as: 151 Cal.App.4th 184)
re Mary G.
of Appeal, Fourth District, Division 1, California.
re MARY G., a Person Coming Under the Juvenile Court
Diego County Health and Human Services Agency, Plaintiff and Respondent,
G. et al., Defendants and Appellants.
Andrea R. St. Julian, under appointment by the Court of
Appeal, San Diego, for Defendant and Appellant Jennifer G.
L. Dikes, under appointment by the Court of Appeal, for
Defendant and Appellant Frank G.
J. Sansone, County Counsel, John E. Philips, Chief Deputy County
Counsel, and Paula J. Roach, Deputy County Counsel, for Plaintiff
Fabian, under appointment by the Court of Appeal, for Minor.
Jennifer G. and Frank R. appeal a juvenile court judgment
terminating their parental rights over Mary G. and choosing adoption
as the permanent plan.
& Inst.Code, §
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 *192
finding the beneficial parent-child relationship exception to adoption is inapplicable.
We conclude these contentions are without merit.
references are to the Welfare and Institutions Code unless otherwise
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
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 **708
Indian Child Welfare Act of 1978 (ICWA).
AND PROCEDURAL BACKGROUND
set forth the facts pertaining to the ICWA issues in
the discussion portion of this opinion.
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.
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.
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,
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 *193
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
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.
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.FN3
filed a notice of the intent to challenge the judgment
by way of a writ petition.
She later notified this court, however, that she did not
plan to file a petition for writ of mandate as
there were no viable issues for writ review.
Accordingly, we dismissed the matter.
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] **709
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.”
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.
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, *194
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
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
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.
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
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
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.
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
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.
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
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.
court continued the permanency planning hearing to June 23.
On May 26, Jennifer filed a petition for modification under
Jennifer argued she should receive reunification services because she had
been attending narcotics anonymous (NA) meetings and drug testing, and
mental health treatment as well.”
The petition stated the McAlister Institute believed Jennifer “has
real mental health issues that a non-dual diagnosis program, such
as MITE, could not have adequately addressed in the past....
[Jennifer] has never been in a treatment program which could
have adequately addressed her mental health issues.
She has never had continuous treatment and supervision from a
mental health professional or psy[ch]iatrist who could prescribe and monitor
submitted evidence that on March 15, 2006, she completed a
residential detoxification program at McAlister Institute;
regularly attended NA meetings between August 24 and September 15,
2005, and March 5 and April 3, 2006;
she passed two or three drug tests performed in late
She also submitted an April 3, 2006 letter from a
marketing company that attested to her employment beginning mid-November 2005,
and stated she “has
demonstrated work habits that indicate she has the potential to
be a valuable addition to our company.”
the June 20, 2006 hearing, Jennifer reported she began a
dual diagnosis treatment program four or five days earlier.
She argued that if she “had
a chance to get better through her dual diagnosis program,
she would be able to provide a stable, loving, nurturing
for Mary. The court denied an evidentiary hearing on her
section 388 petition.
On June 23, the court temporarily suspended Jennifer's visitation because
of her mental condition.
The court also rescheduled the section 366.26 hearing for July
July 13, Frank filed another section 388 petition to request
12 months of reunification services.
He submitted a copy of an “Affidavit
(some capitalization omitted) from Michigan, dated two days after Mary's
The affidavit acknowledged its completion was voluntary, the mother would
have custody absent court order or agreement of the parents,
either parent could assert in court a request for parenting
time or custody, both parents had the responsibility to support
the child, and by signing the affidavit the parents waived
the right to genetic testing, appointed counsel or a trial
to determine if the man is the biological father.
The affidavit was signed by Frank and Jennifer, and signed
and notarized by a witness.
the July 18 hearing, which Frank did not attend, the
court denied an evidentiary **711
hearing on his second section 388 motion.
The court rejected the argument that the Michigan affidavit gave
Frank presumed father status under California law.
The court noted the California “statute
specifically sets out that the Department of Child Support Services
in consultation with the State Department of Health Services, the
California Association of Hospitals and Health Systems and other affected
health provider organizations will work to develop this form.
This specifically talks about California, and an analogy may be
drawn, but that would be truly rewriting the law if
I decided to honor these Michigan documents and ...
find that this guy is a presumed father under our
That would be in my mind absolutely legal error.”
The court explained that as a biological father, Frank's entitlement
to reunification services was discretionary, and the provision of services
was not in Mary's best interest.
testified she was in the Serenity House residential program and
was being treated for drug dependency and bipolar disorder.
She had been taking Lithium and Seroquel for approximately three
weeks and they minimized her anxiety.
court found by clear and convincing evidence that Mary is
adoptable and would not benefit from further contact with her
The court terminated parental rights and found adoption is in
Mary's best interest.
Further, the court authorized Mary's immediate placement in Texas with
California, the “statutes
governing dependency proceedings differentiate the rights of presumed, natural, and
Uniform Parentage Act of 1973, originally adopted by our Legislature
as Civil Code section 7000 et seq. and reenacted without
substantive change as Family Code section 7600 et seq. [citation],
distinguishes between presumed and merely biological fathers.
biological or natural father is one whose biological paternity has
been established, but who has not achieved presumed father status....
A man who may be the father of a child,
but whose biological paternity has not been established, or, in
the alternative, has not achieved presumed father status, is an
re Liam L.
