Adoption of J.T. CA1/5 ( 2014 )

Filed 10/30/14 Adoption of J.T. CA1/5
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION FIVE
Adoption of J.T., a Minor.
JIMMIE L. et al.,
Plaintiffs and Respondents,
v. A139671
JUSTIN W., (San Francisco County
Defendant and Appellant. Super. Ct. No. FAD13022756)
Justin W. appeals from an order terminating his parental rights to his biological
son J.T. (the minor) after the minor’s mother placed him with relatives for adoption and
Justin failed to timely file an action to establish the existence of a parent-child
relationship. (Fam. Code, §§ 7662, 7667.)1 We reject his challenges to the procedure
used to terminate his parental rights and the court’s jurisdiction over him as the resident
of another state. We also conclude the court did not commit prejudicial error in
determining the minor was not an Indian child for purposes of the Indian Child Welfare
Act (ICWA; 25 U.S.C. 1901 et seq.).
1
Further statutory references are to the Family Code unless otherwise indicated.
1
I. UNIFORM PARENTAGE ACT
The Uniform Parentage Act (UPA; § 7600 et seq.) provides the statutory
framework for making parentage determinations in California, which in turn determines
the procedures and findings necessary when a child is placed for adoption. (See In re
T.G. (2013) 215 Cal. App. 4th 1, 3 (T.G.).) The parental rights of an alleged or biological
father depend on whether he is presumed to be the natural parent of the child under
section 7611.2 (See § 8604, subd. (a) [consent of mother and presumed father required
for adoption]; T.G., at p. 3; Adoption of Arthur M. (2007) 149 Cal. App. 4th 704, 718.) To
be a presumed father, a man must fall within one of several categories enumerated in
section 7611. If he has neither legally married nor attempted to legally marry the child’s
natural mother (§ 7611, subds. (a)-(c)), he cannot become a presumed father unless he
“receives the child into his home . . . and holds the child out as his . . . natural child.”
(§ 7611, subd. (d); Francisco G. v. Superior Court (2001) 91 Cal. App. 4th 586, 595.) An
action to determine the existence of a parent-child relationship, and presumed father
status, may be brought under section 7630 by any man alleged to be or alleging himself
to be the father. (V.S. v. M.L. (2013) 222 Cal. App. 4th 730, 734-735.) This procedure
affords due process and equal protection to an alleged or biological father. (See In re
Tricia M. (1977) 74 Cal. App. 3d 125, 136.)
“Under California law, an unwed biological father has a right to withhold consent
to adoption of a child only if he meets the definition of a ‘presumed father.’ ” (Adoption
of A.S. (2012) 212 Cal. App. 4th 188, 202 (A.S.); § 8604, subd. (a).) “ ‘If a man is the
presumed father of a child, the child cannot be adopted without his consent [citation],
unless the trial court finds, on statutorily specified grounds, that he is unfit. [Citation.]
2
After the hearing at issue in this case, section 7611 and other sections of the
UPA were amended to use the gender-neutral term “presumed parent” rather than
“presumed father.” (Stats. 2013, ch. 510, § 3, effective January 1, 2014; see Elisa B.
v. Superior Court (2005) 37 Cal. 4th 108, 117 [provisions of former version of UPA
applicable to determining father-child relationship applicable to the extent possible when
determining mother-child relationship].) We use the term “father” rather than “parent” to
reflect the specific facts of this case and the language of the statute at the time of the
hearing from which the appeal was taken.
2
If, however, he is not a presumed father of a child, the child can be adopted without his
consent, and his parental rights can be terminated, unless the court determines it is in the
child’s best interest for him to retain his parental rights. [Citation.]’ ” (Adoption of
H.R. (2012) 205 Cal. App. 4th 455, 465.)
