In re Adrian P.





















Filed 3/8/13 In re Adrian P. CA1/3

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>NOT TO BE PUBLISHED IN OFFICIAL REPORTS

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California
Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or
relying on opinions not certified for publication or ordered published, except
as specified by rule 8.1115(b). This
opinion has not been certified for publication or ordered published for
purposes of rule 8.1115.







IN
THE COURT OF APPEAL OF THE STATE OF CALIFORNIA



FIRST
APPELLATE DISTRICT



DIVISION
THREE




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In re ADRIAN P., a Person Coming Under the Juvenile Court Law.
SONOMA COUNTY HUMAN SERVICES AGENCY, Plaintiff and Respondent, v. MARIO M., Defendant and Appellant.	A136159 (Sonoma County Super. Ct. No. 3770)

Mario
M. appeals from an order terminating his parental rights to his now
17-month-old daughter. He contends the court violated his href="http://www.fearnotlaw.com/">right to due process by setting the
permanency planning hearing without first providing him a reasonable chance to
establish his paternity and fitness as a parent and that the violation of his
constitutional rights was compounded by the failure of the href="http://www.adrservices.org/neutrals/frederick-mandabach.php">Sonoma
County Human Services Agency (the agency) to exercise due diligence in
providing timely notice of the proceedings. We conclude that any potential
violation of Mario’s rights was harmless and shall affirm the judgment.

Factual and
Procedural History

Daughter
was detained immediately upon her birth in October 2011. A petition filed two
days later alleged that she came within the meaning of Welfare and Institutions
Codehref="#_ftn1" name="_ftnref1" title="">[1]
section 300, subdivisions (b) and (g), in that mother was currently
hospitalized in the psychiatric ward of Marin General Hospital, had ongoing
mental health issues that rendered her unable to safely parent and protect the
child, and had failed to seek any prenatal care for her due to paranoid
thoughts. The petition identifies Mario as the alleged father and indicates
that his address is unknown.

On
October 24, the agency submitted a detention
report stating that the whereabouts of the alleged father were still
unknown. At the hearing, the child was detained and placed in emergency foster
care. In an amended petition filed in November 2011, a second man was named as
an additional alleged father.

On
November 15, the agency submitted its jurisdiction report. The report states,
“The Department will continue to seek the whereabouts of the alleged father
Mario [M]. If his whereabouts cannot be determined, a diligent search affidavit
will be attached to the disposition report detailing search efforts.” The
report recommends that the court establish jurisdiction but delay making any
dispositional findings because, among other things, “[t]he paternity of the
child has not been established.” The report explains that bifurcation of
jurisdiction and disposition will allow the department additional time to
search for Mario and time to conduct DNA testing on both Mario and the other
alleged father. On November 17, the court sustained the allegations of the
petition and set a dispositional hearing for December 21.

On
December 20, 2011, the
agency submitted its disposition report. The report indicates that on December
15 the agency was able to locate Mario by telephone. The report explains, “As
this report was being completed, the worker came into possession of a phone
number reputedly active to Mario [M.] She was able to reach [Mario], confirm
that he is indeed the Mario [M.] which she has sought, and inform him of the
situation in a general way, including noticing him of the next hearing. [Mario]
stated that he would attend that hearing, and that he desires that the court
order paternity testing for him. [Mario] asked if he might be able to gain
custody of [his daughter] should tests indicate that he is her father; the
undersigned responded frankly that she thought it was unlikely, and asked [him]
if he currently has a home, as he does have a history of homelessness. [Mario]
replied, ‘Not a home you’d want to bring a baby to.’ This writer and [Mario]
agreed that the first step was for him to appear in court, have counsel
appointed, and request paternity testing orders.” Based on its estimate that
DNA testing would take a minimum of 6-8 weeks to complete, the agency
recommended that the court set a permanency planning hearing pursuant to
section 366.26, “with the understanding on the part of both alleged fathers,
the department, State Adoptions and the fost-adopt placement that there are
uncertainties and there is a possibility of the disposition of this case being
changed to family reunification.”

