In re A.S.

Filed 11/6/08 In re A.S. CA2/2

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

THE COURT:

Appellant Martin M. (appellant), the alleged father of minor A.S. (minor) (born July 2005), appeals from the juvenile courts order denying his petition, under Welfare and Institutions Code[1] section 388, seeking to vacate the juvenile courts prior jurisdictional and dispositional orders, and requesting presumed father status and reunification services with minor. Appellant also appeals from the order terminating parental rights.

Appellant first appeared in this case at an October 2, 2007, section 366.26 permanency planning hearing. By that time, more than two years had elapsed since minors initial detention and adjudication as a dependent of the juvenile court,[2] and the Department of Children and Family Services (DCFS) was recommending termination of parental rights and minors adoption by one of two prospective adoptive families. At the October 2, 2007 hearing, appellant claimed to be minors father, and that he had received no notice of any prior hearings. The juvenile court continued the section 366.26 hearing to allow appellants counsel the opportunity to review the case file. On November 29, 2007, appellant and his counsel were present at a hearing at which the juvenile court set January 23, 2008, as the date for a contested section 366.26 hearing.

On January 14, 2008, appellant filed a motion to quash service of the section 300 petition and all prior hearing notices and to vacate the juvenile courts prior jurisdictional and dispositional orders. At the January 23, 2008 hearing, the juvenile court ordered appellants counsel to refile the motion as a section 388 petition and continued the matter to allow DCFS the opportunity to respond to the petition.

On January 28, 2008, appellant filed a section 388 petition seeking to vacate the juvenile courts prior orders and requesting presumed father status and family reunification services on the ground that he never received actual or constructive notice of any court proceedings prior to the October 2, 2007, section 366.26 hearing.

DCFS filed an opposition to the section 388 petition in which it described its efforts to investigate minors paternity. DCFS explained that mother had initially denied that appellant was minors father and claimed that a man named Beto, whose last name and whereabouts she did not know, was the childs father. Mother subsequently admitted that appellant might be minors father and provided DCFS with an address in Mexico where appellant could purportedly be contacted. DCFS sent subsequent notices to appellant at that address. In its opposition papers, DCFS argued that appellant had waived the right to object to the defective notice by making a general appearance at the October 2, 2007 hearing; that he was not entitled to presumed father status; and that neither reunification services nor custody by appellant was in minors best interest. DCFSs opposition was supported by, among other documents, mothers affidavit. In her affidavit, mother she stated that appellant knew of minors whereabouts and the dependency proceedings; that appellant had accompanied her to all but one court proceeding for minor, but that he had never entered the courtroom. Mothers affidavit further stated that appellant had accompanied mother to many of her monitored visits with minor, but he had not been allowed to participate in the visits because he refused to be fingerprinted.

In an information for the court filed on February 14, 2008, DCFS social worker Sung Hee Lee reported that she had interviewed appellant on November 30, 2007. Minor was about to be placed in Illinois with maternal relatives who were also prospective adoptive parents, and appellant was concerned that the maternal relatives would not allow him to visit with minor. He asked for DCFSs assistance in arranging such visits. Lee advised appellant to submit to a Live Scan, but appellant declined, stating he was staying in the United States illegally and did not have valid identification documents. Appellant told Lee that he had stayed with mother while she resided in California and had accompanied her to the monitored visits with minor. According to Lee, appellant made clear that he was not interested in obtaining custody of minor, only visitation.

After hearing argument from the parties at the March 25, 2008 hearing on appellants section 388 petition, the juvenile court denied the petition, finding that appellant had waived the right to object to lack of notice by not raising the issue at the October 2, 2007 hearing, the November 29, 2007 hearing, or the January 23, 2008 hearings at which he had previously appeared. The court expressed its belief that appellant had actual knowledge of minors whereabouts and the dependency proceedings, and had the opportunity to assert his paternity, but had not done so. The juvenile court found that DCFS had acted reasonably given the information it was provided. The court then found by clear and convincing evidence that minor was likely to be adopted, and terminated the parental rights of mother, appellant, and all other persons who might subsequently claim maternity or paternity of minor.

Appellant appeals from all orders and findings by the juvenile court at the March 25, 2008 hearing. On April 17, 2008, we appointed counsel to represent appellant in this appeal. On August 6, 2008, appellants court-appointed counsel advised this court in writing that after reviewing the record, analyzing potential issues, and discussing the matter with the California Appellate Project, he was unable to file an opening brief on the merits on appellants behalf. We thereafter notified appellant, on August 6, 2008, that he had 30 days in which to submit by letter or brief any arguments or contentions he wished this court to consider.

On September 9, 2008, appellant filed a letter in which he stated that he had tried, unsuccessfully, to locate minor and mother for two years; that mother had misled DCFS about minors paternity, and that she knew appellant had been living and working in Los Angeles during minors detention and foster care placement. Appellant denied accompanying mother to any court proceedings for minor or to any monitored visits. He stated that he was unaware of the dependency proceedings until the maternal grandmother contacted him shortly before the October 2, 2007 hearing in an effort to prevent minors adoption. Appellant further stated DCFS social worker Lees account of their November 30, 2007 interview was inaccurate; that he had repeatedly attempted to tell Lee that he wanted custody of minor; and that although he did not speak English, he had been denied the assistance of an interpreter during the interview.

An appealed-from judgment or order is presumed correct. [Citation.] Hence, the appellant must make a challenge. In so doing, he must raise claims of reversible error or other defect [citation], and present argument and authority on each point made [citations]. If he does not, he may, in the courts discretion, be deemed to have abandoned his appeal. [Citation.] In that event, it may order dismissal. [Citation.] (In re Sade C. (1996) 13 Cal.4th 952, 994.) Appellant has established no error in the proceedings below, nor any legal basis for reversal. Our own independent review of the record discloses no reversible error. We therefore dismiss the appeal. (In re Sade C., supra, 13 Cal.4th 952.)

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.

_______________________________________________________________________

BOREN, P. J. DOI TODD, J. CHAVEZ, J.

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

[2] Minor was removed from her mothers custody on September 7, 2005, and declared a dependent of the juvenile court on November 7, 2005.