In re D.E.

Filed 8/20/08 In re D.E. 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 Fresno County. Jane A. Cardoza, Judge.

Konrad S. Lee, under appointment by the Court of Appeal, for Defendant and Appellant.

No appearance for Plaintiff and Respondent.

-ooOoo-

Alleged father Robert D. appeals from an order terminating parental rights (Welf. & Inst. Code,  366.26) to the child D.E.^[1] Appellants appointed appellate counsel has since advised this court that, based on his review of the record, no brief would be forthcoming (In re Sade C. (1996) 13 Cal.4th 952). By order dated July 16, 2008, we extended time for appellant to personally file a letter brief.

Appellant has filed such a letter brief with this court. In it, he claims the court should have granted a request he made at the section 366.26 hearing for paternity testing and considered his relatives for placement. He also contends the court terminated his rights without proper notice. Having reviewed the record and the relevant law, we conclude appellants contentions are meritless. We will affirm.

PROCEDURAL AND FACTUAL HISTORY

D.E. suffered in-utero exposure to cocaine and was the third of his mothers children to be born drug exposed. Consequently, upon his birth in November 2006, D.E. was detained by respondent Fresno County Department of Children and Family Services (department). At the same time, the mother identified a man other than appellant as the newborns father. The department in turn initiated the underlying dependency proceedings. In December 2006, the court exercised its dependency jurisdiction over D.E. based on the mothers long-standing substance abuse and prior neglect of D.E.s older siblings and set the case for a dispositional hearing.

Between the jurisdictional and dispositional hearings, the mother stated appellant, not the other man she previously identified, was D.E.s father. Appellants name was not listed on D.E.s birth certificate. This new information led a department social worker to contact appellant who was then incarcerated. He denied he was D.E.s father and stated he did not know D.E.s mother. Despite appellants denials, the court appointed counsel to represent appellant in January 2007.

The department soon lost track of appellant upon his release from jail. As a result, a social worker, in February 2007, mailed letters to all names and addresses generated as possible matches for appellant. In each letter, the social worker notified the recipient of D.E.s dependency proceedings and urged him to contact her as soon as possible whether or not he was D.E.s father, to correctly determine D.E.s parentage.

Appellant made his first appearance at the March 2007 dispositional hearing for D.E. Neither appellant nor his attorney requested paternity testing, placement, services, or visitation. Once the parties submitted, the court removed D.E. from parental custody and ordered reunification services for the mother. It also denied appellant reunification services based on his status as the childs alleged father. At the hearings conclusion, the court advised appellant and the mother of their right to appeal the courts dispositional findings and orders. Appellant did not appeal.

The mother subsequently failed to regularly participate in reunification services. This led the court, in July 2007, to terminate services and set a section 366.26 hearing to select and implement a permanent plan for D.E. Because appellant had waived his appearance at the hearing, the clerk of the court served appellant notice of his writ remedy by mail at his last known address. He did not seek writ relief from the order setting the section 366.26 hearing.

Before the section 366.26 hearing, the department prepared a report in which it recommended the court find D.E. adoptable and terminate parental rights. D.E.s foster mother, in whose care he was placed in November 2006, was committed to adopting him.

Appellant attended the section 366.26 hearing conducted in February 2008. His attorney objected to the departments recommendation, stating appellant did not want his rights terminated and he requested a paternity test. Counsel added:

He feels that he very well may be the biological father to D[.] and is requesting testing to prove his match. He states he has relatives that are willing and able to take D[.] into their home as a relative placement and even provide a permanent plan for the minor.

Attorneys for the department and for D.E. objected, essentially arguing appellant was too late to complain. In addition, even if the court ordered testing and it showed he was the biological father, that would not make him the childs presumed father. As to appellants relative placement request, the attorneys argued placement was not an issue to be resolved at a section 366.26 hearing.

The court found D.E. adoptable and terminated parental rights. In the process, the court denied appellants request for a paternity test and expressed its agreement with the arguments of opposing counsel.

DISCUSSION

Here, as previously mentioned, appellant contends the court should have granted his request for paternity testing as well as considered his relatives for placement and that the court terminated his rights without proper notice. However, the order terminating parental rights is presumed correct. (In re Sade C., supra, 13 Cal.4th at p. 994.) On appeal, it is appellants burden to affirmatively show error on the record. (Denham v. Superior Court (1970) 2 Cal.3d 557, 564.) He must raise claims of reversible error or other defect and present argument and authority on each point made. (In re Sade C., supra, 13 Cal.4th at p. 994.) Appellant waives an issue which is undeveloped and includes no citation to supporting legal authority. (In re Daniel M. (2003) 110 Cal.App.4th 703, 708.)

