In re E.G. (C059277)

California Court of Appeals, Third Appellate District - 02/10/2009

Facts and Procedural History

Newborn minor E.G. was detained in March 2007 due to her mother's substance abuse. The detention report identified two alleged fathers (A.J. and C.H.) for the minor. At detention, E.G.'s mother claimed possible Indian heritage; at a subsequent hearing, A.J. appeared and claimed Indian heritage as well. DHSS was ordered to notice all named Indian tribes, and ordered both alleged fathers to participate in paternity testing. DHSS noticed the Indian tribes identified by the mother, but not those identified by A.J. Negative responses were returned from the Indian tribes who were noticed.

At the juris/dispo hearing, paternity test results were submitted which excluded A.J. as the biological father. Subsequently, following the mother's failure to comply with the reunification plan, parental rights were terminated. The birth mother appealed the termination, arguing that the juvenile court erred in failing to notice the tribes identified by A.J., and thus that the termination of parental rights was improper under ICWA.

Issue(s)

Was the juvenile court required to notice the Indian tribes identified by A.J. whose status in the case was only that of alleged father?

Rule(s)

ICWA defines an Indian child as "any unmarried person who is under the age of 18 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 USC 1903(4)]

Analysis

A minor's eligibility for ICWA treatment is dependent on a biological connection to the tribe through one of his or her parents. Absent a biological connection, a child cannot claim Indian heritage, and the requirements of ICWA are not triggered. At the time A.J. made his claim of Indian heritage, his paternity in E.G. had not yet been established, and therefore no requirement existed to notice any Indian tribes in which he might claim membership. Since A.J. was ultimately excluded as the biological father, no ICWA eligibility could possibly have attached to E.G. through him, and the juvenile court did not err, under the facts in this case, in failing to notice the tribes he claimed.

The appellate court remained silent on the issue of whether the failure to notice the tribes A.J. claimed would have constituted error had paternity testing subsequently shown him to be the biological father. The court's reasoning, however, suggests it would have been prudent (given that A.J.'s paternity was not yet settled at the time ICWA notices were made), for DHSS to have made ICWA notices pre-emptively against the possibility that paternity testing would have revealed A.J. to be the biological father.

Conclusion(s)

NO, DHSS's was not required to make ICWA notices on behalf of an alleged father whose paternity was ultimately disproven, and their failure to do so did not constitute error on this set of facts.

Disposition

A.J.'s appeal was denied.

The full text of the opinion can be downloaded here: PDF, Word.