Mario
appeared at the December disposition hearing and informed the court that if he
was determined to be the child’s father, he wanted to be involved in her life
and that he might have relatives interested in having her placed with them. The
court ordered paternity testing and set the section 366.26 hearing for April
2012. Although advised of his rights, Mario did not seek writ review of the
order setting the section 366.26 hearing.

On
March 23, 2012, the agency
submitted its section 366.26 report. The report recommends termination of
parental rights and adoption as the permanent plan for the child. The report indicates
that since the December hearing, DNA testing had confirmed that the other
alleged father is not the child’s biological father and that while Mario had
been advised that he needs to contact child support services to schedule a time
to provide a DNA sample for the paternity test, as of the date of the report he
had failed to do so.

At
the hearing on April 19, Mario’s attorney informed the court that DNA testing
had confirmed that Mario is the child’s biological father and that Mario
requested that his status be elevated to a biological father and that he be
granted visitation. The agency and the child’s counsel opposed visitation in
part on the ground that Mario was in jail. The court ruled that it would not
order visitation or elevate Mario’s status until written documentation of the
test results was filed with the court. The section 366.26 hearing was continued
for trial in May and later continued until June 21.

On
June 21, Mario filed a petition for modification under section 388 alleging
that he is the biological father and requesting that his status be elevated to
a presumed father and that reunification services and visitation be ordered. On
the same day, the agency filed an addendum to its section 366.26 report. The
report confirmed that DNA testing had established Mario to be the child’s
biological father. The report states that the agency received the testing
results on March 26 and notified Mario of the results but that Mario had not
contacted the department. The report continues, “[Mario] was arrested on March
17, 2012 for . . . assault with a deadly weapon and seven counts of
[violating probation]. In addition, while incarcerated, [Mario] was charged
with [false imprisonment and assault with the intent to commit rape], for an
incident that occurred on February 7, 2012. . . . [¶] On June
15, 2012, the undersigned interviewed [Mario] at the Sonoma County main adult
detention facility. [He] reported to the undersigned that he was in jail for
assaulting his roommate. He stated he would be getting out of jail June 26,
2012, and plans to move to Florida and live with his brother. The undersigned
questioned [him] regarding his experience as a parent and motivation for
wanting to parent [his daughter]. He reported that he has a eighteen year old
son . . . who he has never had a relationship with . . .
does not know his whereabouts. [He] stated, ‘I don’t want to lose custody of my
baby, but I want her to have a good home,’ and be raised around her family. At
no time during the interview did [Mario] inquire about [his daughter].” The
social worker found Mario to be “disorganized” and that it was difficult to
understand his responses to her questions. Mario acknowledged that he suffers
from “stress” and “anxiety” but denied hearing voices despite a prior diagnosis
of schizophrenia. The social worker recommended that Mario be deemed the
biological father, not a presumed father, and that no services should be
offered. The report explains that in addition to the pending criminal charges,
Mario’s unresolved mental health issues, substance abuse issues, homelessness,
and inability to be accountable for his actions make it unlikely that he has
the capacity to provide for the child.

The
trial court rejected the agency’s argument that Mario’s modification petition be
summarily denied. The court explained that Mario had a href="http://www.mcmillanlaw.com/">due process right to a hearing to
determine whether he qualified as a presumed father, which needed to be
resolved independently of whether reunification services should be provided.
Before proceeding to the section 366.26 hearing, the court allowed Mario to
testify in support of his petition. Mario acknowledged that he was aware that
the mother was pregnant but he did nothing to help her financially or otherwise
during her pregnancy because she was still with her boyfriend and she did not
ask for anything. He did not know that she had the baby until the mother
contacted him to let him know that child protective services had custody of the
baby. At that time, she told him that soon he would be DNA tested. Following
closing arguments, the court found that Mario did not qualify as a presumed
father. The court advised Mario that as a biological father, he had no standing
at the section 366.26 hearing but allowed him to make a final statement to the
court. Thereafter, the court terminated parental rights and selected adoption
as the permanent plan for the child. Mario filed a timely notice of appeal.

