In re Deborah Y.

Filed 2/3/09 In re Deborah Y. CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

APPEAL from a judgment of the Superior Court of San Diego County, Gary M. Bubis, Judge. Affirmed.

Alejandro A. appeals a judgment terminating his parental rights to his daughter, Deborah Y. He contends he did not receive adequate notice of the jurisdictional/dispositional hearing; the court abused its discretion by denying his Welfare and Institutions Code section 388[1] petitions; his first trial counsel provided ineffective assistance; and the court erred by terminating his parental rights without finding he was an unfit parent.[2] We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

On October 29, 2007, the San Diego County Health and Human Services Agency (the Agency) petitioned on behalf of infant Deborah under section 300, subdivision (b), alleging her mother, Ginger Y., was unable to care for her because of methamphetamine use. The court ordered Deborah detained and that Ginger be served with a copy of the petition. It also ordered the Agency to conduct a reasonable search for Deborah's father and to notify him of the proceedings.

Ginger named Andy A. as Deborah's father. She said he was incarcerated, and she had no contact information for him. A search of local jails and federal and state prisons yielded no information for an inmate named Andy A. Further searching was also unsuccessful.

On a biological parentage form dated November 20, 2008, Ginger provided an address for Andy A. at Donovan State Prison (Donovan). When he was located under the name, Alejandro A., the court appointed counsel for him. On the parentage form Ginger noted Vito M., the father of her two-year-old son, Wyatt M., was also claiming to be Deborah's father. Deborah was detained with Vito's mother, who was caring for Wyatt.

On November 27, 2007, the social worker was unsuccessful in her attempt to interview Alejandro at Donovan because she did not have the proper clearance. She sent him a letter notifying him of the petition, the jurisdictional/disposition hearing and his right to counsel.

On December 11, 2007, Alejandro telephoned the social worker to say he was staying at a motel in Indio and, although his parole conditions prohibited him from being in San Diego County, he was calling from a pay phone in San Diego. He said he would like his sister to care for Deborah if testing shows he is her biological father. The social worker informed him of the jurisdictional/dispositional hearing scheduled for December 21.

Alejandro's parole agent told the social worker Alejandro had tested positive for methamphetamine use on November 29, in violation of his parole conditions, and he was also violating parole by being in San Diego County.

Alejandro did not attend the jurisdictional/dispositional hearing. His appointed counsel requested he be relieved subject to reappointment should Alejandro come forward and request representation. The attorney explained it would be difficult to represent Alejandro because he was not present, his wishes were not known and he had not requested counsel. The court granted the request. The court found the allegations of the petition to be true and declared Deborah to be a dependent child of the juvenile court. It removed custody from Ginger, denied reunification services as to her under section 361.5, subdivision (b)(10) and (11) and set the matter for a section 366.26 hearing. The court made no findings regarding Alejandro.

On March 7, 2008, the court appointed counsel and, at Alejandro's request, ordered paternity testing for him. He was incarcerated at Donovan. The testing was delayed when he was moved to another prison. In May the social worker reported genetic testing showed Alejandro is Deborah's biological father. The court entered a judgment of paternity.

The social worker reported Deborah was adoptable because of her young age, good health, normal development and easygoing temperament. Her caretakers wanted to adopt her. In addition, numerous other families were interested in adopting a child with her characteristics. The social worker opined Deborah had no parent-child relationship with either parent.

On June 6, 2008, Alejandro petitioned under section 388, requesting the court modify the orders made at the disposition hearing. He alleged the Agency had not made sufficient efforts to find him. He requested services and argued the change he requested was in Deborah's best interests. At a hearing on June 11 the court considered the Agency's account of its attempts to locate Alejandro. It found Alejandro had not made a prima facie showing and denied the petition. At the same hearing, Alejandro and Ginger executed a declaration of paternity.

At the section 366.26 hearing on July 2, 2008, Alejandro was present with counsel. He filed a second section 388 petition, again requesting the court vacate the setting of the section 366.26 hearing and offer him services. The court found he had not made a prima facie showing and denied the petition. After considering testimony and documentary evidence and hearing argument, the court found Deborah was likely to be adopted if parental rights were terminated and none of the exceptions to termination of parental rights and adoption applied. It terminated parental rights and referred Deborah for adoption.

