|
(Cite
as: 170 Cal.App.4th 1530, 88 Cal.Rptr.3d
871) |
Court
of Appeal, Third District, California.
In
re E.G., a Person Coming Under the Juvenile Court Law.
Sacramento
County Department of Health and Human Services, Plaintiff and
Respondent,
v.
Julie
G., Defendant and Appellant.
No.
C059277.
Feb.
10, 2009.
**871
Mario de Solenni, under appointment by the Court of Appeal, for Defendant and
Appellant.
Robert
A. Ryan, Jr., County Counsel, and Maureen M. O'Connor, Deputy County Counsel,
for Plaintiff and Respondent.
SCOTLAND,
P.J.
*1532
Julie G. (appellant), mother of E.G. (the minor), appeals from juvenile court
orders terminating appellant's parental rights. (welf. & inst.code, ??
366.26, 395; further section references are to the Welfare and Institutions Code
unless otherwise specified.) She claims reversal is required because there was a
failure to give Indian Child Welfare Act (ICWA) notice to all identified tribes.
(25 U.S.C.1901, et seq.) We shall affirm the orders.
**872
As we will explain, until biological parentage is established, an alleged
father's claim of Indian heritage does not trigger the requirement of ICWA
notice because, absent a biological connection, the minor cannot claim Indian
heritage through the alleged father. Here, a paternity test established that the
alleged father was not the biological father of the minor. Therefore, ICWA
notice was not required.
FACTS
The
newborn minor was detained in March 2007 due to appellant's substance abuse
problem, exemplified by positive drug tests for both appellant and the minor
when the minor was born and by appellant's admission of recent drug use. The
detention report identified two alleged fathers, A.J. and C.H., for the
minor.
At
the detention hearing, appellant claimed possible heritage in the Apache and
Blackfeet Indian tribes. The juvenile court ordered the Department of Health and
Human Services (DHHS) to provide ICWA notice those tribes. At the next hearing,
alleged father A.J. appeared and claimed possible heritage in the Cherokee and
Pomo Indian tribes.FN1
Thus, the court ordered DHHS to provide ICWA notice those two tribes. The court
ordered both alleged fathers to participate in paternity testing.
FN1.
Appellant's opening brief incorrectly states that appellant claimed Cherokee
heritage.
DHHS
sent ICWA notice to the tribes claimed by appellant but not to the tribes
claimed by alleged father A.J. Negative responses were received from the
Blackfeet and several of the Apache tribes.
Results
of A.J.'s paternity test, attached to the jurisdiction/ disposition report,
showed that he was excluded as the father of the minor.FN2
FN2.
Appellant's opening brief incorrectly states that, by the time of the
jurisdiction hearing, neither alleged father had taken a paternity
test.
*1533
Finding that the minor was not an Indian child, the juvenile court ordered
reunification services. When appellant failed to comply with the reunification
plan, the court terminated services.
At
the selection and implementation hearing in April 2008, the juvenile court found
that the minor was likely to be adopted. Thus, the court terminated parental
rights.
DISCUSSION
Appellant
contends the juvenile court erred in failing to provide ICWA notice to the
Cherokee and Pomo tribes.
ICWA
protects the interests of Indian children and promotes the stability and
security of Indian tribes by establishing minimum standards for, and permitting
tribal participation in, dependency actions. (25 U.S.C. ?? 1901, 1902, 1903(1),
1911(c), 1912.) If, after the petition is filed, the juvenile court ?knows or
has reason to know that an Indian child is involved,? notice of the pending
proceeding and the right to intervene must be sent to the tribe or the Bureau of
Indian Affairs (BIA) if the tribal affiliation is not known. (25 U.S.C. ? 1912;
? 224.2; Cal. Rules of Court, rule 5.481(b).)
Although
no notice was sent to the tribes claimed by alleged father A.J., we perceive no
error under the facts of this case.
ICWA
defines ?Indian child? as ?any unmarried person who is under age eighteen and is
either (a) a member of an Indian tribe or (b) is eligible for membership in an
Indian tribe and is the biological **873
child of a member of an Indian tribe[.]? (25 U.S.C. ? 1903(4).) The necessity of
a biological tie to the tribe is underlined by the ICWA definition of a ?parent?
as ?any biological parent or parents of an Indian child....? (25 U.S.C. ?
1903(9).)
[1][2]
An alleged father may or may not have any biological connection to the child.
Until biological paternity is established, an alleged father's claims of Indian
heritage do not trigger any ICWA notice requirement because, absent a biological
connection, the child cannot claim Indian heritage through the alleged father.
Since A.J. was excluded as a biological father of the child, no notice was
required under ICWA. Recent additions to the Welfare and Institutions Code do
not alter this result; until biological paternity is established for an alleged
father who claims Indian heritage, neither the court nor the social worker know
or have reason to know that an Indian child is involved and notice requirements
are not activated. (? 224.2, subd. (a).)
*1534
With A.J. excluded as the minor's father, we need not address appellant's
remaining contention that the court failed to determine whether ICWA applied
with respect to the tribes he had claimed.
DISPOSITION
The
orders of the juvenile court are affirmed.
We
concur: SIMS and NICHOLSON, JJ.