In re Micah B.

Filed 10/26/07 In re Micah B. CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

Appeal from orders of the Superior Court of Orange County, Gary Bischoff, Temporary Judge. (Pursuant to Cal. Const., art. VI, 21.) Affirmed.

Robert McLaughlin, under appointment by the Court of Appeal, for Defendant and Appellant.

Benjamin P. de Mayo, County Counsel, Karen L. Christensen and Paula A. Whaley, Deputy County Counsel, for Plaintiff and Respondent.

* * *

INTRODUCTION

Jesse G., an alleged father of Micah B., appeals from the juvenile courts orders (1) denying Jesses request to continue the permanency hearing with regard to then almost six‑month‑old Micah B., and (2) terminating Jesses parental rights. We affirm.

The record shows the juvenile court ordered paternity testing for Jesse, and afforded him a reasonable opportunity to complete such paternity testing before the permanency hearing. The court did not abuse its discretion by denying Jesses motion to continue the permanency hearing after Jesse failed to show he was diligent in his efforts to complete the paternity testing, or otherwise establish good cause for continuing the hearing. Because the court provided Jesse a reasonable opportunity to establish paternity, the court did not violate Jesses constitutional rights or otherwise err by holding the permanency hearing and terminating Jesses parental rights, if any, to Micah.

BACKGROUND

A. The Petition

In October 2006, the Orange County Social Services Agency (SSA) filed a juvenile dependency petition under Welfare and Institutions Code section 300, subdivisions (b) (failure to protect) and (j) (abuse of sibling) against Elizabeth N. (Mother) and Jesse with regard to three‑day‑old Micah. (All further statutory references are to the Welfare and Institutions Code.) The petition did not state whether Jesses status was that of Micahs legal, biological, presumed, or alleged father.

The petition, as later amended, alleged that after Mother gave birth to Micah, she began to exhibit symptoms of emotional instability including but not limited to hallucinations, a liable^[[1]] mood and aggressive behavior. The petition stated Mother has an unresolved substance abuse problem, a history of mental illness (bipolar disorder), and a criminal record which includes a 2003 conviction for attempted murder[2] and arrests for assault on a spouse. Mother had previously given birth to Jocelyn B. who was declared a dependent child at the age of two months after she had been born with a positive toxicology screen for Darvocet.

The petition further alleged Mother and Jesse had a history of domestic violence, including an occasion when Jesse allegedly struck Mother all over the body and gave . . . [M]other two black eyes and a bruised nose; Mother was pregnant with Micah at the time. The petition stated that Micah had been removed from Mothers care and placed in an emergency shelter.

B. The Detention Report and Stipulation

The detention report identified Jesse as an alleged father of Micah, whose address was unknown. The report stated, [a] formal search with the Search Unit of the Social Services Agency will be conducted to determine the whereabouts of the childs father. The report further stated that Mother told the nursing staff at the hospital she had been physically abused by Micahs father, but she would not reveal his name. She told the nursing staff she had reported the abuse to the police and was in the process of getting a restraining order against Micahs father. The maternal stepgrandfather corroborated some of Mothers statements, stating that Jesse gave Mother two black eyes, bruised her nose and beat her up all over during her pregnancy.

The detention report stated that the maternal grandparents had adopted Micahs half sibling, Jocelyn, after Mother was unable to reunify after two and one‑half years of court intervention. In February 2005, Mother had given birth to another child, Sebastian B., who was adopted by Mothers cousin, later identified as Tammy C. who lived in Washington State. In an addendum report, Mother admitted Sebastian tested positive for heroin at birth, but explained the test result was due to a mix‑up.

In a stipulation filed in November 2006, counsel for SSA, Mother, and Micah identified Jesse and an individual named Michael S. as alleged fathers of Micah. The record also contains the November 2006 declaration of a social worker of the Absent Parent Search Unit, detailing his unsuccessful efforts to locate Jesse, who was believed to be homeless, in order to advise him of the pretrial hearing on November 16. The social worker filed a similar declaration detailing his unsuccessful efforts to locate and notify Michael S. of the pretrial hearing.

