Opinion
A129262 A130865 Alameda County Super. Ct. No. OJ09013264
08-15-2011
In re T.O., a Person Coming Under the Juvenile Court Law. ALAMEDA COUNTY SOCIAL SERVICES AGENCY, Plaintiff and Respondent, v. TRAVIS E., Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
Travis E. appeals from the juvenile court's order setting a Welfare and Institutions Code section 366.26 permanency planning hearing and the court's subsequent orders denying his section 388 petition and terminating his parental rights. He contends the Alameda County Social Services Agency (Agency) failed to provide him notice of the hearing that resulted in the setting of the permanency planning hearing, and his absence from that hearing prevented him from elevating his status to presumed father. He contends the juvenile court erred in denying his section 388 petition seeking presumed father status and reunification services. He also contends the Agency violated the Indian Child Welfare Act of 1978 (ICWA) (25 U.S.C. § 1901 et seq.). We affirm the juvenile court's orders but remand the case for compliance with ICWA inquiry and notice requirements.
All undesignated section references are to the Welfare and Institutions Code.
Travis's appeal from the order setting the section 366.26 hearing is numbered A129262. On September 28, 2010, this court issued an order to show cause why the appeal should not be dismissed as untimely. On February 17, 2011, this court discharged the order to show cause and consolidated appeal No. A129262 with appeal No. A130865, from denial of Travis's section 388 petition and termination of his parental rights.
BACKGROUND
The Agency filed a section 300 petition (Petition) on August 18, 2009, alleging T.O. (Minor), born in August 2009 to Minor's mother (Mother), was subject to the jurisdiction of the juvenile court based on Mother's mental illness and refusal to accept medical care for herself and Minor. The Petition alleged that Minor's father's ability to care for her was unknown. The Petition stated that Minor "may have Indian ancestry."
According to the detention report, Minor's maternal grandmother reported Minor's father was named Travell E., but she was unsure about the first name and did not have any additional information about him. The maternal grandmother denied knowledge of any family affiliation with any Indian tribe.
Notice of the September 2009 jurisdiction and disposition hearing was given to the Bureau of Indian Affairs and the Secretary of the Interior based on statements of Mother and a maternal aunt that there is "Indian blood" in the family. The jurisdiction and disposition report identified Minor's alleged father as Trevor E., whose whereabouts were listed as unknown. On October 2, 2009, the maternal grandmother reported she had received several messages from Trevor E., who said he was the father and was calling to "check up" on Minor. He did not leave a return phone number. On October 8, 2009, the juvenile court sustained the Petition's jurisdictional allegations.
On November 2, 2009, Travis left a voicemail message for a child welfare worker expressing concern for Minor. The worker called back and left a message; Travis called back on December 2. Travis met with the child welfare worker on December 14. He indicated he was homeless and had no source of income. He said he was not interested in receiving help to obtain housing, stating he would worry about how to support Minor after she is placed in his care. Travis took a paternity test and his biological paternity was established on February 26, 2010. On March 10, Travis sent an e-mail to the Agency requesting visitation with Minor; a child welfare worker responded the next day, advising Travis how to obtain an attorney and offering to further discuss visitation. On March 25, Travis left a voicemail message for an Agency supervisor; she left a message in return, but Travis did not call back.
The juvenile court conducted the six-month review hearing on April 26, 2010. The court asked whether Travis had notice of the hearing, failed to get a clear answer, and found he "perhaps" received notice. The court terminated reunification services to Mother and scheduled a section 366.26 permanency planning hearing. On August 3, 2010, Travis filed in pro per a notice of appeal (A129262) from the "findings of the report of 4/12/10."
The Agency's August 9, 2010 section 366.26 report stated that Travis had not been in contact with the Agency. On August 9, Travis appeared in juvenile court for the first time, counsel was appointed for him, and the court continued the section 366.26 hearing. When the court asked Travis whether he intended to be involved, he told the court he "was involved from the jump . . . . It was not an accident that we had the baby." At a September 8 hearing, Travis testified he was not married to Minor's Mother, had not signed the birth certificate or a voluntary declaration of paternity, had not "had a chance" to provide Minor any support, had not "been asked to do anything," had not had any contact with Minor, and was not present for her birth because he was not aware she was going to be born. Travis's counsel stated that Travis found out about the birth several weeks after the event, when he bumped into Mother on the street; she told him Minor was with her parents. The juvenile court again continued the section 366.26 hearing, maintaining in place an order prohibiting contact between Travis and Minor. Following the September 8 hearing, a child welfare worker sent an e-mail to Travis offering to meet with him, but he did not respond.