Discussion

Although
Mario purports to challenge the denial of his modification petition and the
resulting order terminating his parental rights, he asserts no argument that
the court erred with respect to any ruling made on June 21. In particular, he
does not challenge the trial court’s finding that he did not meet the standard
of a presumed father.href="#_ftn2"
name="_ftnref2" title="">[2]
Rather, he argues that violations of his right to due process that occurred
earlier in the proceedings require reversal of the challenged orders.

He
argues that the court erred “by setting the section 366.26 hearing on the day
of [his] first court appearance, without giving him a chance to establish his
paternity or his fitness for parenthood.” He relies on In re Julia U. (1998) 64
Cal.App.4th 532, 544, in which the appellate court held that the juvenile court
had violated the constitutional rights of the unwed, biological father by
denying reunification services and setting a section 366.26 hearing prior to
any consideration of the father’s commitment to the child and his fitness as a
parent. The court explained that prior to setting a section 366.26 hearing it
is important to determine if an unwed father qualifies as a presumed father
under Zacharia D., >supra, 6 Cal.4th at page 447, because
the balance between a parent’s right to reunification and a child’s interest in
stability shifts upon the setting of the permanency planning hearing. “The
proceeding terminating reunification services and setting a section 366.26
hearing is usually the parents’ last opportunity to litigate the issue of
parental fitness as it relates to any subsequent termination of parental
rights, or to seek the child’s return to parental custody. [Citation]. Up until
the time the section 366.26 hearing is set, the parents' interest in
reunification is given precedence over a child's need for stability and
permanency.” (In re >Julia U., supra, at p. 543.)

Putting aside any question of waiver, and
assuming without deciding that Mario’s due process rights were violated by the
premature scheduling of the section 366.26 hearing, any such error was harmless
beyond a reasonable doubt. (Chapman v.
California (1967) 386 U.S. 18, 24; In
re Mark A. (2007) 156 Cal.App.4th 1124, 1146 [“the weight of authority in
California applies the Chapman harmless
error standard in juvenile dependency proceedings where the error is of
constitutional dimension”].)

Had
the court postponed setting the section 366.26 hearing until the paternity
testing was complete, the outcome here would have been no different. Unlike in> In re Julia U., supra, in which
the appellate court found that the father met the requirements of a presumed
father, the trial court in this case found that Mario did not qualify as a
presumed father and, as noted above, Mario has not challenged this finding.href="#_ftn3" name="_ftnref3" title="">[3]
Because that finding was based on Mario’s conduct during the mother’s pregnancy
and immediately following the child’s birth, the same facts on which the court
relied in denying Mario’s request to be declared a presumed father in June
2012, would have supported the finding in December 2011 when he first appeared
in these proceedings, or in March 2012 when the DNA testing was completed.

As
a biological father, Mario was not entitled to services unless the court found
under section 361.5, subdivision (a) that services would “benefit the child.”
By the time the test results were available in March, Mario was in custody on
new criminal charges and had taken no steps to stabilize his mental health or
living situation so it is highly improbable that the court would have found the
provision of services to have been in the child’s best interest. Thus, the
alleged premature setting of the section 366.26 hearing did not interfere
prejudicially with Mario’s ability to establish his fitness as a parent.

Mario
also argues that by failing to give proper notice and exercise due diligence to
locate, the agency deprived him of his due process rights, which were not
safeguarded by either the trial court or [his] trial counsel.” While we do not
believe that Mario has established a lack of due diligence on the part of the
department, in all events the two month delay in providing notice to Mario was
harmless for the reasons discussed above.

Disposition

The order terminating parental
rights is affirmed.











_________________________

Pollak,
J.





We concur:





_________________________

McGuiness, P. J.





_________________________

Jenkins, J.