purposes of the ICWA were not implicated.

2. There Are No Legal Questions as to Haelys Paternity

Appellant challenges Eriks status as presumed father throughout her opening and reply briefs. Appellant specifically argues that there was uncertain description of Haelys paternity status on the form JV‑135 notices and that the court had a legal duty to inquire into the biological paternity to provide proper ICWA notice. The Agency responds that the issue was waived because it should have been raised below, and there is no authority for the proposition that the court should have done more to determine biological paternity.

A. Since the ICWA Does Not Apply, Appellants Challenge to the Courts Paternity Findings Is Moot

Appellant concedes that the issue of paternity was waived unless the ICWA mandated the court to determine biological paternity to provide proper service.

As discussed ante, the requirements of the ICWA were not triggered because the circumstances of the case did not implicate either foster care placement or the termination of parental rights. (Alexis H., supra, 132 Cal.App.4th at p. 14.) Neither the Agency nor the court recommended, ordered, or contemplated placing Haely in foster care or terminating appellants parental rights; thus the requirements of the ICWA were not triggered. Because the ICWA was not triggered, the issue is moot.

B. Appellant Failed to Provide Authority for Her Arguments, Waiving the Paternity Issue

Appellant also argues that the ICWA requires that the juvenile court definitely determine biological paternity in order to satisfy the mandates of the ICWA. Appellant cites no case authority for her proposition; rather, she cites statutes and rules of court that do not indicate any requirement of a juvenile court to determine biological paternity in ICWA cases.

Because no authority is cited, this court can properly treat the issues as waived and is not required to consider them on appeal. (In re Daniel M. (2003) 110 Cal.App.4th 703, 708, citing Interinsurance Exchange v. Collins (1994) 30 Cal.App.4th 1445, 1448.)

C. The ICWA Does Not Impose a Heightened Requirement for Paternity Findings

Even if the paternity issue was not waived, either because of the inapplicability of the ICWA or because of appellants failure to present this court with legal authorities, the ICWA does not impose a heightened requirement for paternity findings. 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).) Under the ICWA, a parent does not include the unwed father where paternity has not been acknowledged or established. (Ibid.; see also Cal. Rules of Court, rule 5.664(a)(4) [Parent of an Indian child does not include an unwed alleged father where paternity has not been determined or acknowledged].) An unwed father who has not acknowledged or established paternity is excluded from the ICWA definition of parent. (25 U.S.C.  1903(9).) The ICWA does not provide a standard for the acknowledgement or establishment of paternity, therefore California courts have resolved the issue under state law. (In re Daniel M., supra, 110 Cal.App.4th at p. 708.) In California, an alleged father can establish or acknowledge 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). (In re Daniel M.,at pp. 708-709, fn. omitted.)

The California Supreme Court has emphasized the public policy concerns that govern distinctions between presumed and alleged fathers. (In re Nicholas H. (2002) 28 Cal.4th 56, 64.) Paternity presumptions are driven by state interest in preserving the integrity of the family and legitimate concern for the welfare of the child. (Id. at p. 65.) The court has further recognized that an extant father-child relationship can be preserved at the cost of biological ties. (Ibid., citing Michelle W. v. Ronald W. (1985) 39 Cal.3d 354, 363.) In Susan H. v. Jack S. (1994) 30 Cal.App.4th 1435, the court explained that the social relationship that arises from [a] man who has lived with a child, treating it as his son or daughter, has developed a relationship with the child that should not be lightly dissolved, and the social relationship is much more important than a biological relationship. (Id. at p. 1443.)

Appellant manufactured an issue as to the paternity of Haely. At the detentional hearing the court declined to order paternity testing on Joseph, without prejudice, asking for points and authorities and noting that the court did not have a way to contact Joseph while Erik had come forward willing to treat this child as his child. At a jurisdictional/dispositional hearing in October 2006, Joseph was named as an alleged father. The court also identified Erik as the presumed father since he held the child out as his own. Appellant again requested paternity testing for Joseph and the court again denied the request without prejudice. Throughout the proceedings, Joseph was an alleged father, never rising to the level of presumed father. Joseph never took any of the necessary steps to becoming a presumed father, nor did he ever request paternity testing.^[5] Appellant erroneously states that [a]s the situation stood, both [Erik and Joseph] were unwed fathers acknowledging paternity of the same child. Applying state law, since the ICWA does not provide a standard for acknowledging paternity, Joseph did not sign a declaration of paternity nor have blood tests and, therefore, had not legally acknowledged paternity. There is no ICWA requirement to definitely determine biological paternity when there is one presumed father. Further, looking to state law, public policy concerns emphasize preservation of the integrity of the family and the welfare of the child. (In re Nicholas, supra, 28 Cal.4th at p. 64.) Here, as the court noted, Haely was placed with Erik soon after her birth, and Erik had come forward willing to treat this child as his child. Joseph did not appear in any proceedings until the December 18 hearing, he never made a request for paternity, and the record does not indicate any social relationship between Haely and Joseph.

D. Appellant Has Failed to Demonstrate Prejudicial Error

Even if the ICWA did apply and proper notice under the ICWA required a biological paternity finding, appellant has not adequately demonstrated prejudice, which is required to support the appeal. Appellants cannot urge errors which affect only another party who does not appeal. (In re Sarah M. (1991) 233 Cal.App.3d 1486, 1503, citing Nichols v. Nichols (1933) 135 Cal.App. 488, 491.) In Sarah M., the Court of Appeal held that a mother did not have standing to challenge an order directed at solely the father. (Sarah M., supra, at p. 1503.)

Here, appellant was not injured by the courts failure to determine biological paternity. Although Joseph may have been able to argue prejudice, appellant has presented no arguments that finding Joseph the biological father would have affected the courts findings as they relate to her. Consequently, even if the ICWA obligated the juvenile court to make a biological paternity finding, the failure to do so does not prejudice appellant.

DISPOSITION

The juvenile courts findings and orders are affirmed.

DAWSON, Acting P.J.

WE CONCUR:

_______________________________

HILL, J.

_______________________________

KANE, J.

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^[1]The minors name is spelled various ways in the record. This is the spelling provided in the initial Penal Code section 11166 report as well as provided by the presumed father at the detention hearing.

^[2]Both of the fathers involved in this proceeding have last names beginning with B. Haelys last name is the same as that of Erik B.

^[3]All further statutory references are to the Welfare and Institutions Code unless otherwise stated.

^[4]There were two sets of form JV‑135 sent to the tribes for the November 30, 2006, hearing. One had the incorrect time, the First Amended Notice had the correct time.

^[5]At the December 22 hearing, counsel for the Agency said that Joseph had requested DNA testing but the record does not reflect such a request.