On the issue of proper notice, appellant fails to establish what notice was lacking. As an alleged father, appellant was entitled to notice and the means by which to assert a position and attempt to elevate his paternity status. (In re O.S. (2002) 102 Cal.App.4th 1402, 1408.) Those rights were satisfied in appellants case. Appellant received notice of D.E.s dependency, given his appearance in the trial court at D.E.s dispositional and subsequent hearings, as well as received the benefit of court-appointed counsel and the opportunity to be heard. Nevertheless, appellant submitted on the departments report, which included his denial of paternity as well as denial of even knowing the mother and recommended he receive no reunification services. He also received notice of his appellate remedy at the conclusion of the dispositional hearing, a remedy he never pursued until now. He never took any steps to elevate his status until his 11th-hour request for paternity testing.

On the issue of paternity testing and relative placement consideration, appellant fails to explain how or why the courts decision was erroneous, much less prejudicial to his interest in D.E. He also ignores his previous denials that he knew D.E.s mother, much less that he was D.E.s father.

The fact that appellant had an apparent change of heart at the termination hearing does not mean the court erred by denying his requests for testing and relative placement consideration. The time for appellant to request paternity testing and to submit relatives names for placement was at the dispositional hearing, when the court was bound to decide the dual issues of family reunification and placement. ( 361, 361.5.) Not only did appellant remain silent then - presumably because he denied the mothers paternity allegation - he forfeited his right to challenge the courts ruling that he was merely an alleged father - by not appealing from the courts dispositional hearing. (In re Elizabeth M. (1991) 232 Cal.App.3d 553, 563.)

In addition, appellant overlooks the objective of Californias dependency laws, which is to protect abused or neglected children and to provide permanent, stable homes if those children cannot be returned home within a prescribed period of time. (In re Marilyn H. (1993) 5 Cal.4th 295, 307.) By the time of a section 366.26 hearing, the courts focus shifts from the interests of parents to the childs needs for permanency and stability. (Id. at p. 309.) A section 366.26 hearing is designed to protect a childs compelling rights to have a placement that is stable, permanent, and that allows the caretaker to make a full emotional commitment to the child. (Id. at p.306.) Ordering paternity testing for appellant, who up until the termination hearing denied any paternity, would not advance D.E.s interests in permanence and stability.

We further note only a presumed father, not an alleged or even a biological father, is entitled to placement consideration. (In re Zacharia D. (1993) 6 Cal.4th 435, 439.) Appellant overlooks the lack of any evidence that he could qualify for presumed father status (Fam. Code,  7611) on grounds of marriage or attempted marriage to the childs mother. In addition, we note, having previously denied any relationship, appellant certainly never received D.E. into his home and held out the infant as his own, an alternative ground for presumed father status under Family Code section 7611. Neither did appellant, as an alleged unwed father, promptly come forward and demonstrate a full commitment to his parental responsibilities - emotional, financial, and otherwise. (Adoption of Kelsey S. (1992) 1 Cal.4th 816, 849.)

Finally, as the California Supreme Court explained in In re Zacharia D., supra, 6 Cal.4th at page 452:

While under normal circumstances a father may wait months or years before inquiring into the existence of any children that may have resulted from his sexual encounters with a woman, a child in the dependency system requires a more time-critical response. Once a child is placed in that system, the fathers failure to ascertain the childs existence and develop a parental relationship with that child must necessarily occur at the risk of ultimately losing any opportunity to develop that biological connection into a full and enduring relationship. (Adoption of Kelsey S., supra, 1 Cal.4th at p. 838.)

We therefore conclude appellants contentions do not amount to claims that the juvenile court committed an error affecting the outcome of this case (In re Sade C., supra, 13 Cal.4th at p. 994) and will affirm.

DISPOSITION

The order terminating parental rights is affirmed.

Publication courtesy of California free legal advice.

Analysis and review provided by Carlsbad Property line attorney.

San Diego Case Information provided by www.fearnotlaw.com

^* Before Wiseman, Acting P.J., Gomes, J., and Dawson, J.

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