In re F.R.

Filed 1/21/10 In re F.R. CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FOURTH APPELLATE DISTRICT

DIVISION TWO

APPEAL from the Superior Court of San Bernardino County. A. Rex Victor, Judge. (Retired judge of the San Bernardino Super. Ct. assigned by the Chief Justice pursuant to art. VI, 6 of the Cal. Const.) Affirmed.

Jacob I. Olson, under appointment by the Court of Appeal, for Defendant and Appellant.

Ruth E. Stringer, County Counsel, and Jeffrey L. Bryson, Deputy County Counsel, for Plaintiff and Respondent.

I. INTRODUCTION

F.R. (father) appeals from an order terminating his parental rights under Welfare and Institutions Code^[1]section 366.26 as to Fa.R. (Fa.), born in January 2009. Father contends the juvenile court erred in finding he was merely an alleged father because the overwhelming evidence showed he was the quasi-presumed father of Fa. He further contends his trial counsels failure to request presumed father status was ineffective assistance of counsel that resulted in prejudicial error. Plaintiff and respondent San Bernardino County Children and Family Services (CFS) contends: (1) father is foreclosed from attacking the juvenile courts dispositional orders and from asserting ineffective assistance of counsel; and (2) fathers contentions fail on the merits. We find no error, and we affirm.

II. FACTS AND PROCEDURAL BACKGROUND

In February 2009, CFS filed a petition as to Fa. under section 300, subdivisions (b) (failure to protect) and (g) (no provision for support). The petition alleged that G.E. (mother)^[2]and father both had lengthy histories of substance abuse and had refused to comply with treatment programs that had been offered at least twice before. The petition also alleged that mothers parental rights had been terminated as to eight other children after she failed to reunify with them. As to paternity, the report stated, The information gathered was not sufficient to make a recommendation to the Court at this time. The mother states she and alleged father . . . were never married at time of conception.

The detention report stated that mother had an extensive drug use history, was currently in an in-custody treatment program, and was unable to care for Fa. Mother admitted she had used methamphetamine during her pregnancy until she was sent to jail in November 2008 for parole violations. Four of her other children had been born drug addicted, and all of her other eight children were either living with relatives or had been adopted out. Mother stated that father was aware of her drug use.

At the detention hearing, mothers husband, R.E., appeared with counsel and denied paternity of Fa. R.E. and father were ordered to submit to paternity testing. The juvenile court found that a prima facie case supported the allegations of the petition. The court detained Fa., ordered CFS to facilitate visitation at least twice per week, and ordered father to submit to drug testing.

CFS filed a jurisdiction/disposition report in February 2009. The social worker stated that fathers drug test was negative. The social worker had attempted to contact father several times, but the message number he had provided was incorrect. After the social worker sent father a certified letter, father had contacted her, and she had provided information concerning dates and sites for the paternity test. Father had arrived at the test site when the staff was at lunch; he was asked to return, but he had not done so. The report stated that mother had claimed father was the biological father of Fa., but fathers name did not appear on the birth certificate. Father also stated he was Fa.s biological father. Paternity testing had confirmed that R.E. was not the biological father. The report noted that father had an extensive history consisting of numerous substance abuse charges; [Penal Code section] 647[, subdivision] (f) transport to homeless shelter, [Penal Code section] 488 petty theft. The social worker stated that placement with father was not possible because father was living a transient lifestyle and [was] not able to provide care for the child. Visitation with father had not been scheduled due to [father] not [sic] able to commit to a scheduling time and date. Fa. remained placed in foster care, was in good health, and was developing normally. CFS requested the juvenile court to find that father remained an alleged father, not entitled to reunification services. CFS recommended once-weekly supervised visitation.