On September 27, 2010, Travis filed a Statement Regarding Parentage, form JV-505, and a section 388 petition. The JV-505 statement requested a finding that Travis is a presumed parent. An unsworn attachment asserted: "I was not notified of [Minor's] birth by [Mother] nor the hospital or social services. When I ran into [Mother] several weeks after my child was born and I saw she was not preg[n]ant. I asked where was my child and she told me she was with her parents. I immediately called them to check on my child and was told not to call them and to call a social worker. I called the social worker and was told I had to take a paternity test first to prove I was the father. I did and the results came back I am the father. Prior to my ever appearing in court the court entered an order blocking me from having any contact with my child. So I have no opportunity to have any visits with my child or to have her in my home or to provide any support." The section 388 petition requested a finding that Travis is Minor's presumed father and that he be provided with reunification services and visits. On October 5, Travis filed a Parental Notification of Indian Status form stating that his grandfather is one-half Native American.
An Agency child welfare worker met with Travis on November 1, 2010. Travis declined housing, mental health counseling, and substance abuse referrals, stating he only wanted visitation.
On November 22, 2010, the juvenile court conducted a hearing regarding Travis's section 388 petition. When the court asked Travis's counsel what Travis had done to establish paternity between March and August 2010, the only thing counsel identified was the filing of the August 2010 notice of appeal. With regard to Travis's failure to participate in services, counsel asserted there was "no point of him" doing so because he had not been given an opportunity to visit Minor. Regarding his housing situation, counsel asserted "he has housing that he could get." The juvenile court denied the section 388 petition because Travis had not shown that the requested change in orders was in the best interest of Minor. The court lifted the no contact order and directed the Agency to allow Travis reasonable supervised visitation with Minor.
On December 1, 2010, an Agency child welfare worker e-mailed Travis, asking him to contact her to arrange a supervised visit. He did not respond. At the December 13 section 366.26 hearing, the trial court noted that Travis had not taken the opportunity for visitation or to obtain services. Travis did not present any evidence or witnesses. During argument, Travis's counsel stated Travis was seeking an opportunity to have a relationship with Minor, not immediate custody. The juvenile court found Minor to be adoptable, found the parental benefit exception inapplicable, found the ICWA inapplicable, and terminated Mother's and Travis' parental rights. Travis appealed the November 11 order denying his 388 petition and the December 13 order terminating his parental rights.
Mother is not a party to this appeal.
DISCUSSION
Orders setting a section 366.26 hearing, denying a section 388 petition, and terminating parental rights are reviewed for abuse of discretion. (In re Jasmon O. (1994) 8 Cal.4th 398, 415-416; In re T.S. (2009) 175 Cal.App.4th 1031, 1038; Sheila S. v. Superior Court (2000) 84 Cal.App.4th 872, 880.) A juvenile court's determination whether a father qualifies as a presumed father and whether there has been compliance with the ICWA are reviewed for substantial evidence. (Adoption of Arthur M. (2007) 149 Cal.App.4th 704, 717; In re Alice M. (2008) 161 Cal.App.4th 1189, 1195.) However, the interpretation of statutes and court rules is an issue of law that we review de novo, and we also independently review the application of legal standards to the facts found by the juvenile court. (Adoption of Arthur M., at pp. 717-718; In re R.D. (2008) 163 Cal.App.4th 679, 684.)
I. The Law Regarding Presumed Parentage
"The Uniform Parentage Act (Fam. Code, § 7600 et seq.) . . . provides the statutory framework by which California courts make paternity determinations. [Citations.] Under this statutory scheme, California law distinguishes 'alleged,' 'biological,' and 'presumed' fathers. [Citation.] '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, is an "alleged" father. [Citation.]' [Citation.] 'A biological or natural father is one whose biological paternity has been established, but who has not achieved presumed father status . . . .' [Citation.] [¶] 'Presumed' fathers are accorded far greater parental rights than alleged or biological fathers. [Citation.] Presumed father status is governed by [Family Code] section 7611, which sets out several rebuttable presumptions under which a man may qualify for this status . . . . [Citations.] Biological fatherhood does not, in and of itself, qualify a man for presumed father status under [Family Code] section 7611. On the contrary, presumed father status is based on the familial relationship between the man and child, rather than any biological connection. [Citation.]" (In re J.L. (2008) 159 Cal.App.4th 1010, 1018, fn. omitted (J.L.).)
As relevant in the present case, Family Code section 7611, subdivision (d) provides that a man is presumed to be the father of a child if "[h]e receives the child into his home and openly holds out the child as his natural child." (See also Adoption of Michael H. (1995) 10 Cal.4th 1043, 1051 (Michael H.)["[T]o become a presumed father, a man who has neither married nor attempted to marry his child's biological mother must not only openly and publicly admit paternity, but must also physically bring the child into his home."]; In re Spencer W. (1996) 48 Cal.App.4th 1647, 1652 (Spencer W.))The juvenile court has the authority to grant a biological father custody of a dependent minor so that he can qualify as a presumed father. (In re Zacharia D. (1993) 6 Cal.4th 435, 449-450.)