C. The Jurisdiction and Disposition Report and Hearings

The jurisdiction and disposition report stated that Tammy and her husband had participated in two home studies and placement [of Micah] with them could be facilitated. The report reiterated, [t]he childs fathers whereabouts are unknown and . . . [M]other describes him as a substance abuser, abusive and homeless.

At a hearing on November 16, 2006, Mother pleaded nolo contendere as to both counts of the petition. The juvenile court found the allegations of the amended petition true by a preponderance of the evidence, and found that Micah came under section 300, subdivisions (b) and (j). The court specifically found, SSA exercised due diligence in its efforts to locate and notice alleged fathers, Jesse . . . G[.] & Michael S[.], and entered their defaults accordingly.

At the disposition hearing on December 14, 2006, the juvenile court found that reunification services need not be provided under section 361.5, subdivision (b)(10), (11), and (13). The court ordered an expedited ICPC [Interstate Compact on Placement of Children] to Tammy C[.] in the State of Washington. The court set the matter for a permanency hearing on April 2, 2007. Micah remained in the emergency shelter pending a further hearing.

D. SSAs January 29, 2007 Report Regarding Communications with Jesse

In an addendum review report dated January 29, 2007, the social worker stated that on January 23, the family court liaison informed her that Jesse had filed papers in family court, requesting a paternity test with regard to Micah. The liaison advised Jesse and the family court of the dependency case, and referred Jesse to the social worker.

Also on January 23, 2007, Jesse contacted the social worker and explained that he and Mother met at a homeless shelter in 2005 and he was seeing her exclusively in early 2006 around the time when . . . [M]other had gotten pregnant. Jesse told the social worker, I believe in my heart that the child is mine, but he wanted to have a paternity test done to prove it. Jesse admitted that he and Mother had a physical altercation in June 2006. Mother broke up with him after that incident and refused to communicate with him. He knew Mother was pregnant, but he thought the baby had gone home from the hospital with Mother. Jesse had tried to go by the house where Mother was living and peek in the house to see the baby. He told the social worker that even though Mother always knew of his whereabouts, it was not until three weeks earlier that she told him Micah was in the system.

The report further stated Jesse indicated he wanted custody of Micah as opposed to Micah being placed out of state or adopted. When asked about his ability to become stable in order to care for Micah, Jesse stated, I can get stable just like that. Jesse stated he was a mason by trade but presently was in between jobs. He initially told the social worker he was residing in the house of a man named Dwight who helped homeless people, but later admitted he was living with Mother at the maternal stepgrandfathers house. Jesse admitted to having a history of substance abuse including alcohol, cocaine, and marijuana. The social worker noted that during their conversation, Jesse never once asked about the well[-]being of the child or when he would be allowed visitation. The social worker further stated in the report she had been informed on January 25 that Tammy and her husband had been approved and licensed for foster care and that Micah could be placed with them at any time.

E. The January 29, 2007 Progress and Notice Review Hearing;
Subsequent Review Hearings

Jesse made his first appearance in these proceedings at a progress and notice review hearing on January 29, 2007. In making inquiries with regard to paternity, the juvenile court questioned Mother as follows.

Q. . . . And maam, is there anyone other than [Jesse] that you think might be the father of the child?

A. No, I dont think so.

Q. You dont think so?

A. The baby looks just like him.

Q. Im sorry. I didnt hear you.

A. The baby looks just like him.

Q. I see. And thats what I was really, I think, trying to inquire. Irregardless of what the child looks like, is it possible that someone else may have fathered the child?

A. No.

[County counsel]: Your honor?

The Court: Yes.

[County counsel]: Previously, the mother has given us the name of a gentleman named Michael S[.] as a potential father.

The mother: That was cause I was hooker at one time.

The Court: Im sorry?

The mother: Before I met him, I was tricking.

The Court: Then there are other people that might be the father of the child other than [Jesse].

[The mother:] Yes, sir.

