Opinion
NOT TO BE PUBLISHED.
APPEAL from the Superior Court of Riverside County No. INJ015163, Christopher J. Sheldon, Judge.
Jennifer Mack, under appointment by the Court of Appeal, for Defendant and Appellant.
Joe S. Rank, County Counsel, and Carole A. Nunes Fong, Deputy County Counsel, for Plaintiff and Respondent.
Leslie A. Barry, under appointment by the Court of Appeal, for Minor.
King J.
I. INTRODUCTION
Appellant W.S., the alleged father of E.C., purports to appeal from an order terminating parental rights to E.C. and placing E.C. for adoption. (Welf. & Inst. Code, § 366.26.) W.S. claims the Department of Public Social Services (DPSS) committed reversible error by failing to comply with the notice requirements of the Indian Child Welfare Act (ICWA). (25 U.S.C. § 1901 et seq.)
All further statutory references are to the Welfare and Institutions Code unless otherwise indicated.
DPSS argues that W.S. has no standing to raise the ICWA notice issue because he is not a “parent” within the meaning of the ICWA. We agree that W.S. has no standing to assert noncompliance with the notice requirements of the ICWA, because he never took any “official action” to acknowledge or establish his paternity of E.C. (In re Daniel M. (2003) 110 Cal.App.4th 703 (Daniel M.).) Accordingly, we dismiss the appeal.
II. FACTS AND PROCEDURAL HISTORY
E.C. was born in March 2006 while his mother, Alexis C., was incarcerated. E.C. was taken into protective custody and placed in the care of his maternal grandparents, who were already legal guardians to two of E.C.’s half siblings. W.S. was never married to the mother, was not living with her at the time of E.C.’s birth, was not named as the father on E.C.’s birth certificate, and was not providing care or financial support for E.C.
The mother is not a party to this appeal.
A petition was filed alleging failure to protect jurisdiction (§ 300, subd. (b)), based on the mother’s and W.S.’s criminal and substance abuse histories, and W.S.’s history of mental illness. W.S. was identified as an “alleged father” in the petition and the detention report. Both the mother and W.S. told the social worker that W.S. was E.C.’s biological father. The mother and W.S. were “demanding” that DPSS place E.C. with W.S., and W.S. was harassing the maternal grandmother about seeing E.C.
In the jurisdictional report, DPSS requested that W.S. be “regarded” as the presumed father of E.C. It also requested that the dispositional hearing be continued to complete two psychological evaluations of W.S. for purposes of determining whether he was capable of utilizing reunification services. At the jurisdictional hearing on April 18, the court sustained the section 300, subdivision (b) allegations, continued the dispositional hearing, and ordered the psychological evaluations. Drs. William H. Jones and Judy Matthews were appointed to conduct the evaluations. W.S. was present at the hearing and was represented by counsel.
Also on April 18, W.S. completed and filed form JV-130 (Parental Notification of Indian Status). On the form, W.S. checked the box stating, “I have no Indian ancestry as far as I know,” and signed the form under penalty of perjury. The form also stated: “In the event that new information becomes available that would change your response, you must inform your attorney and the social worker or probation officer immediately and an updated form must be filed with the court.” W.S. never updated, revised, or retracted form JV-130.
On April 25, Dr. Jones performed a psychological evaluation of W.S. and prepared a report of the evaluation. The family history section of Dr. Jones’s report states that W.S. described his father as “[B]lack, Indian and Puerto Rican.” There was no further description of the alleged paternal grandfather’s “Indian” ancestry, including whether it was American Indian. Dr. Jones’s report also stated that W.S.’s father left W.S.’s family when W.S. was five years old, and that W.S. had “almost no contact” with him.
Dr. Jones’s report further stated that “[b]ecause of [W.S.’s] impulsivity, limited frustration tolerance, history of psychotic mental illness, history of cocaine addiction, and limited coping ability in day to day life, he would not be able to parent a child adequately, particularly an infant.”
