Filed 11/16/17 R.J. v. Superior Court CA1/3
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIRST APPELLATE DISTRICT

DIVISION THREE


R.J.,
Petitioner,
v.
THE SUPERIOR COURT OF THE CITY AND COUNTY OF SAN FRANCISCO,
Respondent;
SAN FRANCISCO HUMAN SERVICES AGENCY,
Real Party in Interest.

A152095

(San Francisco City & County
Super. Ct. No. JD17-3116)


Petitioner R.J. (Father) is the natural father of A.J., born in April 2017. He challenges the juvenile court’s decision to deny him reunification services and to set a November 30, 2017 hearing, pursuant to Welfare and Institutions Code section 366.26, to consider a permanent plan for her. Father contends the juvenile court (1) abused its discretion when it denied him reunification services because it employed a standard that considered whether he and the child would benefit from those services, and (2) violated the Indian Child Welfare Act of 1978 (ICWA; 25 U.S.C. § 1901 et seq.) notice provisions. For the reasons stated, we deny the petition.
FACTUAL AND PROCEDURAL BACKGROUND
The detention report filed by the San Francisco Human Services Agency (Agency) on May 9, 2017, states that A.J. was born prematurely at 32 weeks’ gestation. Her mother (Mother) had no prenatal care, regularly used heroin and methadone during her pregnancy, and refused a toxicology screen. A.J. weighed just over three pounds at birth, and suffered from neonatal abstinence syndrome. When she was eight days old she was in an incubator with worsening symptoms of withdrawal. Mother identified Father as the baby’s father, and stated he was incarcerated. She did not know the reason for his incarceration or his anticipated release date. The Agency located him in San Francisco County Jail, and he was informed of the detention hearing.
On May 9, the Agency also filed a petition with charging allegations against Father alleging that A.J. came within section 300, subdivisions (b)(1), (g), and (j). The subdivision (b)(1) allegations stated that A.J. suffered or is at substantial risk of suffering serious physical harm or illness due to Father’s failure or inability to supervise and protect her adequately because of Father’s criminal history, including his incarceration at that time and Father’s substance abuse disorder which required assessment and treatment. The subdivision (g) allegations stated that A.J. was left without any provision for support due to Father’s incarceration and that Father was unable to arrange for A.J.’s care. The subdivision (j) allegations stated that A.J. had been abused or neglected and was at substantial risk of abuse or neglect. They also alleged that she has two paternal half siblings, one of whom was adjudicated a ward of the court for having broken the law and the other a dependent of the court in reunification with his mother.
On May 10, 2017, the juvenile court detained A.J. and appointed counsel for Father. On May 24, a paternity test was ordered at Father’s request.
In its disposition report, filed June 2, 2017, the Agency recommended that both of A.J.’s parents be denied reunification services. The Agency had arranged for paternity testing, but it had not yet occurred. The report noted that Father was not present at A.J.’s birth, was not married to Mother, and had no previous contact with the child. When she was released from the hospital, A.J. was placed in a foster home. At that time, she had no medical conditions of concern.
The report stated that Father suffered a motorcycle accident when he was 13 years old and received Supplemental Security Income due to his injuries. The report noted Father’s “many arrests and convictions for drug (possession and sales), domestic violence, battery and other crimes, often having a firearm involved.” Father was also the subject of two active restraining orders, one of which protected A.J. and Mother. In an interview with the social worker, Father stated that he had spent a lot of his life incarcerated due to his poor choices. He admitted to a history of substance abuse (heroin) and homelessness, but denied any mental health issues.
Father also has two older children who have been involved with child protective services for many years. One of those children, born in 2001, had been adjudged a ward of the juvenile court and was on probation; the other child, born in 2003, was also placed on probation but was not adjudged a ward of the court. Father was in jail at the time of the report, facing charges for discharge of a firearm with gross negligence, unlawful possession for sale of a controlled substance, and two counts of possession of a firearm by a felon.
Based on the open child protective services cases with Father’s older children, his current incarceration, the fact that he never met A.J., and his long and violent criminal history, the Agency recommended that he not be provided reunification services. In light of A.J.’s very young age, the Agency recommended adoption as the long-term plan.
On June 8, 2017, Father submitted a “Parental Notification of Indian Status” form, stating that his maternal grandmother was Indian, but he did not know her tribe. In light of this information, on June 22, 2017, the juvenile court sent a “Notice of Child Custody Proceeding for Indian Child” to the Seminole Tribe of Florida, the Seminole Nation of Oklahoma, and the Bureau of Indian Affairs (BIA).