DISCUSSION

I

Alejandro contends the court erred by terminating parental rights because he did not receive adequate notice of the jurisdictional/dispositional hearing. He maintains the Agency did not exercise reasonable diligence in trying to locate him, he did not receive adequate notice and he was not provided with the required form to establish paternity.

A. Authority

"[D]ue process requires 'notice reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections.' " (In re Melinda J. (1991) 234 Cal.App.3d 1413, 1418, quoting Mullane v. Central Hanover Bank & Trust Co. (1950) 339 U.S. 306, 314.) "The essence of due process is fairness in the procedure employed . . . ." (Ingrid E. v. Superior Court (1999) 75 Cal.App.4th 751, 757.) "The child welfare agency must act with diligence to locate [an absent] parent." (In re Justice P. (2004) 123 Cal.App.4th 181, 188.) "Reasonable diligence denotes a thorough, systematic investigation and an inquiry conducted in good faith." (Ibid.)

B. Application

The evidence showed the Agency tried to locate Alejandro through a thorough, systematic investigation and inquiry in order to provide notice to him of the dependency proceedings. Soon after the petition was filed on October 29, 2007, the social worker began searching for Alejandro under the name, Andy A., the name Ginger had provided. She did not locate him. When Ginger said Andy A. was incarcerated at Donovan, the social worker called the prison locator dispatcher but still found no results for Andy A. Ginger later provided a partial California Department of Corrections and Rehabilitation (CDC) number, but it also did not lead to Alejandro. When Ginger supplied the full CDC number, it was discovered that Andy A.'s true name was Alejandro A. A few days later, Alejandro telephoned Deborah's caregiver from Donovan and said he would be released in four days and was interested in establishing paternity. The social worker asked the caregiver to have Alejandro contact her if he called again. The social worker's attempt to interview Alejandro at Donovan was unsuccessful because she did not have the required clearance. Then, during a supervised visit on December 5, Ginger told the social worker Alejandro had been released from prison. Alejandro called on December 11 to say he was living in a motel in Indio, the terms of his parole did not allow him to be in San Diego County, but he was calling from San Diego. The social worker told him of the December 21 upcoming hearing and told him he could undergo a paternity test to determine if he is Deborah's biological father. Alejandro told her he had no telephone number, but he would supply one as soon as he could. He never did so. The social worker contacted Alejandro's parole agent, who said Alejandro was in violation of parole conditions for testing positive for methamphetamine and being in San Diego, and his last known address was a sober living facility in Orange County.

This record shows the Agency made good faith efforts through a thorough, systematic investigation to try to locate Alejandro. Substantial evidence supports the court's findings there were reasonable search efforts.

As for Alejandro's argument that even after making contact with him the Agency did not provide the statutorily required notice, he has not shown prejudice because the Agency provided him with actual notice. The social worker told him of the jurisdictional/disposition hearing set for December 21. Although he now claims he was not informed of his rights that could be affected at the hearing, he does not indicate what he would have done differently had he had additional information about the potential results of the hearing nor did he inform the authorities at Donovan that he wished to be present. Because Alejandro had actual notice of the hearing, he has not shown a denial of due process. (In re Albert B. (1989) 215 Cal.App.3d 361, 380.)

II

Alejandro asserts the court abused its discretion by summarily denying his section 388 petitions. He argues he should have been permitted to testify regarding his lack of notice, to present witnesses to support his argument the Agency's search efforts were inadequate and to present evidence in favor of providing reunification services.

A. Authority

Section 388 provides in part:

"(a) Any parent or other person having an interest in a child who is a dependent child of the juvenile court . . . may, upon grounds of change of circumstance or new evidence, petition the court in the same action in which the child was found to be a dependent child of the juvenile court . . . for a hearing to change, modify, or set aside any order of court previously made or to terminate the jurisdiction of the court. . . . [] . . . []

"(d) If it appears that the best interests of the child may be promoted by the proposed change of order . . . the court shall order that a hearing be held . . . ."

