Filed 4/25/13 In re K.F. CA2/4

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for 

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION FOUR

In re K.F., a Person Coming Under the

Juvenile Court Law.

 B243454

LOS ANGELES COUNTY 

DEPARTMENT OF CHILDREN AND 

FAMILY SERVICES,

Plaintiff and Respondent,

v.

CALVIN G.,

Defendant and Appellant.

 (Los Angeles County

 Super. Ct. No. CK39018)

APPEAL from orders of the Superior Court of Los Angeles County, 

Philip L. Soto, Judge. Reversed and remanded with directions.

Suzanne Davidson, under appointment by the Court of Appeal, for Defendant and 

Appellant.

John F. Krattli, County Counsel, James M. Owens, Assistant County Counsel, and 

Navid Nakhjavani, Deputy County Counsel for Plaintiff and Respondent.
2

Calvin G. appeals from juvenile court orders denying his request for presumed 

father status and terminating parental rights as to his biological daughter, K.F. He argues 

the court violated his due process rights as a parent. He also argues that the Los Angeles 

Department of Children and Family Services (the Department) failed to comply with 

inquiry and notice requirements of the Indian Child Welfare Act (25 U.S.C. § 1901 et 

seq., ICWA). We find no due process violation of father‘s parental rights, but we 

conclude that information provided by father was sufficient to trigger the inquiry and 

notice requirements of ICWA and remand for that purpose.

FACTUAL AND PROCEDURAL SUMMARY

K.F. was born to mother, M.F., on September 28, 2011. The next day, the 

Department received a referral claiming that the infant girl was a victim of general 

neglect. The staff of the hospital where mother and child were admitted expressed 

concern to the Department about mother‘s ability to care for K.F. Mother had told them 

that her parental rights as to her two older children had been terminated due to her 

substance abuse and mental health issues. A social worker visited mother in the hospital. 

Mother was upset and hostile, and claimed that the worker assumed she was using illegal 

substances because of her history. Mother said she had been diagnosed with 

Schizoaffective Disorder in 2000. She last saw a psychiatrist in early 2010. She stopped 

taking her medication during her pregnancy with K.F. to protect the baby. She said she 

had a history of using marijuana, cocaine, and alcohol, and had been arrested in 2008 for 

drug possession. Mother refused to provide the name of K.F.‘s father. Mother refused to 

sign a safety plan for K.F. A nurse and a physician reported mother had not fed K.F. as 

scheduled, placing the baby at risk of dehydration. She also let the child cry and 

interfered with the efforts of nurses to care for the baby, including preventing them from 

taking the baby to be washed and cleaned. Mother tested negative for drugs at the 

hospital. The child was placed in protective custody. The Department confirmed that 

mother‘s parental rights to her two older children were terminated because of her mental 

health and substance abuse issues. 
3

The Department filed a petition on behalf of K.F. under Welfare and Institutions 

Code section 3001based on mother‘s loss of rights as to her two older children, and her 

continuing substance abuse and mental health problems. At the detention hearing, 

mother identified Calvin G. as the father of K.F., but said she did not know where he was. 

She did not know whether he had Indian ancestry, but said she did not. She said father 

came to the hospital the day K.F. was born. The court found him to be an alleged father. 

The child was detained. In the event that father contacted the Department, the court said 

it would allow him monitored visitation. 

A first amended dependency petition was filed in November 2011, naming Calvin 

G. as father of K.F. It alleged that father had a history of substance abuse, including 

cocaine, which rendered him unable to care for the child and endangered the child‘s 

physical and emotional health and safety, placing the child at risk of harm. In the 

jurisdiction/disposition report, the Department reported that father had a burglary 

conviction in 1974, a fine for obstruction of justice in 1978, probation arising out of a 

fight in public in 1982, a fine for failure to appear on a charge of possession of a 

controlled substance in 1999, and unspecified municipal code infractions in 2004. In 

addition, between 1974 and 2011, he had one arrest for indecent exposure, one for lewd 

crimes against children, eight for narcotics-related charges and eight for spousal abuse or 

assault. 

Father was reluctant to ―get the mother in trouble,‖ when interviewed by the 

Department, but said she had anger issues. He thought K.F. would be ― ̳okay‘‖ if 

returned to mother, if mother takes her medication. Aside from mother‘s anger, he had 

not observed any mental health symptoms in mother. Father had told mother he wanted a 

paternity test. When they spoke by telephone a few days after K.F. was born, mother did 

not tell him about the Department‘s involvement. Father tested positive for cocaine on 

November 2, 2011. He wanted K.F. to be placed in his care. 