None of the other circumstances which can give rise to a parentage presumption specified in Family Code section 7611 are relevant in the present case.
In addition, "an unmarried biological father may, under narrow circumstances, assert constitutional paternity rights, even though he does not qualify under any of the presumptions listed in [Family Code] section 7611. [Citations.]" (J.L., supra, 159 Cal.App.4th at p. 1018.) The landmark California Supreme Court case on that issue is Adoption of Kelsey S. (1992) 1 Cal.4th 816 (Kelsey S.). Kelsey S. was a challenge to the adoption of an unwed mother's child, filed by the child's biological father within two days after the baby's birth. (Id. at pp. 821-822.) In analyzing the biological father's rights, the Supreme Court began by observing that the Uniform Parentage Act precludes an unwed biological father from achieving presumed father status unless he is able to satisfy Family Code section 7611, subdivision (d) by taking the child into his home and holding the child out as his own. (Kelsey S., at p. 825.) As a result, the mother of such a child can deny presumed father status to the biological father by giving the baby up for adoption, preventing the father from satisfying subdivision (d). (Kelsey S., at p. 845.)
Kelsey S. involved Civil Code former section 7004, subdivision (a)(4) (added by Stats. 1975, ch. 1244, § 11, p. 3196; repealed by Stats.1993, ch. 219, § 63, p. 1579), which was identical to Family Code section 7611, subdivision (d). Civil Code former section 7004 was repealed and replaced by Family Code sections 7611, 7611.5, and 7612 without substantive change. (See Steven W. v. Matthew S. (1995) 33 Cal.App.4th 1108, 1116, fn. 3; see also Charisma R. v. Kristina S. (2009) 175 Cal.App.4th 361, 371, fn. 7, disapproved on another ground in Reid v. Google, Inc. (2010) 50 Cal.4th 512, 527.)
The Kelsey S. court held the statutory scheme "violates the federal constitutional guarantees of equal protection and due process for unwed fathers to the extent that the statutes allow a mother unilaterally to preclude her child's biological father from becoming a presumed father and thereby allowing the state to terminate his parental rights on nothing more than a showing of the child's best interest. If an unwed father promptly comes forward and demonstrates a full commitment to his parental responsibilities—emotional, financial, and otherwise—his federal constitutional right to due process prohibits the termination of his parental relationship absent a showing of his unfitness as a parent." (Kelsey S., supra, 1 Cal.4th at p. 849; see also Michael H., supra, 10 Cal.4th at p. 1052 ["[T]he federal Constitution protects only the parental relationship that the unwed father has actively developed by ' "com[ing] forward to participate in the rearing of his child" ' [citation] and 'act[ing] as a father' [citation]."]; J.L., supra, 159 Cal.App.4th at pp. 1022-1023.)
The Supreme Court emphasized that its decision applied only in narrow circumstances, when "an unwed father . . . has sufficiently and timely demonstrated a full commitment to his parental responsibilities." (Kelsey S., supra, 1 Cal.4th at p. 849.) In deciding whether a particular biological father qualifies, the court emphasized that "The father's conduct both before and after the child's birth must be considered. Once the father knows or reasonably should know of the pregnancy, he must promptly attempt to assume his parental responsibilities as fully as the mother will allow and his circumstances permit. In particular, the father must demonstrate 'a willingness himself to assume full custody of the child—not merely to block adoption by others.' [Citation.] A court should also consider the father's public acknowledgement of paternity, payment of pregnancy and birth expenses commensurate with his ability to do so, and prompt legal action to seek custody of the child. [Citation.]" (Ibid., fn. omitted; see also J.L., supra, 159 Cal.App.4th at p. 1023.) II. The Juvenile Court Did Not Err in Denying the Section 388 Petition Because Travis Did Not Show He Was Entitled to Kelsey S. Rights
"Although [Family Code] section 7611 makes no provision for a Kelsey S. father in its list of presumptions, a father asserting valid Kelsey S. rights may effectively qualify for presumed father status as the result of his constitutional right to parent, which overrides any contrary statutory direction." (J.L., supra, 159 Cal.App.4th at p. 1023; see also In re Zacharia D., supra, 6 Cal.4th at p. 451 [discussing application of Kelsey S. in dependency context].) Travis does not contend he qualifies for presumed father status pursuant to any of the categories enumerated in Family Code section 7611. However, he does contend Kelsey S. entitled him to reunification services to aid him in attaining presumed father status, because the Agency and the juvenile court prevented him from becoming a presumed father under Family Code section 7611, subdivision (d). The burden was on Travis "to establish the factual predicate for" the Kelsey S. rights (Adoption of O.M. (2008) 169 Cal.App.4th 672, 679) and ultimately to establish his entitlement to presumed father status (Glen C. v. Superior Court (2000) 78 Cal.App.4th 570, 585-586; Spencer W., supra, 48 Cal.App.4th at pp. 1652-1653).