Dr. Matthews conducted the second psychological evaluation of W.S. on June 8. Dr. Matthews concluded that W.S.’s “severe mental illness, and its associated characteristics of low frustration tolerance, impulsivity, continued substance abuse and dependency on others, prohibit[ed] him from utilizing reunification services.” Dr. Matthews also stated it was unlikely that W.S. would improve to such a degree that he would be capable of learning from reunification services within the next 12 months.
Based on the results of the two evaluations, DPSS recommended that W.S. be denied reunification services. At the contested dispositional hearing on August 15, the court denied reunification services to W.S. under section 361.5, subdivision (b)(2). The court offered, but later terminated, services to the mother.
At the selection and implementation hearing on March 21, 2007, the juvenile court terminated parental rights and placed E.C. for adoption. In its minute order, the court reiterated its earlier findings that the ICWA did not apply. This appeal followed.
III. DISCUSSION
A. Statutory Overview
“In general, the ICWA applies to any state court proceeding involving the foster care or adoptive placement of, or the termination of parental rights to, an Indian child. (25 U.S.C. §§ 1903(1), 1911(a)-(c), 1912-1921.) ‘Indian child’ is defined as a child who 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).) ‘Indian tribe’ is defined so as to include only federally recognized Indian tribes. (25 U.S.C. § 1903(8).)
“Concerning notice, the ICWA provides: ‘[W]here 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 Indian child’s tribe, by registered mail with return receipt requested, of the pending proceedings and of their right of intervention. If the identity or location of . . . the tribe cannot be determined, such notice shall be given to the [Bureau of Indian Affairs (BIA)] in like manner, who shall have fifteen days after receipt to provide the requisite notice to the parent or Indian custodian and the tribe. No foster care placement or termination of parental rights proceeding shall be held until at least ten days after receipt of notice by . . . the tribe or the [BIA] . . . .’ (25 U.S.C. § 1912(a); see also 25 U.S.C. §§ 1a, 1903(11).)
“To enforce this notice provision, the ICWA further provides: ‘Any Indian child who is the subject of any action for foster care placement or termination of parental rights under State law, any parent or Indian custodian from whose custody such child was removed, and the Indian child’s tribe may petition any court of competent jurisdiction to invalidate such action upon a showing that such action violated any provision of section[] . . . 1912 . . . of this title.’ (25 U.S.C. § 1914.)” (In re Jonathon S. (2005) 129 Cal.App.4th 334, 338.)
B. No Standing
DPSS argues that W.S. has no standing to assert that notice was not given in accordance with the ICWA, because he is an alleged father who never officially acknowledged or established his paternity. W.S. and minor’s counsel claim that W.S. has standing to raise the ICWA notice issue because the juvenile court and DPSS “treated” him as a presumed father. We agree with DPSS that W.S. lacks standing to assert that notice was not given in accordance with the ICWA.
The ICWA defines a “parent” as any “biological parent or parents of an Indian child . . . .” (25 U.S.C. § 1903(9), italics added.) The ICWA expressly excludes from the definition of “parent” an “unwed father whose paternity has not been acknowledged or established.” (Ibid., italics added.) Whether a man’s paternity has been “acknowledged or established” under the ICWA is determined under state law. (Daniel M., supra, 110 Cal.App.4th at p. 708.)
Similarly, California Rules of Court, rule 5.664(a)(4) provides that a parent of an Indian child “does not include . . . an unwed alleged father where paternity has not been determined or acknowledged.” California Rules of Court, rule 5.664(a)(4) is substantively indistinguishable from section 1903(9) of title 25 of the United States Code. Accordingly, California law does not provide narrower standing than federal law. (See Daniel M., supra, 110 Cal.App.4th at p. 708 [construing former Cal. Rules of Court, rule 1439(a)(4)].)
