In re Baby Boy M.

Filed 12/30/08 In re Baby Boy M. CA5

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

THE COURT^*

APPEAL from a judgment of the Superior Court of Kern County. Robert J. Anspach, Judge.

Julie E. Braden, under appointment by the Court of Appeal, for Defendant and Appellant.

B.C. Barmann, County Counsel, and Mark L. Nations, Deputy County Counsel, for Plaintiff and Respondent.

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Appellant F.L. is the biological father of dependent child, Baby Boy M., whom the Kern County Superior Court has freed for adoption (Welf. & Inst. Code,  366.26).^[1] In his appeal from the order terminating his parental rights, appellant challenges the constitutionality of section 293, which sets forth the notice requirements for a juvenile dependency status review hearing. In pertinent part, the section requires notice to [t]he presumed father or any father receiving services. ( 293, subd. (a)(2).) At the time of the status review hearing in F.L.s dependency, appellant was considered the childs alleged father and he was not receiving services. Appellant contends section 293 unconstitutionally deprived him, as an alleged father, notice of the status review hearing as well as his right to counsel and the opportunity to be heard.

On review, we will affirm. Appellant cannot show how the statute adversely affected his rights. Thus, he is not entitled to our review of his constitutional claim. (Massachusetts v. Mellon (1923) 262 U.S. 447, 488.) Put another way, he cannot show any prejudice even assuming strictly for the sake of argument that the section at issue is constitutionally flawed. (Chapman v. California (1967) 386 U.S. 18, 24.) As discussed below, appellants whereabouts were unknown, despite due diligent efforts to locate him, until the eve of the termination proceedings. Given that his whereabouts were unknown, he could not have received notice, even if statutorily required. Furthermore, the record reveals appellant had actual notice of the status review hearing and came to court on the review hearing date; however, he chose to leave.

PROCEDURAL AND FACTUAL HISTORY

When Baby Boy M. was born in February 2007, his mother was committed to Patton State Hospital and appellant was reportedly residing in Mexico. As a result, respondent Kern County Department of Human Services (department) detained the newborn and initiated the underlying proceedings. In its dependency petition, the department characterized appellant as the childs alleged father.

The departments initial investigation revealed the mother and appellant had been arrested on narcotics charges in September 2006. An INS hold was placed on appellant. Meanwhile, the mother reported hearing voices in jail, as she awaited trial. This apparently led to the state hospital commitment. She later admitted she had lied about hearing voices.

When the department interviewed the mother about appellant, she stated there was no way to contact him as he lived in Mexico somewhere and did not have any family or friends in the area. She believed he might be back in March some time but she did not know how he went back and forth across the border or where he would stay once he returned.

In May 2007, the Kern County Superior Court exercised its dependency jurisdiction ( 300, subds. (b) (neglect brought on by the mothers drug abuse) & (g) (no provision for support)) over Baby Boy M. The court also adjudged him a dependent child of the court, removed him from the mothers custody, and ordered reunification services for her. In addition, during the May 2007 hearing, the court made findings as to appellant. It determined he was the infants alleged father and, despite reasonable efforts to locate him, appellants whereabouts were unknown. It also expressly found the department completed a diligent search for appellant that month. Further, because appellant was an alleged father who had not sought to establish his paternity, the court denied him reunification services.

The court conducted a review hearing of the childs dependency status on October 19, 2007. In advance of the hearing, the department prepared a social study report recommending the court terminate services for the mother. She failed to participate in court-ordered services. She visited her son only once, in June 2007. During that visit, the mother asked if the father could visit. The record is silent as to what, if any, response her query yielded. Then in August 2007, she reported to the social worker that she (the mother) was one month pregnant. She was living in a womens shelter at the time. When the social worker later asked if it [was] the same father that [Baby Boy M.] ha[d], the mother nodded yes. The social worker asked if she knew where he was located. The mother claimed not to know.

The mother attended the status review hearing in October 2007 at which the court terminated services based on the mothers lack of acceptable efforts to reunify. The court also set a section 366.26 hearing to select and implement a permanent plan for Baby Boy M. During the hearing, the court found appellants whereabouts were unknown and reasonable efforts to locate him had been unsuccessful.

In early February 2008, the department prepared a social study report in which it recommended the court find the child adoptable and terminate parental rights. At the time, the whereabouts of both the mother and appellant were unknown. However, within a matter of days of the scheduled section 366.26 hearing, the department located and personally served appellant with notice.