(2000) 84 Cal.App.4th 739, 745, 101 Cal.Rptr.2d 13.)
father status ranks highest.
Only a ‘statutorily
is entitled to reunification services under ...
section 361.5, subdivision (a) and custody of his child under
re Jerry P.
(2002) 95 Cal.App.4th 793, 801, 116 Cal.Rptr.2d 123.)
Ordinarily, a best interests standard is inapplicable in determining whether
a presumed father is entitled to reunification services.
re Eric E.
(2006) 137 Cal.App.4th 252, 259, 39 Cal.Rptr.3d 894 (Eric
Code section 7611 generally sets forth the exclusive means for
an unwed father to establish presumed fatherhood.
re Zacharia D.
(1993) 6 Cal.4th 435, 449, 24 Cal.Rptr.2d 751, 862
Under subdivision (d) of Family Code section 7611, a man
is a presumed father if “[h]e
receives the child into his home and openly holds out
the child as his natural child.”
law gives presumed father status to those who have taken
an active role in their children's lives.”
re Liam L., supra,
84 Cal.App.4th at pp. 745-746, 101 Cal.Rptr.2d 13.)
in 1994 the Legislature amended Family Code section 7611 to
that alternatively, a man is a presumed father “if
he meets the conditions provided in ...
Chapter 3 (commencing with Section 7570) of Part 2,”
which pertains to the establishment of paternity by voluntary declaration.
Code section 7573 provides that with exceptions not relevant here,
completed voluntary declaration of paternity, as described in Section 7574,
that has been filed with the Department of Child Support
Services shall establish the paternity of a child and shall
have the same force *198
and effect as a judgment for paternity issued by a
court of competent jurisdiction.
The voluntary declaration shall be recognized as a basis for
the establishment of an order for child custody, visitation, or
Family Code section 7574, subdivision (a) the “voluntary
declaration of paternity shall be executed on a form developed
by the Department of Child Support Services in consultation with
the State Department of Health Services, the California Family Support
Council, and child support advocacy groups.”
The form must contain certain information, including statements by the
parents that they have read and understand the written materials
described in Family Code section 7572;
statement by the mother that the man who has signed
the voluntary declaration of paternity is the only possible father,
and she consents to the establishment of paternity by signing
a statement by the man that “he
understands that by signing the voluntary declaration of paternity he
is waiving his rights as described in the written materials,
that he is the biological father of the child, and
that he consents to the establishment of paternity by signing
the voluntary declaration of paternity.”
subd. (b)(5) & (6);
Agency contends, and the juvenile court found, that an out-of-state
voluntary declaration of parentage can never confer presumed father status
in a California dependency proceeding simply because the declaration was
not made on a California
form or filed with the Department of Child Support Services,
as required by Family Code section 7574.
The Agency concedes that had Mary been born in California
and had Frank signed here the identical form he signed
in Michigan, he would qualify as a presumed father.
Frank asserts that to any extent California's statutory scheme precludes
him from being designated a presumed father based solely on
geography, it violates his constitutional equal protection rights.
We agree with Frank.
concept of the equal protection of the laws compels recognition
of the proposition that persons similarly situated with respect to
the legitimate purpose of the law receive like treatment.”
re Eric J.
(1979) 25 Cal.3d 522, 531, 159 Cal.Rptr. 317, 601 P.2d
is basic that the guarantees of equal protection embodied in
the Fourteenth Amendment to the United States Constitution and article
I, sections 11 and 21, of the California Constitution, prohibit
the state from arbitrarily discriminating among persons subject to its
This principle, of course, does not preclude the state from
drawing any distinctions between different groups of individuals, but does
require that, at a minimum, classifications which are created bear
a rational relationship to a legitimate public purpose.
or touching on “fundamental
the state bears the burden of establishing not only that
it has a compelling
interest which justifies the law but that distinctions drawn by
the law are necessary
to further its purpose.’
(1970) 3 Cal.3d **713
226, 232, 90 Cal.Rptr. 15, 474 P.2d 983 (King
is similarly situated to fathers who have voluntarily acknowledged paternity
Under both California and Michigan law, a voluntary acknowledgment of
paternity shall be recognized as a “basis”
for court-ordered child support, custody or visitation.
Comp. Laws, §
Moreover, both California and Michigan law have similar purposes.
In California, “[w]ith
the adoption of the statutory scheme on voluntary declarations of
paternity, Family Code section 7570 et seq., the Legislature declared
that there was a compelling state interest in establishing paternity
for all children, with the goal of providing children with
support awards and with equal access to benefits such as
Social Security, health insurance, and inheritance rights, and found that
of family medical history is often necessary for correct medical
diagnosis and treatment.
Additionally, knowing one's father is important to a child's development.’
The Legislature further found that a simple system for voluntary
paternity declarations would result in a significant increase in the
ease of establishing paternity and a significant decrease in the
time and money needed to establish paternity, and was in
the public interest.”
of Los Angeles v. Sheldon P.
(2002) 102 Cal.App.4th 1337, 1339-1340, 126 Cal.Rptr.2d 350, fn. omitted.)
Michigan's Acknowledgment of Parentage Act provides a simple procedure “to
establish paternity and provide support for children born out of
(2006) 273 Mich.App. 149, 729 N.W.2d 256, 265.)
