San Diego County Health & Human Services Agency v. Richard S.

[706]Opinion

McCONNELL, J. Richard S., the alleged father of Daniel M., purports to appeal a judgment terminating his parental rights under Welfare and Institutions Code section 366.26.1 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, rule 1439(a)(4)2), he lacks standing to assert the issue. Accordingly, we dismiss the appeal.

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 apply.”

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 investigation,3 and asked Richard to bring the ICWA issue to its attention later if he established biological paternity. The appellate record contains no indication the ICWA issue was addressed further.

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