as: 110 Cal.App.4th 703, 1 Cal.Rptr.3d 897)
of Appeal, Fourth District, Division 1, California.
re DANIEL M., a Person Coming Under the Juvenile Court
Diego County Health and Human Services Agency, Plaintiff and Respondent,
S., Defendant and Appellant.
Alice C. Shotton, under appointment by the Court of Appeal,
for Defendant and Appellant.
John J. Sansone, County Counsel, Susan Strom, Chief Deputy County
Counsel, Lisa Maldonado, Deputy County Counsel, for Plaintiff and Respondent.
Suzanne F. Evans, San Diego, under appointment by the Court
of Appeal, for Minor.
Richard S., the alleged father of Daniel M., purports to
appeal a judgment terminating his parental rights under Welfare and
Institutions Code section 366.26.
[FN1] Richard's sole contention is that the juvenile court committed
reversible error by not complying with the notice requirements of
the Indian Child Welfare Act (ICWA) (25 U.S.C. § 1901
et seq.). However, because Richard did not acknowledge or establish
his paternity (25 U.S.C. § 1903(9);
Cal. Rules of Court, [FN2] rule 1439(a)(4)), he lacks standing
to assert the issue. Accordingly, we dismiss the appeal.
Statutory references are to the Welfare and Institutions Code unless
All rule references are to the California Rules of Court.
FACTUAL AND PROCEDURAL BACKGROUND
In January 2002, the San Diego County Health and Human
Services Agency (the Agency) removed newborn Daniel from the custody
of his mother, Danielle M., because she had a history
of drug abuse, admitted using drugs during the pregnancy and
tested positive for methamphetamine at the birth. The Agency filed
a petition on Daniel's behalf under section 300, which identified
Richard as the alleged father. In paternity questionnaires, Danielle and
Richard stated he may have American Indian heritage. In its
detention report, the Agency noted the ICWA "does or may
At the February 2002 jurisdiction and disposition hearing, Richard, through
counsel, stated he believed his father may have Cherokee Indian
blood. Further, Danielle, through counsel, stated her mother is a
registered member of an Apache tribe. The court deferred a
finding on whether the ICWA was applicable. The court asked
Danielle to give the Agency her mother's name for further
[FN3] and asked Richard to bring the ICWA issue to
its attention later if he established biological paternity. The appellate
contains no indication the ICWA issue was addressed further.
In the reporter's transcript, the court is quoted as saying
"[p]erhaps ... you [Danielle] can give the social worker the
name of your father
so that the social worker can check into that." (Italics
added.) The court presumably meant to refer to Danielle's mother.
At the same hearing, the court granted Richard's request for
paternity testing. However, he did not show up for the
blood test and in April 2002 he withdrew his request.
At the August 2002 six-month review hearing, the court terminated
reunification services and scheduled a section 366.26 hearing. The parents
had made no substantive progress with their reunification plans.
In November 2002, Richard renewed his request for paternity testing.
The court ordered testing, but the testing was not completed
by the time of the *707
section 366.26 hearing the following month. In any event, at
the hearing the court determined Richard's paternity was irrelevant since
he and Danielle had limited contact with Daniel throughout the
proceedings. The court found Daniel was adoptable and none of
the exceptions found in section 366.26, subdivision (c)(1) applied to
preclude termination of parental rights. Finding adoption was in Daniel's
best interests, the court terminated parental rights.
The ICWA provides that "where the court knows or has
reason to know that an **899
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.;
25 C.F.R. § 23.11
re Edward H.
(2002) 100 Cal.App.4th 1, 4, 122 Cal.Rptr.2d 242.) "No foster
care placement or termination of parental rights proceeding shall be
held until at least ten days after receipt of notice
by the ... tribe of the [Bureau]." (25 U.S.C. § 1912(a).)
Richard's only challenge to the
termination of parental rights is the court's asserted noncompliance with
the notice provisions of the ICWA.
[FN4] Richard relies on Dwayne
P. v. Superior Court
(2002) 103 Cal.App.4th 247, 126 Cal.Rptr.2d 639 (Dwayne
P.), in which this
court held the parents did not waive appellate review of an ICWA notice
issue even though they failed to appeal the jurisdiction and disposition
order in which the subject was addressed. (Id.
at p. 251, 126 Cal.Rptr.2d 639.) We explained:
"When the court has reason to know Indian children are involved
in dependency proceedings, as here, it has the duty to give the requisite
notice itself or ensure the social services agency's compliance with the
notice requirement. [Citations.] In our view, the court's
duty is sua sponte, since notice is intended to protect the interests
of Indian children and tribes despite the parents' inaction. [Citation.]
