Filed 3/21/18 In re E.S. CA1/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION TWO


In re E.S., et al., Persons Coming Under the Juvenile Court Law.

HUMBOLDT COUNTY DEPARTMENT OF SOCIAL SERVICES,
Plaintiff and Respondent,
v.
A.M., et al.,
Defendants and Appellants.




A151383

(Humboldt County
Super. Ct. No. JV160011-1/
JV160011-2/JV160012/JV160013)


A.M. (Mother) appeals from an order terminating her parental rights to four children (Minors), who ranged in age from 2 to 8 at the time they were detained. The sole basis for her appeal is her argument that the Humboldt County Department of Health and Human Services (Department) did not comply with the notice requirements of the Indian Child Welfare Act (ICWA) (25 U.S.C. § 1901 et seq.). Separately, J.K. (Father) appeals from an order terminating his parental rights to B.K., the youngest of the Minors. Like Mother, he argues that the Department did not comply with ICWA. In addition he argues that the juvenile court violated his due process rights by treating him as B.K.’s alleged, rather than presumed, father, and by not appointing counsel for him throughout the entire proceeding. We conclude that only the ICWA claim has merit. Therefore, we will conditionally reverse and remand the matter for the limited purpose of compliance with ICWA.
FACTUAL AND PROCEDURAL BACKGROUND
The Department filed petitions under Welfare and Institutions Code section 300, subdivision (b) as to the three older Minors, alleging that Mother failed to adequately care for and supervise them, and was unable to provide regular care for them due to her abuse of heroin and methamphetamines. The Department also filed a petition under section 300, subdivision (b) as to the youngest, B.K., with similar allegations as to both Mother and Father, who was described as an “alleged” father. The Minors were not then detained, but about three weeks later, after a social worker’s unannounced home visit showed that the situation had worsened, the Department detained them and filed first amended petitions.
Neither Mother nor Father attended the detention hearing. An attorney present in the courtroom identified herself as available for appointment to represent Father and asked to be “reserved” for him because he was not present. A different attorney asked to be reserved for Mother. The juvenile court reserved the attorneys as requested and on its own motion entered denials on Mother’s and Father’s behalves. The court placed Minors in the temporary care, custody and control of the Department for further detention in suitable foster care.
Mother appeared in person with her reserved counsel at the jurisdiction pretrial, and the juvenile court appointed the attorney to represent her. Father was absent. According to a social worker, he was outside the building but would not enter the courthouse because he had active warrants. Father’s reserved counsel was present, and was appointed to represent him. Counsel stated she had represented Father in the past and would “provisionally accept appointment.” She added, “[I]f I don’t have contact with him, I will just ask to be relieved.”
Neither Mother nor Father attended the jurisdiction hearing; they appeared through their appointed attorneys, who submitted on the Department’s report. The juvenile court sustained the allegations of the first amended petitions and found by clear and convincing evidence that Minors were children described by section 300, subdivision (b).
In advance of the disposition hearing, the Department submitted reports as to all four Minors opining that Mother could benefit from reunification services to address her substance abuse. The Department noted in its disposition report that Father had not responded to or contacted his social worker since B.K. was removed from his care and that he had not visited B.K., and declined to recommend reunification services: “[F]ather has not engaged with the Department and is not visiting with [B.K.]. He has two other children he has failed to reunify with[ ] and the Department does not believe it is in the best interests of the child to offer him Reunification Services.” Neither Mother nor Father attended the disposition hearing; as before, they appeared through their appointed counsel. Mother’s counsel submitted on the Department’s report. Father’s counsel reported, “My client remains alleged . . . . I have recently sent him a letter indicating that if he didn’t make contact with me for a period, that I would request to be relieved. I am not going to do that right now, but I may do that by motion within the next couple of weeks if I don’t hear from him.” The court adopted the Department’s recommended findings, declared the Minors dependents of the court, and set a six-month review hearing. The court ordered reunification services for Mother, but not Father. The court found that Father had the “paternity status of alleged father,” and stated, “The alleged father shall be denied family maintenance or family reunification services. Further notice shall be as required by law.”
