In re Mary G.

59 Cal.Rptr.3d 703

151 Cal.App.4th 184

In re MARY G., a Person Coining Under the Juvenile Court Law San Diego County Health and Human Services Agency, Plaintiff and Respondent, v. Jennifer G. et al., Defendants and Appellants.

No. D049027.

Court of Appeal, Fourth District, Division 1.

May 24, 2007.

Andrea R. St. Julian, under appointment by the Court of Appeal, San Diego, for Defendant and Appellant Jennifer G.

Patti L. Dikes, under appointment by the Court of Appeal, for Defendant and Appellant Frank G.

John J. Sansone, County Counsel, John E. Philips, Chief Deputy County Counsel, and Paula J. Roach, Deputy County Counsel, for Plaintiff and Respondent.

Carl Fabian, under appointment by the Court of Appeal, for Minor.

McCONNELL, P.J.

Jennifer G. and Frank R. appeal a juvenile court judgment terminating their parental rights over Mary G. and choosing adoption as the permanent plan. (Welf. & Inst.Code, § 366.26.)¹ Jennifer contends the court abused its discretion by denying her section 388 petition for modification, and there is not substantial evidence to support the court's finding the beneficial parent-child relationship exception to adoption is inapplicable. We conclude these contentions are without merit.

Frank, however, persuasively asserts the court violated his constitutional rights to equal protection and full faith and credit principles by not recognizing him as a presumed father entitled to reunification services as a matter of right based on a voluntary acknowledgment of paternity, merely because it was made in Michigan and not California. We reverse the judgment as to Frank and Mary because with exceptions not relevant here, the termination of parental rights must be made at the same time. We also reverse the judgment because, as both parents contend, the Agency violated notice requirements of the Indian Child Welfare Act of 1978 (ICWA). (25 U.S.C. § 1901 et seq.)

FACTUAL AND PROCEDURAL BACKGROUND²

Jennifer has an extensive history with drugs, drug-related arrests and child protective services in San Diego County. Jennifer lost her parental rights to her three older children because of her drug use. When her son was born in 1997, he tested positive for cocaine and opiates and suffered withdrawal symptoms. When her twin daughters were born prematurely in 1999, they tested positive for methamphetamine. Jennifer was offered services, but she failed to reunify with the children and they were adopted.

In April 2002 Mary was born to Jennifer in Michigan. It is undisputed that Frank is Mary's biological father, Jennifer and Frank were living together at the time of the birth, he was at the hospital for the birth, he is listed as the father on the birth certificate, and under Michigan law he signed a voluntary affidavit of paternity and was ordered to pay child support.

Shortly after the birth, Jennifer and Frank split up and he had no contact with Mary. At some point, Jennifer returned to the San Diego area, and on November 2, 2005, she was arrested for possession of a methamphetamine pipe and marijuana, being under the influence of drugs, and child endangerment based on Mary's presence during the incident. The Agency placed Mary in foster care and on November 7 filed a petition on her behalf under section 300, subdivision (b).

The Agency recommended that Jennifer receive no reunification services because she was offered services during the proceedings for her three older children to no avail. Further, Jennifer denied there was any problem and was uncooperative with the Agency regarding the voluntary undertaking of services. Jennifer reported she was already receiving drug treatment at the McAlister Institute and she did not "need the Agency to dictate to her what she needs to do."

In a paternity questionnaire filed November 7, Jennifer identified Frank as Mary's father and stated a judgment of paternity had been made in Michigan in 2003. Jennifer was unaware of his whereabouts and the Agency undertook a search for him.

Shortly before the January 5, 2006 jurisdiction and disposition hearing, the Agency located Frank in Louisiana. At the hearing the court amended the petition to name him as an alleged father, appointed counsel for him and ordered that he be notified of the proceedings. The court made a true finding on the petition and declared Mary a dependent. After taking judicial notice of the dependency files of Jennifer's three older children, the court denied her reunification services under section 361.5, subdivision (b)(10) and (11), and scheduled a permanency planning hearing under section 366.26 for May 3, 2006.³

The court noted it proceeded without Frank because he was an alleged father and "[t]here is nothing to indicate that he has been part of this child's life." The court explained there was no prejudice to Frank because if he "is blameless, and he is a good father, he could file a [section] 388 [petition] and request custody, and he would be in the same position [as] ... if he came in today with counsel and was able to assume custody."

