In re Armando P.

Filed 1/22/10 In re Armando P. CA2/3

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION THREE

APPEAL from an order of the Superior Court of Los Angeles County, Marguerite D. Downing, Judge. Affirmed.

Daniel G. Rooney, under appointment by Court of Appeal, for Defendant and Appellant.

Office of the Los Angeles County Counsel, James M. Owens, Assistant County Counsel, and Kim Nemoy, Deputy County Counsel, for Plaintiff and Respondent.

_________________________

Jamie P. appeals the termination of his parental rights with respect to Armando P. Jaime P. contends he was Armandos presumed parent and, as such, had to be found unfit before his parental rights could be terminated. We conclude the juvenile court made sufficient findings of Jaime P.s parental unfitness and affirm the order terminating parental rights.

FACTS AND PROCEDURAL BACKGROUND

1. Detention.

On January 11, 2006, the Department of Children and Family Services (the Department) detained then 10-year-old Armando P. and his two siblings, 11-year-old Gabriela P. and 8-year-old Ruben C., from mothers custody based on allegations of inappropriate physical discipline and domestic violence between mother and Rubens father. The Department filed a declaration of due diligence with respect to its efforts to contact Jaime P. which indicated notice of the proceedings had been mailed to Jaime P. at his last known address. Mother told a social worker she separated from Jaime P. due to domestic violence. At the detention hearing, the juvenile court found Jaime P. the alleged father of Armando P. and Gabriela P.

2. Dependency petition sustained.

On March 14, 2006, the juvenile court sustained the petition and granted mother and Rubens father family reunification services. The juvenile court denied Jaime P. family reunification services citing Welfare and Institutions Code section 361.5, subdivision (a)[1] and In re Zacharia D. (1993) 6 Cal.4th 435, 447 [only a presumed father is entitled to family reunification services].

3. Review hearings.

a. Six-month review.

A social worker attempted to contact Jaime P. by telephone in advance of the
six-month review hearing but no number was available. The social worker sent a telegram to Jaime P.s last known address.

A social report prepared for the six-month review hearing on September 12, 2006, indicated mother was arrested for domestic violence at the business operated by Rubens father. Mother was in jail for 27 days and a restraining order prohibited her from being within 100 yards of Rubens father. Mother enrolled in parent education but failed to appear for numerous drug tests. Mother was not enrolled in individual counseling and was terminated from anger-management and domestic violence programs. Further, mother continued to reside with Rubens father, notwithstanding the restraining order. Armando was returned to foster care after five months in the care of maternal aunt.

The juvenile court found, by a preponderance of the evidence, that return of the children to the parents would create a substantial risk of detriment to their safety and continued the matter for further review.

b. Twelve month review.

A social report filed March 5, 2007 for the 12-month review hearing indicated mother remained noncompliant with the case plan and continues to live with Rubens father. Armandos foster mother, Blanca E., stated Armando was doing well in her home and in school. Armando stated he does not want to live with his family and wished to continue living with his foster family.

On March 13, 2007, the juvenile court found by a preponderance of the evidence that return of the children to the physical custody of the parents would create a substantial risk of detriment to their safety. The juvenile court further found, by clear and convincing evidence, that the extent of progress made toward alleviating or mitigating the causes necessitating placement by the mother and both fathers has been insubstantial. The juvenile court also found the parents did not regularly or consistently visit the children. The juvenile court continued the matter to July 11, 2007, for a hearing under section 366.26.

4. Permanency planning hearing; legal guardianship.

A social report prepared for the permanency planning hearing indicated Blanca E. wished to become Armandos legal guardian and, if everything went well, she would consider adoption in a year. Armando wanted to remain in the home and did not wish to return to the care of his mother or live with anyone else. The report indicated Blanca E. had four children, ages 21 through 11 years, and has been married to her husband since 1995. Blanca E. was committed to Armando and stated the entire family has welcomed him.

The Department filed a declaration of due diligence with respect to Jaime P.s whereabouts which indicated the Department had mailed notice to father at his last known address.

At the hearing, the juvenile court issued an order appointing Blanca E. and her husband as Armando legal guardians.

5. Blanca E. seeks to adopt.

On October 29, 2008, Blanca E. and her husband filed a request for change of court order ( 388) and requested to adopt Armando.

A social report prepared for the hearing on the request indicated Jaime P. recently had reappeared in Armandos life. On February 23, 2009, Jaime P. told the social worker he had been unaware of the whereabouts of the children and he wanted to regain custody of them. The report indicated Armando had a monitored visit with Jaime P. on February 25, 2009. During the visit, Armando told Jaime P. he would not live with him and that he wants to be adopted by his guardians. Armando stated, [I]f you make me go back with my dad, I will run away. The report indicated Armando appears to be very sure of his decision of wanting to be adopted by [his] legal guardians. Armando . . . states that he will continue to have visits with biological family but wants to remain in current household and be adopted by current caregivers.

Jaime P. appeared on March 4, 2009 and counsel was appointed to represent him. The matter was continued to August 3, 2009, for a hearing under section 366.26 to consider adoption as the permanent plan.