After the disposition hearing, but before the scheduled six-month review hearing, Father’s appointed counsel apparently retired. The court relieved her as counsel and substituted new appointed counsel.
In advance of the six-month review hearing, the Department submitted reports as to all four Minors. The Department stated that Father’s whereabouts were unknown, that an absent parent search had failed to locate him, and that the Department believed he was homeless in Humboldt County. The Department requested that the court terminate reunification services as to Mother due to her failure to visit with her children or engage in services, and also asked the court to set a section 366.26 hearing.
At the initial hearing scheduled for the six-month review, Father’s second appointed counsel asked to be relieved. The court’s minutes state that the basis for her request was that “her appointment was a provisional appointment through disposition.” No objection was made, and the court granted counsel’s request.
The six-month review hearing was continued several times. When it eventually occurred, neither Mother nor Father was present. Mother’s counsel stated he did not know why Mother failed to appear, confirmed that Mother had received notice, and submitted on the Department’s report. The juvenile court found that the Department had exercised due diligence in attempting to locate Father, and found by clear and convincing evidence that his whereabouts remained unknown. The juvenile court terminated services for Mother and set a section 366.26 hearing.
In advance of the section 366.26 hearing, the Department reported that Father had been located at the Humboldt County Correctional Facility and personally served with notice of the hearing. The Department submitted reports and assessments recommending that parental rights be terminated as to all four Minors and adoption be ordered as their permanent plans.
Mother, but not Father, appeared in person at the section 366.26 hearing. After hearing argument from Mother’s counsel and Minor’s counsel, the juvenile court terminated Mother’s parental rights as to Minors, terminated Father’s parental rights as to B.K., and ordered adoption as the permanent plan for each Minor. After the juvenile court pronounced its orders, Father was discovered to be in the court building, and the case was recalled as to B.K. The Department submitted on the report and indicated it would oppose any request for a continuance. The Department argued that Father was involved with the children when they were detained, that he had appeared personally in court early in the proceedings, that he had been given adequate notice throughout the proceedings, that his second appointed counsel asked to be relieved because of Father’s lack of contact, and that Father had chosen not to participate in the proceedings.
The juvenile court then reappointed Father’s second counsel to represent him at the hearing. Asked for comments, Father’s counsel said that based on a review of the section 366.26 report, “I guess my concern is on Page 2 it appears as if
[Father] is actually a presumed father.[ ] I don’t know, past that, what has happened in this case. [¶] Previously, I probably have a closed file—I should have—at the office. I’m not sure whether his—he was ever elevated to presumed fatherhood or whether he has shown up or whether the notices were proper. And those are the issues that I would need to look at before I can go any further in this case.” Counsel for the Department and counsel for Minors opposed any continuance.
The juvenile court then reviewed the case file from the bench, and noted that Father had consistently been described as an alleged father, that he had been represented by counsel from the time of the first jurisdiction pretrial in March 2016 until the initial date set for the six-month review hearing in October 2016, at which Father was not present, and that he had not been present at any court proceeding since then. The court further noted that neither Father nor his appointed counsel had taken any action to elevate Father’s status to presumed father, and that Father was given proper notice of the section 366.26 hearing. The court continued, “[B]ecause he is an alleged father, even though—assuming that he objects to the orders, the Court finds that it’s not proper in this case to continue the matter further in any way, so the Court is going to have the orders that were previously entered in [B.K.’s] case remain.”
Mother and Father filed separate appeals.
DISCUSSION
A. Father’s Due Process Rights
1. Applicable Law
The Welfare and Institutions Code distinguishes among “alleged,” “biological” or “natural,” and “presumed” fathers. (In re O.S. (2002) 102 Cal.App.4th 1402, 1406 (O.S.); see also In re Zacharia D. (1993) 6 Cal.4th 435, 451.) 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.” (Id. at p. 449, fn. 15.)