 

1

Statutory references are to the Welfare and Institutions Code unless otherwise 

indicated.
4

Father first appeared on November 16, 2011. At the hearing he filed a parental 

notification of Indian status form, indicating that he may have Indian ancestry in the 

Cherokee tribe through his grandmother, who was not herself a tribe member but who 

had Cherokee roots. The court found that ICWA did not apply. Father requested 

presumed father status. To facilitate that request, he asked for a DNA test to prove his 

paternity. The court ordered a paternity test, which established that he is K.F.‘s 

biological father. 

Father failed to appear at the adjudication hearing. The first amended petition was 

sustained as alleged. The court postponed ruling on father‘s renewed request for 

presumed father status until the next hearing. Father also failed to appear for the 

contested dispositional hearing. He told a dependency investigator that he had not 

submitted to drug and alcohol tests because he had been out of state for a few weeks and 

had just returned in early January 2012. Father said he had not enrolled in any programs 

recommended by the investigator, such as substance abuse and parenting classes because 

no programs had been ordered by the court. The Department asked that father not be 

given family reunification services because he was an alleged father and had not attained 

presumed father status. In addition, father had never visited the baby. Counsel for K.F. 

joined with the Department in requesting that father not receive reunification services 

because he had done nothing to change his status and had not visited the child. The 

juvenile court declared K.F. a dependent of the court. Reunification services were denied 

to father because his status was that of alleged father, not presumed father. A 

permanency planning hearing was set for May 4, 2012. Father appeared at that hearing, 

which was continued for proper notice to mother. 

On May 7, 2012, father filed a section 388 petition, asking the court to declare him 

the presumed father of K.F., order home reunification services, and place the child in the 

home of a paternal cousin. Father said that ―unbeknownst to counsel‖ he had regularly 

been visiting K.F. For the first time, father filled out a Judicial Council form JV-505, 

Statement Regarding Parentage. He checked boxes on the form asking for appointment 
5

of counsel,2stating that he believed he is K.F.‘s parent and requesting a judgment of 

parentage or presumed father status. Father also asked the court to find that he is the 

presumed parent. The form provides spaces to indicate that the child had lived with 

father, listing persons that father had told that K.F. was his, and listing activities with the 

child. All of these were left blank except father listed visitation as an activity with K.F. 

The Department opposed the section 388 petition on the grounds that no changed 

circumstances were demonstrated. In addition, counsel for the Department represented 

that father had not visited K.F., contrary to father‘s claim.3 The court agreed, finding no 

visitation and no changed circumstances. The petition was summarily denied. 

The Department recommended termination of parental rights. At the request of 

parents, a contested section 366.26 permanency planning hearing was held. The parties 

stipulated that if father was called to testify, he would state that he was unable to visit 

because the social worker and caregiver had not helped facilitate visits. Father objected 

to termination of his parental rights, claiming the parental relationship exception of 

section 366.26, subdivision (c)(1)(B)(i) since he had unsuccessfully tried to visit K.F. 

The court found by clear and convincing evidence that K.F. is adoptable and that it 

would be detrimental to return her to her parents. The court found that no exception to 

adoption applied. Father and mother‘s parental rights were terminated. K.F.‘s custody 

was transferred to the Department for adoptive planning and placement. Father filed a 

timely appeal from the order terminating his parental rights and the July 6, 2012 order 

denying his request for presumed father status. 

 

2

Father had been represented by counsel at all previous hearings.

3

The record is inconsistent regarding father‘s visits with K.F. A status review 

report prepared for July 6, 2012 stated that father participated in monitored visits after 

K.F. was detained for approximately two hours each visit, but that he had requested few 

visits with the child after January 9, 2012. On June 13, 2012, the caregiver reported that 

father had one visit on May 4th, but had not appeared for other visits. 
6

DISCUSSION

I

―Dependency law recognizes four types of fathers: alleged, de facto, biological, 

and presumed. [Citation.] Only a presumed father is entitled to appointed counsel, 

custody (if there is no finding of detriment) and reunification services. [Citation.] A 

biological father who is not a presumed father may be granted services but it is not 

mandatory. (Welf. & Inst. Code, § 361.5, subd. (a); In re Zacharia D. (1993) 6 Cal.4th 

435, 451.)‖ (In re D.M. (2012) 210 Cal.App.4th 541, 544 (D.M.).) To attain status as a 

presumed father, a man must fit within one of the categories of Family Code section 

7611. The only one available to father here was to receive the child into his home and 

openly hold her out as his natural child. (Fam. Code, § 7611, subd. (d).) Here, father 

remained an alleged father throughout these proceedings; he never attained presumed 

father status. 

