In re Victor G.

Filed 10/18/07 In re Victor G. CA2/5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION FIVE

APPEAL from an order of the Superior Court of Los Angeles County, Anthony Trendacosta, Commissioner. (Pursuant to Cal. Const., art. VI, 21.) Affirmed in part, reversed in part, and remanded with instructions.

Judy Weissberg-Ortiz, under appointment by the Court of Appeal, for Appellant.

Raymond G. Fortner, Jr., County Counsel, James M. Owens, Assistant County Counsel, Aileen Wong, Senior Associate County Counsel, for Respondent.

Victor G., Jr. (father) appeals from the juvenile courts order pursuant to Welfare and Institutions Code section 366.26[1]terminating his parental rights in Victor G. III (Victor) and Steven G. (together, the children). Father contends that he was improperly denied visitation rights and was thereby prevented from establishing that he maintained regular visitation and contact with the child and the child would benefit from continuing the relationship, pursuant to section 366.26, subd. (c)(1)(A). Father also contends that the juvenile court failed to comply with the inquiry requirements of the Indian Child Welfare Act (25 U.S.C. 1902 et seq.) (ICWA). We conclude that father forfeited the visitation issue by failing to raise it in the juvenile court. We further conclude that the juvenile court erred by failing to comply with its duty of inquiry under ICWA with respect to Victor, but that father lacks standing to assert the error with respect to Steven. We therefore affirm the order terminating fathers parental rights as to Steven, but reverse the order as to Victor and remand for the limited purpose of permitting the juvenile court to inquire of father whether Victor is or may be an Indian child and if so, to comply with ICWA.

BACKGROUND

From December 3, 2003 through May 4, 2004, the children were the subject of child welfare services that were initiated when father, a member of the Pico Vieja street gang in Pico Rivero, was arrested for attempted murder. Father was subsequently convicted of three counts of attempted premeditated murder and sentenced to life imprisonment.

When this case commenced on April 21, 2005, Victor was two years old and Steven was one year old. They had been living with their paternal great aunt since September 2004. The Los Angeles Department of Children & Family Services (DCFS) received an anonymous allegation that the children had been neglected and abandoned by their mother, Mari R. (mother), and that mother was incapacitated due to narcotics abuse. DCFS investigated the report and removed the children from their home. DCFS filed a petition pursuant to section 300 alleging that father had a violent criminal history and was incarcerated, serving a life sentence; that mother had a history of substance abuse and was a frequent user of methamphetamine; that, in September 2004, the children had been exposed to a detrimental home environment because their parents had left weapons and illicit drugs in places accessible to the children; and that prior DCFS intervention had failed to resolve the familys problems.

The juvenile court held a detention hearing on April 26, 2005. Father was incarcerated at High Desert State Prison in Susanville, California, and was not present. Paternal great grandmother was present, however. The juvenile court appointed counsel for father. The juvenile court asked paternal great grandmother if there was Indian heritage on fathers side. Paternal great grandmother responded, No. The juvenile court found that father was the presumed father of Victor and the alleged father of Steven. The juvenile court ordered the children detained, and set the matter for a pretrial resolution conference (PRC).

On June 7, 2005, DCFS filed an amended petition, adding allegations that father and mother had engaged in episodes of domestic violence and that father had a history of substance abuse. The juvenile court held the PRC on June 9. Father appeared in custody. Both parents waived their trial rights. The juvenile court sustained the allegations in the first amended petition that mother was incapacitated due to her drug abuse and that father had a violent criminal history and was incarcerated serving a life term. The juvenile court declared the children dependents of the juvenile court. The juvenile court granted reunification services to mother, but denied reunification services to father on the ground that father had been convicted of a violent felony. The court also found that, due to the length of fathers sentence, reunification services would be detrimental to the children. ( 361.5, subds. (b)(12) & (e)(1); Pen. Code, 667.5, subd. (c).) The juvenile court did not ask father whether he had Indian heritage. Father requested and the juvenile court ordered DCFS to arrange, if possible, visitation for father prior to his return to prison.

The juvenile court held the six-month review hearing on January 5, 2006. Father appeared in custody. The juvenile court made no change to its orders then in effect. Father again requested and the juvenile court again ordered DCFS to arrange, if possible, visitation for father prior to his return to prison.