Acknowledgement of Parentage Act, effective June 1, 1997, and amendments
to California's statutory scheme for the voluntary acknowledgment of paternity
et seq.) were presumably adopted to satisfy federal law.
1996 Congress enacted the Personal Responsibility and Work Opportunity Reconciliation
Act, commonly known as the Welfare Reform Act. [Citations.]
the Welfare Reform Act, a program entitled Temporary Aid to
Needy Families (TANF) provided states with block funding to distribute
to needy families as each state saw fit.
replaced the federally funded AFDC program.”
(2004) 120 Cal.App.4th 1220, 1231, 16 Cal.Rptr.3d 563.)
state's participation in the TANF program is voluntary, but if
a state chooses to participate, its plan must comply with
requirements of the Social Security Act and the regulations promulgated
One of the requirements of TANF participation is that a
state must operate a child support enforcement program in compliance
with Title IV-D [of the Social Security Act]. (42 U.S.C.
Among the requirements of Title IV-D are that participating states
(1) provide a simple process for voluntarily acknowledging paternity [citation];
require that voluntary acknowledgments may be rescinded only within the
earlier of 60 days or the date of an administrative
or judicial proceeding relating to the child in which the
signatory is a party, including a proceeding to establish a
support order [citation];
(3) ensure that, after the rescission period, a voluntary acknowledgment
may be challenged in court only on the basis of
fraud, duress, or material mistake of fact, with the burden
of proof on the challenger [citation].”
ex rel. Dept. of Public Aid v. Smith
(2004) Ill.2d 389, 403.)
Both California and Michigan participate in the TANF program.
v. Saenz, supra,
120 Cal.App.4th at p. 1230, 16 Cal.Rptr.3d 563;
& Inst.Code, §
(1998) 459 Mich. 189, 194-195, 586 N.W.2d 883;
Comp. Laws, §
The Agency only cursorily addresses the equal protection issue.
It submits that Frank's constitutional rights were not violated because
was given the same opportunities as every other man to
establish presumed father status in California....
Had he traveled to California and was denied access to
the declaration process or properly executed a declaration but had
not been recognized as a presumed father, then he would
have an equal protection **714
The Agency ignores, however, that a voluntary paternity declaration must
include the mother's signature and certain statements by the mother.
subd. (b)(1) & (5).)
The record contains no suggestion Jennifer would have cooperated with
Frank in executing a voluntary paternity declaration in California several
years after they ended their relationship, or that Frank had
the financial ability to travel to California.
The Agency's position essentially begs the constitutional questions.
3 Cal.3d 226, 90 Cal.Rptr. 15, 474 P.2d 983, is
the constitutionality of a former provision of Penal Code section
270 was at issue.
It provided that a father who failed to provide for
his child was guilty of a misdemeanor, but “
the father, during such violation, remains out of the state
for 30 days ...
he is guilty of a felony.’
at p. 230, fn. 1, 90 Cal.Rptr. 15, 474 P.2d
983.) The court struck down the felony provision on equal
protection grounds, explaining “
on the basis of location inside or outside of the
state bears no more relation to the punitive and deterrent
purposes of section 270 than differing locations of nonsupporting fathers
within this state.’
odious as the offense of nonsupport of a child may
be, it does not take on varying ethical coloration because
of its geographic location.
Thus, when viewed in relation to the main purposes of
the criminal nonsupport provision, the classification drawn appears arbitrary and
at p. 233, 90 Cal.Rptr. 15, 474 P.2d 983.)
the disparate treatment here is based solely on geography, and
location of a father inside or outside the state bears
no more relation to the purposes of the presumed father
statute than differing locations of fathers within California.
The Agency has identified no compelling or even rational reason
for the disparate treatment, and we are aware of none.
Accordingly, we hold Family Code sections 7611 and 7570 et
seq. violate constitutional equal protection principles to any extent they
purport to deny Frank presumed father status on the sole
ground he made his voluntary acknowledgement of paternity in Michigan
instead of California.
also relies on the constitution's full faith and credit clause.
IV, section 1 of the United States Constitution requires that
faith and credit shall be given in each state to
the public acts, records, and judicial proceedings of every other
purpose of the clause ‘was
to alter the status of several states as independent foreign
sovereignties, each free to ignore obligations created under the laws
or by the judicial proceedings of the others, and to
make them integral parts of a single nation throughout which
a remedy upon a just obligation might be demanded as
of right, irrespective of the state of its origin.’
of America v. Jennett
(1999) 77 Cal.App.4th 104, 113, 91 Cal.Rptr.2d 359, citing Milwaukee
County v. White Co.
(1935) 296 U.S. 268, 277, 56 S.Ct. 229, 80 L.Ed.
the full faith and credit obligation is exacting.
A final judgment in one State, if rendered by a
court with adjudicatory authority over the subject matter and persons
governed by the judgment, qualifies for recognition throughout the land.”
v. General Motors Corp.
(1998) 522 U.S. 222, 233, 118 S.Ct. 657, 139 L.Ed.2d
580, fn. omitted.)
paternity affidavit is a public record of Michigan.