Father argues he ―did everything he could to demonstrate his full commitment to 

his parental responsibilities in order to qualify as a presumed father so that he may be 

given the opportunity to regain custody of K.F.‖ He cites his one visit to the hospital 

when the child was born, at which point he told mother that he would assume 

responsibility for the child after a paternity test established he was the parent. He also 

cites his appearance at the first hearing after the petition was filed, at which time he 

requested a paternity test. He claims that as ―an unwed biological father who promptly 

came forward and demonstrated a commitment to K.F.,‖ his parental rights should not 

have been terminated absent a showing of his unfitness as a parent, citing In re Julia U. 

(1998) 64 Cal.App.4th 532, 540–541 (Julia U.). 

That case is distinguishable. In Julia U., only after the first alleged father was 

eliminated by paternity testing did mother identify Ramon O. as an alleged father. They 

were not married and had a casual relationship involving sexual intercourse only twice. 

He believed another man was the biological father. There was a three-month delay 

before the social services department notified the court that the first alleged father was 

not the biological father. It took two more months for the department to contact Ramon 
7

after mother first identified him. Ramon consistently expressed his desire for a 

relationship with the child if paternity testing showed he was the biological father. The 

child services department delayed the paternity testing for Ramon for three to four 

months and denied him visitation with the child in the meantime. He was not appointed 

counsel before the delayed test. At the department‘s request, the court in Julia U.

terminated all reunification services two to three months before the paternity test was 

performed. The trial court set a section 366.26 hearing on the same day Ramon first 

appeared in court and paternity testing was ordered. The court did not give Ramon an 

opportunity to establish his right to paternity or to prove his presumed father status. The 

Court of Appeal found Ramon‘s due process rights were violated when the court 

terminated reunification services before it considered Ramon‘s commitment to the child 

and his fitness as a parent. (Julia U., supra, 64 Cal.App.4th at pp. 542–544.) The court 

in Julia U. relied on In re Zacharia D., supra, 6 Cal.4th at p. 450, which held: ― ̳[I]f an 

unwed[, biological] father promptly comes forward and demonstrates a full commitment 

to his parental responsibilities[,] . . . his federal constitutional right to due process 

prohibits the termination of his parental relationship absent a showing of his unfitness as 

a parent.‖ (Italics added.) 

In contrast, here father was given a full opportunity to participate in this case with 

the assistance of appointed counsel. Mother identified him as the alleged father at the 

October 5, 2011 hearing and he was found to be an alleged father. He was interviewed 

by the Department on November 1, 2011. He appeared at the next hearing, on November 

16, and was appointed counsel. At his request, the court ordered a paternity test. The 

results were received a month later and father was found to be K.F.‘s biological father. 

Father failed to appear at the adjudication and contested dispositional hearings. He told a 

dependency investigator that he had missed drug tests because he had been out of state 

for a few weeks and had returned in early January 2012. Father did not file the statement 

regarding paternity form until May 7, 2012, but failed to explain how he had established 

paternity, whether he lived with the child, or how he had supported her. 
8

The only changed circumstance cited by father in his section 388 petition to attain

presumed father status is that, unbeknownst to counsel, he had regularly visited the child 

―at the time of the I/S order‖. But he had few visits with K.F. during the course of this 

case. He was admittedly absent from the state for a period of several weeks up to 

January 3, 2012. Only two visits occurred after January 9, 2012, one in May and one in 

July. Father‘s excuse was that the Department and the caregiver did not facilitate his 

visitation. He does not point to any record of his efforts to compel them to allow him to 

visit. Father had been participating in these proceedings for 10 months when his parental 

rights were terminated. 

