In re A.P.
Filed 2/27/13 In re A.P. CA4/2
TO BE PUBLISHED IN OFFICIAL REPORTS
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opinion has not been certified for publication or ordered published for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.
THE COURT OF APPEAL OF THE STATE OF
APPELLATE DISTRICT
TWO
In re A.P., a Person Coming Under the Juvenile Court Law.
RIVERSIDE COUNTY DEPARTMENT OF PUBLIC SOCIAL SERVICES,
Plaintiff and
Respondent,
v.
A.P.,
Defendant and
Appellant.
E056277
(Super.Ct.No.
RIJ1200331)
OPINION
APPEAL from the Superior Court of
County. Matthew C.
Perantoni, Temporary Judge. (Pursuant to
Cal. Const., art. VI, § 21.) Affirmed.
Jacob I. Olson, under appointment by the Court of Appeal,
for Defendant and Appellant.
Pamela
J. Walls, County Counsel,
and Carole A. Nunes Fong, Deputy County
Counsel, for Plaintiff and
Respondent.
I
INTRODUCTION
Father
appeals from jurisdictional and dispositional orders and findings in which the
juvenile court denied reunification
services and ordered paternity testing.
The court further ordered that, if DNA testing determined that father
was not A.P.’s biological father, the court would vacate all findings and orders
as to father. Father contends the
juvenile court erred in delaying compliance with Welfare and Institutions Code
section 316.2,
name="_ftnref1" title="">[1] by not immediately ordering paternity testing,
before conducting a contested joint jurisdictional and dispositional hearing. Father also argues that the juvenile court
erred in denying his request for a continuance of the hearing. We conclude there was no reversible error and
affirm the judgment.
II
FACTS AND PROCEDURAL
BACKGROUND
In
February 2012, the Riverside County
Department of Public Social Services (DPSS) received a referral that A.P.’s
mother (mother) was neglecting A.P., who was eight months old. On March 15,
2012,
a DPSS social worker visited A.P.’s home and interviewed mother and two of
A.P.’s three older, maternal half-siblings.
was in the process of moving. Mother
identified father as A.P.’s biological father and reported that father was
currently incarcerated at the high desert prison. Maternal grandmother reported mother had a
12-year history of abusing methamphetamine.
On March 15, 2012, mother entered into a
safety plan, in which she agreed to participate in Family Preservation Court services and not use
drugs. A week and a half later a DPSS
social worker made another unannounced home visit, during which mother tested
positive for recent marijuana and methamphetamine use. On March 26,
2012,
the children were removed from mother’s care and placed with maternal grandmother.
DPSS filed a juvenile
subdivisions (b) and (g), alleging mother failed to comply with the safety plan
and continued to use drugs, and father was incarcerated. Father was listed in the petition as an
alleged father. The petition stated and
the court found that notice of the detention hearing was given as required by
law. During the detention hearing,
father was appointed counsel. Father,
who was not present at the hearing, denied the petition allegations. On April 2,
2012,
the court clerk sent father notice of the contested jurisdictional hearing,
along with an attached copy of the juvenile dependency petition. The notice also advised father that he was
entitled to have a court-appointed attorney.
In April 2012, DPSS filed an amended petition, adding that father had a
substance abuse history, which included the use of methamphetamine. Father remained incarcerated.
DPSS social worker, Yoana
Armendariz, reported in the jurisdiction/disposition hearing report, that she
interviewed father by telephone on April 12,
2012,
and explained to him the purpose of the jurisdiction/disposition hearing. Father did not acknowledge he was A.P.’s
father but reported that he and mother had been in a relationship when A.P. was
conceived and were living together.
Mother and father were also involved with others as well. Father’s name was not on A.P.’s birth
certificate. Father said he was
scheduled to be released from prison on June 10,
2012. He did not wish to visit A.P. or take a
paternity test until after he was released.
Father had a 12-year-old daughter but had not had a relationship with
her for over seven years.
The juvenile court held a contested
jurisdiction/disposition hearing on May 10, 2012. Father waived his appearance at the
hearing. His court-appointed attorney
requested on father’s behalf a continuance of the hearing to June 11th or 12th,
to allow him to undergo paternity testing before the court ruled on jurisdiction
and disposition. Father’s attorney told
the court that father was denying paternity and argued that father would be
prejudiced by the court ruling on the petition before father tested for
paternity. Father’s attorney vehemently
objected to proceeding with the jurisdiction/disposition hearing because father
might not be A.P.’s father.