In Daniel M., Division One of this court observed that courts in other jurisdictions had held that “an unwed father must take some official action” to acknowledge or establish his paternity, “such as filing a voluntary declaration of paternity, establishing paternity in legal proceedings, or petitioning to have his name placed on the child’s birth certificate.” (Daniel M., supra, 110 Cal.App.4th at p. 708, italics added.) The court adopted this requirement and noted that, “in California an alleged father may acknowledge or establish paternity by voluntarily signing a declaration of paternity at the time of the child’s birth, for filing with the birth certificate (Fam. Code, § 7571, subd. (a)), or through blood [or genetic] testing (Fam. Code, § 7551).” (Id. at pp. 708-709, fn. omitted.) The alleged father in Daniel M. neither signed a declaration of paternity nor established his paternity through blood testing prior to the section 366.26 hearing. Thus, the court there held that the alleged father did not have standing to challenge a violation of the ICWA notice provisions. (Daniel M., supra, at p. 709.)
Here, as in Daniel M., W.S. took no official action to acknowledge or establish his biological paternity of E.C. He neither signed a declaration of paternity nor submitted to blood or genetic testing. (Fam. Code, §§ 7540, 7570, 7611.) It follows that W.S. is not a “parent” within the meaning of the ICWA and has no standing to assert noncompliance with the notice provisions of the ICWA. (Daniel M., supra, 110 Cal.App.4th at p. 709.)
Minor’s counsel insists, however, that W.S. “meet[s] the definition of a parent for purposes of the ICWA even though he was never officially identified as a presumed or biological father.” (Italics added.) Minor’s counsel says “everyone recognized” that W.S. was E.C.’s biological father because: (1) W.S. repeatedly told the social worker he was E.C.’s father, (2) the mother indicated W.S. had been her only boyfriend for the previous three years, and (3) W.S. had been attempting to gain custody of E.C. from the maternal grandparents.
None of these actions or statements amounted to an “official action” on the part of W.S. acknowledging or establishing his biological paternity of E.C. Like W.S., the alleged father in Daniel M. participated in the dependency proceedings and presumably made statements claiming he was the biological father of the child, but these actions were sufficient to officially acknowledge or establish his biological paternity of the child. (See Daniel M., supra, 110 Cal.App.4th at pp. 706-709.)
Minor’s counsel further argues that DPSS and the juvenile court “treated” W.S. as a presumed father by continuing the dispositional hearing pending the completion of the two psychological evaluations. Minor’s counsel correctly argues that, if W.S. was only an alleged father, “there would have been no need for the psychological evaluations and no need for an order bypassing services pursuant to section 361.5, subdivision (b)(2).” Indeed, only a presumed father is entitled to reunification services. (In re Zacharia D. (1993) 6 Cal.4th 435, 447-449.)
Nevertheless, it is immaterial that the juvenile court and DPSS “treated” W.S. as a presumed father. First, it is notable that the juvenile court never found that W.S. was the presumed father of E.C., even though DPSS recommended in its dispositional report that the court make this finding. (Cal. Rules of Court, rule 5.635; Fam. Code, § 7611.) Nor did W.S. seek presumed father status, even though he was represented by counsel throughout the dependency proceedings.
Moreover, even if W.S. had been declared the presumed father of E.C., he would not necessarily be a biological “parent” within the meaning of section 1903(9) of title 25 of the United States Code. A man may be a presumed father within the meaning of Family Code section 7611 without being a biological father and without taking any “official action” to acknowledge or establish paternity. (See Fam. Code, §§ 7540, 7570, 7611.) And here, W.S. never took any official action to acknowledge or establish his paternity of E.C.
In view of our conclusion that W.S. lacks standing to assert noncompliance with the notice provisions of the ICWA, it is unnecessary for us to address DPSS’s alternative argument that the notice provisions of the ICWA do not apply or were never triggered in this case.
IV. DISPOSITION
The appeal is dismissed.
We concur: McKinster Acting P. J. Gaut J.