Case Law Update: 2 Mar 2009

  • In re J.Y., JR., No. B209559 (SB Co. case #J1251574) - Father's delay in asserting paternity means no error in court's failure to identify him as a presumed father.
    A dependency petition was filed in November, 2006 for nine-year old J. and his two half-siblings, alleging failure to protect based on mother's drug use and father's extensive criminal history. Father attended the detention hearing, stated that he was an alleged father, and requested a paternity test. Despite several attempts by the Department, Father did not participate in paternity testing until April of 2008, and did not attend any further hearings. On July 10, 2008, a combined 366.26 and 288 hearing were held on the father's 388 petition to receive reunification services as J.'s presumed father. The juvenile court denied the 388 petition without a hearing and terminated parental rights with respect to both parents. Father appealed, alleging, inter alia, that the juvenile court erred in not identifying him as J.'s presumed father and in not providing reunification services, and that it was an abuse of discretion for the juvenile court to deny his 388 petition without a hearing. The appellate court ruled that since Father did not inform the court that he was married to Mother at the time of J.'s conception and birth, and since he delayed paternity testing for 17 months following the commencement of dependency proceedings, the juvenile court did not err in not identifying him as J.'s presumed father or in its decision not to provide reunification services. Further, the appellate court determined that J.'s need for stability outweighs Father's last-minute request for presumed father status and reunification services, and that Father did not make a prima facie showing that providing such status and services would be in J.'s best interests. (The appellate court also denied Father's claims that there was insufficient evidence showing J. is adoptable, and ruled that the Department had properly fulfilled its notice and inquiry duties under ICWA). The juvenile court's orders were affirmed in all respects.

  • In re C.R., No. F056343. - Challenge to applicability of ICWA forfeited when not raised at the time of the 366.26 hearing.
    Voluntary family services for substance abuse were provided to C.R.'s parents following her birth. Shortly thereafter, C.R. was hospitalized with a severe respiratory virus. This hospitalization led to C.R.'s detention, at which time paternity and ICWA inquiries were made of both parents. Shortly thereafter, the parents became homeless and their whereabouts became unknown. Mother claimed Indian heritage at the detention hearing, the only one she attended, but inquiries along this line were negative. At the dispositional hearing, which was attended by attorneys for both parents, the court adopted the agency's recommended findings, including that ICWA did not apply. A 366.26 hearing was set, and parental rights were terminated. Subsequently, E.R. (Father) appealed the termination, arguing that the Social Services Agency had failed to make proper ICWA inquiries regarding him. The appellate court held that, when the adequacy of ICWA notification is not challenged in a timely fashion, the court's ICWA findings may not be challenged for the first time on appeal. In addition, the court held that, even if ICWA applied, the parents' previous loss of parental rights, their abandonment of C.R., and their disappearance for the vast majority of the proceedings would have compelled ICWA findings warranting removal, regarding active efforts, and supporting termination of rights. Accordingly, the lower court's orders were affirmed, and E.R.'s challenge was denied.

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