We conclude that, as a matter of law, Travis has not established a basis for qualifying as a presumed father under Kelsey S. Although Travis testified Mother's pregnancy was intentional, there is no evidence that he assumed any parental responsibilities before the birth or that he was in any way prevented from doing so by Mother. (Cf. In re Julia U. (1998) 64 Cal.App.4th 532, 541 [father's lack of participation excused because he had little reason to believe that he was the biological parent].) For example, there is no evidence he aided Mother with prenatal expenses, attended any prenatal medical visits, or provided any other form of assistance during the pregnancy. Moreover, Travis provided no assistance during the birth. In fact, he failed to become aware of the birth until weeks afterward, when he happened to bump into Mother on the street. Mother informed Travis, Minor was with Mother's parents. According to Minor's maternal grandmother, Travis left several messages to "check up on" Minor, but left no return phone number. There is no evidence that, after learning of Minor's birth, Travis promptly sought visitation with or custody of Minor, sought to provide any financial or emotional assistance, or sought to establish his parentage.
Travis told the court in August 2010 that he "was involved from the jump . . . . It was not an accident that we had the baby."
Travis's JV-505 statement asserts Mother's parents told him to call the social worker and not to call them.
Once Travis found out that a social worker was involved, he made only minimal efforts to assert his paternity. He did not call the social worker until November 2, 2009, leaving a message; after the worker returned the call and left a message, Travis did not call back until December 2. Travis and the social worker met in mid-December, but there is no indication Travis asked for visitation with Minor or offered to pay any of Minor's expenses, and he was uninterested in services to help him obtain housing. (Cf. J.L., supra, 159 Cal.App.4th at p. 1023 [when man learned he was the biological father he "rushed to assert his paternity and seek full custody of the minor]; In re Baby Boy V. (2006) 140 Cal.App.4th 1108, 1117 [remand to juvenile court to make presumed father determination where it appeared that alleged father "came forward at the earliest possible moment" after learning of the existence of the baby and sought to fulfill his parental responsibilities]; In re Phoenix B. (1990) 218 Cal.App.3d 787, 790, fn. 3 [presumed father status arose because alleged father promptly "came forward when the Department instituted dependency proceedings, offered to care for his daughter, took her into his home and . . . held her out as his child"].) There is no evidence that Travis even requested a visit with Minor before March 10, 2010, when he requested a visit via e-mail, and there is no evidence he followed up when the Agency responded with an offer to discuss visitation and information on how to obtain counsel. Travis complied with the Agency's request that he take a paternity test, but he did not otherwise promptly attempt to formally establish his parentage and he failed to maintain contact with the Agency. Between March and August 2010, he did nothing other than file the August notice of appeal.
Travis failed to present any evidence supporting his claim to Kelsey S. rights. In the attachment to his JV-505, he asserted he was not notified of the birth and denied contact with Minor. Similarly, in his September 2010 testimony, he stated he was "unaware" Minor was going to be born, he had not "had a chance" to provide any support, he had not "been asked" to do anything to support the minor, and he had not "been allowed" to have contact with the minor. But Travis has not claimed he was involved prior to the birth or provided Mother any prenatal assistance, or that anything prevented him from doing so. Neither has he claimed he made any effort to be aware of when the birth would occur, so that he could be involved in parenting the minor. And, as detailed above, his efforts to assert his paternity after Minor became a dependent of the court were minimal.
In conclusion, Travis cannot base a claim for presumed father status on the Kelsey S. rationale, because he has not shown "he promptly came forward and demonstrated as full a commitment to his parental responsibilities as the biological mother allowed and the circumstances permitted within a short time after he learned or reasonably should have learned that the biological mother was pregnant with his child." (Michael H., supra, 10 Cal.4th at p. 1060.) Accordingly, the juvenile court did not err in denying Travis's section 388 petition, because Travis did not qualify as a presumed father and could not have achieved presumed father status with reunification services. For the same reason, the court did not err in denying Travis's JV-505 request for presumed father status.
The trial court denied Travis's section 388 petition on the ground that Travis had not shown his request was in Minor's best interest. We can, however, uphold the juvenile court's orders if correct on another legal ground. (Belair v. Riverside County Flood Control Dist. (1988) 47 Cal.3d 550, 568 ["If correct upon any theory of law applicable to the case, the judgment will be sustained regardless of the considerations that moved the lower court to its conclusion. [Citations.]"].)
