San Joaquin Cnty. Human Servs. Agency v. G.Z. (In re A.A.)

In re A.A., a Person Coming Under the Juvenile Court Law.

SAN JOAQUIN COUNTY HUMAN SERVICES AGENCY, Plaintiff and Respondent, v. G.Z., Defendant and Appellant.

C094782, C095565

California Court of Appeals, Third District, San Joaquin

December 6, 2022

NOT TO BE PUBLISHED

(Super. Ct. No. STK-JV-DP-2019-0000429)

Duarte, J.

In these consolidated appeals, appellant Guy Z., genetic father of the minor A.A., raises various challenges to the juvenile court's ultimate denial of his request to be found the minor's presumed or biological father in this dependency case, as well as to the termination of parental rights, and also claims error related to the Indian Child Welfare Act (ICWA) (25 U.S.C. § 1901 et seq.).

On the specific facts of this unusual case, where the juvenile court designated another man only as the minor's "biological father" based solely on the presence of his name on the birth certificate, and did not at any point clarify or substantiate that designation in the record provided to us, we are unable to find that the court's ultimate decisions as to Guy's various claims of parentage were not prejudicial error. Indeed, error appears throughout this record, as the respondent's representative admitted at oral argument and as we next explain. Although respondent argues that any and all errors were necessarily harmless, we cannot agree on this record. Thus, we are compelled to conditionally reverse the challenged orders of the juvenile court and remand for determination of both men's parentage and subsequent proceedings as necessary, including compliance with the ICWA.

FACTUAL AND PROCEDURAL BACKGROUND

Minor A.A. was born in November 2014. Her mother was in an ongoing relationship (that appears to have included marriage at some point, one of many facts as to which the record is unclear) with a man named Richard at the time of A.A.'s birth.^[1]Richard did claim the two were married according to Richard, "[d]uring the course of [their] relationship together, [mother] conceived and gave birth to" the minor A.A Richard also alleged that during their "short-term marriage" mother "had multiple affairs." Mother first reported to the social worker that Richard was the minor's genetic father, but a few weeks later reported that he was not.

A copy of the minor's birth certificate is in the appellate record and bears Richard's name as the father, as well as mother's name and signature; Richard's signature is not on the certificate. Although at one point in the record the social worker reported that mother told her Richard had signed a voluntary declaration of paternity as to the minor no declaration of paternity as to A.A. is in the record.^[2] Nor did the juvenile court ever find that such declaration was signed by Richard as to A.A.

Initial contact

The minor came to the attention of the San Joaquin County Human Services Agency (Agency) on May 9, 2019, when the Agency received a report that mother had tested positive for amphetamines and admitted to using methamphetamine throughout a recent pregnancy. The minor, then age four, was in mother's care at the time. As relevant here, mother initially reported that Richard was the minor's genetic father. On May 23, 2019, mother met with the social worker again. Guy Z. was with her (as was the minor) and claimed he was the minor's genetic father.^[3] Guy claimed he had just been released after "serving a 2 1/2 year prison sentence." Mother confirmed that Guy was the minor's genetic father and explained that she had identified Richard as such because he was named on the minor's birth certificate as the father. According to the social worker's report, mother alluded to Guy's earlier help with "parenting" the minor and also indicated that "they are getting that [i.e., the birth certificate] changed right now at the courthouse."

Guy did not yet have a place to live; he told the social worker he would provide her with his address as soon as he found stable housing and that he had no known Indian ancestry. Mother had also denied any known Indian ancestry. The social worker completed and filed ICWA-010 forms reflecting their denials.

A petition is filed and Richard is found the "biological father"

A Welfare and Institutions Code section 300 petition was filed on behalf of the minor on October 29, 2019, based on mother's substance abuse issues. The petition noted mother had named both Richard and Guy as alleged fathers, but that Richard was named as the minor's father on her birth certificate. No parent appeared at the October 31, 2019, initial hearing. As relevant here, the Agency reported it had tried to call mother, but her telephone number was disconnected. The Agency had left messages with the aunt with whom mother had been living and at two other numbers. It had tried to call Guy, but his telephone number was also disconnected. The Agency also visited the aunt's address and left business cards when no one answered the door.