Mother and father both completed paternity and family information questionnaires. On her questionnaire, mother named father as Fa.s father. Both father and mother stated they had never been married, but that father had been at the hospital when Fa. was born. Both father and mother stated father was not listed on Fa.s birth certificate, but he had agreed to be listed. Mother did not respond to the question asking whether father had signed a declaration provided by the hospital stating he was the father; father stated he had signed such a declaration. Mother stated the child had never lived with father or been to his home, and father had not supported the child. Father stated he had supported the child.

The matter was set for a jurisdiction/disposition hearing on March 3, 2009. The results of fathers paternity test were not yet available, but his counsel requested presumed father status: On behalf of [father] . . . we will be setting this, asking for mediation. The issues will be the veracity of the allegations as well as he is asking for presumed status and asking for return of the child. Alternatively, we are asking that he be presumed and receive family reunification. The juvenile court stated that presumed father status was not a matter to be resolved in mediation and asked whether fathers name was on the birth certificate. His counsel replied, Its the fathers name. He signed some documents and he thought that was the birth certificate. I did ask him to look into that further. And if he has proof of that, to bring it. Mothers counsel stated that father had signed a declaration of paternity, but because the mother is married to a different man, they did not put him on the birth certificate. The court stated that it would be useful if somebody got that and brought it before the court. The court set a trial date and court stated, I would hope that folks would gather up various documents and have them available for our pre trial.

In early March 2009, new counsel was appointed for father. At a pretrial settlement conference later that month, fathers counsel stated that father was contesting jurisdiction and his status as an alleged father. Fathers counsel requested a continuance to obtain further evidence; the juvenile court denied the request. The minute order for the hearing stated, Father contests juris. He wishes to be found a presumed father and requests services. The Departments recommendation is to find [father] an alleged father, and not to offer him services even if he is found to be a presumed father.

The paternity test established a 99.99 percent likelihood that father was Fa.s biological father.

At the continued jurisdictional hearing, father testified he was renting a room in a house with other people, and his home would be an appropriate living situation for Fa. He stated he had bedding and clothing for her and money to provide diapers and food. Father testified he had not been aware mother was using illegal drugs during her pregnancy, and he did not remember telling the social worker that he knew mother was using drugs. He admitted several convictions for possession, use, or being under the influence of drugs. He admitted he had a warrant out for his arrest for a nonappearance. He testified he had lived with mother on and off for about two years. When mother was about four months pregnant, she lived with him full time. Father stated he was self-employed. The social worker testified she had been to the address father had provided to assess the home, but a man there said father did not live at that address and had not lived there for weeks. The social worker confirmed that father had told her he knew about mothers drug use during pregnancy, and he knew her drug use was the reason she had been returned to jail.

The juvenile court found that father was not a credible witness, that he had lied about his living arrangements, and that he had known about mothers drug use during her pregnancy. The petition was amended to allege that father has a history of substance abuse and criminal convictions for illegal drug use that impair his ability to parent, as demonstrated by but not limited to that he (1) knew mother was abusing illegal drugs while pregnant; (2) failed to take action to prevent mother from exposing the child to illegal drugs; and (3) does not have the current ability to care for, parent or provide for the child. The court found the allegations of the petition true as amended and found that Fa. came within section 300, subdivision (b).

At the contested disposition hearing, counsel for CFS stated that it was fathers burden to establish either that he was a presumed father or that it was in the childs best interest for father to get reunification services, and father had failed to meet that burden. Fathers counsel stated he had no affirmative evidence to offer. The juvenile court found that father was Fa.s alleged father, set the matter for a section 366.26 hearing, and ordered that no reunification services be provided to father. The court further ordered that father, as an alleged father, was not entitled to visitation. The court informed the parents that if they wished to appeal the courts decision, they must file a petition for extraordinary writ.

In July 2009, CFS filed a report for the section 366.26 hearing. The report stated that Fa. was healthy and happy and did not appear to have any developmental delays. She had been placed in her foster home when she was two days old, and her foster parents wished to adopt her. An adoption assessment stated that Fa. was adoptable based on her young age and her current caregivers willingness to adopt her. She had a lacrimal duct obstruction that would require later surgical correction; however, that condition was not uncommon in infants. The adoptive parents were willing to meet her needs permanently.