“A biological father can be a presumed father, but is not necessarily one . . . . ‘Presumed fatherhood, for purposes of dependency proceedings, denotes one who “promptly comes forward and demonstrates a full commitment to his parental responsibilities—emotional, financial, and otherwise[.]” ’ [Citations.] A presumed ‘father’s rights flow from his relationship (or attempted relationship) to the mother and/or child and not merely from his status as the biological father.’ [Citation.] The presumed father’s commitment to the child is a key consideration. [Citation.]” (In re T.R. (2005) 132 Cal.App.4th 1202, 1209-1210.) A “presumed” father meets one or more criteria listed in Family Code section 7611, which “sets forth a number of rebuttable presumptions of paternity, mostly concerned with various forms of marriage or attempted marriage to the child’s mother.” (Id. at p. 1209, citing Fam. Code, § 7611, subds. (a)-(c).) For the purposes of this case, where Father concedes he neither legally married nor attempted to marry Mother, presumed father status requires that a man receive the child into his home and hold the child out as his natural child (§ 7611, subd. (d)) or that he and the mother execute a voluntary declaration of paternity. (§§ 7611, 7570, 7571, subd. (b), 7573.)
“To be declared a presumed father under Family Code section 7611, a man must ask the trier of fact to make such a determination and establish the existence of the foundational facts by a preponderance of the evidence.” (O.S., supra, 102 Cal.App.4th at p. 1410, fn. omitted.) The juvenile court cannot make a declaration of presumed father status on its own motion. (Ibid.)
In a dependency proceeding, an alleged father is not entitled to appointed counsel or reunification services. (In re Paul H. (2003) 111 Cal.App.4th 753, 760 (Paul H.).) “Due process for an alleged father requires only that the alleged father be given notice and ‘an opportunity to appear and assert a position and attempt to change his paternity status. [Citations.]’ ” (Ibid., quoting O.S., supra, 102 Cal.App.4th at p. 1408.) On the other hand, presumed father status entitles the father to appointed counsel (§ 317, subd. (a)); custody, absent a finding of detriment (§ 361.2, subd. (a)); and reunification services, absent findings specified by statute (§ 361.5).
2. Analysis
Father asserts that, in view of evidence in the record that would support his status as B.K.’s presumed father, the juvenile court’s failure to designate him as such violated his due process rights. He claims he was denied reunification services on the basis that he was an alleged father, and that the juvenile court should have ensured that he had counsel throughout the proceeding. We are not persuaded. This is a situation where Father declined to exercise his rights, not one where rights were violated.
From the time of the detention hearing, the juvenile court was aware that Father might qualify as a “presumed” father even though his status was “alleged.” At the detention hearing, after counsel was reserved for Father, Minors’ counsel suggested that Father should be “presumed,” and noted that Father was not present to be elevated to presumed at that time; the juvenile court declined to change Father’s status, but left open the possibility that he could be elevated later. At the jurisdiction and disposition hearings, Father’s counsel noted specifically that Father’s status remained “alleged.” But the juvenile court could not raise Father’s status on its own (O.S., supra, 102 Cal.App.4th at p. 1410), and neither Father nor his counsel ever requested that his status be changed. As a result, Father has forfeited any argument that he should have been elevated to presumed father status. (In re Dakota H. (2005) 132 Cal.App.4th 212, 221 [“A party forfeits the right to claim error as grounds for reversal on appeal when he or she fails to raise the objection in the trial court.”].)
Father states that the court declined his counsel’s request at the section 366.26 hearing to elevate his status to that of a presumed father. But Father’s counsel did not actually make any such request—she merely noted that the department’s report suggested he might be a presumed father and stated she did not know “whether . . . he was ever elevated to presumed fatherhood or whether he has shown up or whether the notices were proper.” She indicated that she would need to look at the issues, and indicated that a continuance might be in order; the juvenile court declined to continue the matter, and Father does not argue that the court erred in that respect.
The record shows that Father had counsel from the time of the detention hearing, when counsel was reserved for him and raised issues concerning notice even though she had not yet been appointed for him, until the date on which the six-month review was scheduled, when his counsel asked to be relieved. Yet Father argues that his due process rights were violated because he did not have appointed counsel “at those stages where it would have mattered most.” Father failed to appear in court or contact his counsel, even though Father must have known from his previous experience with dependency proceedings that he was running grave risks by failing to participate.