On the originally-set section 366.26 hearing date, appellant made his first appearance in the case. The court appointed counsel on appellants behalf and continued the hearing.

Appellant in turn filed a Statement Regarding Parentage in which he checked a box stating his belief that he was the childs father and was requesting a judgment of parentage. He did not claim he was entitled to presumed father status on any basis.

Soon thereafter, appellants trial counsel filed a request to modify prior court orders ( 388). Specifically, trial counsel sought to vacate not only the section 366.26 permanency planning hearing but also the earlier status review hearing at which the court set the section 366.26 hearing. He also wanted the court to conduct a new dispositional hearing to analyze placing the child with appellant. Trial counsel claimed circumstances had changed in that when he made his first appearance in February 2008, appellant had been advised of his rights regarding the child.

In an attachment to the request, trial counsel alleged the department denied appellant his due process rights in that appellant presented himself to the department in June 2007 announcing he was the father of the child and requesting visitation. At that point, counsel argued, the department in turn should have interviewed appellant, formally advised of him of the nature of the proceedings and his right to counsel. Had the department done so, appellant could have established his paternity and sought placement of the child with him. Thus, trial counsel theorized the department had interfered with appellants parenting rights. The attorney did not support his request to modify with any declaration by appellant or other documentary proof. In response a department social worker investigated the issue and prepared a report for the court. The social worker interviewed appellant who reported the following information. At some point after he was arrested on drug charges in September 2006, he was given the choice of being deported or going through the criminal justice system. Appellant chose deportation, which occurred in December 2006. He stated he returned in March 2007. Appellant also informed the social worker that he was aware of the status review hearing in October 2007 and was present at the courthouse on the hearing date. However, he was afraid the INS would be called and he left. He also reported, as did the mother, that they lived together before he was deported and again when he returned in March 2007.

The court conducted a hearing on the request to modify in April 2008. Appellant did not testify in support of the request. Instead, the hearing consisted solely of argument by the various attorneys. During argument, appellants trial counsel clarified he was also challenging the constitutionality of section 293 because it did not require that notice of a status review hearing be given to an alleged father. Thereafter, the court denied the request to modify.

Moving on the issue of the childs permanency planning, the court found him adoptable and terminated parental rights.

DISCUSSION

As previously noted, appellant seeks reversal of the order terminating his parental rights on the theory that section 293 unconstitutionally denies notice of status review hearings to alleged fathers. However, appellant is not entitled to our review of his constitutional claim because he cannot show, under the facts of this case, how the statute adversely affected his rights. (Massachusetts v. Mellon (1923) 262 U.S. 447, 488.) Instead, he essentially seeks an advisory opinion from this court, which is not within our jurisdiction. (People ex rel. Lynch v. Superior Court (1970) 1 Cal.3d 910, 912.) The problem for appellant is at least three-fold, as discussed below.

First, appellant incorrectly assumes his trial attorneys statement in his written request to modify -- that he (appellant) presented himself to the department in June 2007 announcing he was the father of the child and requesting visitation -- constituted evidence. It did not. Indeed, it was nothing more than argument. The attorney by his own admission never met appellant before February 2008. Thus, the attorney could not have been a witness to appellants alleged encounter with the department in June 2007. (Evid. Code,  702, subd. (a).) Moreover, an attorneys argument does not constitute evidence. (In re Zeth S. (2003) 31 Cal.4th 396, 405.) Furthermore, counsel neither submitted any declaration or testimony in support of his request to modify. There is also no evidence in any of the departments reports to support the trial counsels claim. While appellant points to the mothers visit with the child in June 2007 when she asked if the father could visit, we fail to discern how this constitutes evidence that appellant presented himself to the department in June 2007 announcing he was the father of the child and requesting visitation.

This leads us to our second point, that is, according to the record appellants whereabouts were unknown to the department and the court until the figurative eve of the original date set for the section 366.26 hearing. Notwithstanding section 294, appellant could not have been served with notice of the status review hearing since his whereabouts were unknown.

Third, appellant, by his admission to the social worker, had actual notice of the status review hearing. In fact, he came to court that day but left, more concerned about INS apparently than forming any relation with his son. Given appellants actual notice of the hearing, we deem his contention to be one more of form rather than substance.

DISPOSITION

The order terminating parental rights is affirmed.

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^* Before Wiseman, Acting P.J., Cornell, J., and Kane, J.

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