The juvenile court appointed counsel for Jesse. The court confirmed with Jesses counsel that Jesse had never filed a declaration of paternity. Jesses counsel requested that the court order paternity testing for Jesse and require SSA to make Micah available for such testing. Jesse informed the court that he could handle the $90 cost of the paternity test. The court ordered paternity testing at Jesses expense, stating, he can take care of that through family support. The court further ordered, in light of Micahs pending placement with Tammy, that SSA make Micah immediately available for such testing. The court reiterated that the permanency hearing was scheduled for April 2, 2007.

In a review report dated February 13, 2007, the social worker stated that Micah had been placed with Tammy on February 8. Notice review hearings were held on February 13 and 20. Jesses counsel attended both hearings, at which the court reiterated that the permanency hearing remained on calendar for April 2. The record does not show that the issue of paternity testing was raised at either hearing.

F. Jesses Motion to Continue the Permanency Hearing

On April 2, 2007, Jesse filed a motion under section 352, requesting the juvenile court to continue the permanency hearing scheduled that day for three or four weeks on the ground that Paternity Test Results have not yet been received. The motion was supported by Jesses counsels declaration stating: (1) on February 13, 2007, Jesse paid $90 and had a DNA sample taken for testing; (2) on March 7, the social worker told Jesses counsel she had called the district attorneys child support division and was informed that the division had no record for Jesse; (3) on March 14, the social worker told Jesses counsel she had spoken with Jesse who told her he had submitted to paternity testing at Lab Corps, not the district attorneys child support division; (4) the social worker told Jesses counsel she called Lab Corps and was told that no record for Jesse exists; (5) on March 16, Jesses counsel personally went to the address [Jesse] was referred to and found a listing for Long Beach Genetics but saw that the office was closed; (6) on March 19, Jesses counsel contacted the social worker to inform her that Jesse tested at Long Beach Genetics; (7) on March 22, the social worker left a message for Jesses counsel, stating, she has found the correct procedure for [Jesse] to follow to paternity test at Lab Corps and she sent [Jesse] . . . correspondence explaining the procedure; (8) Jesse received the correspondence on March 29; (9) [o]n unknown dates prior to March 30, 2007, [Jesses counsel] attempted internet searches for Long Beach Genetics and failed to locate the company; (10) on March 30, Jesses counsel found [his] old rolodex and located a number for Long Beach Genetics, called that number, and spoke with a woman who was able to locate Jesses record; (11) Jesses record had been placed in the miscellaneous file because no information was provided as to where to send the result; and (12) Jesses counsel spoke with a Long Beach Genetics supervisor who stated she needed to speak with the social worker to arrange for testing of Micah and it would be best to also test Mother as this would be the only way to verify that the child tested was the child of the mother.

County counsel and Micahs counsel opposed the motion to continue the permanency hearing. At the hearing on the motion, the court stated, [t]he court is going to deny your motion to continue. The court finds that the provisions of [section] 352 have not been met. First of all, as counsel points out, the motion is untimely, and thats not just becausewell, its untimely because, frankly, had [Jesses counsel] been provided with all the information well in advance, he could have filed the motion within the period of time that was required. [] In addition, it appears to the court that [Jesse] has failed in his obligation to diligently pursue this matter. The court had ordered, back in January, that [Jesse] arrange for the paternity testing and that the agency make the child available for paternity testing immediately. Now, from the declaration I have, theres nothing to indicate that [Jesse] did anything to arrange the testing of the child. That he set up testing through Long Beach Genetics or any other testing facility. [] Once the child was moved to the current placement, there is no indication that [Jesse] ever attempted to look into or to arrange for testing of the child at that location. There is no indication that there was any communication with the agency in an attempt to set up such a test. [] There does seem to be a lot of communication that deals with [Jesse]s own test, but thats where it ends. And it was, truly, [Jesse]s obligationthe alleged fathers obligation to pursue this matter with much more diligence than what is apparent in this particular proceeding. [] In addition to that, it appears to the court that the interests of this child will not be promoted by the motion to continue. Theres no indication that there is any type of a relationship between the child and this gentleman, and theres no indication as to why such a continuance would be in this childs best interest. [] The status is an alleged father. At this time, he is an alleged father and he has, of course, the right to notice. He has the right to exerciseto diligently exercise his options to determine paternity. The court just finds that, based on what I have before me at this time, that he has failed to diligently pursue this matter. That being the case, the motion to continue is denied.