Due process requires that an alleged father receive notice of proceedings and an opportunity to change his paternity status. (Paul H., supra, 111 Cal.App.4th at p. 760.) Father does not suggest that notice was inadequate; instead, he contends that he was denied the opportunity to assert his interest as B.K.’s presumed father. The record shows otherwise. As noted above, counsel was reserved for Father as an “alleged” Father at the detention hearing, which he failed to attend, and Father was represented by counsel until the initial scheduled date for the six-month review. Father cites no authority to support a claim that due process requires more. Father could have sought to elevate his status on his own or through counsel, but he took no action on his own, and he failed to make contact with his counsel from the time counsel was appointed to the time of the scheduled six-month review, at which point his counsel was relieved at her request.
In sum, we conclude that Father has not shown that his due process rights were violated in this dependency proceeding.
B. Compliance with ICWA
1. Additional Background
According to each of the initial petitions filed by the Department, Mother stated that Minors have Indian ancestry from the Apache Tribe of Oklahoma. Reports filed with the petitions stated for each of the Minors: “[Mother] has stated that there is pending verification of eligibility for the Apache Tribe of Oklahoma.” The reports also stated that Mother “is also pending verification for the tribe, and stated her family has ancestry from this particular tribe.”
In addition to listing the Apache Tribe of Oklahoma, the first amended petitions reported that each of the Minors had Cherokee ancestry through the Eastern Band of Cherokee Indians and the United Keetoowah Band of Cherokee, but the petitions do not identify the source of information about the Cherokee tribes. At the detention hearing, the juvenile court determined that ICWA may or may not apply.
After the detention hearing and before the jurisdiction pretrial hearing, the Department sent ICWA notices for each Minor to the Bureau of Indian Affairs, the Department of the Interior, the Apache Tribe of Oklahoma, which Mother had identified, and also to the Fort Sill Apache Tribe of Oklahoma. The notices identified Mother, her biological mother (Grandmother) and father (Grandfather), and her biological grandmothers as having potential ties to the Apache Tribe of Oklahoma and the Fort Sill Apache Tribe of Oklahoma.
Mother first appeared in court at the first jurisdiction pretrial. One of Mother’s grandmothers was present at the hearing and said she was Apache. In response to questioning by the juvenile court, she further stated that she did not have an enrollment number and did not know whether Minors were eligible for enrollment. The juvenile court told Mother that an order had already been entered that she was to file an ICWA-020 form discussing any Indian ancestry she might have and advised Mother to speak with her attorney about that. Mother then stated that Grandfather was eligible for enrollment in the Karuk or Cherokee tribe.
The Department’s jurisdiction reports, dated after the first jurisdiction pretrial hearing, stated that ICWA “does or may apply.” The Department reported that it sent ICWA notices before the first jurisdiction pretrial; that it had not received any documented ancestry or enrollment information; and that it would make continuing inquiries. Notably, the reports say nothing about Minors’ possible Karuk or Cherokee ancestry through Grandfather.
The Department’s disposition reports stated that ICWA “does not apply.” As in the jurisdiction reports, the Department again reported that it had sent ICWA notices before the first jurisdiction pretrial hearing and that it would make continuing inquiries. In addition, the Department reported that the Minors’ fathers did not report any Indian ancestry, and that the “Warm Spring Apache Tribe” had informed it that Minors are not eligible for enrollment. As with the jurisdiction reports, the disposition reports said nothing about Minors’ possible Karuk or Cherokee ancestry. Based on the Department’s reports, the juvenile court found at the disposition hearing that ICWA does not apply.
With respect to ICWA issues, the Department’s reports for the six-month review hearing were essentially identical to the disposition reports. At the six-month review hearing the juvenile court again found that ICWA does not apply.