When a mother consents to the adoption of a child who does not have a presumed
father, the adoptive parent must generally file a petition to terminate the parental rights of
an alleged or biological father, but need not do so when “[t]he alleged father has been
served as prescribed in Section 7666 with a written notice alleging that he is or could be
the biological father of the child to be adopted or placed for adoption and has failed to
bring an action for the purpose of declaring the existence of the father and child
relationship pursuant to subdivision (c) of Section 7630 within 30 days of service of the
notice or the birth of the child, whichever is later.” (§ 7662, subd. (a)(2).) The court
shall issue an order dispensing with the need for notice of the proceedings and may issue
an ex parte order terminating the parental rights of an alleged father who “has been
served with written notice of his alleged paternity and the proposed adoption, and he has
failed to bring an action pursuant to subdivision (c) of Section 7630 within 30 days of
service of the notice or the birth of the child, whichever is later.” (§§ 7666, subd. (b)(4);
7667, subd. (c)(3); see Adoption of Aaron H. (2000) 84 Cal. App. 4th 786, 788 [alleged
father’s parental rights terminated where he failed to file parentage action within 30 days
of receiving notice; father did not establish he was entitled to relief from default under
Code Civ. Proc., § 473, subd. (b)]; In re Andrew V. (1991) 232 Cal. App. 3d 1286, 1291
[court may terminate parental rights of natural father under former statute when he does
not file paternity action within 30 days of receiving notice, although 30-day period is not
jurisdictional and does not operate as statute of limitations].)
II. FACTS AND PROCEDURAL HISTORY
K.T. (mother) met Justin in the autumn of 2012, when they were both teenagers
living in Oklahoma. She became pregnant, and the minor was born prematurely in
Oklahoma in May 2013. Although mother and Justin lived together for a couple of
months while mother was pregnant, Justin moved out several months before she gave
3
birth and did not learn of the birth until after the fact. According to mother, Justin did not
provide her with any financial support during the pregnancy or after the minor’s birth.
According to Justin, he purchased items necessary to care for the child.
Mother arranged to have the minor adopted by her uncle, Jimmie L., and his
husband, Robert S., who lived in San Francisco. After the minor was born prematurely,
Jimmie and Robert traveled to Oklahoma and remained there for several weeks while the
minor was hospitalized. Upon the minor’s release, Jimmie and Robert obtained an order
under the Interstate Compact on the Placement of Children allowing them to return with
him to their home in San Francisco. They initiated this action by filing an adoption
request form in the superior court in San Francisco on May 6, 2013, and filed an amended
request on June 7. Mother moved to San Francisco and has frequent contact with her
uncles and the minor.
Mother signed a consent to the adoption shortly after the minor’s birth.
Jimmie and Robert prepared a notice of the pending adoption proceedings under
section 7662 to be served on Justin as the biological or alleged father.3 The maternal
grandmother, Lorri T., personally served the papers on Justin in Oklahoma on
June 11, 2013. The notice stated mother had made arrangements to place the child for
adoption and advised him: “If you fail to bring an action for the purpose of declaring the
existence of the father and child relationship pursuant to Section 7630 or 7631 and
Section 7664(b) of the California Family Code within thirty (30) days of service of this
Notice or the date of birth of the child, whichever is later, you will not be given further
notice of the adoption proceeding and your parental rights, if any, will be terminated by
the Court. If you desire to bring an action as set forth above, you should seek the advice
of an attorney immediately.” (§§ 7630, former 7631, 7664, subd. (b).)
Justin did not file an action to establish a parent-child relationship under
section 7630 and on July 24, 2013, Jimmie and Robert filed an application to dispense
3
Mother had also identified two other men as the possible biological father, but
Justin’s paternity was confirmed through DNA testing and the other men are not parties
to this proceeding.
4
with further notice to him and to terminate his parental rights. (§§ 7666, subd. (b)(4),
7667, subd. (c)(3).) A hearing on this application was set for August 12, 2013.
Justin’s father was an enrolled member of the Cherokee Nation, though Justin
himself was not. On June 18, 2013, the Cherokee Nation sent a letter indicating the
minor was considered an Indian child “based on the biological parent, being a member of
the tribe making the child eligible for membership,” as well as a section of the tribe’s
membership act providing “every newborn child who is a Direct Descendent of an
Original Enrollee shall be automatically admitted as a member of the Cherokee Nation
for a period of 240 days following the birth of the child” for the “specific purpose of
protection” under the ICWA.