On February 10, 2006, Frank requested a special hearing on the ground he "believes he is [Mary's] presumed father." He requested a judgment of paternity.

Frank did not appear at the February 22, 2006 hearing. Frank submitted a paternity questionnaire that stated Michigan had entered an order in 2003 that determined he is Mary's father and required him to pay child support. The questionnaire stated Frank and Jennifer lived together when Mary was born, he signed a declaration at the hospital after her birth that stated he was her father, he told his sister he was the father, and he agreed to be named and was named on the birth certificate. Frank also presented a copy of an August 2005 "Notice of Order to Withhold Income for Child Support" (some capitalization omitted) that was sent by a family law court in St. Joseph County, Michigan, to Frank's employer in Louisiana. The notice ordered the employer to withhold and remit $84.80 weekly from Frank's paychecks for child support under a Michigan order.

Frank's counsel represented that Frank had no contact with Mary after she was about four months old, but "to the best of his recollection he signed something in Michigan that he believes would be akin to a paternity declaration at the time of birth." Frank, however, did not have a copy of the document. The court advised, "I am not going to find that he is a presumed father. I can't under the facts." The court entered a judgment of paternity, but continued Frank's alleged father status. The court invited Frank to file a section 388 petition to request reunification services.

On March 6, 2006, Frank filed a petition for modification under section 388, seeking custody of Mary, or alternatively, reunification services and an evaluation of his home in Louisiana. The petition stated Frank "is anxious to reestablish a relationship with Mary" and he "believes it is in her long term best interest to be with him."

The Agency opposed the section 388 petition. The social worker explained Frank "claims ... he was sent to jail due to a domestic violence incident that occurred between the couple. He stated that when he got out, he was at the hospital for Mary's birth. However, after 3-4 months, the couple broke up and ... Jennifer would not let him have contact with Mary. [Frank] stated that he did `not want to argue with her' and did not pursue a relationship with Mary. He stated that he contacted her one other time and Jennifer told him to `leave them alone.' He stated that [he] did leave them alone because `he did not want to cause problems.'" Frank told the social worker he eventually moved from Michigan back to San Diego, where he was homeless. Frank admitted to "multiple arrests in California including burglary and infliction of corporal injuries, which date back to 1982." Frank reported he moved to Louisiana in 2005 and he had been employed in the landscape field for nine months.

Jennifer told the social worker Frank was jailed for a domestic violence incident when she was four months pregnant. He attended Mary's birth, but when she was two weeks old he left. He appeared about a year later and asked for visitation, but Jennifer refused because he had not had any counseling or therapy. She had not heard from him since. The social worker wrote "[t]here is no indication that his lifestyle is different from when he was involved with the domestic violence or that placing Mary with him would be in her best interest and not pose further risk to her."

Frank did not appear at the April 4, 2006 hearing. A copy of Mary's birth certificate was submitted, which named him as her father. The court denied an evidentiary hearing on Frank's section 388 petition and confirmed that the section 366.26 hearing would proceed on May 3.

In its assessment report, the Agency recommended the termination of parental rights and adoption as the permanent plan. The social worker found "Mary is adoptable due to her young age, good health, lack of significant developmental delays, and her ability to attach to new caregivers. It does not appear that her relationship with her mother prevents her [from] adjusting and thriving in new environments." The Texas couple who adopted Jennifer's twin girls remained committed to adopting Mary, and the twins had ongoing contact with the maternal grandparents, who adopted Jennifer's son. Additionally, there were 40 other adoptive families willing to adopt a child with Mary's characteristics.

The court continued the permanency planning hearing to June 23. On May 26, Jennifer filed a petition for modification under section 388. Jennifer argued she should receive reunification services because she had been attending narcotics anonymous (NA) meetings and drug testing, and was "seeking mental health treatment as well." The petition stated the McAlister Institute believed Jennifer "has real mental health issues that a non-dual diagnosis program,...