III. Any Error in Failing to Notify Travis of the April 2010 Hearing Was Harmless
Travis contends the Agency failed to provide him notice of the April 26, 2010 six-month status review hearing. Assuming that Travis was entitled to receive notice of that hearing, the failure to provide him notice was harmless beyond a reasonable doubt.
A. The Failure to Provide Notice Was Not Structural Error
Travis contends the failure to provide notice was structural error, reversible per se. However, in In re James F. (2008) 42 Cal.4th 901 (James F.), the California Supreme Court rejected broad application of the doctrine of structural error to procedural due process claims in the dependency context. The issue in that case was whether the juvenile court's error in the procedure used to appoint a guardian ad litem for the father in a dependency proceeding required automatic reversal of an order terminating the father's parental rights, or whether the error was subject to review for harmless error. (Id. at pp. 904-905.) In particular, the juvenile court did not explain to the father the role of a guardian ad litem and did not give the father a meaningful opportunity to be heard in opposition to the appointment. (Id. at p. 911.) It was undisputed that father had been denied procedural due process. (Ibid.)
The doctrine of structural error was developed by the United States Supreme Court in the criminal context. (James F., supra, 42 Cal.4th at p. 914.) In James F., the court noted there are significant differences between the rights and protections afforded to parties in a dependency proceeding and those afforded to a defendant in a criminal proceeding. (Id. at p. 915.) The court stated, "[t]hese significant differences between criminal proceedings and dependency proceedings provide reason to question whether the structural error doctrine that has been established for certain errors in criminal proceedings should be imported wholesale, or unthinkingly, into the quite different context of dependency cases. [Citations.]" (Id. at pp. 915-916.) Among other things, "the ultimate consideration in a dependency proceeding is the welfare of the child" (id. at p. 915), and "needless reversals of dependency judgments" would undermine "the strong public interest in prompt resolution of these cases so that the children may receive loving and secure home environments as soon as reasonably possible" (id. at p. 918). The court explained that the United States Supreme Court had not applied the structural error doctrine outside the criminal context, "nor has it ever held that harmlessness is irrelevant when the right of procedural due process . . . has been violated." (Id. at p. 917.)
Ultimately, the James F. court held the due process violation in the appointment of a guardian ad litem was not structural error: "If the outcome of a proceeding has not been affected, denial of a right to notice and a hearing may be deemed harmless and reversal is not required. [Citation.]" (James F., supra, 42 Cal.4th at p. 918.) There, the "result" in the case was "correct" and "just" because the father was "never ready to assume custody" of his son. (Ibid.) In the present case, Travis fails to cite to James F. and attempt to explain why the reasoning of that case is inapplicable here; instead, he relies on Court of Appeal cases, none of which are directly on point and all of which were decided before James F. We reject Travis's contention that the failure to give him notice of the April 2010 hearing was structural error.
James F. declined to determine whether the appropriate standard of review is harmless beyond a reasonable doubt or harmless by clear and convincing evidence. (James F., supra, 42 Cal.4th at p. 911, fn. 1.) We will assume, without deciding, that the harmless beyond a reasonable doubt standard of review is applicable in this case. (In re Esmeralda S. (2008) 165 Cal.App.4th 84, 94.)
B. The Failure to Provide Notice Was Harmless Beyond a Reasonable Doubt
Travis argues he was prejudiced by the lack of notice of the April 2010 hearing because it "deprived him of the opportunity to attend the proceedings and explain his situation directly to the court, deprived him of the right to have counsel appointed, deprived him of the opportunity to request that the court exercise its discretion to prov[ide] him with reunification services, deprived him of the opportunity to begin supervised visits with his daughter in May 2010, deprived him of the opportunity to attempt to elevate his status to that of presumed father in May, and deprived him of the opportunity to do so at a review hearing without having to file a section 388 petition in order to do so." However, even if Travis had received notice of the April 2010 status review hearing and had attended that hearing, the juvenile court could not have declared him a presumed father under either Family Code section 7611 or the Kelsey S. decision. Moreover, there is no basis to conclude the juvenile court would have placed Minor in Travis's custody, in order for him to be able to establish presumed father status.