On July 22, 2013, Jimmie and Robert served Judicial Council Forms, form ICWA-
30 (Notice of Child Custody Proceeding for Indian Child), accompanied by an
application and proposed order to terminate Justin’s parental rights, on the Cherokee
Nation of Oklahoma, the United Keetoowah Band of Cherokee Indians, the Eastern Band
of Cherokee, the Sacramento Area Director of the Bureau of Indian Affairs, and the
United States Department of the Interior. They subsequently served the same parties with
a notice of clerical errors correcting Justin’s birth date and the time of the hearing, which
had been entered incorrectly on the original form.
On August 1, 2013, the United Keetoowah Band sent a letter to Jimmie and
Robert’s counsel indicating the minor was not a descendant of anyone on that tribe’s
membership rolls, and it would not be intervening in the case. On August 6, the
Cherokee Nation sent a letter stating Justin was not a member of the tribe (contradicting
the position taken in the June 18 letter), nor did he have a certificate of Indian blood.
On August 1, 2013, Justin submitted a letter to the court and parties stating he
formally objected to the adoption and wanted to raise the minor. He telephoned counsel
for Jimmie and Robert on August 5 and indicated he would attend the August 12 hearing.
Justin confirmed he had received copies of the pleadings.
Justin appeared personally at the hearing held on August 12, 2013, and the court
granted his request for appointed counsel. His appointed counsel indicated Justin did not
5
believe he had been properly served under Oklahoma law, but did not move to quash
service or dismiss the case for lack of valid service. Justin asked the court to order the
minor returned to Oklahoma and requested visitation. The court ordered a visit that day
and authorized Justin to appear telephonically at the next hearing. It also accepted
mother’s ICWA-compliant consent to the adoption, taken in the event the ICWA was
determined to apply.
On August 14, 2013, mother submitted a declaration supporting the placement of
the minor with her uncles in the event the ICWA was found to apply: “I believe, and ask
the court to find, that my placement of [the minor] with my uncle, Jimmie . . . and his
husband complies with the first level of preference in the ICWA: i.e., that a preference
be given to placement with a member of the Indian child’s extended family.[4] [¶] . . .
I also understand that the law provides that if the placement of [the minor] with my uncle
were found not to comply with the placement preferences of the ICWA, that the wishes
of the parent of the child be given consideration in determining whether good cause exists
for altering the statutory placement preferences. It is my extremely strong desire that [the
minor] remain in the home in which I placed him, so that the adoption can be completed.”
Mother stated her uncles took excellent care of the minor and were allowing her to
maintain a close relationship with him; that her uncles were open to a allowing a
continuing relationship between the minor and Justin and his family as well; that her
uncles had the ability to provide for the minor in ways neither she nor Justin could; that
Justin, to her knowledge, has not been raised in a Native American culture, or by a Native
American caretaker; and that her uncles had been in touch with a social worker from the
Cherokee Nation and would assist the minor in learning about this aspect of his heritage.
On September 3, 2013, Justin filed a memorandum of points and authorities
opposing the termination of his parental rights. He urged the court to find personal
4
Under 25 United States Code section 1915(a), “In any adoptive placement of an
Indian child under State law, a preference shall be given, in the absence of good cause to
the contrary, to a placement with (1) a member of the child’s extended family; (2) other
members of the Indian child’s tribe; or (3) other Indian families.”
6
service of the 30-day notice by the maternal grandmother was improper, arguing a
professional process server was required for adoption-related documents under Oklahoma
law. He also asserted the ICWA applied, which affected adoptive placement preferences
and required a finding of likely serious emotional or physical damage to the minor before
his rights could be terminated, as well as the provision of services necessary to prevent
the termination of his parental rights. Justin indicated he had applied for membership in
the Cherokee Nation and was waiting for his application to be processed, and had filed a
paternity action in Oklahoma on August 23, 2013.
