Filed 9/30/16 In re U.N. CA1/3
Received for posting 10/3/16
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION THREE
In re U.N., a Person Coming Under the
Juvenile Court Law.
SAN FRANCISCO HUMAN SERVICES
AGENCY,
Plaintiff and Respondent, A147251
v.
(City & County of San Francisco
M.M., Super. Ct. No. JD153223)
Defendant and Appellant.
M.M., alleged father of three-year-old U.N., appeals from the juvenile court’s
jurisdictional and dispositional orders removing U.N. from his mother R.N.’s (Mother)
care and placing him in a foster home. He contends the court erred in: (1) denying his
request for biological father status; and (2) failing to give adequate notice under the
Indian Child Welfare Act, 25 U.S.C. § 1901 (ICWA). San Francisco Human Services
Agency (Agency) concedes—and we conclude—there was ICWA error, but we reject
M.M.’s remaining contention. We therefore affirm the orders and remand the matter for
the court to fully comply with ICWA’s requirements.
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FACTUAL AND PROCEDURAL BACKGROUND
On July 27, 2015, the Agency filed a petition on behalf of U.N. and his half-
sibling A.N1 alleging U.N. was at risk due to Mother’s substance abuse, physical abuse,
and history of being in a relationship characterized by domestic violence with A.N.’s
father, S.V. The petition listed M.M. as U.N.’s biological father.
According to the detention report, U.N. and A.N. were taken into protective
custody on July 23, 2015, after Mother was seen grabbing U.N. roughly, dragging him,
and throwing him down onto the pavement while pushing A.N. in a stroller down
Market Street in San Francisco at 1:20 a.m. When officers arrived, they noted U.N. had
multiple cuts and bruises over his face, neck, arm, hands and leg areas. Mother was
intoxicated and did not seem to grasp what was going on. She was arrested, and U.N.
was taken by ambulance to a hospital for medical evaluation.
A social worker interviewed Mother, who said M.M. was U.N.’s father but that
Mother and M.M. were never married, had been in a relationship for three months before
U.N. was conceived, and did not live together. M.M. did not sign U.N.’s birth certificate,
was not involved in U.N.’s life, and did not provide child support. He lived in Modesto,
but Mother did not have his phone number or address. Mother stated that she, U.N., and
A.N. had lived with A.N.’s father, S.V., but that she had left with the children because of
S.V.’s verbal abuse. She said she and S.V. pushed each other at times, and that their
relationship involved domestic violence. Mother was cooperative and willing to
participate in services to improve her parenting so she could reunify with her children.
She asked that the maternal grandfather be considered for placement for the children.
The social worker conducted a due diligence search for M.M. but was unable to locate
him.
On July 28, 2015, the juvenile court detained U.N. and ordered that he remain in
foster care. The court scheduled a “J1” hearing as to M.M. for August 11, 2015 and a
1
A.N. is not a party to this appeal.
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settlement conference for August 25, 2015. The clerk of the court mailed notices of both
hearings to M.M.—who was located in Modesto—by certified mail.
M.M. appeared at the August 11, 2015 hearing and was appointed counsel. The
juvenile court ordered a “paternity inquiry” and advised Mother and M.M. that if the
petition is sustained and U.N. is declared a dependent of the court, reunification services
will not exceed six months because U.N. was under the age of three at the time of the
initial removal. The court ordered Mother and M.M. to return to court for the August 25,
2015 settlement conference.
Mother filed a Dependency Parentage form, on August 13, 2015. In response to
the question, “Does a Judgment of paternity exist for your child/children? (i.e. do you
receive child support? Have you ever been in family court for custody issues?),” Mother
responded “yes” as to U.N. She stated she and M.M. were not married or living together
at the time U.N. was conceived and that M.M. had not filed a voluntary declaration of
paternity and had not received U.N. into his home. She stated M.M. had been ordered to
pay child support but had not; he had “informally helped [with] costs here and there.”
She stated a “paternity test through child support” had shown “99.99% bio father” as to
U.N.
On August 18, 2015, form JV-500, a Parentage Inquiry – Juvenile, was filed.
Attached to the form was a December 18, 2014 Judgment Regarding Parental Obligations
from the Merced County Superior Court ordering M.M. to pay $50 per month in child
support to U.N. The judgment stated M.M. was obligated to pay child support because
paternity tests established he was U.N.’s biological father.