G. The Juvenile Court Terminates Jesses Parental Rights
at the Permanency Hearing; Jesse Appeals.

At the permanency hearing on April 2, 2007, the juvenile court admitted SSAs permanency hearing reports without objection by any party. No other evidence was offered by any party. As stated in SSAs reports, county counsel argued that Micah was adoptable and that parental rights should be terminated. County counsel further argued that Mother was in agreement with Micahs placement with Tammy. Mothers counsel clarified that although Mother was not stipulating or agreeing to the termination of her parental rights, she submitted on her counsels statement because the recommended course was in Micahs best interests; Mothers counsel did not present any legal argument. Jesses counsel submitted on SSAs reports and his motion to continue, and did not present any argument challenging county counsels argument.

The court found by clear and convincing evidence that Micah was adoptable and was likely to be adopted. The court found none of the exceptions to adoption under section 366.26, subdivision (c)(1) applied, and further found termination of parental rights was in Micahs best interest and would not be detrimental to him. The court terminated Mothers and Jesses parental rights as to Micah.

Jesse appealed.

DISCUSSION

A.

The Juvenile Court Did Not Abuse Its Discretion by Denying
Jesses Motion to Continue the Permanency Hearing.

Section 352, subdivision (a) provides, in relevant part, [u]pon request of counsel for the parent, . . . the court may continue any hearing under this chapter beyond the time limit within which the hearing is otherwise required to be held, provided that no continuance shall be granted that is contrary to the interest of the minor. In considering the minors interests, the court shall give substantial weight to a minors need for prompt resolution of his or her custody status, the need to provide children with stable environments, and the damage to a minor of prolonged temporary placements. [] Continuances shall be granted only upon a showing of good cause and only for that period of time shown to be necessary by the evidence presented at the hearing on the motion for the continuance. . . . [] In order to obtain a motion for a continuance of the hearing, written notice shall be filed at least two court days prior to the date set for hearing, together with affidavits or declarations detailing specific facts showing that a continuance is necessary, unless the court for good cause entertains an oral motion for continuance.[3] (Italics added.)

The courts denial of a request for continuance will not be overturned on appeal absent an abuse of discretion. [Citation.] Discretion is abused when a decision is arbitrary, capricious or patently absurd and results in a manifest miscarriage of justice. [Citation.] (In re Karla C. (2003) 113 Cal.App.4th 166, 180.)

Jesse contends the juvenile court abused its discretion in denying his motion because good cause for a continuance was established by his counsels declaration explaining why Jesse, despite his best efforts, had not been able to complete paternity testing prior to the [permanency] hearing. The motion, however, failed to show that Jesse was diligent in his efforts to complete the paternity testing before the scheduled permanency hearing, despite being offered a reasonable opportunity to do so.

Jesse was on notice that a permanency hearing was scheduled for April 2, 2007, when he attended the January 29 progress and notice review hearing. Also discussed at the January 29 hearing was SSAs court-approved plan to place Micah with Tammy in Washington. In light of that pending placement, the court ordered SSA to make Micah immediately available for paternity testing. The record is devoid of any explanation why Jesse failed to make any effort to secure a sample from Micah before he was placed with Tammy 10 days after the January 29 hearing.

The record shows Jesse himself did not submit to testing until February 13. For an unexplained reason, Jesse did not test through SSA, and apparently did not inform anyone that he had tested through a company called Long Beach Genetics. The record also shows it was the social worker who followed up on the status of Jesses paternity test, informing Jesses counsel on March 7 that the district attorneys child support division did not have a record of Jesses test. A week later, Jesse inaccurately informed the social worker that he tested through a company called Lab Corps. Finally, on March 16, Jesses counsel discovered that Jesse had tested at Long Beach Genetics, and, on March 30, Jesses records with Long Beach Genetics were located. Inexplicably, the juvenile court was not made aware of the delay in completing the paternity testing until the scheduled date of the permanency hearing.