Father appeared at the continued six-month review hearing on February 7, 2006. The juvenile court retained jurisdiction over the children, but transferred the matter to San Bernardino County because it appeared that mother had moved there. The matter was transferred back to Los Angeles County when mothers residence in San Bernardino County could not be verified.

The juvenile court held a twelve-month review hearing on August 22, 2006. Father appeared in custody. The juvenile court found that mother was only in partial compliance with the case plan, but adopted the recommendation by DCFS to continue reunification services through October 26, 2006. The court permitted father a monitored after-court visit with the children.

On October 26, 2006, the juvenile court held a permanency review hearing. Father appeared in custody. Fathers attorney reported that apparently [fathers] conviction was overturned on appeal, and requested that, if [father] does get out [of prison], the worker arrange visitation for him. The juvenile court found that mother was not in compliance with the case plan, terminated reunification services, and set a section 366.26 hearing for February 22, 2007. The juvenile court told father, Sir, if you are released, you are to contact the social worker. Advise the social worker of where you are going to be residing . . . so that the social worker can set up visits.

Father was present in custody at the February 22, 2007 hearing. Fathers attorney reported that fathers aunt had shown him a letter from fathers criminal defense attorney stating that fathers convictions had been reversed and his case remanded for a new trial. The retrial was scheduled for March, fathers attorney stated, [s]o he may be available for placement by April . . . . The juvenile court nevertheless identified adoption as the permanent plan for the children, and continued the matter for a completed home study.

Father, still in custody, attended the continued section 366.26 hearing on April 26, 2007. The attorney for the children reported that the children were doing well, and asked the court to terminate parental rights and identify the childrens caretakers, Mr. and Mrs. S., as the childrens prospective adoptive parents. Counsel for father objected to the termination of fathers parental rights, stating, Unfortunately, the father has been in custody for the last two-and-a-half years and has not been able to have frequent visits with Victor and Steven. He was hoping that his aunt Betty [G.] would be able to be a viable placement option at this point. Because the children are in a pre-adoptive home, the father does understand that his that that is probably not going to be a viable placement option. And of course, he would he does regret not being able to have as much of a relationship with his children as he would like, and he objects. The juvenile court acknowledged fathers objection, but found that it would be detrimental to the children to return them to their parents, and that the children were adoptable. The juvenile court therefore terminated fathers parental rights. Father timely appealed.

DISCUSSION

A. Father Forfeited His Contention That He Was Improperly Denied Visitation With the Children

The juvenile court denied father reunification services based, among other things, on its finding pursuant to section 361.5, subdivision (e)(1) that reunification services would be detrimental to the children. Father does not challenge that finding on appeal. The denial of reunification services pursuant to section 361.5, subdivision (e)(1) shall constitute a sufficient basis for termination of parental rights unless the court finds a compelling reason for determining that termination would be detrimental to the child due to one or more of the following circumstances: [] (A) The parents have maintained regular visitation and contact with the child and the child would benefit from continuing the relationship. ( 366.26, subd. (c)(1)(A); see also In re Celine R. (2003) 31 Cal.4th 45, 52-54).) Father argues that his due process rights were violated because he was denied visitation with the children, and thus was unable to establish that he had maintained regular visitation and contact with the children, pursuant to section 366.26(c)(1)(A).

Father forfeited this argument by failing to raise it in the juvenile court.[2] (In re S.B. (2004) 32 Cal.4th 1287, 1293.) Father was represented by counsel at every hearing since the inception of these proceedings. He personally attended the hearings on June 9, 2005; January 6, February 7, August 22, and October 26, 2006; and February 22, 2007. At none of these hearings did father complain that he had been denied visitation with the children. To the contrary, the juvenile court consistently ordered DCFS to provide visitation, if possible, while father was in local custody. There is no indication in the record, and father never claimed, that DCFS failed to comply with the juvenile courts orders.