2. Applicable Law and Standard of Review
The applicable law is summarized in In re Shane G. (2008) 166 Cal.App.4th 1532 (Shane G.): “ICWA protects the interests of Indian children and promotes the stability and security of Indian tribes and families by establishing certain minimum federal standards in juvenile dependency cases. (In re Kahlen W. (1991) 233 Cal.App.3d 1414, 1421; In re Jullian B. (2000) 82 Cal.App.4th 1337, 1344.) ICWA defines an Indian child as any unmarried person who is under age 18 and is either (1) a member of an Indian tribe, or (2) eligible for membership in an Indian tribe and the biological child of a member of an Indian tribe. (25 U.S.C. § 1903(4).)
“When a court ‘knows or has reason to know that an Indian child is involved’ in a juvenile dependency proceeding, a duty arises under ICWA to give the Indian child’s tribe notice of the pending proceedings and its right to intervene. (25 U.S.C. § 1912(a); §§ 224.3, subd. (d), 290.1, subd. (f), 290.2, subd. (e), 291, subd. (g), 292 subd. (f), 293, subd. (g), 294, subd. (i), 295, subd. (g), 297, subd. (d); In re Aaliyah G. (2003) 109 Cal.App.4th 939, 941.) Alternatively, if there is insufficient reason to believe a child is an Indian child, notice need not be given. (In re O.K. (2003) 106 Cal.App.4th 152, 157; In re Aaron R. (2005) 130 Cal.App.4th 697, 707.)” (Shane G., supra, 166 Cal.App.4th at p. 1538.)
“The circumstances that may provide reason to know the child is an Indian child include, but are not limited to, the following: [¶] (1) A person having an interest in the child . . . provides information suggesting the child is a member of a tribe or eligible for membership in a tribe or one or more of the child’s biological parents, grandparents, or great-grandparents are or were a member of a tribe. [¶] (2) The residence or domicile of the child, the child’s parents, or Indian custodian is in a predominantly Indian community; [¶] (3) The child or the child’s family has received services or benefits from a tribe or services that are available to Indians from tribes or the federal government, such as the Indian Health Service.” (§ 224.3, subd. (b)(1)-(3).) “If these or other circumstances indicate a child may be an Indian child, the social worker must further inquire regarding the child’s possible Indian status. Further inquiry includes interviewing the parents, Indian custodian, extended family members or any other person who can reasonably be expected to have information concerning the child’s membership status or eligibility. (§ 224.3, subd. (c).) If the inquiry leads the social worker or the court to know or have reason to know an Indian child is involved, the social worker must provide notice. (§§ 224.3, subd. (d), 224.2, subd. (a)(5)(A)-(G).)” (Shane G., supra, 166 Cal.App.4th at p. 1539.)
We review the juvenile court’s findings whether ICWA applies for substantial evidence. (In re E.W. (2009) 170 Cal.App.4th 396, 404.) Accordingly, “[w]e review factual findings in the light most favorable to the juvenile court’s order. [Citation.] Indeed, ‘[w]e must indulge in all legitimate and reasonable inferences to uphold the [judgment]. If there is substantial evidence supporting the judgment, our duty ends and the judgment must not be disturbed.’ [Citation.] Our deference to the fact finder, of course, is not without limit. The substantial evidence standard requires evidence that is ‘ “reasonable in nature, credible, and of solid value.” ’ [Citation.] A judgment is not supported by substantial evidence if it is based solely upon unreasonable inferences, speculation or conjecture. [Citation.]” (In re H.B. (2008) 161 Cal.App.4th 115, 119-120 (H.B.).)
3. Analysis
Mother argues that the Department violated ICWA in sending notice to only two of the eight federally recognized Apache tribes. She argues that when she and Grandmother told the juvenile court that they had “Apache” ancestry, they “did not limit their ancestry claim to only two specific Apache tribes.” Therefore, she argues, the Department was required to send notice to the other Apache tribes or at least engage in further inquiry about Mother’s Apache ancestry. This argument lacks merit.
Mother informed the Department that her Apache heritage was specific to the Apache Tribe of Oklahoma. Based on that information, the Department sent notice to that tribe, and also sent notice to the other federally-recognized Apache tribe located in Oklahoma. There is no indication that Mother or her counsel or anyone else ever suggested to the Department or the court that Mother might have Apache ancestry through a tribe located in Arizona or New Mexico. (See H.B., supra, 161 Cal.App.4th at pp. 121-122 [“ ‘The knowledge of any Indian connection is a matter wholly within the appealing parent’s knowledge and disclosure is a matter entirely within the parent’s present control.’ ”].)