At the section 366.26 hearing, fathers counsel argued that the parent-child bond exception should apply and the adoption assessment was incomplete because (1) it did not address the history of contact between father and Fa., and (2) it did not state that the prospective adoptive parents knew of the legal and financial responsibilities adoption would involve. The juvenile court found Fa. was adoptable and terminated fathers parental rights.

III. DISCUSSION

A.Fathers Status

Father contends the juvenile court prejudicially erred in failing to recognize that he was a quasi-presumed father rather than merely an alleged father. Father contends, in the alternative, that his trial counsel provided ineffective assistance by failing to raise the issue of presumed father status.

1.Forfeiture of Argument

CFS notes the juvenile court found at the disposition hearing that father was an alleged rather than a presumed father, and he is foreclosed from attacking the disposition order in this appeal. ( 366.26, subd. (l).) At the disposition hearing, the juvenile court informed the parents of their writ rights, but father failed to file a writ petition. A parents failure to challenge an appealable dispositional order waives any substantive challenge to the jurisdictional findings. [Citation.] (In re Athena P. (2002) 103 Cal.App.4th 617, 624.)

The waiver rule will be enforced unless due process forbids it. (In re Meranda P. (1997) 56 Cal.App.4th 1143, 1159.) A parents failure to challenge an appealable dispositional order might even waive any claim of ineffective assistance of counsel arising out of the jurisdictional hearing. [Citations.] (In reAthena P., supra, 103 Cal.App.4th at p. 624.) To establish a violation of due process, the parent must show that (1) a defect in the proceedings fundamentally undermined the statutory scheme so as to prevent the parent from availing him or herself of the protections afforded by the statutory scheme as a whole, and (2) the defect was more than an error that might have been held reversible if it had been timely reviewed. (In re Janee J. (1999) 74 Cal.App.4th 198, 208.)

Because father asserts his due process rights were violated, and because CFS has argued the issue on the merits, we will exercise our discretion to reach the merits of fathers contentions.

2.Analysis

The juvenile court must conduct an inquiry at the detention hearing, or soon thereafter, as to the identity of all presumed or alleged fathers and must determine the parentage of each child who is the subject of a section 300 petition. Family Code section 7611 lists several circumstances under which a man qualifies as a presumed father: (1) if the child is born during, or with 300 days after, the natural father is married to the mother; (2) the natural father has executed a voluntary declaration of paternity; (3) the natural father marries the mother after the child is born and either is named on the birth certificate or is obligated by a written promise or court order to support the child; or (4) he receives the child into his home and openly holds the child out as his natural child. (Fam. Code,  7611, subds. (a)-(d).)

However, case law recognizes that under the statute, a childs mother or a social services agency can unilaterally prevent the biological father from ever receiving the child into his home, which would allow the state to terminate the biological fathers parental rights based only on a showing of the childs best interests. (Adoption of Kelsey S. (1992) 1 Cal.4th 816, 849.) Accordingly, if an unwed father promptly comes forward and demonstrates a full commitment to his parental responsibilities, his constitutional right to due process entitles him to the same protections provided to a presumed father. (Ibid.) Thus, if an unwed father promptly comes forward and demonstrates a full commitment to his parental responsibilitiesemotional, financial, and otherwisehis federal constitutional right to due process prohibits the termination of his parental relationship unless his unfitness as a parent is shown. Without such a showing, the childs well-being is presumptively best served by continuation of the fathers parental relationship. (Ibid.) When making that determination, the court must consider all factors, including the fathers conduct both before and afterthe childs birth. Once the father knows or reasonably should know of the pregnancy, he must promptly attempt to assume his parental responsibilities as fully as the mother will allow and his circumstances permit. In particular, the father must demonstrate a willingness himself to assume full custody of the childnot merely to block adoption by others. [Citation.] A court should also consider the fathers public acknowledgment of paternity, payment of pregnancy and birth expenses commensurate with his ability to do so, and prompt legal action to seek custody of the child. [] We reiterate and emphasize the narrowness of our decision. The statutory distinction between natural fathers and presumed fathers is constitutionally invalid only to the extent it is applied to an unwed father who has sufficiently and timely demonstrated a full commitment to his parental responsibilities. Our statutes [citation] are constitutionally sufficient when applied to a father who has failed to make such a showing. (Id. at pp. 849-850.) Thus, the task of the juvenile court is to determine whether [the father] has done all that he could reasonably do, under the circumstances. (Id. at p. 850.)

