In re D.S.

Filed 12/9/08 In re D.S. 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 Cardoza, Judge.

Mario de Solenni, under appointment by the Court of Appeal, for Defendant and Appellant.

No appearance by Plaintiff and Respondent.

-ooOoo-

Appellant D.S. is the alleged father of a dependent child, D.S., whom the superior court freed for adoption pursuant to Welfare & Institutions Code section 366.26.^[1] Appellants appointed appellate counsel filed a NO ISSUE STATEMENT with this court advising that no brief would be forthcoming because there was no arguable issue to raise (In re Sade C. (1996) 13 Cal.4th 952). By order filed August 19, 2008, we extended time for appellant to personally file a letter brief, which he has since done.

Appellant contends: the court erred at the termination hearing by not declaring him D.S.s presumed father; or in the alternative, appellants attorney was ineffective in his effort to elevate appellants paternity status from the childs alleged father to his presumed father. Having reviewed the appellate record as summarized below, we 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). We will affirm.

PROCEDURAL AND FACTUAL HISTORY

In January 1998, days before his third birthday, D.S. and his five half-siblings were detained from their mothers physical custody due to her serious neglect of the children. Additionally, in D.S.s case, appellant had left him without provision for his care and support and appellants whereabouts were unknown. Reasonable efforts by respondent Fresno County Department of Children and Family Services (department) to locate appellant had been unsuccessful.

Consequently, the department initiated dependency proceedings and in February 1998, the Fresno County Superior Court exercised its dependency jurisdiction over most of the children, but most notably over D.S. based on both the mothers neglect ( 300, subd. (b)) and appellants having left the child without provision or support ( 300, subd. (g)). At the same hearing, the court removed the children from parental custody and granted the mother reunification services. In D.S.s case, the court found appellants whereabouts were unknown and the department had made a due and diligent search for him. The court also denied appellant reunification services based on his unknown whereabouts ( 361.5, subd. (b)(1)). According to the departments evidence before the court, appellant was D.S.s alleged father. If he made himself available for services, acknowledged paternity, and expressed an interest in placement, the department would assess his service needs, evaluate him for placement and develop a case plan.

Approximately six months later, the department located appellant in the county jail and began serving him notice of D.S.s dependency proceedings. Appellant neither contacted the childs social worker or the court directly in response.

As of September 1999, the mother failed to reunify with any of her children and the court terminated reunification services. At a February 2000 hearing, the court selected long-term foster care as the appropriate permanent plan for D.S. At this point, appellant remained incarcerated and had not involved himself either in D.S.s life or his dependency.

Over the next several years of D.S.s dependency, the department served appellant notice of the childs periodic status review hearings. However, appellant did not contact the department in response and had no contact with D.S. According to the proofs of service, appellant was out of custody in the summer of 2000. As of June 2001, he was incarcerated first at Wasco State Prison and thereafter at the state correctional facility in Soledad.

For reasons which are unclear from the record, the court at a January 2003 status review hearing appointed Attorney R. Simmons with BAC to represent appellant. Still, appellant did not maintain contact with the department. At the next review hearing in August 2003, the court granted the paternal grandmother supervised visits with D.S. It appears the paternal grandmother had been in contact with D.S. and the department had approved overnight visits between them in 2001.

In December 2004, it became necessary for the department to change D.S.s placement. It was his second failed relative placement. Although the department considered placing D.S. with his paternal grandmother, the child was eventually placed in a foster home.

According to a November 2005 status review report, appellant had been recently released from prison and apparently for the first time was requesting visitation with D.S. The childs social worker informed appellant of the next court date and advised him to come and request visits as there was no current visitation order.

Appellant made his first appearance in D.S.s dependency proceedings at the November 2005 status review hearing. At this hearing, Attorney Brent Woodward with BAC commenced representing appellant. Woodward has since continued to represent appellant.

According to the minute order for the November hearing, the court ordered the department to assess, before the end of the year, the appropriateness of visitation between appellant and D.S. and to provide that information in discovery. As a result, appellant had one visit with D.S. in December 2005. After that date, even though appellant apparently remained out of custody for a time, he did not maintain contact with the department or request additional visits.

As of the summer of 2007, appellant was apparently once again in state prison and still had not contacted D.S.s social worker. At the same time, the department was evaluating the paternal grandmother and a paternal aunt for liberal visitation towards a goal of a more permanent placement for D.S. Although the results of both evaluations were negative, D.S.s foster family was committed to adopting him. The foster family was also willing to encourage and allow D.S. to have continued contact with his birth family.

Consequently, at an August 2007 status review hearing, the court set a section 366.26 hearing to select and implement a new permanent plan for D.S. Appellant was personally served in prison with notice of the section 366.26 hearing. He was ordered transported for the hearing which was eventually conducted as a contested matter in April 2008.

In advance of the April 2008 hearing, the department filed a social worker report in which it recommended the court find D.S., who by then was a teenager, was likely to be adopted and order termination of parental rights. D.S. wished to be adopted by his foster parents. They and the paternal grandmother had reached an agreement for post-adoption contact between the grandmother and D.S. According to the social workers assessment, termination would not be detrimental to D.S. because he had a distant relationship with both of his parents and he had expressed a wish to be adopted. In particular, D.S.s last contact with appellant was the December 2005 visit.