On August 21, 2015, the Agency filed a report in preparation of the jurisdictional
and dispositional hearing. According to the report, M.M. told the social worker that he
did not have a relationship with U.N. He said he provided financial support “directly to
[Mother]” and that “he has DNA testing results showing he is the biological father and
will provide those.” Mother had previously reported she was 22 years old and M.M. was
46 years old when they were involved, and that M.M. was very violent and had
threatened to kill her.
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M.M. had an extensive criminal history and was a registered sex offender due to
an arrest in 1986 for lewd lascivious acts with a child under 14 and a conviction for
sexual penetration with a foreign object with force, for which he received a sentence of
32 months in prison. The report further stated: “He has [a] conviction for felony
possession of explosive/etc/device/public in 1986. He has firearm arrests with felony
convictions for grand theft from person 1989, for grand theft property in 1992 and a
felony false imprisonment conviction in 1994 with a sentence of 52 months in prison,
felony conviction of threaten crime in 1998, damage to prison and an arrest in 2013 for
rape that was dismissed. He has numerous other arrests including probation violations.”
The report concluded: “The [Agency] recommends that no services be provided to [S.V.]
and [M.M.] since they are alleged fathers who do not have relationships with the minors.”
An amended petition was filed on August 24, 2015, adding a number of allegations,
including one that set forth M.M.’s criminal history.
At the August 25, 2015 hearing, M.M. “willfully failed to appear”—a finding the
juvenile court made without prejudice. The court continued the matter to September 4,
2015, and ordered M.M. to appear. The clerk mailed notice of the rescheduled hearing
date to M.M. and his counsel. M.M. again failed to appear for the September 4, 2015
hearing. The court rescheduled the hearing to 9:00 a.m. on November 4, 2015, and
ordered M.M.’s attorney to advise M.M. to appear. The court also ordered a trial
submission schedule and set a mandatory settlement conference for October 21, 2015.
The clerk mailed notice of the settlement conference and rescheduled hearing date to
M.M. and his counsel.
On October 15, 2015, the Agency filed an addendum report in which it provided
updated information about Mother and the children. The Agency continued to
recommend that no reunification services be provided to M.M. On October 21, 2015, the
Agency and Mother filed their respective trial pleadings pursuant to the juvenile court’s
September 4, 2015 order. M.M. did not file any pleadings related to the trial.
On November 4, 2015, M.M. appeared at the jurisdictional and dispositional
hearing at 11:45 a.m., during the cross-examination of the final witness, social worker
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Laura Morgan. Thereafter, M.M.’s attorney attempted to cross-examine Morgan, when
the Agency’s attorney objected, stating, “[M.M.] at this point is still alleged, and I believe
that his rights are limited to notice and an opportunity to elevate his status . . . .” M.M.’s
attorney responded, “You’re right. He does have a right to try to elevate his status which
I’m trying to do right now to the next step.” The court asked if a motion had been filed,
and M.M.’s attorney responded, “No, there’s been no motion filed yet . . .
[M.M.] . . . entered the courtroom late this morning and he did provide me with a
document from the DNA Diagnostic Center which states that his probability of paternity
is 99.99 percent.” M.M.’s attorney stated he intended to ask Morgan just two
questions—whether she had seen the DNA report, and if she and the Agency would
stipulate to elevate M.M. to biological father status.
The Agency’s attorney indicated she was not prepared to enter into such a
stipulation. She noted M.M. had been involved in the case for almost three months and
had ample time to file a motion for presumed status, but had not done so. She said she
had just been presented with the DNA test—which apparently was available since
June 2014—and that the issue of paternity was not properly before the court. She noted
that a biological father is not, in any event, entitled to reunification services or visitation,
and that there were allegations against M.M. in the petition.
After significant back and forth between the juvenile court and counsel for all
parties, the court stated it would not consider the paternity issue at that time because the
parties had not briefed the issue and had not submitted any evidence regarding paternity
prior to trial. The court stated it would allow M.M. to contest the allegations that were
made against him in the petition: “With regards to the allegations I’m going to allow you
to contest it. And I can see it’s regarding criminal history. So we’re at cross-
examination, Mr. Bordelon [counsel for M.M.].” M.M.’s counsel stated, “Your Honor, at
this point I rest.” During closing arguments, M.M.’s attorney stated he objected “to any
allegation being sustained against [M.M.] . . . based on the fact that . . . I have not been
able to obtain discovery and have been precluded from meeting and conferring with
counsel regarding this issue. . . .”
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The juvenile court found true the allegations against M.M. regarding his criminal
history based on the evidence presented in the social worker’s reports. The court
sustained the petition, removed U.N. from Mother’s custody, and ordered reunification
services for Mother.