Father cites Adoption of Kelsey S. (1992) 1 Cal.4th 816 in support of his argument 

that he was entitled to presumed father status because he made a sufficient, timely, and 

full commitment to his parental responsibilities, including emotional, financial, and other 

means of support. The case is inapplicable. As we have discussed, father failed to make 

a full commitment to his parental responsibilities. There is little evidence of emotional 

support for K.F. and no evidence of financial support. There is no evidence that mother 

or the Department precluded father from attaining presumed father status. Father saw 

K.F. in the hospital, but did not sign any paperwork regarding paternity at that time. As 

we have seen, father‘s due process rights were not violated since he was appointed 

counsel at his first appearance one month into this process and had an opportunity to be 

heard at every stage. (In re Zacharia D., supra, 6 Cal.4th at p. 451.)

On this record, there was neither evidence that father demonstrated a full 

commitment to his parental responsibilities nor a violation of his due process rights. The 

court did not erroneously deny father parental rights.

II

Father also argues that the juvenile court erred in finding ICWA inapplicable 

because he provided the court with information that K.F. may have Cherokee ancestry. 

At the November 16, 2011 hearing, father filed a parental notification of Indian status 

form. He checked the box indicating that he ―may have Indian ancestry‖ and identified 
9

the tribe as Cherokee Indian. In the space for the name of the band, the following 

appears: ―Grandmother—not a tribe member but had Cherokee roots.‖ At the hearing, 

the trial court acknowledged that father had indicated that his grandmother may have 

Cherokee roots but is not a member of the tribe. Counsel for father confirmed this was 

the information provided. The trial court said: ―I‘m going to find that I.C.W.A. does not 

apply in this case.‖ 

―ICWA is a federal law giving Indian tribes concurrent jurisdiction over state 

court child custody proceedings that involve Indian children living off of a reservation. 

[Citations.]‖ (In re W.B. (2012) 55 Cal.4th 30, 48 (W.B.).) ―Among ICWA‘s procedural 

safeguards is the duty to inquire into a dependent child‘s Indian heritage and to provide 

notice of the proceeding to any tribe or potential tribes, . . . and, under some 

circumstances, to the Bureau of Indian Affairs.‖ (In re G.L. (2009) 177 Cal.App.4th 683, 

690.) 

The Department contends that this information was not sufficient to trigger these 

obligations. We disagree. In In re Alice M. (2008) 161 Cal.App.4th 1189, the mother 

filled out a form4stating that the dependent child may have been a member of, or eligible 

for membership in, ― ̳American Indian, Navajo-Apache.‖ (Id. at p. 1194.) The Court of 

Appeal held that this information gave the court reason to know that the child may have 

been an Indian child. It concluded: ―The ambiguity in the form and the omission of 

more detailed information, such as specific tribal affiliation or tribal roll number, do not 

negate appellant‘s stated belief that [the minor] may be a member of a tribe or eligible for 

membership.‖ (Id. at p. 1198.) This information was found sufficient to trigger both a 

duty to inquire and a duty to give notice. (Id. at pp. 1198–1201; see also In re J.T. (2007) 

154 Cal.App.4th 986, 993–994 [information that biological parents of adopted mother in 

dependency case had Sioux and Cherokee Indian ancestry but their names were unknown 

found to trigger requirement that notice be sent to all federally recognized Cherokee and 

 

4

In In re Alice M., supra, 161 Cal.App.4th at page 1194, the form filled out by the 

mother was Judicial Council form JV-130 which was replaced, effective January 1, 2008, 

with Judicial Council form ICWA-020, the form used in this case. (Id. at p. 1194, fn. 2.)
10

Sioux tribes]; In re Damian C. (2009) 178 Cal.App.4th 192, 199 [mother‘s reference on 

ICWA form to Pasqua Yaqui heritage sufficient to trigger inquiry and notice 

requirements].)

The information provided by father was sufficient to trigger the inquiry and notice 

requirements of ICWA. We remand for compliance with those requirements. 

DISPOSITION

The order terminating parental rights is reversed. The matter is remanded to the 

juvenile court with directions to vacate its finding that ICWA does not apply and to 

instruct the Department to complete ICWA inquiry and notice. If, after proper notice, the 

court finds that K.F. is an Indian child, the court shall proceed in conformity with ICWA. 

If, after proper notice, the court finds that K.F. is not an Indian child, the order 

terminating parental rights and selecting adoption as the permanent plan shall be 

reinstated. 

NOT TO BE PUBLIHED IN THE OFFICIAL REPORTS

EPSTEIN, P. J.

We concur:

MANELLA, J.

SUZUKAWA, J.