At a hearing on September 4, 2013, the court granted Jimmie and Robert’s
application to terminate Justin’s parental rights and ordered the adoption could proceed
without Justin’s consent. It ruled the service of process of the 30-day notice was proper
and Justin had failed to file a paternity action within 30 days of that notice. As to the
ICWA, the court found (1) the minor was not an Indian child because neither Justin nor
mother were enrolled members of the Cherokee Nation; and (2) assuming the minor did
qualify as an Indian child, the ICWA’s procedures for terminating parental rights did not
apply because he was not being removed from the custody of an Indian parent.
III. DISCUSSION
A. Personal Jurisdiction, Notice and Due Process
Justin argues the court did not have the power to make orders affecting his
parental rights because he was not a resident of California and did not have sufficient
contacts with the state for the court to exercise jurisdiction over his person in an action to
terminate parental rights. We disagree.
When notice to an alleged or biological father is required under the UPA, it must
be given “in accordance with the Code of Civil Procedure for the service of process in a
civil action in this state at least 10 days before the date of the proceeding, except that
publication or posting of the notice of the proceeding is not required. Proof of giving the
notice shall be filed with the court before the petition is heard.” (§ 7666, subd. (a).) The
Code of Civil Procedure allows for service of a person outside California “in any manner
provided in [article 3 of Title 5, Chapter 4 (article 3)] or by sending a copy of the
7
summons and of the complaint to the person to be served by first-class mail, postage
prepaid, requiring a return receipt.” (Code Civ. Proc., § 415.40; see also id.,
§ 413.10 subd. (b) [summons may be served on a person outside the state “as provided in
this chapter or as prescribed by the law of the place where the person is served”].) Four
methods of service are listed in article 3: personal delivery, substitute service, service by
mail with acknowledgement of receipt, or service by publication. (Code of Civ.
Proc., §§ 415.10, 415.20, 415.30, 415.50.)
With respect to personal service, “A summons may be served by personal delivery
of a copy of the summons and of the complaint to the person to be served. Service of a
summons in this manner is deemed complete at the time of such delivery.” (Code Civ.
Proc., § 415.10.) “A summons may be served by any person who is at least 18 years of
age and not a party to this action.” (Code Civ. Proc., § 414.10.) Here, the maternal
grandmother personally served Justin with a notice advising him an adoption proceeding
was pending and his parental rights could be terminated if he did not file an action to
determine the existence of a parent-child relationship within 30 days. The grandmother
was over 18 and not a party to the action, making service appropriate under the Code of
Civil Procedure.5
Having received actual notice an adoption proceeding was pending and his
parental rights could be terminated, Justin appeared in court and requested visitation and
an order returning the minor to Oklahoma. He submitted points and authorities urging
the court to apply the ICWA, which he argued would affect placement preferences and
the standard required for a termination of parental rights and adoption. A general
appearance by a party will generally cure any defect in service and forfeits any objection
based on a lack of personal jurisdiction. (In re Marriage of Torres (1998)
5
Although Justin complained in the proceedings below that service was not valid
under Oklahoma law, which requires delivery of notice for a plan of adoption to be made
by a licensed process server (Okla. Stat. tit. 10, § 7503-3.1), he does not renew that claim
on appeal. Nor does he renew his claim his mother should have been served because he
was a minor at the time.
8
62 Cal. App. 4th 1367, 1381 (Torres).) Justin’s actions after receiving notice amount to a
general appearance and forfeits his complaint regarding a lack of personal jurisdiction.