Nevertheless, the juvenile court denied a continuance, denied father
reunification services under section 361.5, subdivision (a), and ordered DNA
testing for him. The court further
ordered that, if the DNA test determined that father was not A.P.’s biological
father, the court would vacate all findings and orders as to father.
III
NOTICE AND PATERNITY
Father contends DPSS violated his due process rights by
failing to comply with notice and paternity testing requirements under section
316.2 and California Rules of Court, rule 5.635.
The
Family Code and the Welfare and Institutions Code differentiate between
“alleged,†“natural†or “biological†and “presumed†fathers. A man who may be the father of a child but
whose biological paternity has not been established and who has not achieved
presumed father status is an alleged father.
(In re Paul H. (2003) 111
Cal.App.4th 753, 760 (Paul H.); see
also In re
1120 (Kobe
father is statutorily entitled to reunification services. As an alleged father, father was not entitled
to services. (Ibid.) However, the juvenile
court may order services for a man determined to be the child’s biological
father, if the court finds that services will benefit the child. (§ 361.5, subd. (a).) Consequently, father had a due process right
to notice and an opportunity to change his status to that of biological
father. (Paul H., at p. 760; see also Kobe
A., at p. 1120.)
Section
316.2, subdivision (b) requires that, when any man has been identified as an
alleged father, “each alleged father shall be provided notice at his last and
usual place of abode by certified mail return receipt requested alleging that
he is or could be the father of the child.
The notice shall state that the child is the subject of proceedings
under Section 300 and that the proceedings could result in the termination of
parental rights and adoption of the child.
Judicial Council form Paternity-Waiver of Rights (JV-505) shall be
included with the notice.â€
Rule
5.635, which implements section 316.2, provides in relevant part that, if one
or more persons are identified as alleged parents of a child for whom a petition
under section 300 has been filed, “the clerk must provide to each named alleged
parent, at the last known address, by certified mail, return receipt requested,
a copy of the petition, notice of the next scheduled hearing, and Statement
Regarding Parentage (Juvenile) (form JV-505) . . . .†(Rule 5.635(g).)
Although the record on
appeal shows father received notice of the detention, jurisdiction, and
disposition hearings, along with a copy of the juvenile dependency petition,
and also received notice of the right to court-appointed counsel, it appears
from the record that father was not provided notice by certified mail, return
receipt requested, or served with a Statement
Regarding Parentage (Juvenile) (form JV-505), as required under section
316.2.
Form
JV-505 provides an alleged father the opportunity to deny parentage of a child,
to request an attorney, to request or consent to a paternity test, to consent
to a judgment of paternity, to provide evidence of a declaration of paternity,
to provide proof of marriage to the mother, to show indicia of presumed
paternity, and other similar matters.
The form also advises the alleged father of his rights and options. (Kobe
A., supra, 146 Cal.App.4th at p. 1121.)
Although
DPSS and the court clerk were remiss in failing to mail form JV-505 to father,
this did not constitute a due process violation and was harmless error. (Kobe
A., supra, 146 Cal.App.4th at p. 1122; Paul
H., supra, 111 Cal.App.4th at p. 760.)
“Due process for an alleged father requires only that the alleged father
be given notice and ‘an opportunity to appear and assert a position and attempt
to change his paternity status.’†(
the dependency proceedings and a copy of the juvenile dependency petition. The petition put father on notice that he was
an alleged father and entitled to a court-appointed attorney, but there appears
to have been no formal notice under section 316.2 that father had a right to
attempt to change his paternity status.
The record, however, shows
that father was aware he could test for paternity and was provided with a
court-appointed attorney to represent him at the detention and joint
jurisdiction/disposition hearings. About
a month before the jurisdiction/disposition hearing, a DPSS social worker
explained to father the purpose of the joint jurisdiction/disposition
hearing. Father said that he did not
want to test for paternity or visit A.P. until after he was released from
prison, which was after the joint jurisdiction/disposition hearing. Furthermore, at the joint
jurisdiction/disposition hearing, father, through his attorney, denied he was
A.P.’s father. Under these circumstances,
in which father was aware of his rights and options to test for paternity,
receiving form JV-505 would not have resulted in any change in the ultimate
result. Even if father had received form
JV-505, he would not have agreed to test for paternity before the joint
jurisdiction/disposition hearing.
Furthermore, even if father had
received and filled out form JV-505, and had been able to establish biological
paternity, the test results would not have materially altered the case. The request for a paternity test is not an
end in itself: The purpose of paternity
testing generally would be to receive reunification services as a presumed
father. The order here denying
reunification services would not have been changed, even if paternity testing
had been ordered. The evidence indicated
that, even if father was AP’s biological father, the juvenile court would not
have found he was a presumed father because he was not listed on A.P.’s birth
certificate; he had never married mother; he had never lived in the home with
A.P.; he had been incarcerated since the inception of the juvenile dependency
proceedings and was not scheduled to be released until after the
jurisdiction/disposition hearing; father had provided no care or support for
A.P.; he had, through his attorney, denied paternity at the
jurisdiction/disposition hearing; and, in short, father had nothing to do with
A.P.