Appellants counsel filed a contested issue statement with the court questioning whether the child D.S. objected to termination of parental rights. Counsel anticipated calling the child as a witness.

At the April 2008 hearing, county counsel on behalf of the department questioned appellants standing to contest termination of parental rights. According to the department, appellant was merely an alleged father, had been treated as such throughout the proceedings, and had never sought to elevate his legal status to that of presumed father.

Appellants trial counsel admitted he had assumed appellant was the childs presumed father. Given the recommendation to terminate, counsel asked the court to nevertheless allow appellant to challenge the recommendation on the ground counsel has raised, presumably referring to the contested issue statement counsel had filed on appellants behalf. Alternatively, counsel asked for the opportunity to call appellant as a witness and attempt to elevate his paternity status. Counsel for the other parties objected, questioning whether it was too late for appellant. They also pointed out appellants CLETS showed 14 years of sentenced convictions during D.S.s 13 years of life. The court permitted appellant to testify.

Appellant told the court he was present at the hospital when D.S. was born and lived with D.S. and the mother in the mothers apartment for approximately the first nine or ten months of D.S.s life. The mother paid for the apartment with her welfare check. He believed he was the childs father and, even after he moved out of the mothers apartment, he would come by to pick him up and do stuff for him. About a year after D.S. was born, appellant was incarcerated. However, when he was released he saw D.S. again. He would pick up the child and take him to the paternal grandmothers home where appellant sometimes lived. He also claimed that at some point he had financially supported D.S. Appellant admitted he has been frequently in and out of custody ever since but he would like to be part of D.S.s life. The last time he saw D.S. was during the December 2005 visit.

The court then heard argument on whether appellant had held the child out as his own and received D.S. into his home. County counsel also argued appellant had failed to show circumstances had changed since the court terminated reunification efforts years earlier in order to come forward now and claim presumed father status and rights, not to mention that it would be in D.S.s best interests not to terminate rights. D.S.s attorney joined in county counsels analysis of the law. By contrast, appellants counsel urged that the departments recommendation to terminate parental rights amounted to the necessary changed circumstances to warrant appellants current request for presumed father status.

The court denied appellants request to be treated as D.S.s presumed father. The court agreed appellant had failed to show changed circumstances, noting at no time since D.S.s detention in 1998 had appellant demonstrated his commitment to his parental responsibilities even though appellant had notice of the proceedings. Further, the court found it would not be in the childs best interests.

Having found by clear and convincing evidence that D.S. was likely to be adopted, the court terminated parental rights.

DISCUSSION

An appealed-from judgment or order is presumed correct. (E.g., Denham v. Superior Court (1970) 2 Cal.3d 557, 564 ....) Hence, the appellant must make a challenge. In so doing, he must raise claims of reversible error or other defect (see ibid.), and present argument and authority on each point made (County of Sacramento v. Lackner (1979) 97 Cal.App.3d 576, 591 ...; accord, In re Marriage of Ananeh-Firempong (1990) 219 Cal.App.3d 272, 278 ...). If he does not, he may, in the court's discretion, be deemed to have abandoned his appeal. (Berger v. Godden [(1985)] 163 Cal.App.3d [1113] at p. 1119.) In that event, it may order dismissal. (Ibid.) Such a result is appropriate here. With no error or other defect claimed against the orders appealed from, the Court of Appeal was presented with no reason to proceed to the merits of any unraised points-and, a fortiori, no reason to reverse or even modify the orders in question. (See People v. Brigham (1979) 25 Cal.3d 283, 289 ....) (In re Sade C., supra, 13 Cal.4th at p. 994.)

Appellant criticizes both the trial court and his trial counsel regarding their handling of his belated attempt to seek presumed father status. However, in so doing, appellant overlooks his role in the outcome, not to mention the record in this case and the law. Regardless of whether appellant ever showed any commitment to D.S. as a parent, the fact remains that appellant had left the child without any provision as of 1998 when the mother neglected the child and caused these dependency proceedings and the childs removal from parental custody. Once appellants whereabouts became known so that the department could serve him notice of the various hearings in the case, appellant took no action for years, well past the time for any reunification efforts. When appellant finally made contact with D.S.s social worker in 2005, he asked for visits but then only visited the child once. Meanwhile, throughout D.S.s dependency, appellant has been in and out of custody making D.S.s placement with him virtually impossible. Nevertheless, the department has tried to facilitate a visiting relationship, if not placement, between appellants mother and D.S. On this record, appellant was not entitled to any relief.

The fact that, after eight years in long-term foster case, D.S. finally had foster parents committed to adopting him did not entitle appellant to claim circumstances had changed such that he could challenge termination of parental rights on any theory. At this stage, the courts focus was properly on D.S.s right to as much permanence and stability as the law could afford. (In re Marilyn H. (1993) 5 Cal.4th 295, 309.) A section 366.26 hearing is designed to protect the 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. (In re Marilyn H., supra, 5 Cal.4th at p. 306.) Having previously forfeited for years the opportunity to be part of these proceedings and more importantly part of D.S.s life, appellant is in no position to now complain about either the court or his attorney.

Having reviewed his letter brief and the record herein, we conclude appellant raises no arguable issue regarding the courts decision.

DISPOSITION

The order terminating parental rights is affirmed.

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

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