Justin argues his personal appearance at the hearing on August 12, 2013, did not
amount to a general appearance because Code of Civil Procedure section 418.11
provides: “An appearance at a hearing at which ex parte relief is sought, or an
appearance at a hearing for which an ex parte application for a provisional remedy is
made, is not a general appearance and does not constitute a waiver of the right to make a
motion [to quash] under Section 418.10.” He reasons he objected to jurisdiction when he
appeared on August 12, and the only other relief sought at the hearing was an attempt by
the adoptive parents to obtain an ex parte order without requiring further notice to Justin,
as well as an ex parte termination of his rights. (§§ 7666, subd. (b)(4), 7667,
subd. (c)(3).) This overlooks Justin’s subsequent efforts to have the court apply the
elevated standards of the ICWA to the question of whether his rights should be
terminated, an argument regarding the merits of the case that goes beyond an objection to
personal jurisdiction.
Even if we were to conclude Justin did not forfeit his objection to the court’s
jurisdiction over him by making a general appearance, the court had the power to rule on
the adoptive parents’ petition under the Uniform Child Custody Jurisdiction and
Enforcement Act (UCCJEA) (§ 3400 et seq.; formerly, Uniform Child Custody
Jurisdiction Act (UCCJA)). The UCCJEA is the exclusive method of determining the
proper forum for custody disputes involving other jurisdictions. (In re Angel L. (2008)
159 Cal. App. 4th 1127, 1136 (Angel L.).) It applies to any “child custody proceeding,”
which it defines to include a “proceeding for . . . the termination of parental rights.”
(§ 3402, subd. (d); see Angel L., supra, 159 Cal.App.4th at p. 1136.) The application by
Jimmie and Robert to terminate Justin’s rights is unquestionably a proceeding to
terminate parental rights.
Under the UCCJEA, “Except as otherwise provided in Section 3424 [temporary
emergency jurisdiction], a court of this state has jurisdiction to make an initial custody
determination only if any of the following are true: [¶] (1) This state is the home state of
9
the child on the date of the commencement of the proceeding . . . . [¶] (2) A court of
another state does not have jurisdiction under paragraph (1) . . . .” (§ 3421, subd. (a).)
With respect to a child such as the minor who is under six months of age when the
proceeding was commenced, “home state” is defined as “the state in which a child lived
[from birth] with a parent or a person acting as a parent . . . .” (§ 3402, subd. (g).)
Because the minor had not lived with a parent in any one state since his birth, he did not
have a home state under the UCCJEA and California could exercise jurisdiction under
section 3421, subdivision (a)(2).
“The requirements of due process of law are met in a child custody proceeding
when, in a court having subject matter jurisdiction over the dispute, the out-of-state
parent is given notice and an opportunity to be heard. Personal jurisdiction over the
parents is not required to make a binding custody determination, and a custody decision
made in conformity with due process requirements is entitled to recognition by other
states . . . .” (Torres, supra, 62 Cal.App.4th at p. 1378; see In re Marriage of
Fernandez-Abin & Sanchez (2011) 191 Cal. App. 4th 1015, 1040; In re Marriage of Nurie
(2009) 176 Cal. App. 4th 478, 493 [personal jurisdiction over a parent is not required for
the court to issue a custody order under the UCCJEA].) “Notice required for the exercise
of jurisdiction [under the UCCJEA] when a person is outside this state must be given in a
manner prescribed by the law of this state for service of process or by the law of the state
in which service is made.” (§ 3408, subd. (a).) As we have already discussed, Justin was
personally served with notice in conformity with California law.
A different result is not required by Kulko v. California Superior Court (1978)
436 U.S. 84, 91 (Kulko), on which Justin relies. In Kulko, the mother and father had
lived with their children in New York state until they separated, at which time the mother
moved to California with one child. The mother surreptitiously sent a plane ticket to the
second child and, after he joined her, filed a marital dissolution action in California
seeking full custody and child support. The father specially appeared and filed a motion
to quash on the ground he was not a resident and his contacts with California were too
minimal to confer personal jurisdiction. He raised this claim only with respect to
10
mother’s request for increased support, and “did not contest the [California] court’s
jurisdiction for purposes of the custody determination.” (Id. at p. 88.) The Supreme
Court agreed with the father, finding his contacts with California were too tenuous under
California’s long-arm statute and the Constitution to establish the minimum nexus
required for the imposition of financial obligations in a domestic relations case. (Id. at
pp. 96-98; see also Bartlett v. Superior Court (1978) 86 Cal. App. 3d 72, 74-77 [court
properly granted out-of-state father’s motion to quash county’s complaint for child
support and reimbursement of public funds for minor living with mother in California];
Judd v. Superior Court (1976) 60 Cal. App. 3d 38, 41, 45 [court properly granted out-of-
state father’s motion to quash action by mother seeing increase in child support].)