The juvenile court found the Agency had exercised due diligence in attempting to locate the parents for the hearing. It ordered the minor detained, issued a protective custody warrant, and found Richard to be the minor's "biological" father without further inquiry, based on the fact that he was named as the father on the minor's birth certificate.^[4] After the court made this designation as to Richard, Guy was apparently dropped from the list of alleged fathers requiring notice for subsequent hearings (there were other alleged fathers in this case as to mother's other children). The record does not reflect that service was attempted, much less accomplished, as to Guy from November 2019 through at least January 2021, when Guy first formally appeared in this case.

Mother appeared at the November 12, 2019, initial jurisdiction hearing and was appointed counsel; she was asked about possible Indian ancestry and provided with an ICWA-020 form. She appeared again at the November 26, 2019, continued jurisdiction hearing and the juvenile court sustained the petition.

Guy is dismissed from the petition

At a second jurisdiction hearing, held on December 3, 2019,^[5] the court again sustained the dependency petition. Despite the fact that Guy was not receiving notice of these hearings, he was consistently listed as failing to appear on the minute orders prepared after the various hearings. At the December 3 hearing, the Agency reminded the court that it had "made [Richard] biological father of the minor" because he was "on the birth certificate," and told the court that it would be "too late for [Guy] to set aside paternity finding." The Agency asked the juvenile court to strike Guy's name from the petition and the court did so.

Further proceedings

The social worker's January 21, 2020, report stated that mother had represented Richard had agreed to sign a declaration of paternity and was named on the minor's birth certificate. Due to Richard's criminal history and lack of bond with the minor, the Agency concluded providing reunification services to Richard (the provision of which was discretionary due to his designation only as the "biological" father) was not in the minor's best interests.

The juvenile court held the disposition hearing on January 21, 2020, where it adjudged the minor a dependent child, removed her from parental custody, and provided mother (and not Richard) with reunification services. The court reiterated that Richard was the biological father of A.A., but made no additional findings as to A.A. specifically. As relevant here, the court also found Richard the biological father of an older child, referencing a judgment signed in 2012. Once again, despite his having received no notice and having been dismissed from the petition, the minute order reflected that Guy failed to appear.

An amended petition was filed in February 2020; Guy was again included in the petition as an alleged and possibly biological father, and the petition continued to represent (as did the original) that "[a]s of October 29, 2019, [Guy] has no suitable home in which to care for the minor."

Guy requests and is denied genetic testing

In the Agency's July 2020 status review report, the social worker revealed that on May 28, 2020, Guy had contacted the Agency and requested genetic testing. He was incarcerated and on pandemic lockdown, but he wanted his family to visit with the minor. The status report also included a July 5, 2020, letter from Guy addressed to the juvenile court, claiming he was the minor's genetic father and requesting paternity testing and telephone contact. He claimed he had been an "active parent" when not incarcerated.

We were not provided with a transcript of the July 22, 2020 six month review hearing, but no action appears to have been taken at the hearing on Guy's multiple pending requests; Guy is listed in the minute order as "fail[ing] to appear." A report prepared in January 2021 for the subsequent status review hearing represented that Guy's requests were denied by the court at the July 22, 2020 hearing "because it was too late to contest paternity findings in this case."

Mother was present at the hearing; her reunification services were ordered continued, and a 12-month review hearing was set.

Richard's petition to modify and Guy's first court appearance

On December 3, 2020, Richard filed a JV-180 petition to modify pursuant to Welfare and Institutions Code section 388 (hereafter JV-180). He requested the juvenile court change its earlier order finding him the minor's biological father; he included a declaration attesting as relevant here that "during the course of [their] relationship together, [mother] conceived and gave birth to" the minor A.A.; Richard also alleged that during their "short-term marriage" mother "had...