In order to gain the relief sought in a section 388 petition, the petitioner must show both a change of circumstances or new evidence and that the change sought is in the child's best interests. ( 388; Cal. Rules of Court, rule 5.570(e); In re Michael B. (1992) 8 Cal.App.4th 1698, 1703.) A petition is liberally construed in favor of its sufficiency. (In re Angel B. (2002) 97 Cal.App.4th 454, 461.) The petitioner bears the burden of proof, however, to make both showings. (In re Stephanie M. (1994) 7 Cal.4th 295, 317.)

"[I]f the petition presents any evidence that a hearing would promote the best interests of the child, the court must order the hearing." (In re Angel B., supra, 97 Cal.App.4th at p. 461.) " ' "The parent need only make a prima facie showing to trigger the right to proceed by way of a full hearing." ' [Citations.]" (In re AljamieD. (2000) 84 Cal.App.4th 424, 432.)

B. Application

The court did not abuse its discretion by denying Alejandro's section 388 petitions without hearings. In the first section 388 petition Alejandro asked the court to vacate the orders of the section 366.26 hearing, return to disposition and order reunification services for him. He alleged he had established paternity and attempted to contact the Agency in November 2007, and the Agency had not conducted reasonable search efforts. He claimed the change he requested was in Deborah's best interests because she had the right to be raised by her father, and he had made several attempts to establish a relationship with her. In the second petition he alleged changed circumstances in that he had become Deborah's presumed father and had been released from custody. He argued the change was in her best interests because he had the right to be with her since he had been released from custody and could raise her.

The court did not abuse its discretion by denying the petitions without hearings. Alejandro did not make prima facie showings that the changes he requested would be in Deborah's best interests. He clearly knew of the dependency when he called the social worker in December 2007. He did not attempt to contact the Agency again until January 2008 when he asked that his sister be evaluated for placement. In February 2008 he requested paternity testing and legal representation. After it was determined he was Deborah's biological father, he made no effort to visit her and never asked the social worker about her well-being. The court did not abuse its discretion by finding he did not shown the Agency did not undertake reasonable search efforts or that he had not made a prima facie showing Deborah's best interests would be served by a change in the orders. Alejandro delayed efforts to establish his paternity, was in and out of prison for most of Deborah's life and had never seen her. She was placed with her caregivers when she was two weeks old. The court did not err by finding that it would not serve her best interests to disrupt her stable placement or delay her permanency.

III

Alejandro next claims his first trial counsel provided ineffective assistance because his appointed attorney did not attempt to locate him, did not request a continuance of the jurisdictional/dispositional hearing to allow time to find him and did not advise him of how to establish paternity.

A. Authority

Section 317.5, subdivision (a), provides "[a]ll parties who are represented by counsel at dependency proceedings shall be entitled to competent counsel." In order to establish that his counsel in a dependency proceedings was ineffective a parent " 'must demonstrate both that: (1) his appointed counsel failed to act in a manner expected of reasonably competent attorneys acting as diligent advocates; and that (2) this failure made a determinative difference in the outcome, rendering the proceedings fundamentally unfair in that it is reasonably probable that but for such failure, a determination more favorable for [the parent's] interests would have resulted.' [Citations.]" (In re Dennis H. (2001) 88 Cal.App.4th 94, 98.) "A court need not evaluate whether counsel's performance was deficient before examining prejudice suffered by defendant. [Citation.] Thus, a court may reject a claim if the party fails to demonstrate that but for trial counsel's failings, the result would have been more favorable to the defendant." (In re Nada R. (2001) 89 Cal.App.4th 1166, 1180.)

B. Application

Alejandro has not shown ineffective assistance of counsel. The court was not required to appoint counsel for Alejandro for the jurisdictional/dispositional hearing because at the time Alejandro was an alleged father, he was not present at the hearing and he did not request counsel. Nevertheless, at the hearing on November 20, when the court received information that Alejandro was in custody at Donovan, it appointed counsel to represent him. Alejandro has not shown counsel was ineffective. Alejandro was not present at the hearing on December 21. His attorney asked to be relieved subject to reappointment should Alejandro come forward and request representation. The court granted the request because, as counsel said, Alejandro had been released from custody, his wishes were unknown and he had not come forward to request an attorney. Because Alejandro was an alleged father at the time and he did not appear or request counsel, the court did not err by granting counsel's motion to be relieved subject to reappointment. Alejandro has not shown ineffective assistance of counsel.