Mich. Comp. Laws, §
Further, under Michigan law, as California law, a voluntary acknowledgement
of paternity has the same force and effect as a
judgment of **715
Comp. Laws, §
Agency agrees the Michigan affidavit qualifies for full faith and
credit, but it submits the juvenile court gave it due
credit by declaring Frank a biological father entitled to reunification
services only on a best interests showing under section 388.
The Agency asserts that since there is no “presumed”
father category in Michigan, the Michigan affidavit is not entitled
to full faith and credit to establish presumed fatherhood in
The Agency points out there was no proceeding in Michigan
in which Frank was adjudged entitled to reunification services, custody
full faith and credit clause “requires
only that the judgment be given as much effect in
the state of the forum as in the state of
Witkin, Summary of Cal. Law (10th ed.
2005) Constitutional Law, §
is well settled that both the validity and the effect
of a judgment are governed by the laws of the
state where it is rendered....
Judgments rendered in another state will usually be accepted as
conclusive proof of the exact rights which have been finally
The full faith and credit provision of the Constitution is
designed to provide a method of proving the record of
a judicial proceeding in one state for the express purpose
of carrying out the result of that proceeding in other
full faith and credit clause requires only that the judgment
be given such effect as it had by the law
or usage of the state of its origin.”
(1948) 84 Cal.App.2d 39, 44, 189 P.2d 744.)
agrees Michigan has no “presumed”
father category, but he asserts the effect of a voluntary
acknowledgment of paternity is nonetheless essentially the same in Michigan
In both states an acknowledgment acts as a judgment of
paternity, and forms the basis for court-ordered custody, visitation and
Comp. Laws, §
In California, a father who has signed a voluntary acknowledgment
of paternity is, as a presumed father, ordinarily entitled to
reunification services without any showing of best interests.
137 Cal.App.4th at p. 259, 39 Cal.Rptr.3d 894.)
In Michigan, before the juvenile court enters a disposition order,
the child welfare agency “shall
prepare a case service plan [for the parents] that shall
be available to the court and all the parties to
and the court “shall
consider the case service plan.”
subds.(2) & (4).)
Agency ignores those provisions of the statute, and cites only
the portion that states, “If
services were not provided to the child and his or
her parent ...,
the reasons why services were not provided”
must be included in the agency's written report.
Agency submits Michigan differs from California because Michigan “does
not mandate treatment plans and services,”
it is not safe or reasonable to reunite the family
(i.e., the father sexually molested the child, beat the child,
is incarcerated for a significant period ...,
etc.), it is not mandatory to give a treatment plan
and services to that parent.”
Agency well knows, however, that in California there are also
instances in which a parent, including a presumed father, may
be denied services.
For instance, services may be denied because of severe physical
abuse or severe sexual abuse of the child or a
of the parent's history of drug or alcohol abuse and
past resistance to court-ordered treatment;
the parent failed to reunify with other dependent children, as
happened here with Jennifer;
because the parent is incarcerated and services would be detrimental
to the child. (§
subd. (b)(5), (6), (10), (13), (e)(1).)
The Michigan statute, read
as a whole,
reasonably implies that a parent is entitled to reunification services
unless there is a compelling reason for denying them (Mich.Comp.Laws,
as is the case in California.
We conclude the effect of the Michigan paternity affidavit is
essentially the same under both Michigan and California law, and
thus full faith and credit principles apply.
In any event, Family Code section 5604 puts the matter
previous determination of paternity made by another state, whether established
in effect in that state or through an administrative or
judicial process shall be given full
faith and credit
by the courts in this state, and shall
have the same effect as a paternity determination made in
and may be enforced and satisfied in a like manner.”
also 42 U.S.C. §
[each state participating in the TANF program must design “[p]rocedures
under which a State must give full faith and credit
to a determination of paternity made by any other State,
whether established through voluntary acknowledgment or through administrative or judicial
oral argument, the Agency asserted Family Code section 5604 is
inapplicable because it appears in division 9, part 5, article
9 of the Family Code, which pertains to “intercounty
We review issues of statutory construction independently, and “[o]ur
primary aim in construing any law is to determine the
doing so, we look first to the words of the
statute, giving them their usual and ordinary meaning.”
of Seven Thousand v. Superior Court
(1988) 45 Cal.3d 491, 501, 247 Cal.Rptr. 362, 754 P.2d
should be given, if possible, to every word of an
act, and a construction that renders a word surplusage should
Depot, U.S.A., Inc. v. Contractors' State License Bd.
(1996) 41 Cal.App.4th 1592, 1602, 49 Cal.Rptr.2d 302.)
the [statutory] language is clear and unambiguous, there is no
need for construction.’
of Fish & Game v. Anderson-Cottonwood Irrigation Dist.
(1992) 8 Cal.App.4th 1554, 1562, 11 Cal.Rptr.2d 222.)
Code section 5604 broadly states an out-of-state paternity declaration is
entitled to full faith and credit and “shall
have the same
as a paternity determination made in this state.”
A voluntary paternity acknowledgment made in California has the effect
of giving the father presumed father status.
Had the Legislature intended to limit Family Code section 5604
to child support matters it could, of course, have said
We conclude Family Code section 5604 is applicable, and regardless
of the lack of a “presumed”
father category in Michigan, that state's paternity acknowledgment is entitled
to full faith and credit in California, meaning it qualifies
Frank for presumed father status and reunification services as a
matter of right.
