Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Stanislaus County Super. Ct. No. 509623. Nancy B. Williamsen, Commissioner.
Gino de Solenni, under appointment by the Court of Appeal, for Defendant and Appellant.
Michael H. Krausnick, County Counsel, Carrie M. Stephens, Deputy County Counsel, for Plaintiff and Respondent.
OPINION
DAWSON, J.
In this dependency proceeding, Raymond M. (appellant) claims notice violations of the Indian Child Welfare Act (ICWA) (25 U.S.C. § 1901 et seq.). Appellant acknowledges that timely notice was given, but claims his name should have been included in the notice. We disagree and dismiss the appeal.
PROCEDURAL AND FACTUAL HISTORY
A juvenile dependency petition filed November 21, 2006, alleged that S.G. (mother) had put her three children, K.M., age two and a half, and two siblings not at issue here, at risk due to mother’s long history of drug use, drug sales, her possible prostituting of K.M., and that she had left the children without any provision for support. The children were placed in foster care. Mother told social workers that she had never been married, and no father is listed on K.M.’s birth certificate. Mother named two possible fathers for K.M., one of whom was appellant, but she provided no identifying information. Mother stated that no judgment of paternity existed as to K.M., that she was not cohabiting with appellant at the time of K.M.’s conception, that she had received no support or promises of support from him, and no paternity test had been administered, but that appellant had acknowledged possible paternity.
Mother indicated that she might have Indian ancestry in the Blackfeet and Cherokee tribes. The juvenile court ordered social services to provide notice of the jurisdiction and disposition hearings scheduled for December 19, 2006, in compliance with the ICWA. Subsequent proof of compliance with the order to provide notice to the applicable tribes was filed in juvenile court on November 28, 2006. Appellant’s name was not included as the father in the notice. Instead, K.M.’s father was listed as “unknown.”
Following an absent parent search, appellant received notice of K.M.’s pending dependency case. Appellant first appeared in court at the jurisdiction hearing held on January 2, 2007. At that time, appellant stated that he had never lived with mother, but that he had had a sexual relationship with her and could possibly be the father of K.M. Appellant was appointed counsel and the court ordered DNA testing to determine whether he was K.M.’s biological father. Appellant stated that he did not have any Native American ancestry in his background. The jurisdiction and disposition hearing was rescheduled for January 12, 2007.
At the subsequent hearing, appellant was present and submitted a waiver of rights as to issues of jurisdiction. A contested disposition hearing was set for January 25, 2007.
In an addendum report filed January 19, 2007, the social worker advised the juvenile court of appellant’s extensive criminal and child protective service history. The report also stated that social services encouraged appellant on January 2, 2007, to make contact in order to visit with K.M., but that he had not done so until January 17, 2007. The report recommended that the juvenile court deny appellant reunification services as an alleged father or as a presumed father, if DNA testing did not exclude him as such.
At the January 25, 2007, disposition hearing, appellant testified that he believed he was K.M.’s father. He stated that he was aware of mother’s pregnancy and that she had told him he was the only one who could have been the father. Appellant claimed to have visited K.M. after her birth, that the last time he had seen her she called him “Dad,” and that he had introduced her to his family members. When asked if he had ever provided daycare for her, appellant stated that his mother had. But he acknowledged he had not seen her since court proceedings began, because “they haven’t made me an appointment.”
On cross-examination, appellant acknowledged that he did not know K.M.’s birth date, but guessed that she was two. He acknowledged that he had never paid any child support for K.M., that he never offered financial support during mother’s pregnancy, that he was not at the hospital when mother gave birth, and that he was in prison for 18 months some time after K.M. was born. He also claimed he had not visited K.M. more often because he did not like “the surroundings” she was in. Appellant asked that the juvenile court name him the presumed father.
The juvenile court denied appellant’s request for presumed father status, stating there was no evidence, pursuant to Family Code section 7611, that appellant had received the child into his home, that he made any effort to visit or correspond with the child while he was in prison, or that he did anything to keep K.M. from being in a dangerous environment.
The juvenile court explained to appellant that, because he was still only an alleged father, no services would be offered him. But appellant was told that if the DNA test came back showing him to be the biological father, he “might have a legal basis to come back into court and once again ask for services.” Thereafter, the juvenile court adjudged K.M. and her siblings dependents of the court, continued them in out-of-home care, and ordered services for mother limited to six months.
DISCUSSION
The ICWA provides that “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).) If the tribe is unknown, the notice must be given to the Bureau of Indian Affairs as the agent for the Secretary of the Interior. (Ibid.; In re Edward H. (2002) 100 Cal.App.4th 1, 4.)