IV

Alejandro finally asserts the court erred by terminating his parental rights absent a finding that he was an unfit parent.

A. Authority

Parents have a fundamental interest in the care and custody of their children. Thus, they have due process protections in juvenile dependency proceedings. (Santosky v. Kramer (1982) 455 U.S. 745, 758 (Santosky).) Before the state may terminate the parent's parental rights, "due process requires that the State support its allegations by at least clear and convincing evidence." (Id.at p. 747-748; In re Gladys L. (2006) 141 Cal.App.4th 845, 848.) "California's dependency scheme comports with Santosky's requirements because, by the time parental rights are terminated at a section 366.26 hearing, the juvenile court must have made prior findings that the parent was unfit." (In re Gladys L., at p. 848; CynthiaD. v. Superior Court (1993) 5 Cal.4th 242, 254.)

The law that governs dependency proceedings differentiates the rights of presumed, biological and alleged fathers. (In re Liam L. (2000) 84 Cal.App.4th 739, 745.) "A biological or natural father is one whose biological paternity has been established, but who has not achieved presumed father status . . . . [Citations.] A man who may be the father of a child, but whose biological paternity has not been established, or, in the alternative, has not achieved presumed father status, is an 'alleged' father. [Citation.]" (In re ZachariaD.(1993) 6 Cal.4th 435, 449, fn. 15.) A mere biological father's parental rights may be terminated upon a finding that the child's best interests would be served by adoption. (Fam. Code,  7664; Adoption of Kelsey S. (1992) 1 Cal.4th 816, 831.) A man who has attained the status of presumed father holds much greater rights. Before terminating the parental rights of a presumed father, a court must find by clear and convincing evidence that the child would face a risk of detriment in the parent's custody. (In re Gladys L., supra, 141 Cal.App.4th at p. 848.)

A man must fall within one of the several categories enumerated in Family Code section 7611 in order to become a presumed father. "Under Family Code section 7611, a man who has neither legally married nor attempted to marry the child's natural mother cannot become a presumed father unless (1) he receives the child into his home and openly holds out the child as his natural child, or (2) both he and the natural mother execute a voluntary declaration of paternity." (Francisco G. v. Superior Court (2001) 91 Cal.App.4th 586, 595.)

Family Code section 7573 provides that with the exception of provisions not applicable here, "a completed voluntary declaration of paternity, as described in section 7574, that has been filed with the Department of Child Support Services shall establish the paternity of a child and shall have the same force and effect as a judgment for paternity issued by a court of competent jurisdiction." Family Code section 7574 requires the voluntary declaration of paternity to include the names and signatures of the mother and father, the name and birth date of the child, statements by the mother and father that they have read and understand their rights and responsibilities and consent to the establishment of paternity, and the name and signature of a witness.[3]

California Rules of Court, rule 5.635(c) provides as follows:

"If a voluntary declaration as described in Family Code section 7570 et seq. has been executed and filed with the California Department of Social Services, the declaration establishes the paternity of a child and has the same force and effect as a judgment of paternity by a court. A man is presumed to be the father of the child under Family Code section 7611 if the voluntary declaration has been properly executed and filed."

"[A] voluntary declaration of paternity that is in compliance with all the requirements of section 7570 et seq., . . . entitles the father to presumed father status in dependency proceedings." (In re Liam L., supra, 84 Cal.App.4th at p. 747.)