DISCUSSION
Biological Father Status
M.M. contends the juvenile court erred in denying his request for biological father
status. Assuming, without deciding, that the court erred, we conclude the error was
harmless under any standard.
There are three types of fathers in juvenile dependency law: presumed, biological,
and alleged. (In re Kobe A. (2007) 146 Cal.App.4th 1113, 1120.) A presumed father is a
man who meets one or more specified criteria in Family Code section 7611 by, for
example, marrying or attempting to marry the child’s mother, executing a declaration of
paternity, or receiving the child into his home and openly holding the child out as his
natural child. (§ 7611, subds. (a), (b), (d).) A biological father is a man whose paternity
has been established, but who has not shown he is the child’s presumed father. An
alleged father is a man who has not established biological paternity or presumed father
status. (In re Zacharia D. (1993) 6 Cal.4th 435, 449, fn. 15.) These categories are meant
“to distinguish between those fathers who have entered into some familial relationship
with the mother and child and those who have not.” (In re Sabrina H. (1990)
217 Cal.App.3d 702, 708.)
“Presumed father status ranks highest.” (In re Jerry P. (2002) 95 Cal.App.4th
793, 801.) Only a presumed father is entitled to appointed counsel, custody (if there is no
finding of detriment) and reunification services. (In re T.R. (2005) 132 Cal.App.4th
1202, 1209.) In contrast, a biological father is not entitled to these rights merely because
he wants to establish a personal relationship with his child. (In re Christopher M. (2003)
113 Cal.App.4th 155, 160; Adoption of Kelsey S. (1992) 1 Cal.4th 816, 844 [“it is clear
that the Legislature meant to provide natural [biological] fathers with far less rights than
both mothers and presumed fathers have under California’s statutory system”].) Thus, a
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court may provide reunification services to a biological father only if it determines that
services will “benefit the child.” (Welf. & Inst. Code,2 § 361.5, subd. (a).)
Here, M.M. does not assert he is a presumed father. Rather, his only argument is
that he should have been deemed a biological father so that the juvenile court “could have
ordered reunification services and visitation, which would then assist [him] in obtaining
presumed father status.” As noted, however, a biological father may receive reunification
services only if the court determines that services will “benefit the child.” (§ 361.5,
subd. (a).) The record demonstrates M.M. would not have been able to make that
showing. Thus, any error in failing to elevate M.M. to biological father status was
harmless under any standard. (See In re Kobe A., supra, 146 Cal.App.4th at p. 1121–
1124 [the failure to provide an alleged father with notice of the proceedings deprived him
of the opportunity to establish paternity, obtain reunification services, and ultimately seek
placement of his son, but the error was harmless under any standard].)
M.M. and Mother were never married and did not live together. They had been in
a relationship for only three months before U.N. was conceived, and according to the
jurisdictional and dispositional report, Mother told a social worker that M.M. was very
violent and had threatened to kill her. M.M. was not on U.N.’s birth certificate, had not
signed a voluntary declaration of paternity, and had not received U.N. into his home. He
had been ordered to pay child support but had not paid. There was no evidence he
maintained any relationship with U.N. after his birth, and in fact, he told a social worker
that he did not have a relationship with U.N. Moreover, he had an extensive criminal
history spanning from 1986 to 2013 that included multiple arrests, convictions for
possession of explosives and firearms, grand theft, false imprisonment, criminal threats,
numerous probation violations, extended incarcerations, and a conviction for sexual
offenses with a minor, which required him to be registered as a sex offender. (See In re
Kobe A., supra, 146 Cal.App.4th at p. 1123 [noting that the alleged father’s “criminal
history left the court with limited discretion to provide him with reunification services”].)
2
All further references are to the Welfare and Institutions Code unless otherwise
stated.
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Moreover, after his initial appearance in the dependency proceedings on
August 11, 2015, M.M. failed to appear at subsequent hearings despite being properly
notified of the hearings. He did not file a motion to elevate his paternity status and never
requested presumed father status. The juvenile court informed M.M. on August 11, 2015,
that he would have only six months to reunify with U.N. if U.N. was declared a
dependent of the court, but M.M. made no effort to contact the Agency after his initial
interview or otherwise make any attempts to reunify with or even visit U.N. Rather, he
was absent from the proceedings for almost three months and did not file any pleadings
in preparation for the jurisdictional and dispositional hearings, to which he showed up
two hours and 45 minutes late. “ ‘ “Parental rights do not spring full-blown from the
biological connection between parent and child. They require relationships more
enduring.” ’ ” (In re Christopher M., supra, 113 Cal.App.4th at p. 160.) Based on
M.M.’s criminal history and lack of relationship with or interest in U.N., there was no
possibility the court would have found that awarding reunification services to M.M.
would have been beneficial for U.N. Accordingly, M.M. was not prejudiced by the
failure to change his paternity status.