6. Permanency planning hearing; adoption.

A report prepared for the hearing indicated Jaime P. did not seek to visit Armando after the first visit. Armando told a social worker on June 24 and again on July 14, 2009, that he does not wish to have visits with Jaime P.

At the hearing, Jaime P.s counsel objected to termination of parental rights on the ground it would interfere with Jaime P.s relationship with Armando. Counsel noted Armando and his siblings were detained from mother and Jaime P. was strongly opposed to adoption. Jaime P. requested the permanent plan remain guardianship.

The juvenile court found by clear and convincing evidence that Armando was adoptable. The juvenile court also found it would be detrimental to return the child to his parents and that no exceptions to adoption applied. The juvenile court terminated parental rights and placed Armando in the care of the Department for adoptive planning.

Jaime P.s notice of appeal from the order terminating parental rights indicates his current address is the same as his last known address.

CONTENTIONS

Jaime P. contends he was Armandos presumed parent and, as such, had to be found unfit before his parental rights could be terminated. Jaime P. further contends his counsel was ineffective for failing to challenge the juvenile courts failure to make a finding of unfitness.

DISCUSSION

The record supports the juvenile courts findings of Jaime P.s parental unfitness.

Jaime P. argues, based on Armando P.s birth certificate which was attached to the social report prepared of the permanency planning hearing, that Jaime P. was Armando P.s presumed father, not merely his alleged father. (See In re Liam L. (2000) 84 Cal.App.4th 739, 748.) Jaime P. asserts the parental rights of a non-offending, presumed father may not be terminated without a finding the parent is unfit. (In re Gladys L. (2006) 141 Cal.App.4th 845, 848.) Because there was no such finding in this case, Jaime P. contends his parental rights cannot be terminated. (In re G.S.R. (2008) 159 Cal.App.4th 1202, 1210-1211.) Jaime P. further contends that, if he is found to have waived the issue by failing to raise it below, counsel rendered ineffective assistance.

This claim fails. Assuming for the sake of discussion that Jaime P. was a presumed father, the juvenile court found Jaime P. was unfit on several occasions during the pendency of the case. At the disposition hearing, the juvenile court found return of Armando to his parents would create a substantial risk of detriment and denied Jaime P. family reunification services because he was merely an alleged parent.

At the six-month review hearing, the juvenile court found, by a preponderance of the evidence, that return of the children to the parents would create a substantial risk of detriment to their safety.

At the 12-month review hearing on March 13, 2007, the juvenile court found by clear and convincing evidence the progress of mother and both fathers had been insubstantial and the parents did not regularly or consistently visit the children.

At the most recent permanency planning hearing on August 3, 2009, the juvenile court found, by a preponderance of the evidence, that return of Armando to the parents would create a substantial risk of detriment to their safety.

Jaime P. complains the only finding of unfitness made by clear and convincing evidence was rendered at the 12-month review hearing. Jaime P. asserts that finding was flawed because it was based on the failure of the parents to progress. Jaime. P. reasons that, because no reunification services were offered to him, there was no case plan against which the juvenile court could have judged his progress. Thus, the determination he had not progressed, even if based on clear and convincing evidence, was not the equivalent of an unfitness finding.

This argument is unavailing. At the time of the 12-month review hearing, Jaime P. had not yet come forward or shown any attempt to participate in Armandos life. To suggest Jaime P.s progress had been anything but insubstantial is ingenuous. In any event, the juvenile court also referred to the failure of the parents to visit the children. Jaime P. had not visited at all. Therefore, the finding of unfitness at the 12-month review hearing is amply supported by the record.

Jaime P.s reliance on In reG.S.R., supra, 159 Cal.App.4th 1202, is misplaced. The father in G.S.R. showed a consistent dedication to his sons and the juvenile courts finding of unfitness was not supported by substantial evidence. Here, Jaime P. was not involved in Armandos life at all, even though the Department repeatedly mailed notice of the proceedings to him at his last known address, which was the same address Jaime P. claimed on the notice of appeal.

Given the facts of this case, the juvenile courts finding of unfitness as to Jaime P. at the 12-month review hearing was sufficient to support termination of his parental rights. (In re P.A. (2007) 155 Cal.App.4th 1197, 1204.) Indeed, on the facts presented, even had the juvenile court made all of the unfitness findings by a preponderance of the evidence, remand to permit the juvenile court to amend the standard of review would be an idle act as the record overwhelming reflects Jaime P.s parental unfitness. The law does not require idle acts. (In re Matter of Vincent S. (2001) 92 Cal.App.4th 1090, 1093-1094; Letitia V. v. Superior Court (2000) 81 Cal.App.4th 1009, 1016.)

Because fathers substantive claim fails, trial counsel did not render ineffective assistance by failing to raise it in the juvenile court. (Strickland v. Washington (1984) 466 U.S. 668, 693-694; People v. Ledesma (1987) 43 Cal.3d 171, 217-218.)

DISPOSITION

The order terminating parental rights is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

KLEIN, P. J.

We concur:

KITCHING, J. ALDRICH, J.

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[1] All further statutory references are to the Welfare and Institutions Code unless otherwise indicated.