On July 7, 2017, the Agency submitted an addendum report confirming that Father is A.J.’s biological father, and the court elevated his status to natural father the following week. Father was still incarcerated at the time and did not anticipate being released in the near future. The Agency maintained its recommendation that reunification services not be provided to Father because he had not established presumed father status. A.J. was doing well in her foster home and the Agency was working with her maternal aunt for permanent placement.
At the August 2, 2017 disposition hearing, the only witnesses were two child welfare workers called by the Agency. Child Welfare Worker Debra Culwell testified on direct examination that Father had not contacted her to arrange reunification services, and she did not believe any facts supported offering him such services. On cross-examination, she stated that both parents denied there had been any domestic violence between them, and they were unable to explain the existence of the restraining order. She only met with Father once, but communicated with him via a community works liaison. She also confirmed that Father’s elevated status to biological father did not alter her recommendation to deny him reunification services. She recognized that Father would not be homeless if he were to enter a treatment program when released from jail.
Counsel reported that the “Seminole Nation” had replied to the notice of proceedings that A.J. was not eligible to be a member of the tribe. However, the BIA had not yet responded and the 60-day period for its response had not yet run. Thus, the juvenile court was unable to make a finding at the hearing regarding the applicability of the ICWA, and agreed that the ICWA eligibility would remain an open issue.
The Agency conceded at the hearing that since he was recognized as A.J.’s biological father, the juvenile court had discretion to offer Father services. But it was Father’s burden to demonstrate it was in A.J.’s best interest for the court to exercise its discretion to do so. Because Father had presented no such evidence, the Agency argued the court did not have that discretion in this case. Minor’s counsel agreed with the Agency’s recommendation that services not be provided to Father.
The juvenile court sustained the amended petition on the basis that A.J. came within section 300, subdivisions (b), (g), and (j). The court also found that there was no evidence that it would be in A.J.’s best interest to provide services to Father or that he was participating in any services or programs while in jail. The juvenile court set a hearing for November 30, 2017, to consider a permanent plan for A.J. under section 366.26. However, the juvenile court stayed its findings pending a hearing regarding ICWA status that was to be held on September 6. The next day, Father filed his notice of intent to file writ petition in the juvenile court.
The day after Father’s petition was filed in this court, the juvenile court found that proper ICWA notice had been given and that the ICWA did not apply.
DISCUSSION
I. The Juvenile Court Did Not Abuse Its Discretion When It Denied Father Reunification Services.
“In dependency proceedings, fathers are divided into four categories: de facto fathers, alleged fathers, natural fathers and presumed fathers. A man, such as a stepfather, who has assumed the role of parent, is a ‘de facto father.’ A man who may be the father of the dependent child but has not been established to be the natural or presumed father is an ‘alleged father.’ A man who has been established to be the biological father is a ‘natural father.’ A man who has held the child out as his own and received the child into his home is a ‘presumed father.’ A ‘natural father’ can be, but is not necessarily, a ‘presumed father’ and a ‘presumed father’ can be, but is not necessarily, a ‘natural father.’ [¶] Presumed father status ranks highest. Only a ‘statutorily presumed father’ is entitled to reunification services under Welfare and Institutions Code section 361.5, subdivision (a) and custody of his child under Welfare and Institutions Code section 361.2.” (In re Jerry P. (2002) 95 Cal.App.4th 793, 801, fns. omitted.)
“[T]he juvenile court may order services for the child and the biological father, if the court determines that the services will benefit the child.” (§ 361.5, subd. (a).) With respect to biological or “natural” fathers, whether to order reunification services “is left to the discretion of the juvenile court and its determination of the benefit to the child of providing services.” (Francisco G. v. Superior Court (2001) 91 Cal.App.4th 586, 597.) We will not disturb a lower court’s discretionary ruling unless it is arbitrary, capricious, or absurd. (In re K.D. (2004) 124 Cal.App.4th 1013, 1018.)
Father contends the juvenile court applied an incorrect legal standard when it decided to deny him reunification services because it found that providing reunification services was not “in [Father’s] or the minor’s best interest.” By articulating the factors affecting its decision in this way, the court may have misstated the standard guiding its discretion. But it implicitly applied the correct criteria when it stated its decision in open court. The court declined to require the Agency to provide reunification services to either parent saying, “The Court is not—is finding that services would not be in the best interest of the child for either parent at this time.” (Italics added.)