At the hearing on Jesses motion for a continuance, the juvenile court pointed out, [t]he court is struck by the declaration that you provided, which indicates a series of communications between various testing agencies and the social worker, and so forth, in terms of trying to get the results of these tests and get the test taken care of. And counsel, Im a bit perplexed as to why this matter was never brought to the attention of the court ifor a retest wasnt taken when it was determined that you were having difficulty being able to locate the sample that [Jesse] provided so that we would not have to have this matter continued to today. The court further stated, [i]f it becomes apparent that a month out, two months out, that youre having difficulty finding the sample and you become aware that the child has, also, not received the test, it seems to me that thats the time to start working on making sure that we get a retest and that thats brought to the attention of the court so that the court could do something about ensuring that the test is accomplished. Im a little perplexed that the courts hearing about this for the first time today, at the [permanency hearing]. Jesses counsel responded, [w]ell, your honor, all I can say is that there have been continuing efforts made to have the paternity test completed.

The record shows the delay in completing Jesses part of the paternity testing process falls squarely on Jesses shoulders. It is completely silent about any efforts Jesse ever made toward arranging for Micahs testing. Furthermore, the record does not suggest SSA failed to make Micah available to submit to such testing before or after he was placed with Tammy in Washington. To the contrary, the record shows the social worker attempted to assist in facilitating the paternity testing.

In In re Karla C., supra, 113 Cal.App.4th at page 180, the appellate court held that the juvenile court did not abuse its discretion by denying an alleged fathers motion to continue the disposition hearing pending receipt of the results of his paternity testing. The appellate court stated, [t]he juvenile court may continue a dependency hearing at the request of a parent for good cause and only for the time shown to be necessary. [Citations.] Courts have interpreted this policy to be an express discouragement of continuances. [Citation.] (Id. at pp. 179‑180.) The court rejected the alleged fathers contention he was not given any meaningful opportunity to perfect his paternity status. (Id. at p. 180, original italics.) The appellate court reasoned, [o]n February 4, the court made a timely paternity inquiry and promptly ordered paternity testing to take place on February 7. [The alleged father] did not show up for the testing, and there is no suggestion he brought this to the courts attention until February 25, when the court ordered him to undergo testing the following day. Thus, [the alleged father], and not the court, caused the delay. (Ibid.)

As Jesse failed to establish good cause to continue the permanency hearing as required by section 352, subdivision (a), the juvenile court did not abuse its discretion by denying Jesses motion. We therefore do not need to reach the other two grounds cited by the court in denying Jesses motion.

B.

The Juvenile Court Did Not Violate Jesses Constitutional Rights
by Terminating His Parental Rights.

Jesse contends the juvenile court denied [him] his due process rightsas an alleged fatherto establish paternity of Micah by proceeding with the permanency hearing after denying the request for a continuance, at which time Jesses parental rights were terminated. As discussed in detail post, we disagree.

As an alleged father of Micah, Jesse had only limited due process and statutory rights. (In re Paul H. (2003) 111 Cal.App.4th 753, 760.) Alleged fathers have less rights in dependency proceedings than biological and presumed fathers. [Citation.] An alleged father does not have a current interest in a child because his paternity has not yet been established. [Citation.] [Citation.] As such, an alleged father is not entitled to appointed counsel or reunification services. [Citations.] [] Due process for an alleged father requires only that the alleged father be given notice and an opportunity to appear and assert a position and attempt to change his paternity status. [Citations.] [Citation.] The statutory procedure that protects these limited due process rights is set forth in section 316.2. (Ibid.)

Section 316.2, subdivision (a) requires that the juvenile court conduct an inquiry as to the identity of presumed or alleged fathers. Once an alleged father has been identified, section 316.2, subdivision (b) requires that the juvenile court provide him with notice at his last and usual place of abode by certified mail return receipt requested alleging that he is or could be the father of the child. The notice shall state that the child is the subject of proceedings under Section 300 and that the proceedings could result in the termination of parental rights and adoption of the child. Judicial Council form Paternity-Waiver of Rights (JV‑505) shall be included with the notice.