Agency also contends the juvenile court was justified in requiring
Frank to bring a section 388 motion and show the
provision of reunification *204
services was in Mary's best interest because the reunification period
had passed by the time he requested presumed father status
based on the Michigan affidavit.
until the time the section 366.26 hearing is set, the
parent's interest in reunification is given precedence**717
over a child's need for stability and permanency.’
reunification services are ordered terminated, the focus shifts to the
needs of the child for permanency and stability.’
burden thereafter is on the parent to prove changed circumstances
pursuant to section 388 to revive the reunification issue.
388 provides the “escape
must be built into the process to allow the court
to consider new information.’
re Zacharia D., supra,
6 Cal.4th at p. 447, 24 Cal.Rptr.2d 751, 862 P.2d
In addition to showing changed circumstances, the parent must make
a prima facie showing that modification would serve the child's
re Zachary G., supra,
77 Cal.App.4th at p. 806, 92 Cal.Rptr.2d 20.)
Agency relies on Eric
137 Cal.App.4th 252, 39 Cal.Rptr.3d 894, in which the biological
father claimed entitlement to presumed father status based on his
filing of a voluntary declaration in California.
The court deemed his motion to have been brought under
section 388 because it was made after expiration of the
reunification period and the setting of a section 366.26 hearing.
at p. 258, 39 Cal.Rptr.3d 894.)
The court held the father's “argument
that his voluntary declaration of paternity carries the weight of
a judgment is premature because he cannot show that he
satisfies the threshold requirement of a section 388 petition.”
at p. 262, 39 Cal.Rptr.3d 894.)
The court rejected the notion it was improper to consider
the best interest of the child in deciding presumed father
status, as after the termination of reunification services and the
scheduling of a hearing under section 366.26 the focus changed
to the needs of the child.
at p. 262, 39 Cal.Rptr.3d 894.)
however, is readily distinguishable.
the biological father was offered reunification services even though he
was an alleged father.
He failed to comply with his case plan, and at
the section 366.26 hearing, held more than a year after
he was offered services, he moved for presumed father status
based on a voluntary declaration of paternity.
137 Cal.App.4th at pp. 255-256, 39 Cal.Rptr.3d 894.)
In other words, the father was uncooperative and his lack
of involvement during the reunification period showed a lack of
dedication and the intent to unnecessarily delay the proceedings.
in November 2005, at the commencement of the proceedings, Jennifer
identified Frank as Mary's father and advised the court there
was a paternity judgment and child support order in Michigan.
On January 5, 2006, Jennifer was denied reunification services, and
thus there was never any reunification period.
Frank first appeared and claimed presumed father status *205
on February 10, 2006, which appears to have been shortly
after the Agency located him and notified him of the
It was also well within the 12-month reunification period for
a child Mary's age. (§
is inapplicable here, and the court erred by requiring Frank
to bring a section 388 petition and make a best
interest showing to receive reunification services.
When Frank requested presumed father status in February 2006, the
court should have granted it and ordered the Agency to
provide him with a service plan.
The error was prejudicial and requires reversal of the judgment
terminating his parental rights and remand for further proceedings.
challenges the court's denial of her petition for modification under**718
section 388 without an evidentiary hearing.
juvenile court order may be changed, modified or set aside
under section 388 if the petitioner establishes by a preponderance
of the evidence that (1) new evidence or changed circumstances
exist and (2) the proposed change would promote the best
interests of the child.
parent need only make a prima facie showing of these
elements to trigger the right to a hearing on a
section 388 petition and the petition should be liberally construed
in favor of granting a hearing to consider the parent's
re Zachary G.
(1999) 77 Cal.App.4th 799, 806, 92 Cal.Rptr.2d 20.)
if the liberally construed allegations of the petition do not
make a prima facie showing of changed circumstances and that
the proposed change would promote the best interests of the
child, the court need not order a hearing on the
prima facie requirement is not met unless the facts alleged,
if supported by evidence given credit at the hearing, would
sustain a favorable decision on the petition.”
re Zachary G., supra,
77 Cal.App.4th at p. 806, 92 Cal.Rptr.2d 20.)
appellate court “
not disturb [a] decision unless the trial court has exceeded
the limits of legal discretion by making an arbitrary, capricious,
or patently absurd determination [citations].’
re Geoffrey G.
(1979) 98 Cal.App.3d 412, 421, 159 Cal.Rptr. 460.)
conclude Jennifer did not make a prima facie showing of
Jennifer conceded that when the jurisdiction and disposition hearing was
held in early January 2006 she was not actively engaged
in drug *206
She argued circumstances had changed because in March she completed
a detoxification program, and she was in drug treatment and
attending NA meetings.
Jennifer's drug abuse, however, dates back more than 23 years.
She reported she began using illegal substances at the age
of 13, and that contributed to her dropping out of
school during the 10th grade.
Her drugs of choice were marijuana, methamphetamine, cocaine and heroin.
She lost custody of her three older children because of
her drug abuse.
Given the severity of Jennifer's drug problem the court could
reasonably find her sobriety between March and the date of
the hearing, June 20, was not particularly compelling.
re Cliffton B.
(2000) 81 Cal.App.4th 415, 423, 96 Cal.Rptr.2d 778 [“Carl's
seven months of sobriety since his relapse ...,
while commendable, was nothing new”].)
also claimed changed circumstances on the ground she was “seeking
mental health treatment”
that she did not receive during the dependency proceedings for
her three older children.