Even if father had been sent
form JV-505, declared paternity, and requested and received paternity testing
showing him to be A.P.’s biological father, there would have been no change in
the ultimate result: By clear and
convincing evidence it would have been detrimental to A.P., who was an infant,
to provide reunification services to father.
Furthermore, there was no prejudice because, during the
jurisdiction/disposition hearing, the juvenile court ordered DNA testing for
father, with the provision that, if the DNA test determined that father was not
A.P.’s biological father, the court would vacate all findings and orders as to
father. Because father has failed to
show that the error in failing to provide him with form JV-505, resulted in a
required.
IV
HEARING CONTINUANCE
Father
contends the trial court abused its discretion in denying his request to
continue the jurisdiction/disposition hearing a month, until after he was
released from prison in June 2012.
Father wanted a continuance so that he could test for paternity before
the court ruled on jurisdiction and disposition. We conclude the trial court’s denial of
father’s request to continue the jurisdiction/disposition hearing was not an
abuse of discretion and, even if the denial was error, it was harmless. (In re
Ninfa S. (1998) 62 Cal.App.4th 808, 810-811 (Ninfa S.).)
Under section 352, the
juvenile court may grant a continuance “beyond the time limit within which the
hearing is otherwise required to be held, provided that no continuance shall be
granted that is contrary to the interest of the minor. In considering the minor’s interests, the
court shall give substantial weight to a minor’s need for prompt resolution of
his or her custody status, the need to provide children with stable
environments, and the damage to a minor of prolonged temporary placements. [¶]
upon a showing of good cause and only for that period of time shown to be
necessary by the evidence presented at the hearing on the motion for the
continuance.†(§ 352, subd. (a).) Such a request for a continuance must be
requested by written notice, “filed at least two court days prior to the date
set for hearing, together with affidavits or declarations detailing specific
facts showing that a continuance is necessary, unless the court for good cause
entertains an oral motion for continuance.â€
(§ 352, subd. (a).) “Continuances
are discouraged [citation] and we reverse an order denying a continuance only
on a showing of an abuse of discretion [citation].†(Ninfa
S., supra, 62 Cal.App.4th at pp. 810-811.)
Subdivision
(b) of section 352 further provides that, “Notwithstanding any other provision
of law,
if a minor has
been removed from the parents’ or guardians’ custody, no continuance shall be
granted that would result in the dispositional hearing, held pursuant to
Section 361, being completed longer than 60 days after the hearing at which the
minor was ordered removed or detained, unless the court finds that there are
exceptional circumstances requiring such a continuance.†The disposition hearing therefore had to be
conducted on or before May 28, 2012, within 60 days after the detention hearing
on March 29, 2012, absent a showing of exceptional circumstances.
Here, father did not
establish exceptional circumstances for continuing the jurisdiction/disposition
hearing from May 10, 2012, to June 11th or 12th. Also, father did not file the requisite
written notice of his continuance request or show good cause for bringing an
oral continuance motion. In the instant
case, there was substantial evidence that, even if a paternity test established
that father was A.P.’s biological father, father was not a presumed
father. A.P. was an infant and father
had had no relationship with him.
Therefore, it was highly unlikely that the juvenile court would have
found that father was a presumed father or that he would have been entitled to
reunification services. Continuing the
jurisdiction/disposition hearing would have merely delayed the proceedings,
which was not in A.P.’s best interest.
In addition, the trial court ordered paternity testing for father and
also ordered that, if father was found to be A.P.’s biological father, the
court would vacate all findings and orders as to father. Under such circumstances, the trial court did
not abuse its discretion in denying the continuance and, even if there was
error, it was harmless. (
810-811; In re Karla C. (2003) 113
Cal.App.4th 166, 179-180.)
V
DISPOSITION
The
judgment is affirmed.
NOT
TO BE PUBLISHED IN OFFICIAL REPORTS
CODRINGTON
J.
We concur:
HOLLENHORST
Acting P. J.
McKINSTER
J.
name="_ftn1" title=""> [1]
Unless otherwise noted, all statutory references are to the Welfare and
Institutions Code.
name="_ftn2" title=""> [2]
Mother and A.P.’s half-siblings are not parties to this appeal.