B. Application

The record shows that Alejandro and Ginger appeared in court on June 11, 2008, and signed a California Department of Social Services Declaration of Paternity form declaring that Alejandro is Deborah's father. The form was witnessed and signed by a court employee. As required by Family Code section 7574, the declaration of paternity included Alejandro's and Ginger's names and signatures, Deborah's name and birth date, statements by both parents that they had read and understood their rights and responsibilities and their consents to the establishment of paternity. The court questioned them about their understanding of the declaration, had them sign the document and found the attorneys had advised them of their rights regarding the establishment of a parental relationship. The court stated the declaration had been signed and witnessed, provided Alejandro and Ginger with copies and instructed the clerk to sign as witness. At the section 366.26 hearing on July 2 the court stated: "[Alejandro] indeed is a presumed father. That was done at the last court hearing by way of declaration."

By the signing of the declaration, Alejandro became Deborah's presumed father and, thus, before terminating his parental rights the court was required to find at some time during the dependency proceedings by clear and convincing evidence that placing Deborah in his care and custody would cause a substantial risk of detriment to Deborah.[4]

Here, although the record does not show the juvenile court ever explicitly made this finding, we hold that such a finding may be inferred. It would serve no purpose to remand the case to allow the court to make the finding expressly.

Even though Alejandro signed a declaration of paternity form in June 2008, before that time he made only weak and ineffectual attempts to establish himself as Deborah's parent. Soon after her birth in October 2007 he indicated he might be interested in paternity testing to see if he was indeed the biological father, but he did not actually come forward for testing until January 2008. He was informed of the jurisdictional and dispositional hearing to be held in December, but did not attend. When he was released from prison on parole, he soon tested positive for methamphetamine use and was sent back to prison, hampering any ability he might have had to take on a parental role. He never provided any support for Deborah and, most importantly, after he was again released from prison, he made no attempt to have any kind of relationship with her. He did not visit her even after his release or call to ask about her welfare. Alejandro and Deborah were total strangers.

Alejandro's circumstances are different from that of the father in In re Gladys L., supra, 141 Cal.App.4th at pages 847-849, where the court reversed the juvenile court's order terminating a father's parental rights because the court had not made a finding that returning the child to his custody would cause her detriment. In In re Gladys L., the child had become a dependent of the court while in her mother's custody. The father was a nonoffending parent. After submitting to the court's jurisdiction, he disappeared for three years and then reappeared at the section 366.26 hearing and requested visitation. (Id. at p. 847.) The opinion in the case does not indicate what relationship the father and child had shared before the child was detained or the circumstances of the father's disappearance. Here, by contrast, it is clear that Alejandro had no relationship with Deborah and made no attempt to visit her.

Further, Alejandro had never requested custody of Deborah, but only that he be offered services. Also, the court had earlier denied his section 388 petitions, finding he had not made a prima facie showing in either petition to modify the orders made at previous hearings. These facts are further indication of an implied finding of detriment. We hold, under the facts of this case, a finding by clear and convincing evidence that placing Deborah in Alejandro's care and custody would cause a substantial risk of detriment to Deborah may be inferred from this record.

DISPOSITION

The judgment is affirmed.

NARES, J.

WE CONCUR:

HUFFMAN, Acting P. J.

McDONALD, J.

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[1] Statutory references are to the Welfare and Institutions Code unless otherwise specified.

[2] In 1969 the Legislature dropped the standard, " 'parental unfitness,' " in favor of the requirement the court make a finding an award of custody to the parent would be " ' " 'detrimental to the child.' " ' " (In re Dakota H. (2005) 132 Cal.App.4th 212, 224, fn. 3.)

[3] In In re Mary G. (2007) 151 Cal.App.4th 184, 200, this court held Family Code sections 7611 and 7570 et seq., regarding voluntary declarations of paternity, violate constitutional equal protection principles to the extent they preclude an individual from establishing paternity by executing a voluntary acknowledgement of paternity in another state.

[4] We reject the Agency's suggestion that the signing of the declaration did not establish Alejandro's status as a presumed father because the declaration had not been filed with the Department of Child Support Services as required by Family Code section 7572, subdivision (a)(2). After admonishing Alejandro and Ginger and upon the signing of the declaration, the court stated the parents had been provided copies of the signed declaration and directed the court clerk to fill out the remaining section. We assume the clerk then properly filed the declaration. "It is presumed that official duty has been regularly performed." (Evid. Code,  664.)