At the time of the hearing, however, she had been
in dual treatment for drug abuse and bipolar disorder for
or five days.
As the court noted, there was no suggestion dual treatment
may allow Jennifer to reunify with Mary within the 12-month
period, which was then less than five months away.
The court found “there
is no way based on the ...
extensive history of this case that [Jennifer's] recent activity amounts
to even a prima facie case of changing circumstances.”
We agree and find no abuse of discretion.
petition which alleges merely changing circumstances and would mean delaying
the selection of a permanent home for a child to
see if a parent ...
might be able to reunify at some future point, does
not promote stability for the child or the child's best
does not wait for the parent to become adequate.”
re Casey D.
(1999) 70 Cal.App.4th 38, 47, 82 Cal.Rptr.2d 426.)
Jennifer challenges the sufficiency of the evidence to support the
court's finding that the exception to the adoption preference found
in section 366.26, subdivision (c)(1)(A) is inapplicable.
review of the sufficiency of the evidence, we presume in
favor of the order, considering the evidence in the light
most favorable to the prevailing party, giving the prevailing party
the benefit of every reasonable inference and resolving all conflicts
in support of the order.”
re Autumn H.
(1994) 27 Cal.App.4th 567, 576, 32 Cal.Rptr.2d 535.)
where possible, is the permanent plan preferred by the Legislature.”
re Autumn H., supra,
27 Cal.App.4th at p. 573, 32 Cal.Rptr.2d 535.)
If the court finds a child cannot be returned to
her parent and is likely to be adopted *207
if parental rights are terminated, it must select adoption as
the permanent plan unless it finds termination would be detrimental
to the child under one of six specific exceptions. (§
The section 366.26, subdivision (c)(1)(A) exception applies if “termination
of parental rights would be detrimental to the child because
have maintained regular visitation and contact with the minor and
the minor would benefit from continuing the relationship.’
re Derek W.
(1999) 73 Cal.App.4th 823, 826, 86 Cal.Rptr.2d 739.)
The parent bears the burden of proving the exception applies.
court has interpreted the phrase “benefit
from continuing the relationship”
to refer to a “parent-child”
relationship that “promotes
the well-being of the child to such a degree as
to outweigh the well-being the child would gain in a
permanent home with new, adoptive parents.
In other words, the court balances the strength and quality
of the natural parent [-]child relationship in a tenuous placement
against the security and the sense of belonging a new
family would confer.
If severing the natural parent[-]child relationship would deprive the child
of a substantial, positive emotional attachment such that the child
would be greatly harmed, the preference for adoption is overcome
and the natural parent's rights are not terminated.”
re Autumn H., supra,
27 Cal.App.4th at p. 575, 32 Cal.Rptr.2d 535.)
parent must show more than frequent and loving contact or
re Derek W., supra,
73 Cal.App.4th 823, 827, 86 Cal.Rptr.2d 739.)
between natural parent and child will always confer some incidental
benefit to the child....
The relationship arises from the day-to-day interaction, companionship and shared
re Autumn H., supra,
27 Cal.App.4th at p. 575, 32 Cal.Rptr.2d 535.)
parent must show he or she occupies a parental role
in the child's life, resulting in a significant, positive, emotional
attachment between child and parent.
re Autumn H.,
at p. 575, 32 Cal.Rptr.2d 535;
re Elizabeth M.
(1997) 52 Cal.App.4th 318, 324, 60 Cal.Rptr.2d 557.)
as we clarified in In
re Casey D., supra,
70 Cal.App.4th 38, 51, 82 Cal.Rptr.2d 426:
contact is not necessarily required, although it is typical in
a parent-child relationship.
A strong and beneficial parent-child relationship might exist such that
termination of parental rights would be detrimental to the child,
particularly in the case of an older child, despite a
lack of day-to-day contact and interaction.”
is undisputed that Jennifer regularly visited Mary. The record, however,
contains substantial evidence to support the court's finding that Jennifer
did not show Mary would suffer great harm if she
did not have continued contact with her mother,**720
or that the benefit of continued contact would outweigh
the benefits of adoption.
social worker wrote in the assessment report that she had
observed four visits between Jennifer and Mary, and “[d]uring
the visits Mary seems to *208
enjoy the time she spends playing with [Jennifer].
However, Mary also leaves her mother's presence willingly and does
not appear to be negatively impacted by her mother's absence.
She does not ask to live with her nor does
she ask when she will see her next.
She has adapted to her current foster home....”
an addendum report, the social worker explained that during a
recent visit Jennifer's “moods
fluctuated from laughter to hostility”
and she refused to follow the social worker's directions and
adult situations in front of her daughter.”
The report stated that “Mary
consistently asks for her [maternal aunt] and to date has
not asked the worker to see her mother.”
Jennifer had requested a bonding study and the court authorized
one, but no such study was presented at the section
According to the social worker, “the
exception of a beneficial parent child relationship does not exist
in this case and terminating parental rights for Jennifer ...
would not be detrimental to Mary.”
Although there was also evidence that Jennifer and Mary had
an affectionate relationship, the court's ruling is amply supported by
also joins in Frank's arguments and contends that if we
reverse the judgment terminating his parental rights, the judgment terminating
her parental rights must be reversed as well, even absent
any independent error pertaining to her.