Kulko involved a financial obligation, not a custody determination. In In re
Marriage of Leonard (1981) 122 Cal. App. 3d 443, 458-459, this court contrasted the issue
in Kulko with child custody determinations under the UCCJA and concluded due process
was not violated by an adjudication of custody issues by a court lacking personal
jurisdiction. It reasoned: (1) The UCCJA had been enacted by 44 states to avoid
jurisdictional competition, promote cooperation, and assure that resolution of a custody
dispute takes place in the state with which the child and the child’s family have the
closest connection; (2) The stringent notice requirements of the UCCJA “quieted” the
fundamental concerns of due process, adequate notice and an opportunity to be heard;
(3) Kulko’s concern with subjecting the out-of-state party to the expense of litigation in
another state was mitigated by requirements that one party pay the other’s expenses under
certain circumstances, as well as provisions minimizing the need for travel; (4) Kulko’s
conclusion “ ‘California has not attempted to assert any particularized interest in trying
[child support] cases in its courts by, e.g., enacting a special jurisdiction statute’ ” did not
apply to custody determinations, the UCCJA being such a statute; and (5) Kulko’s
concern “a party might incur financial liability for support by default, is entirely absent in
a child custody proceeding.” (Ibid.)
We reject Justin’s suggestion the UCCJEA does not apply because Jimmie and
Robert did not file declarations regarding the past and future residences of the minor and
11
the pendency of any related proceedings, as required by section 3429, subdivision (a).
He presents no authority for his implied assertion the declaration is essential to trigger
jurisdiction under the UCCJEA, and section 3429, subdivision (b) suggests otherwise by
allowing the court to stay a proceeding on the motion of a party until such information is
furnished. Justin did not file a motion to stay the proceeding on this ground.
In addition to his claims regarding the court’s purported lack of personal
jurisdiction to render orders regarding his parental rights to the minor, Justin argues the
procedure for terminating his parental rights under the UPA deprived him of due process.
We disagree. A biological father who has not established presumed father status has a
limited due process right to seek a declaration of paternity. (Michael M. v. Giovanna F.
(1992) 5 Cal. App. 4th 1272, 1279-1280.) Justin was given notice of his right to file an
action under section 7630 to determine the existence of a parental relationship within
30 days, but did not do so. If he had, he would have obtained a hearing on the merits of
any claim he might have to be a presumed father.
Justin complains it was not fair to require him to file an action under section 7630
because such an affirmative act would have conferred personal jurisdiction where it was
otherwise lacking. This argument is untenable in light of his general appearance in the
action and the applicability of the UCCJEA, which gave the court the power to terminate
Justin’s parental rights even if it did not otherwise have personal jurisdiction over him.
Justin also argues the court erred in holding a hearing before issuing the order
terminating his rights because section 7667, subdivision (c) provides for an ex parte order
in a case where an alleged or biological father has been given notice but has not filed an
action under section 7630 within 30 days. Although not entirely clear, he appears to take
the position he received a greater chance to be heard than was accorded under the
statutes. He does not explain, and we cannot fathom, how this could have resulted in any
prejudice to his position. In a related vein, Justin suggests Jimmie and Robert waived
their right to invoke the ex parte termination procedure by setting the case for a hearing.
The scheduling of a court date did not change the standard under which the court could
terminate parental rights.