Jesse does not contend the juvenile court failed to properly inquire as to the identity of any alleged father of Micah or to provide Jesse sufficient notice of the proceedings. The record is vague as to when Jesse first became aware of these dependency proceedings.[4] When Jesse made his first appearance in the proceedings at the January 29 progress and notice review hearing, he was permitted to appear and counsel was appointed for him. The record does not show Jesse ever submitted Judicial Council form JV‑505 requesting a finding of paternity. (See In re Paul H., supra, 111 Cal.App.4th at p. 761.) Nevertheless, the juvenile court granted his request and ordered paternity testing. As discussed ante, only after Jesse failed to diligently pursue the paternity testing did the juvenile court refuse to continue the permanency hearing and terminate Jesses parental rights, if any, to Micah. (In re Karla C., supra, 113 Cal.App.4th at p. 179 [alleged father was given notice of the proceedings and he was given the opportunity to seek to become a party by establishing his paternity which comported with due process requirements for an alleged father].)

In re Paul H., supra, 111 Cal.App.4th 753 is inapposite. In that case, [t]here [wa]s no evidence in the record that [the alleged father] was served with Judicial Council form JV‑505. The appellate court stated the alleged father was denied access to a procedure by which he could have compelled court-ordered paternity testing, as well as assistance from the social services agencies in arranging for such testing, and the alleged fathers extensive, if ineffective, efforts to obtain paternity testing on his own were met with repeated roadblocks and, ultimately, were unsuccessful. (Id. at p. 761.)

Here, Jesse never argued that the notice and service requirements of section 316.2 were not followed. Furthermore, not only did the juvenile court order paternity testing and suggest that it be accomplished through the district attorneys child support division, the social worker followed up on the status of the paternity testing in early March and attempted to facilitate the completion of such paternity testing. As discussed ante, the record does not show any extensive efforts on Jesses part to obtain paternity testing, such as those made by the alleged father in In re Paul H.

In re Julia U. (1998) 64 Cal.App.4th 532, on which Jesse relies, is also distinguishable. In that case,the appellate court concluded the trial court erred by terminating reunification services and parental rights of a biological father prior to any consideration by the trial court of [the biological father]s commitment to [the child] and his fitness as a parent. (Id. at p. 544.) As discussed ante, Jesses status in this action was as an alleged father, not a biological father. Thus, the additional rights attaching to biological father status were inapplicable to Jesse.

The record shows Jesse received an adequate opportunity to establish paternity and failed to avail himself of that opportunity. There was no due process violation.

DISPOSITION

The orders are affirmed.

FYBEL, J.

WE CONCUR:

SILLS, P. J.

IKOLA, J.

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[1] The record does not define the word liable as it is used in this context.

[2] As discussed post, the juvenile court found the allegation that Mother was convicted of attempted murder, as well as the other allegations of the amended petition, true by a preponderance of the evidence. Mother told the social worker, however, without elaboration, that the attempted murder offense was knocked down to a misdemeanor. The record contains no further information concerning that conviction.

[3] Rule 5.550(a) of the California Rules of Court similarly states, in relevant part, (1) The court must not continue a hearing beyond the time set by statute unless the court determines the continuance is not contrary to the interest of the child. In considering the childs interest, the court must give substantial weight to a childs needs for stability and prompt resolution of custody status, and the damage of prolonged temporary placements. [] (2) Continuances may be granted only on a showing of good cause, and only for the time shown to be necessary. Stipulation between counsel of parties, convenience of parties, and pending criminal or family law matters are not in and of themselves good cause. [] . . . [] (4) In order to obtain a continuance, written notice with supporting documents must be filed and served on all parties at least two court days before the date set for hearing, unless the court finds good cause for hearing an oral motion.

[4] In his opening brief, Jesse asserts that he first learned of the dependency proceedings on January 23, 2007.