In Re Daniel M.
Richard S., the alleged father of Daniel M., purports to appeal a judgment terminating his parental rights under
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., bеcause 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 bеhalf under
At the February 2002 jurisdiction and disposition hearing, Richard, through counsel, stated he believed his father may have Chеrokee 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 hе established biological paternity. The appellate record contains no indication the ICWA issue was addressed further.
At the same hearing, the court grantеd 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 sеrvices and scheduled a
In November 2002, Richard renewed his request for paternity tеsting. The court ordered testing, but the testing was not completed by the time of the
DISCUSSION
Thе ICWA provides that “where the court knows or has reason to know that an
Richard‘s only challenge to the termination of parental rights is the court‘s asserted noncompliance with the notice provisions of the ICWA.4 Richard relies on Dwayne P. v. Superior Court (2002) 103 Cal.App.4th 247, 126 Cal. Rptr.2d 639 (Dwayne P.), in which this court held thе parents did not waive appellate review of an ICWA notice issue even though they failed to appeal the jurisdiction and disposition order in which the subject was addressed. (Id. at p. 251, 126 Cal.Rptr.2d 639.) We explained: “When the court has reason to know Indian children are involved in dependency proceedings, as here, it has the duty to givе the requisite notice itself or ensure the social services agency‘s compliance with the notice requirement. [Citations.] In our view, the court‘s duty is sua sponte, since notice is intended to protect the interests of Indian children and tribes despite the parents’ inaction. [Citation.] [¶] ... Because the court‘s duty continues until рroper notice is given, an error in not giving notice is also of a continuing nature and may be challenged at any time during the dependency proceedings.” (Dwayne P., supra, 103 Cal.App.4th at p. 261, 126 Cal. Rptr.2d 639.)
As аn alleged father, however, Richard lacks standing to pursue this appeal. The termination of parental rights may be challenged on the ground of lack of ICWA nоtice by the dependent child, a parent or Indian custodian from whose custody the child was removed, and the Indian child‘s tribe. (
In his reply brief, Richard asserts the ICWA “does not require the parent to have established paternity under California‘s Family Code before ICWA‘s provisions apply.” (Some capitalization omitted.) However, Richard develops no argument and cites no supporting legal authority for this propositiоn. “[P]arties are required to include argument and citation to authority in their briefs, and the absence of these necessary elements allows this court to treat аppellant‘s ... issue as waived.” (Interinsurance Exchange v. Collins (1994) 30 Cal.App.4th 1445, 1448, 37 Cal.Rptr.2d 126.)
In any event, the assertion is without merit because to be considered a “parent” under the ICWA, an unwed father‘s paternity must be “acknowledged or established.” (
Moreover, because the ICWA does not provide a standard for the acknowledgment or establishment of paternity, courts have resolved the issue under state law. (In the Matter of the Adoption of a Child of Indian Heritage (1988) 111 N.J. 155, 176 [543 A.2d at p. 935]; Yavapai-Apache Tribe v. Mejia (Tex.App.1995) 906 S.W.2d 152, 171-173.) Courts have held an unwed father must take some official action, such as filing a voluntary declaration of paternity, establishing paternity in legal proceedings, or petitioning to have his name placed on the child‘s birth certificate. (Adoption of Baby Girl B. (Okla.Civ.App. 2003) 67 P.3d 359, 366; In the Matter of Adoption of a Child of Indian Heritage, supra, 111 N.J. at p. 178 [543 A.2d at p. 936]; Yavapai-Apache Tribe v. Mejia, supra, 906 S.W.2d at pp. 172-173.) Similarly, in California an alleged father may acknowledge or establish paternity by voluntarily signing a declаration of paternity at the time of the child‘s birth, for filing with the birth certificate (
“[T]o have standing to appeal, a person generally must be both a party of record and sufficiently `aggrieved’ by the judgment or order.” (Marsh v. Mountain Zephyr, Inc. (1996) 43 Cal.App.4th 289, 295, 50 Cal.Rptr.2d 493.) An alleged father who has not аcknowledged or established he is a parent within the meaning of
DISPOSITION
The appeal is dismissed.
WE CONCUR: BENKE, Acting P.J., and McDONALD, J.