12
B. ICWA Compliance
Justin argues the order terminating his parental rights must be reversed because the
trial court did not comply with procedures mandated by the ICWA. Jimmie and Robert
respond ICWA compliance was not required because, as the trial court found, the minor
is not an Indian child. We need not decide whether the minor is an Indian child under the
ICWA, because the United States Supreme Court has ruled that the provisions Justin
seeks to invoke are not available to an Indian parent who never had custody.
The ICWA “protect[s] the best interests of Indian children and . . . promote[s] the
stability and security of Indian tribes and families by the establishment of minimum
Federal standards for the removal of Indian children from their families and the
placement of such children in foster or adoptive homes which will reflect the unique
values of Indian culture . . . .” (25 U.S.C. § 1902.) “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.” (In re Jonathon S. (2005)
129 Cal. App. 4th 334, 338, citing 25 U.S.C. §§ 1903(1), 1911(a)-(c), 1912-1921.)
The ICWA defines an “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 child of a member of an Indian tribe.” (25 U.S.C.
§ 1903(4).) California law defines an Indian child “as provided in Section 1903 of the
[ICWA].” (Welf. & Inst. Code, § 224.1, subd. (b).) Rule 5.482(c) of the California
Rules of Court (rule 5.482(c)) additionally states: “If after notice has been provided as
required by federal and state law a tribe responds indicating that the child is eligible for
membership if certain steps are followed, the court must proceed as if the child is an
Indian child and direct the appropriate individual or agency to provide active efforts
under [California Rules of Court,] rule 5.484(c) to secure tribal membership for the
child.”
Justin acknowledges he was not a member of the Cherokee Nation (or any other
tribe) when his parental rights were terminated, but argues the minor should have been
treated as an Indian child because (1) the minor was a member of the Cherokee Nation
13
under its own policies, which granted him a temporary membership that expired 240 days
after his birth unless he applied for tribal citizenship; and (2) the minor was eligible for
membership in the Cherokee Nation as provided in rule 5.482(c).
As to the first contention, the only federal appeals court to consider the issue has
concluded the sort of temporary membership offered to newborn children by the
Cherokee Nation is insufficient to establish the child is an Indian child within the
meaning of the ICWA. (Nielson v. Ketchum (10th Cir. 2011) 640 F.3d 1117,
1124-1125 (Nielson).) “The tribe cannot expand the reach of a federal statute by a tribal
provision that extends automatic citizenship to the child of a nonmember of the tribe.”
(Id. at p. 1124.) The reasoning of Nielson would also seem to suggest that while
California may provide greater protections for Indian children than federal law, it may
not alter the definition of who qualifies as an Indian child to include minors whose
parents are not members of a tribe, but who are themselves eligible for membership. (But
see In re Jack C. (2011) 192 Cal. App. 4th 967, 981 [rule 5.482(c) does not extend ICWA
beyond jurisdictional limits].) Ultimately, however, we need not decide whether the
minor’s temporary membership in the Cherokee Nation or his eligibility for permanent
membership required the court to treat the minor as an Indian child.
The order under review is one terminating Justin’s parental rights. Assuming the
minor is an Indian child, Justin was prejudiced only if the failure to designate the minor
as such actually resulted in a failure to apply the protections afforded him under the
ICWA. (See In re Riva M. (1991) 235 Cal. App. 3d 403, 412-413 [failure to apply
correct standard of proof when the ICWA applied was harmless]; In re L.B. (2003)
110 Cal. App. 4th 1420, 1426 [when tribe has received notice, defects in notice subject to
harmless error analysis].) As relevant here, the ICWA provides that parental rights
to an Indian child cannot be terminated unless “active efforts have been made to provide
remedial services and rehabilitative programs designed to prevent the breakup of the
Indian family and that these efforts have proved unsuccessful.” (25 U.S.C. § 1912(d).)
Also, the court may not terminate parental rights to an Indian child “in the absence of a
determination, supported by evidence beyond a reasonable doubt, including testimony of
14
qualified expert witnesses, that the continued custody of the child by the parent or Indian
custodian is likely to result in serious emotional or physical damage to the child.” (25
U.S.C. § 1912(f).)