The fact that father lived with mother during her pregnancy did not amount to receiving the child into his home and therefore did not give him presumed father status. (In re Tanis H. (1997) 59 Cal.App.4th 1218, 1229.) However, father argues the evidence overwhelmingly established he came forward promptly and did all he could reasonably do under the circumstances to demonstrate his commitment to Fa. Specifically, he notes that at the outset of the dependency, he reported he was the father; mother also reported he was the father, and a paternity test confirmed that. Fathers counsel stated before the jurisdictional hearing that father had signed a declaration of paternity at the time of Fa.s birth.

However, it appears that father never even saw Fa. after she was detained when she was only days old. Although the juvenile court at the detention hearing ordered visitation for two hours each week, and CFS attempted to arrange a schedule for visitation, father failed to avail himself of that privilege. Moreover, father failed to maintain consistent contact with the social worker. Instead, he provided an incorrect message number at the outset of the dependency, leading to delay in obtaining a paternity test. Later, he gave an incorrect address so the social worker was unable to evaluate his home. We conclude ample evidence supports the juvenile courts implied finding that father had not done all he could reasonably do under the circumstances. The juvenile court did not err in concluding he was merely an alleged father.

B. Assistance of Counsel

As noted, father has also framed his argument in terms of ineffective assistance of counsel. To prevail on his claim of ineffective assistance of counsel, father must show both that his trial counsel failed to act in the manner expected of a reasonably competent attorney acting as a diligent advocate, and that had his counsel performed adequately, it is reasonably probable the outcome would have been more favorable for him. (In re O.S. (2002) 102 Cal.App.4th 1402, 1407.)

Appellate review of a trial attorneys performance must be highly deferential. Consequently, [u]nless a defendant establishes the contrary, we shall presume that counsels performance fell within the wide range of professional competence and that counsels actions and inactions can be explained as a matter of sound trial strategy. [Citation.] If the record sheds no light on why counsel acted or failed to act in the manner challenged, an appellate claim of ineffective assistance of counsel must be rejected unless counsel was asked for an explanation and failed to provide one, or unless there simply could be no satisfactory explanation. [Citations.] (People v. Ledesma (2006) 39 Cal.4th 641, 745-746. The appellate record seldom shows that there could be no rational explanation for an attorneys actions, and consequently, when the record is silent, the issue must be raised not on direct appeal, but on habeas corpus, which allows for an evidentiary hearing at which the reasons for the attorneys actions or omissions can be explored. (People v. Mendoza Tello (1997) 15 Cal.4th 264, 267.)

Here, the record contains no explanation for counsels failure to press the issue of fathers status as a presumed father. However, a plausible explanation for counsels conduct is that counsel could not produce a signed declaration of paternity, and counsel recognized that fathers failure to visit Fa. was fatal to his claim of Kelsey S. presumed father status. Counsel does not provide ineffective assistance by failing to advance a futile argument. (See People v. Gutierrez (2009) 45 Cal.4th 789, 804.)

IV. DISPOSITION

The orders appealed from are affirmed.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

HOLLENHORST

Acting P. J.

We concur:

GAUT

J.

KING

J.

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

^[2]Mother is not a party to this appeal.