Rules of Court, rule 5.725(a)(2) provides in part, “The
court may not terminate the rights of only one parent
under section 366.26 unless that parent is the only surviving
unless the rights of the other parent have been terminated
unless the other parent has relinquished custody of the child
to the welfare department.”
5.725(h) acknowledges the “purpose
of termination of parental rights is to free the dependent
child for adoption.”
We conclude that because the reinstatement of Frank's parental rights
precludes Mary's adoption at this time, the reinstatement of Jennifer's
parental rights is in Mary's best interest.
We emphasize, however, that this does not affect the order
terminating Jennifer's reunification services.
re DeJohn B.
(2000) 84 Cal.App.4th 100, 110, 100 Cal.Rptr.2d 649 [discussing Cal.
Rules of Court, former rule 1463, now rule 5.725].)
both Jennifer and Frank persuasively contend the judgment must be
reversed because of inadequate ICWA notices.
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.’
If the tribe is unknown, the notice must be given
to the Bureau of Indian Affairs [BIA] as the agent
for the Secretary of the Interior.
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 **721
tribe or the [BIA].’
(25 U.S.C. §
re Daniel M.
(2003) 110 Cal.App.4th 703, 707, 1 Cal.Rptr.3d 897;
also Welf. & Inst.Code, §§
subd. (a) & (b), 224.3, subd. (a).)
under the ICWA must, of course, contain enough information to
constitute meaningful notice.
The Guidelines for State Courts;
Child Custody Proceedings [citation] ...,
which are designed to implement the ICWA, require the notice
include, among other things, the name of the Indian child;
or her tribal affiliation;
copy of the dependency petition;
petitioner's name and address of the petitioner's attorney;
a statement of the right of the tribe to intervene
in the proceedings.”
re Karla C.
(2003) 113 Cal.App.4th 166, 175, 6 Cal.Rptr.3d 205.)
by federal regulation an ICWA notice must include, if
(1) the name, birthplace, and birth date of the Indian
the name of the tribe in which the Indian child
is enrolled or may be eligible for enrollment;
names and addresses of the child's parents, grandparents, great-grandparents and
other identifying information;
(4) a copy of the dependency petition.
establish tribal identity, it is necessary to provide as much
information as is known on the Indian child's direct lineal
satisfy the notice provisions of the [ICWA] and to provide
a proper record for the juvenile court and appellate courts,
[a social service agency] should follow a two-step procedure.
First, it should identify any possible tribal affiliations and send
proper notice to those entities, return receipt requested.
[the agency] should provide to the juvenile court a copy
of the notice sent and the return receipt, as well
as any correspondence received from the Indian entity relevant to
the minor's status.’
re Asia L.
(2003) 107 Cal.App.4th 498, 507, 132 Cal.Rptr.2d 733.)
to the tribe shall be to the tribal chairperson, unless
the tribe has designated another agent for service.”
The BIA “periodically
publishes a current list of designated tribal agents for service
of notice, along with the appropriate mailing addresses, in the
(2002) 103 Cal.App.4th 1206, 1213, 128 Cal.Rptr.2d 12.)
Notification of Indian Status”
form, Jennifer checked the box that stated “I
may have Indian ancestry.”
She did not list any tribe on the form.
The Agency's jurisdiction and disposition report states the social worker
contacted Jennifer's father and he said “his
grandmother was 75% Cherokee and he ‘thinks'
that she was a registered member, however he is not
certain.[He] provided all information needed to complete the JV-135”
form. On November 28, 2005, the Agency sent notices by
certified mail to the three Cherokee tribes, the Cherokee Nation
of Oklahoma, the Eastern Band of Cherokee Indians and the
United Keetoowah Band of Cherokee Indians, and the BIA. By
mid-January 2006 each tribe had responded and advised that Mary
was not eligible for enrollment.
The Agency submitted copies of the responses to the court.
his paternity questionnaire, Frank stated he had American Indian heritage
and gave the name of the Kumeyaay tribe.
His counsel reported that Frank told him “he
has family that are members in the Kumeyaay tribe and,
in particular, the Campo Band.”
The Agency sent notice to the Kumeyaay tribe, and because
it had information on the father it also renoticed the
three Cherokee tribes and the BIA. In a report filed
April 19, 2006, the Agency advised the ICWA does not
apply, and **722
are the return receipts as well as a response from
record contains copies of the responses to the second set
of notices to the United Keetoway Band of Cherokee Indians
and the Cherokee Nation.
The record does not, however, contain a copy of any
response from the second notice to the Eastern Band of
Further, it is undisputed that the Agency sent the ICWA
notice to the Kumeyaay tribe at the wrong address.
The record contains no response from the Kumeyaay tribe and
is devoid of any other evidence the tribe received actual
re Karla C., supra,
113 Cal.App.4th at page 178, 6 Cal.Rptr.3d 205, the Agency
concedes the “majority
view under current California case law holds that proof of
notice must be provided to the court, including copies of
the actual notices sent, the receipts for mailing, and any
The Agency contends, however, that the missing response from the
Eastern Band of Cherokee Indians does not warrant reversal because
section 224.2, subdivision (c) provides that “proof
of the notice, including copies of *211
notices sent and all return receipts and responses received,
shall be filed with the court....”