ICWA
Background
In its July 28, 2015 detention report, the Agency indicated it had asked Mother
whether either child had Native American ancestry. Mother “initially stated that the
children may have paternal Native American ancestry, but she then changed her
statement stating, ‘Never mind, I don’t think so.’ ” When M.M. first appeared in the case
on August 11, 2015, the juvenile court stated, “as to the biological father ICWA may
apply.”
On August 13, 2015, M.M. filed an ICWA-20, Parental Notification of Indian
Status in which he checked the box for “I may have Indian ancestry” and listed
“Cherokee, Apache” as the names of tribes, and stated, “gm [grandmother] was Apache –
Carmen [L.] from Stockton.” In its dispositional report, the Agency stated, “The alleged
father [M.M.] indicated he may be affiliated with an Indian tribe. The undersigned has
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initiated the process to obtain further information and notify the BIA [Bureau of Indian
Affairs] and tribe.”
On September 21, 2015, the Agency filed and served by certified mail a Notice of
Child Custody Proceeding for Indian Child, ICWA-030, to BIA, the Secretary of the
Interior, and 11 tribes. Carmen’s last name, L., was identified along with M.M.’s former
legal name as M.L.M., but known information about Carmen—her name, city, and
relationship to U.N.—was not listed on the form. All of the tribes responded that U.N.
could not be identified as having tribal ancestry.
After the jurisdictional and dispositional hearing, the juvenile court set a hearing
on December 10, 2015 for a progress report on ICWA findings. The hearing was
continued to December 22, 2015, and at that hearing, the court determined ICWA did not
apply.
Analysis
Appellant contends the Agency failed to fully comply with ICWA notice
requirements because the notices “did not provide any information regarding the
extended family members, nor is there any indication in the record that the social worker
interviewed [M.M.], or his grandmother . . . or any other family members, to gather the
information required to be provided in the notice in order for the BIA, Secretary, or tribes
to verify [U.N.’s] eligibility for membership in a tribe.” The Agency concedes—and we
agree—the notice was inadequate.
Title 25 United States Code section 1912 provides: “In any involuntary
proceeding in a State court, where the court knows or has reason to know that an Indian
child is involved, [the Agency] . . . 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.” Section 224.2, subdivision (a)(1),
similarly provides that notice to the tribe “shall be sent by registered or certified mail
with return receipt requested.” “[B]oth the federal ICWA regulations (25 C.F.R.
§ 23.11(d)(3) (2008)) and section 224.2, subdivision (a) require the agency to provide all
known information concerning the child’s parents, grandparents and great-grandparents.”
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(In re Cheyanne F. (2008) 164 Cal.App.4th 571, 576.) If known, names (maiden,
married, former, and aliases), current and former addresses, birth dates, places of birth
and death, tribal enrollment numbers, and any other information is to be provided. (Id. at
p. 575, fn. 3.) Notice given by the Agency under ICWA must contain enough
information to permit the tribe to conduct a meaningful review of its records to determine
the child’s eligibility for membership. (In re S.E. (2013) 217 Cal.App.4th 610, 615
[ICWA notice was inadequate because it did not include information about the child’s
great-great grandfather].)
Here, the ICWA notices did not include information about Carmen L., U.N.’s
alleged great grandmother. Thus, we conclude that a limited remand to the juvenile court
with directions to order the Agency to fully comply with ICWA’s inquiry and notice
provisions is appropriate. (In re Christian P. (2012) 208 Cal.App.4th 437, 452–453
[affirming dispositional order but remanding for ICWA compliance]; In re Veronica G.
(2007) 157 Cal.App.4th 179, 187–188 [affirming jurisdictional order and remanding for
ICWA compliance].)
DISPOSITION
The juvenile court’s dispositional and jurisdictional orders are affirmed. The
matter is remanded to the juvenile court with directions to fully comply with the inquiry
and notice provisions of ICWA, if it has not already done so. After proper notice under
ICWA, if it is determined U.N. is an Indian child and ICWA applies to these proceedings,
U.N., Mother, and the tribe are entitled to petition the juvenile court to invalidate any
orders that violated ICWA. (25 U.S.C. § 1914.) If, on the other hand, there is no such
claim made, prior defective notice is deemed harmless error.
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_________________________
McGuiness, P.J.
We concur:
_________________________
Pollak, J.
_________________________
Jenkins, J.
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