In view of Mother’s specific identification of the Apache Tribe of Oklahoma, the Department had no reason to believe that Grandmother’s reference to “Apache” ancestry at the jurisdiction pretrial hearing meant anything more than confirmation of the Apache ancestry that Mother had already disclosed. Further, at the disposition hearing, after the Department requested a finding that ICWA does not apply, the juvenile court inquired about the applicability of ICWA, and asked specifically about the Apache Tribe of Oklahoma, and the department represented that the Apache Tribe of Oklahoma had indicated that B.K. was not eligible for membership, Mother’s counsel did not argue that ICWA might apply through other any other Apache tribe.
We conclude that the specific information that Mother provided to the Department about her Apache ancestry through the Apache Tribe of Oklahoma, the lack of any indication in the record that Mother might have any additional Apache ancestry through tribes located in any state other than Oklahoma, the evidence of the ICWA notices sent by the Department, and the responses the Department received constitute substantial evidence that supports the juvenile court’s finding that ICWA does not apply, at least as to Mother’s claim of Apache ancestry.
However, potential Apache ancestry is not the only basis for Mother’s appeal on ICWA issues. Mother and Father both argue that the Department violated ICWA in failing to send notice to the Cherokee tribes and the Karuk tribe. The first amended petitions indicate that the Department had information suggesting that Minors may have Cherokee ancestry through two of the three federally recognized tribes, and subsequently Mother stated in open court that Grandfather was eligible for membership in the “Karuk or Cherokee” tribes. But those tribal affiliations are not mentioned in the ICWA notices the Department prepared, and ICWA notice was not sent to those tribes. Furthermore, none of the Department’s filed reports mention Mother’s possible connection to those tribes.
The Department claims that it contacted Grandfather after the jurisdiction pretrial hearing to inquire about his Indian ancestry, and Grandfather stated that he had no Indian ancestry whatsoever. Therefore, the Department argues, it satisfied its inquiry requirements with respect to Mother’s claim that Minors had Cherokee or Karuk ancestry and the result of the inquiry was that there was no need to provide notice to the Karuk tribe or any of the Cherokee tribes. The problem with this argument, as the Department recognizes, is that nothing in the record supports the Department’s claim that it inquired about Grandfather’s potential Indian ancestry.
As a result, there is evidence in the record from the first amended petitions and from Mother’s statement in court that Minors may have Karuk or Cherokee ancestry. But there is no evidence in the record to indicate that the Department fulfilled the inquiry and potential notice requirements that followed from that information. Accordingly, there is no substantial evidence in the record to support the juvenile court’s finding that ICWA does not apply to Minors, insofar as Mother’s claim of Karuk and Cherokee ancestry is concerned, and we must conditionally reverse the order terminating parental rights and direct the juvenile court to ensure compliance with the requirements of ICWA. (See In re A.G. (2012) 204 Cal.App.4th 1390, 1393 [conditionally reversing order terminating parental rights when agency failed to investigate parent’s claim of Native American heritage.].)
DISPOSITION
The orders terminating Mother’s parental rights to Minors and Father’s parental rights to B.K. are conditionally reversed, and the matter is remanded to the juvenile court with directions to order the Department to provide sufficient information for the juvenile court to determine whether ICWA applies in view of Mother’s claim of Karuk or Cherokee ancestry, and if necessary to order ICWA notice and conduct any further proceedings in compliance with ICWA. If the juvenile court finds that ICWA does not apply or if, after notice is provided, no tribe claims Minors to be Indian children, the orders terminating Mother’s and Father’s parental rights shall be reinstated.
 





_________________________
Miller, J.


We concur:


_________________________
Richman, Acting P.J.


_________________________
Stewart, J.











A151383, Humboldt County Dept. of Social Services v. A.M.