Moreover, other than a signed “Statement Regarding Parentage,” the record is bereft of any evidence of Father’s commitment to A.J., much less evidence of the practicality and suitability of his reunification with her. There is no basis on this record to conclude that the juvenile court abused its discretion when it denied Father reunification services.
Father relies on In re S. D. (2002) 99 Cal.App.4th 1068, 1077, to argue that the juvenile court’s decision to deny services was done to penalize him because he was in jail. In re S. D. is inapposite. It addresses denial of services to an incarcerated mother, not a biological father. Indeed, in this case the juvenile court specifically considered possible application of section 361.5, subdivision (e), which provides the court shall order reasonable services for an incarcerated parent unless it determines by clear and convincing evidence that those services would be detrimental to the child. While section 361.5, subdivision (e) may apply in cases involving a mother or “presumed father,” it has no application to natural or biological fathers. Biological fathers are not entitled to receive reunification services. (In re Zacharia D. (1993) 6 Cal.4th 435, 451–452.)
We are also hard pressed to see on this record how Father would have been prejudiced if the juvenile court had employed the standard he alleges. The proper standard only requires that the court consider whether services would benefit the minor child. (Francisco G. v. Superior Court, supra, 91 Cal.App.4th at p. 597.) Here, Father alleges the court erred because it considered not just the minor’s interests, but Father’s as well. The standard he argues the court employed in error would have been more considerate of his interests than required under the law. To the extent Father is arguing that requiring the court to consider whether providing services would benefit the minor child is some lesser standard than considering whether services would be in the child’s best interests, we reject any such notion. We fail to see a meaningful distinction between action that benefits a child and action that is in a child’s best interests.
Services were not declined in this case because Father was in jail. They were declined because Father has no relationship with A.J. other than through consanguinity, and in light of his criminal record, drug abuse, and prior record as a parent, it was not in her best interests for them to be provided. There was no abuse of discretion.
II. The ICWA Issue Is Moot.
When the court has reason to believe that a child involved in a dependency is an Indian child, the ICWA requires that notice be given to the appropriate tribes and to the BIA. (§ 224.2, subd. (a).) Before determining whether the ICWA applies, a court must wait for 60 days after notice is given for the tribes to respond and state whether the child is a member or eligible for membership. If the noticed tribes state the child is not a member or eligible for membership, or if neither the BIA nor any tribe provides a determinative response, the court may conclude the ICWA does not apply to the proceedings. (§ 224.3, subd. (e)(3); Cal. Rules of Court, rule 5.482(c)(1).)
Here, the juvenile court served ICWA notice by mail on the BIA and the Oklahoma and Florida Seminole tribes on June 22, 2017. According to the return receipts, both of the tribes and the BIA received notice on June 26, 2017. The Seminole Nation of Oklahoma and the Seminole Tribe of Florida each replied that A.J. was not eligible for membership, and there is no record of any response by the BIA. Seventy-two days after notice was given, on September 6, 2017, the juvenile court determined that ICWA does not apply and that A.J. is not an Indian child. At that time, the juvenile court lifted its stay of jurisdiction and dispositional findings it had entered on August 2, 2017, and continued the case for a section 366.26 permanency planning hearing to be held on November 30, 2017.
Father argues that the juvenile court was precluded from making the jurisdiction and dispositional findings on August 2, because at that time 60 days had not yet passed from the time notice was provided to the BIA. He requests that the matter be remanded for further proceedings. However, the jurisdiction and dispositional findings and orders made on August 2 were stayed by the juvenile court in deference to the ICWA notice period and had no effect. The stay regarding those findings and orders was not lifted until the juvenile court determined that ICWA did not apply, after the expiration of the 60-day waiting period. Because the juvenile court waited until September 6, 2017, to decide the applicability of the ICWA and to implement its jurisdiction and dispositional findings by lifting its stay, there is no ICWA violation. The ICWA issue raised in the petition is moot.
DISPOSITION
For the reasons given above, the petition for an extraordinary writ is denied. Our decision is immediately final as to this court. (Cal. Rules of Court, rules 8.452(i), 8.490(b)(2)(A).)
 




_________________________
Siggins, J.



We concur:


_________________________
Pollak, Acting P.J.


_________________________
Jenkins, J.





















A152095
R.J. v. Superior Court