Appellant’s only challenge is that the juvenile court erred in finding proper notice had been given pursuant to the ICWA because he was not listed on the JV-135 (Notice of Involuntary Child Custody Proceedings for an Indian Child) as K.M.’s father. Respondent contends that appellant lacks standing to assert this argument because he is only an alleged father. We agree with respondent and dismiss the appeal.
“The termination of parental rights may be challenged on the ground of lack of ICWA notice by the dependent child, a parent or Indian custodian from whose custody the child was removed, and the Indian child’s tribe. [Citations.]” (In re Daniel M. (2003) 110 Cal.App.4th 703, 707-708.) The definition of a “parent” for purposes of ICWA is any biological parent or parents of an Indian child or any Indian person who has lawfully adopted an Indian child, including adoptions under tribal law or custom. It does not include the unwed father where paternity has not been acknowledged or established. (25 U.S.C. 1903(9).)
As explained in In re Daniel M.,
“[B]ecause the ICWA does not provide a standard for the acknowledgement or establishment of paternity, courts have resolved the issue under state law. (In the Matter of Adoption of a Child of Indian Heritage (1988) 111 N.J. 155, 176; Yavapai-Apache Tribe v. Mejia (Tex.App. 1995) 906 S.W.2d 152, 171-173.) Courts have held an unwed father must take some official action, 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. (Adoption of Baby Girl B. (Okla.Civ.App.2003) 67 P.3d 359, 366; In the Matter of Adoption of a Child of Indian Heritage, supra, 111 N.J. at p. 178; Yavapai-Apache Tribe v. Mejia, supra, 906 S.W.2d at pp. 172-173.) Similarly, 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 testing (Fam. Code, § 7551.)” (In re Daniel M., supra, 110 Cal.App.4th at pp. 708-709.)
In In re Daniel M., the minor was removed from the mother’s custody due to drug abuse. The petition filed by the agency identified Richard as the alleged father. In the paternity questionnaire, both the mother and Richard stated that they might have American Indian heritage. At the jurisdiction and disposition hearing, the court asked that the mother provide the agency with her families’ names for further investigation. The court asked Richard to bring the ICWA issue to its attention later if he established biological paternity. (In re Daniel M., supra, 110 Cal.App.4th at p. 706.)
The court in In re Daniel M. granted Richard’s request for paternity testing, but he failed to show up and then withdrew his request. Richard renewed his request for paternity testing after reunification services were terminated and a Welfare and Institutions Code section 366.26 hearing was scheduled. The court ordered testing, but any testing was not completed at the time of the section 366.26 hearing. On appeal, Richard claimed the court committed reversible error by not complying with the notice requirements of the ICWA, but the court determined Richard, as an alleged father, lacked standing to pursue his appeal. (In re Daniel M., supra, 110 Cal.App.4th at p. 707.)
Appellant seeks to distinguish his situation from that in In re Daniel M. because he claims he openly acknowledged his paternity by requesting that his status be raised to that of presumed father. But we find the situation here not unlike that in In re Daniel M. Appellant was not listed on K.M.’s birth certificate and he had not signed a voluntary declaration of paternity. Mother originally listed two possible fathers for K.M., and, at first, appellant stated only that he could possibly be K.M.’s father. Although appellant asked for paternity testing, it was not until proceedings were well underway, and testing had not yet been completed. At the contested dispositional hearing, appellant acknowledged that he was not married to K.M.’s mother, had not lived with her at the time of conception, was not at the hospital at K.M.’s birth, had never supported mother or K.M., and had never lived with K.M. He had not even visited her since proceedings had begun because, he claimed, he was not happy about where she was living. Although appellant asked that his paternity status be raised to that of presumed father, the juvenile court declined his request, finding that he had not received the child into his home, had made no effort to visit or correspond with the child while he was in prison, and had done nothing to keep K.M. from being in a dangerous environment.
To have standing to appeal, an appellant must be a party of record and legally aggrieved. (In re Joseph G. (2000) 83 Cal.App.4th 712, 715-716; In re Frank L. (2000) 81 Cal.App.4th 700, 703.) “An alleged father who has not acknowledged or established he is a parent within the meaning of title 25 United States Code section 1903(9) lacks standing to challenge a violation of the ICWA notice provisions. [Citations.]” (In re Daniel M., supra, 110 Cal.App.4th at p. 709.) As appellant remains an alleged father, he is without standing to raise this issue, and we dismiss his appeal. (Ibid.)
DISPOSITION
The appeal is dismissed.
WE CONCUR: VARTABEDIAN, Acting P.J., KANE, J.