The Agency points out that it may not receive responses
from all noticed tribes, and that is a matter out
of its control.
Agency ignores, however, that it filed a report with the
court that indicated it had
received responses from the second notices sent to each of
the three Cherokee tribes as well as from the Kumeyaay
If the Agency did not receive a response from the
Eastern Band of Cherokee Indians it is required to advise
If it did receive a response, it is required to
submit a copy of it to the court.
the Agency concedes it sent notice to the Kumeyaay tribe
at the wrong address “as
the current address in the Federal Register was not used.”
Sending an ICWA notice to the wrong address is error,
and the error is prejudicial when, as here, the record
lacks conclusive evidence the tribe received actual notice.
K. v. Superior Court
(2007) 146 Cal.App.4th 779, 783, 53 Cal.Rptr.3d 251;
re H.A., supra,
103 Cal.App.4th at p. 1213, 128 Cal.Rptr.2d 12.)
Agency claims that under the rationale of In
re Rebecca R.
(2006) 143 Cal.App.4th 1426, 49 Cal.Rptr.3d 951, the parents cannot
show prejudicial error because on
they have not presented any evidence that Mary is actually
a member of an Indian tribe or eligible for membership.
re Rebecca R.,
the father contended the ICWA was violated because even though
the court ordered the social services agency to ask him
whether he had Indian ancestry, the record contained no documentation
to show it did so.
The court rejected the contention because the provisions of a
rule of court the father relied on were not in
effect at the relevant time, and the record contained substantial
evidence that the social services agency complied with the court's
direction since its reports stated the ICWA was inapplicable and
a presumption arose under Evidence Code section 664 that it
carried out its duty.
re Rebecca R.,
at pp. 1429-1430, 49 Cal.Rptr.3d 951.)
court also rejected the father's claim because “there
can be no prejudice unless, if
he had been asked, father would
indicated that the child did (or may) have such ancestry.”
re Rebecca R., supra,
143 Cal.App.4th at p. 1431, 49 Cal.Rptr.3d 951.)
The court explained:
is here, now, before this court.
There is nothing whatever which prevented him, in his briefing
or otherwise, from removing any doubt or speculation.
He should have made an offer of proof or other
affirmative representation that, had he been asked, he **723
would have been able to proffer some Indian connection sufficient
to invoke the ICWA. He did not.
In the absence of such a representation, the matter amounts
to nothing more than trifling with the courts.
knowledge of any Indian connection is a matter wholly within
the appealing parent's knowledge and disclosure is a matter entirely
within the parent's present control.”
case is distinguishable from In
re Rebecca R.,
because the record here shows the parents did disclose Indian
ancestry to the Agency.
re Rebecca R.
does not hold that on appeal a parent must produce
evidence-as a prerequisite to reversal for ICWA notice deficiencies-that the
child is a member of an Indian tribe or eligible
for membership in a tribe.
Indeed, a parent does not have to make that showing
at the juvenile court to trigger the ICWA notice provisions.
Rather, that is a determination the noticed tribes make. (§
was not only concerned about the interests of individual members
of a tribe but of the tribe itself.
[ICWA] clearly protects the right of the tribe independent from
any rights held by either parent.”
re Kahlen W.
(1991) 233 Cal.App.3d 1414, 1425, 285 Cal.Rptr. 507.)
are not necessarily knowledgeable about tribal government or membership and
their interests may diverge from those of the tribe.”
appellate courts rarely accept postjudgment evidence.
has long been the general rule and understanding that ‘an
appeal reviews the correctness of a judgment as of
the time of its rendition, upon a record of matters
which were before the trial court for its consideration.’
rule reflects an ‘essential
distinction between the trial and the appellate court ...
that it is the province of the trial court to
decide questions of fact and of the appellate court to
decide questions of law....’
This rule promotes the orderly settling of factual questions and
disputes in the trial court, provides a meaningful record for
review, and serves to avoid prolonged delays on appeal.”
re Zeth S.
(2003) 31 Cal.4th 396, 405, 2 Cal.Rptr.3d 683, 73 P.3d
In our view, making the appellate court the trier of
fact is not the solution.
is up to the juvenile court to review the information
concerning the notice given, the timing of the notice, and
the response of the tribe, so that it may make
a determination as to the applicability of the ICWA.”
re Jennifer A.
(2002) 103 Cal.App.4th 692, 705, 127 Cal.Rptr.2d 54.)
conclude the ICWA notice defects here constitute reversible error.FN6
reversal of a judgment is required solely to rectify ICWA
notice requirements, we issue a limited reversal.
re Francisco W.
(2006) 139 Cal.App.4th 695, 705-706, 43 Cal.Rptr.3d 171.)
A limited reversal serves no purpose here as we also
reverse the judgment for reasons unrelated to the ICWA.
judgment terminating parental rights is reversed.
The case is remanded to the juvenile court with directions
to order that Frank is a presumed father entitled to
reunification services, and to order the Agency to comply with
the notice provisions of the ICWA.
and McINTYRE, JJ.
re Mary G.
Cal.App.4th 184, 59 Cal.Rptr.3d 703, 07 Cal. Daily Op. Serv.
5940, 2007 Daily Journal D.A.R. 7499