[¶] ... Because the court's duty continues until proper notice
is given, an error in not giving notice is also of a continuing nature
and may be challenged at any time during the dependency proceedings."
(Dwayne P., supra,
103 Cal.App.4th at p. 261, 126 Cal.Rptr.2d 639.)
In his reply brief, Richard suggests the court abused its
discretion by not continuing the section 366.26 hearing pending the
results of his paternity testing. However, Richard waived appellate review
of the issue by not raising it in his opening
(1996) 46 Cal.App.4th 1740, 1754, 54 Cal.Rptr.2d 512.)
As an alleged father, however, Richard lacks standing to pursue
this appeal. The termination of parental rights may be challenged
on the *708
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. (25 U.S.C.
rule 1439(n).) The ICWA defines "parent" as "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." (25 U.S.C. § 1903(9).)
The ICWA expressly excludes from the definition of "parent" an
"unwed father where paternity has not been acknowledged or established."
Contrary to Richard's assertion, rule 1439(a)(4) is substantively indistinguishable from
title 25 United States Code section 1903(9). Thus, California law
does not provide narrower standing than federal law.
In his reply brief, Richard asserts
the ICWA "does not require the parent to have established paternity
under California's Family Code before ICWA's provisions apply." (Some
capitalization omitted.) However, Richard develops no argument and cites
no supporting legal authority for this proposition. "[P]arties
are required to include argument and citation to authority in their briefs,
and the absence of these necessary elements allows this court to treat
appellant's ... issue as waived." (Interinsurance
v. Collins (1994) 30
Cal.App.4th 1445, 1448, 37 Cal.Rptr.2d 126.)
In any event, the assertion is
without merit because to be considered a "parent" under the
ICWA, an unwed father's paternity must be "acknowledged or established."
(25 U.S.C. § 1903(9); rule 1439(a)(4) [unwed alleged
paternity must be "determined or acknowledged"].) Richard
submits that "any ambiguity in either the federal or state statutes,
regulations or rules shall be resolved in favor of the result most consistent
with protecting Indian children and promoting and stabilizing Indian families
and tribes." However, he points to no ambiguity and we find none.
If a statute is unambiguous, it must be applied according to its
plain terms. (Guardianship
of Elan E. (2000) 85
Cal.App.4th 998, 1001, 102 Cal.Rptr.2d 528.)
Moreover, because the ICWA does not provide a standard for
the acknowledgment or establishment of paternity, courts have resolved the
issue under state law. (In
the Matter of the Adoption of a Child of Indian
(1988) 111 N.J. 155, 176 [543 A.2d at p. 935];
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
of Baby Girl B.
(Okla.Civ.App.2003) 67 P.3d 359, 366; In
the Matter of Adoption of a Child of Indian Heritage,
111 N.J. at p. 178 [543 A.2d at p. 936];
Tribe v. Mejia, supra,
906 S.W.2d at pp. 172-173.) Similarly, in California an alleged
father may acknowledge or establish paternity by *709
voluntarily signing a declaration of paternity at the time of
the child's birth, for filing with the birth certificate (Fam.Code,
subd. (a)), or through blood testing (Fam.Code, § 7551).
[FN5] Richard ultimately submitted to blood testing, but the results
were not completed by the time of the section 366.26
Because Richard is not a presumed father we need not
discuss the statutory criteria of such status.
have standing to appeal, a person generally must be both a party of record
and sufficiently 'aggrieved' by the judgment or order." (Marsh
v. Mountain Zephyr, Inc.
(1996) 43 Cal.App.4th 289, 295, 50 Cal.Rptr.2d 493.) 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. (In
the Matter of Adoption of a Child of Indian Heritage, supra,
111 N.J. at pp. 179-180, 543 A.2d 925; Carson
v. Carson (2000) 170
Or.App. 263, 13 P.3d 523, 525-526; 25 U.S.C. § 1903(9);
rule 1439(a)(4).) Accordingly, we must dismiss Richard's appeal.
(See Decker v.
U.D. Registry, Inc.
(2003) 105 Cal.App.4th 1382, 1391, 129 Cal.Rptr.2d 892.)
The appeal is dismissed.
WE CONCUR: BENKE, Acting P.J., and McDONALD, J.