Father also did not claim that he improperly was denied visitation at the section 366.26 hearing on April 26, 2007. Fathers attorney expressed fathers regret that he had been in custody for the last two-and-a-half years and has not been able to have frequent visits with Victor and Steven. Fathers attorney did not contend, however, that fathers statutory or constitutional rights had been violated by either DCFS or the juvenile court. Father did not seek writ review of the juvenile courts order denying him reunification services, nor did father seek to change or modify that order on the ground of changed circumstances, pursuant to section 388, when his attempted murder convictions were reversed on appeal. Father thus forfeited any contention that he improperly was denied visitation with the children. Father concedes that his only defense to termination of his parental rights is the section 366.26, subdivision (C)(1)(A) exception for termination of parental rights when [t]he parents . . . have maintained regular visitation and contact with the child and the child would benefit from continuing the relationship. Accordingly, father presents no valid challenge to the order terminating parental rights.

Even if father had not forfeited the issue, however, we perceive no error. First, father contends that, despite the juvenile courts orders granting Father monitored visits throughout these dependency proceedings, DCFS failed to take any steps to assist Father in obtaining his court-ordered visits with his sons while Father was incarcerated. That contention is not supported by the record. The transcript of oral proceedings shows that the juvenile court never ordered DCFS to facilitate visitation for father while father was in state prison, nor did father request such visitation. Father requested visitation only while he was in local custody for his appearances in the juvenile court in these proceedings. Each time father requested such visitation, the juvenile court instructed DCFS to arrange it, if possible, prior to fathers return to prison. There is no indication in the record and father never asserted that DCFS failed to carry out the juvenile courts instruction. (See In re Moriah T. (1994) 23 Cal.App.4th 1367, 1377 [if the agency is abusing its responsibility in managing the details of visitation, the parent or guardian may bring that matter to the attention of the juvenile court by way of a section 388 petition to modify the visitation order].)

Further, contrary to fathers contention, section 366.22, subdivision (a) did not require the juvenile court to afford father visitation while he was in prison. That section did not apply to father. The visitation requirement of that section[3]applies to parents who are provided reunification services, but whose reunification services are terminated after a permanency review hearing. ( 366.22, subd. (a); 366.21 subd. (g)(1).) As noted above, the juvenile court denied reunification services to father pursuant to section 361.5, subdivisions (b)(12) and (e)(1). Fathers right to visitation was therefore governed by section 361.5, subdivision (f). That section provides in relevant part, If the court, pursuant to paragraph . . . (12) . . . of subdivision (b) or paragraph (1) of subdivision (e), does not order reunification services, . . .[t]he court may continue to permit the parent to visit the child unless it finds that visitation would be detrimental to the child. ( 361.5, subd. (f), italics added.) [V]isitation is not integral to the overall plan when the parent is not participating in the reunification efforts. This reality is reflected in the permissive language of section 361.5, subdivision (f). (In re J.N. (2006) 138 Cal.App.4th 450, 458-459; see In re Jeanette R. (1989) 212 Cal.App.3d 1338, 1341-1342 [provision that juvenile court may provide reunification services is permissive and does not require juvenile court to provide reunification services].) Accordingly, the juvenile court had discretion to permit visitation to father, but was required to prohibit visitation if visitation would be detrimental to the children. The juvenile court exercised that discretion by ordering DCFS to arrange visitation for father while father was in local custody. Nothing in section 361.5, subdivision (f) required the juvenile court to order visitation for father while father was incarcerated in state prison, particularly when father never requested such visitation.[4] Fathers challenge to the order terminating his parental rights on the ground that he was denied visitation thus fails.

B. Violation of ICWA Duty to Inquire

Father contends that the juvenile court and DCFS failed to fulfill their duty under ICWA to inquire whether father has Indian heritage. (Section 224.3; Cal. Rules of Court, rule 5.664(d).)[5] DCFS does not dispute that contention, but argues that father lacks standing to assert a violation of ICWA with respect to Steven.

We agree that father lacks standing to assert a violation of ICWA with respect to Steven. Rule 5.664(n) provides, in relevant part, [T]he Indian child, a parent, an Indian custodian, or the childs tribe may petition any court of competent jurisdiction to invalidate a foster placement or termination of parental rights. (See also 25 U.S.C.  1914 [Any Indian child  . . . , any parent or Indian custodian from whose custody such child was removed, and the Indian childs tribe may petition any court of competent jurisdiction to invalidate such action upon a showing that such action violated any provision of sections 1911, 1912, and 1913].) Accordingly, only the dependent child, a parent or Indian custodian from whose custody the child was removed, and the Indian childs tribe have standing to challenge the juvenile courts compliance with the notice and inquiry provisions of ICWA. (In re Daniel M. (2003) 110 Cal.App.4th 703, 707-08.)