Additionally, subsequent developments make it clear that Travis never had the intention or capacity to fully commit to his parental responsibilities, "emotional, financial, and otherwise." (Kelsey S., supra, 1 Cal.4th at p. 849.) Although Travis did not receive notice of the April 2009 hearing, he took only minimal steps to assert his paternity, from the date he learned of Mother's pregnancy until termination of his parental rights. Notably, on November 22, 2010, the juvenile court granted Travis supervised visitation, and, on December 1, an Agency worker e-mailed Travis, indicating he should contact her to schedule a visit. But Travis failed to take any steps, either after the November hearing or in response to the Agency e-mail, in order to schedule a visit. Travis also refused to accept housing, substance abuse, and mental health referrals offered by the Agency, even though the Agency explained that the juvenile court wanted him to participate in services that would help stabilize his situation. Finally, Travis did not request, on his JV-505 statement, a judgment of parentage that would have obligated him to support Minor, and he did not claim to have given any money or things to Minor. (See Spencer W., supra, 48 Cal.App.4th at p. 1654 [emphasizing that alleged father had failed "to proclaim paternity when there might have been some cost to him" and had not attempted "to assume the financial obligations for child support"].)
The California Supreme Court's decision in Michael H., supra, 10 Cal.4th 1043, is instructive. There, during the pregnancy, the biological father and mother agreed they would give the child up for adoption and, for various reasons, the biological father did not have contact with the mother during the end of her pregnancy and the birth. (Id. at pp. 1049-1050.) After the birth, the biological father's efforts to establish a parental relationship were " 'nothing short of impressive,' " and he never " 'wavered in expressing his desire to take on the full responsibility of fatherhood.' " (Id. at p. 1053.) Nevertheless, the Supreme Court agreed with the adoptive parents' contention (id. at p. 1055) that the biological father could not compensate for his failure to " 'promptly' demonstrate^ a 'full commitment' to parenthood during pregnancy . . . by attempting to assume his parental responsibilities many months after learning of the pregnancy" (id. at p. 1054). In the present case, not only did Travis fail to assume parental responsibilities during Mother's pregnancy and soon after the birth of Minor, but his subsequent efforts were minimal. (Cf. In re Andrew L. (2004) 122 Cal.App.4th 178, 193 [biological father's "strenuous efforts to establish paternity showed that his motivation was a genuine and admirable commitment to the son he had fathered"].)
In conclusion, although the Agency's failure to provide notice of the April 2010 hearing and the juvenile court's initial orders preventing visitation undoubtedly made it more difficult for Travis to establish a relationship with Minor, there were many things he could have done to indicate his desire and willingness to assume full parental responsibilities. Nevertheless, Travis did virtually nothing during the first year of Minor's life to assume those responsibilities. (See Kelsey S., supra, 1 Cal.4th at p. 849 ["The statutory distinction between natural fathers and presumed fathers is constitutionally invalid only to the extent it is applied to an unwed father who has sufficiently and timely demonstrated a full commitment to his parental responsibilities."]; Adoption of O.M., supra, 169 Cal.App.4th at p. 681 ["this is not a case in which a biological father has become entitled to Kelsey S. rights by making good faith attempts to fulfill his parental responsibilities, only to have those attempts frustrated by the unilateral actions of his child's mother"]; see also In re Jason J. (2009) 175 Cal.App.4th 922, 933.) Accordingly, the failure to provide Travis notice of the April 2010 hearing was harmless beyond a reasonable doubt, because there is no basis to conclude he could have been elevated to presumed father status at that hearing or received custody of Minor at that time. And even if he had received visitation or reunification services at that point, there is no basis to conclude it would have made any significant difference, in light of his subsequent failure to take advantage of those opportunities. (See In re Kobe A. (2007) 146 Cal.App.4th 1113, 1124 [juvenile court's failure to advise alleged father of opportunity to participate in dependency proceedings and change his paternity status was harmless where it was "inconceivable" the juvenile court would have placed the minor with him].)
As Travis points out, the juvenile court commented on September 8, 2010, that Travis's counsel had "set forth a pretty good list of reasons which would constitute thwarting his efforts to be the father here." The fact that Travis encountered obstacles did not, however, entitle him to Kelsey S. rights where he failed to do all he could under the circumstances.
Travis argues he was prejudiced because, after the April 2010 setting of the section 366.26 hearing, he faced a greater burden in elevating his status to presumed father because he had to file a section 388 petition to do so. However, because at no point during the proceedings was there ever a basis to declare Travis a presumed father, it is irrelevant whether the section 388 procedure imposed additional obstacles.