In Adoptive Couple v. Baby Girl (2013) __ U.S. __ [133 S. Ct. 2552, 2557]
(Baby Girl), the court held these provisions do not apply “when, as here, the relevant
parent never had custody of the child.” If “the adoption of an Indian child is voluntarily
and lawfully initiated by a non-Indian parent with sole custodial rights, the ICWA’s
primary goal of preventing the unwarranted removal of Indian children and the
dissolution of Indian families is not implicated.” (Id. at p. 2561.) Moreover, the adoption
placement preferences specified by the ICWA (25 U.S.C. § 1915(a)) “are inapplicable
where no alternative party has formally sought to adopt the child. This is because there
simply is no ‘preference’ to apply if no alternative party that is eligible to be preferred
under § 1915(a) has come forward.” (Baby Girl, at p. 2564.)
The court was not required to provide remedial services to Justin or find a risk of
emotional or physical damage beyond a reasonable doubt because Justin never had
physical or legal custody of the minor. Moreover, Justin cannot assert the ICWA
required a different adoptive placement because no other party has formally sought to
adopt the child.6
In light of our conclusion, we need not address Justin’s contention the trial court
should have waited 60 days after it sent notice to the Cherokee Nation and other Indian
6
Because the ICWA (25 U.S.C. § 1915(a)) gives an adoptive placement
preference to a “member of the child’s extended family” it may well be that Jimmie, as
the biological great uncle of the minor, would qualify for preference in any event. (See
25 U.S.C § 1903(2) [“ ‘extended family member’ shall be defined by the law or custom
of the Indian child’s tribe or, in the absence of such law or custom, shall be a person who
has reached the age of eighteen and who is the Indian child’s grandparent, aunt or uncle,
brother or sister, brother-in-law or sister-in-law, niece or nephew, first or second cousin,
or stepparent”]; In re Liliana S. (2004) 115 Cal. App. 4th 585, 590 [affirming order
placing minor with paternal grandmother for adoption though she was not tribal member;
tribe’s internal resolution that only Indian relatives be considered was contrary to
25 U.S.C. § 1915’s placement preferences].)
15
tribes before determining the minor’s Indian child status. (See Welf. & Inst. Code,
§ 224.3, subd. (e)(3).)
C. Motions on Appeal
Justin filed a motion on February 27, 2014 asking this court to take additional
evidence on appeal, by which he seeks to demonstrate he was enrolled as a member of
the Cherokee Nation after the court issued its order terminating his parental rights. (Code
Civ. Proc., § 909.) We deny this motion as moot because regardless of his current tribal
membership status, he never had custody of the minor and was not, under the Baby Girl
decision, entitled to the provision of remedial services or the application of the ICWA
standard for a termination of parental rights.
On June 17, 2014, Justin filed a request to file a supplemental letter brief,
responding to Jimmie and Robert’s citation of additional authorities under rule 8.254(a)
of the California Rules of Court—specifically, the decision in In re Abbigail A. (2014)
226 Cal. App. 4th 1450, review granted September 10, 2014 (S220187). Because our
Supreme Court has granted review of the case at issue, it is no longer citable and we deny
the request as moot.
Jimmie and Robert filed a motion on February 7, 2014, asking this court to
augment the record or take judicial notice of transcripts from hearings leading to their
appointment as the minor’s legal guardian pending the finalization of the adoption. They
contend these documents demonstrate any error in terminating Justin’s rights was
harmless, because the evidence at the hearing showed Justin had sexually abused his
stepsister and could not have obtained legal custody or prevented the adoption from
going forward, even if he had filed a paternity action under the UPA and even if the
ICWA had been applied. We deny the motion as moot in light of our affirmance of the
challenged order on other grounds.
On April 10, 2014, Jimmie and Robert filed a request for judicial notice of the
legislative history of ICWA. We deny the request as unnecessary to our decision.
IV. DISPOSITION
The judgment is affirmed.
16
NEEDHAM, J.
We concur.
JONES, P. J.
BRUINIERS, J.
17