The juvenile court found father to be Stevens alleged father. An alleged father, however, is not a parent as that term is used in ICWA. Rule 5.664(a)(4) defines parent to include the biological parent of an Indian child, but expressly excludes an unwed alleged father where paternity has not been determined or acknowledged. (See also 25 U.S.C. 1903, subd. (9) [parent means any biological parent . . . or any Indian person who has lawfully adopted an Indian child . . . .  It does not include the unwed father where paternity has not been acknowledged or established].) Because an alleged father is not a parent within the meaning of rule 5.664(n) or 25 U.S.C. 1914, father lacks standing to appeal a violation of ICWAs notice and inquiry provisions with respect to Steven. (In re Daniel M., supra, 110 Cal.App.4th at pp. 707-708.) As Victors presumed father, however, father has standing to assert a violation of ICWA with respect to Victor.

Section 224.3 and rule 5.664(d) impose upon both DCFS and the juvenile court a continuing duty to inquire whether a child in dependency proceedings may be an Indian child under ICWA. (In re J.N., supra, 138 Cal.App.4th at p. 461.) Although the juvenile court in this case inquired of paternal great grandmother whether father had Indian heritage, there is no indication in the record that either the juvenile court or DCFS ever inquired of father, nor does the record contain fathers completed Parental Notification of Indian Status (Juvenile Court) (form JV-130), as required by rule 5.664(d)(3). DCFS does not dispute that the juvenile court erred, nor does DCFS argue that the error was harmless. Accordingly, we must reverse the order terminating fathers parental rights in Victor, and remand for the limited purpose of permitting the juvenile court to inquire as to fathers Indian heritage. (In re J.N., supra, 138 Cal.App.4th at p. 461.)

DISPOSITION

The order terminating fathers parental rights with respect to Steven is affirmed. The order terminating fathers parental rights with respect to Victor is reversed. The matter is remanded to the juvenile court for the limited purpose of inquiring of father whether Victor is or may be an Indian child. If the inquiry produces evidence that Victor is or may be an Indian child, then the juvenile court shall direct DCFS to give notice of the underlying proceedings in compliance with ICWA to the Bureau of Indian Affairs (BIA) and any identified tribes. (25 U.S.C. 1912; rule 5.664(f).) DCFS shall document its efforts to provide such notice by filing such notices and any and all responses received with the juvenile court. If the BIA or any tribe responds by confirming that Victor is or may be eligible for Indian tribal membership, the juvenile court shall proceed pursuant to ICWA. If the inquiry of father produces no evidence that Victor is or may be

an Indian child, or there is no confirmation from the BIA or any tribe that Victor is or may be eligible for Indian tribal membership, the juvenile court shall reinstate the order terminating fathers parental rights as to Victor, and may proceed accordingly.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

MOSK, J.

We concur:

ARMSTRONG, Acting P. J.

KRIEGLER, J.

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

[2] DCFS contends that, because father was Stevens alleged father, father lacks standing to assert the visitation issue with respect to Steven. Because we conclude father forfeited the visitation issue, we need not address fathers standing.

[3] Section 366.22, subdivision (a) provides in pertinent part, If the child is not returned to a parent or legal guardian at the permanency review hearing, the court shall order that a hearing be held pursuant to Section 366.26 . . . . The court shall also order termination of reunification services to the parent or legal guardian. The court shall continue to permit the parent or legal guardian to visit the child unless it finds that visitation would be detrimental to the child.

[4] An incarcerated parent is not always entitled to visitation even when, unlike fathers case, reunification services are provided. Pursuant to section 361.5, subdivision (e)(1)(B), reunification services for an incarcerated parent may include . . . [] . . . visitation, where appropriate. (Italics added.) (See In re Cicely L. (1994) 28 Cal.App.4th 1697, 1702.)

[5] All rule references are to the California Rules of Court. These proceedings commenced in April 2005; the juvenile courts order terminating parental rights was entered in April 2007. While the proceedings were pending, former rule 1439 was renumbered to rule 5.664. The text of the rule has not changed in any material respect. For ease of reference, we refer to the rule as rule 5.664.