IV. The Trial Court Was Not Required to Make an Unfitness Finding Before Terminating Travis's Parental Rights
Travis contends the juvenile court's termination of his parental rights must be reversed because the juvenile court never made a finding that he was unfit or that awarding custody of Minor to him would be detrimental to Minor. However, no finding of unfitness or detriment is required to terminate the parental rights of a biological father. As explained in In re Ninfa S. (1998) 62 Cal.App.4th 808, 811, "a biological father's rights are limited to establishing his right to 'presumed' father status, and the court does not err by terminating a biological father's parental rights when he has had the opportunity to show presumed father status and has not done so." (Accord, In re A.S. (2009) 180 Cal.App.4th 351, 362.) In particular, a biological father's " 'parental rights may be terminated based solely upon the child's best interest and without any requirement for a finding of detriment or unfitness . . . .' [Citations.]" (In re Jason J., supra, 175 Cal.App.4th at p. 934; accord, In re A.S., at p. 362; see also In re Sarah C. (1992) 8 Cal.App.4th 964, 981 ["because the facts show [the appellant] was merely a biological father who had demonstrated no willingness to accept full parental responsibilities for [the minor] the court was not required to make a particularized finding [the appellant] was 'unfit,' and was entitled to focus on [the minor's] best interests in deciding to not offer reunification services and terminate [the appellant's] parental rights so [the minor] could be adopted"].)
In light of our resolution of Travis's claims relating to denial of his section 388 petition and the failure to notify him of the April 2010 hearing, we need not and do not reach a number of additional issues raised in the briefs on appeal, including: Travis's standing to appeal, the timeliness and adequacy of the August 2010 notice of appeal, whether Travis was entitled to notice of the April 2010 six-month review hearing and report, and whether Travis had to show the requested change in paternity status and reunification services was in the minor's best interests and whether the juvenile court employed the proper standard in making the determination.
V. We Must Remand for Compliance With the ICWA
Travis contends the juvenile court erred in finding the ICWA does not apply and by not ensuring the Agency complied with ICWA inquiry and notice requirements. We agree.
"Congress enacted ICWA in 1978 'to protect the best interests of Indian children and to promote the stability and security of Indian tribes and families . . . .' (25 U.S.C. § 1902.) 'The ICWA presumes it is in the best interests of the child to retain tribal ties and cultural heritage and in the interest of the tribe to preserve its future generations, a most important resource.' [Citation.] Section 1911 of ICWA provides that a tribe may intervene in state court dependency proceedings. (25 U.S.C. § 1911(c).) Notice to the tribe provides it the opportunity to exercise its right to intervene. [Citation.]" (In re Damian C. (2009) 178 Cal.App.4th 192, 196 (Damian C.); see also In re Jack C. (2011) 192 Cal.App.4th 967, 977 ["ICWA sets forth minimum substantive and procedural standards to protect the interests of Indian children, Indian families and Indian tribes. [Citations.]"].)
In part, the ICWA provides, "where the court knows or has reason to know that an Indian child is involved, the party seeking the foster care placement of, or termination of parental rights to, an Indian child shall notify the parent or Indian custodian and the Indian child's tribe, by registered mail with return receipt requested, of the pending proceedings, and of their right of intervention." (25 U.S.C. § 1912(a).) Section 224.3, subdivision (a) imposes an "affirmative and continuing duty" on the court and the Agency "to inquire whether a child for whom a petition . . . is to be, or has been, filed is or may be an Indian child in all dependency proceedings." A circumstance that may provide reason to know a child is an Indian child is that "a person having an interest in the child . . . informs or otherwise provides information suggesting that the child is an Indian child . . . ." (Cal. Rules of Court, rule 5.481(a)(5)(A); see also § 224.3, subd. (b)(1).) Section 224.3, subdivision (c) provides, if a social worker "knows or has reason to know that an Indian child is involved, the social worker . . . is required to make further inquiry regarding the possible Indian status of the child, and to do so as soon as practicable, by interviewing the parents, Indian custodian, and extended family members to gather the information required in paragraph (5) of subdivision (a) of Section 224.2 . . . ." (See also rule 5.481(a)(4).) Section 224.2, subdivision (a)(5) specifies information to be included in a notice including, for example, "All names known of the Indian child's biological parents, grandparents, and great-grandparents . . . as well as their current and former addresses, birthdates, places of birth and death, tribal enrollment numbers, and any other identifying information, if known." (§ 224.2, subd. (a)(5)(C).)
All rule references are to the California Rules of Court.
Rule 5.481(a)(4) provides, if a social worker "knows or has reason to know that an Indian child is or may be involved, that person or entity must make further inquiry as soon as practicable by: [¶] (A) Interviewing the parents, Indian custodian, and 'extended family members' . . . ." The Agency argues that the reference in this rule to information that a child "is or may be" an Indian child is inconsistent with the reference in section 224.3, subdivision (c) to information that an Indian child "is" involved. We need not resolve that issue, because any inconsistency makes no difference in the present case. (See Damian C., supra, 178 Cal.App.4th at pp. 198-199 [concluding same distinction makes "little practical difference" in related provisions].)
We review the juvenile court's determination that the Agency complied with the ICWA for substantial evidence. (In re Alice M., supra, 161 Cal.App.4th at p. 1195.) "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, 120.)
In the present case, the first suggestion that Minor might be an Indian child was in the Petition, filed August 18, 2009. The Petition indicated an inquiry had been made and Minor "may have Indian ancestry"; no basis for the assertion was specified. The Agency's August 19 detention report indicated the maternal grandmother "denied knowing any Indian tribe with which the family might be affiliated." But, on August 19, Mother completed an ICWA notification form, indicating she is or may be a member of or eligible for membership in an unspecified federally recognized tribe. An October 2009 report stated that a maternal aunt had also indicated there was Indian ancestry in the family. The Agency's report for the October 5, 2010 hearing stated "[t]he mother and grandmother claimed Indian heritage but from an unknown Tribe." It also stated that Travis had "not asserted Indian ancestry," but at the October 5 hearing Travis indicated he has a grandparent with Indian heritage. That same day, he completed an ICWA notification form claiming he is or may be a member of or eligible for membership in an federally recognized tribe; he indicated the name of the tribe is unknown, but his grandfather is one-half Native American.
In sum, the Agency received information suggesting Minor is an Indian child on both the maternal and paternal sides. This information "triggered the requirement to make further inquiry." (Damian C., supra, 178 Cal.App.4th at p. 199.) Damian C. is analogous. There, the Agency had reason to know the minor is an Indian child because the mother and maternal grandfather indicated they may have Indian ancestry, even though the grandfather stated that the "family's attempts to research their possible Indian heritage had been unsuccessful and he has no contact information for his father." (Ibid.) The Agency attempts to distinguish Damian C. on the basis that in that case the information provided by the minor's relatives included specific references to Yaqui or Navajo heritage, although only the mother referred to a specific tribe. (Damian C., at p. 199.) The Agency asserts, "Here, there is no tribe ever identified. Travis, who claimed to have Indian ancestry through his grandfather who was supposedly half Indian, disclosed only his grandfather's name, but no other information." But it was the Agency's obligation to investigate and gather more information—from Mother, Travis, and their extended families—once the Agency received clear indications of possible Indian heritage. The duty of further inquiry does not turn on whether a parent is able to identify a specific tribe.
The Agency asserts it did perform further inquiry, but it cites to nothing in the record indicating that any Agency employee made any further investigation. For example, the Agency's reports do not indicate any Agency employee spoke with or attempted to speak with additional extended family members to find out more about the claimed Indian ancestry. The Agency's ICWA notice, filed in December 2010, contains very little information about extended family members; it does not even provide the names of the maternal or paternal grandfathers, which further suggests the lack of any serious effort on the part of the Agency. Nevertheless, the Agency argues this court should assume that its employees made adequate further inquiry. Such speculative assumptions—here, contrary to the only indications in the record—cannot constitute substantial evidence of the Agency's compliance with its obligations under the ICWA. Absent some indication of what effort the Agency made, there is no basis to assess the adequacy of the efforts or find the Agency complied with its duty of further inquiry.
To assume the Agency performed an adequate further inquiry would be particularly inappropriate in this case, where the record suggests the Agency placed the burden of providing information on the parents, instead of conducting its own inquiry. For example, as noted above, the Agency's report for the October 5, 2010 hearing stated that Travis had "not asserted Indian ancestry," but Travis made such an assertion at that hearing. The Agency also suggests that it complied with its obligation to conduct a further inquiry by asking Mother and Travis for more information. However, the Agency presents no authority supporting the proposition that it can so satisfy its duty of further inquiry. It would seriously undermine the ICWA—and the interests of the Indian tribes, families, and children it is meant to protect—if asking the parents alone were sufficient to satisfy the duty of further inquiry, particularly because parents in dependency proceedings are often undependable.
In conclusion, the juvenile court's implied finding that the Agency complied with its obligation of further inquiry is not supported by substantial evidence. We remand with directions that the juvenile court effectuate proper inquiry and comply with the notice provisions of the ICWA if Indian heritage is indicated. (In re Noreen G. (2010) 181 Cal.App.4th 1359, 1389-1390.) If, after proper inquiry and notice, a tribe determines Minor is an Indian child, Travis may petition the court to invalidate the termination of his parental rights upon a showing that such action violated the ICWA. (In re Noreen G., at p. 1390.)
We deny Travis' request that a different juvenile court judge conduct the proceedings on remand. (Code. Civ. Proc., § 170.1, subd. (c).)
DISPOSITION
The juvenile court's orders are affirmed. The matter is remanded with directions to the juvenile court to ensure compliance with the inquiry and notice provisions of the ICWA, in accordance with the decision of this court. If, after proper inquiry and notice a tribe determines Minor is an Indian child, Travis may petition the juvenile court to invalidate the termination of his parental rights upon a showing that such action violated the ICWA.
SIMONS, Acting P.J.
We concur.
NEEDHAM, J.
BRUINIERS, J.