In re M.S.

Filed 12/9/09 In re M.S. CA2/5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION FIVE

APPEAL from an order of the Superior Court of Los Angeles County.

Marilyn Martinez, Juvenile Court Referee. Affirmed.

Roland Koncan, under appointment by the Court of Appeal, for Defendant and Appellant.

James M. Owens, Assistant County Counsel, O. Raquel Ramirez, Deputy County Counsel, for Plaintiff and Respondent.

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M.S. appeals from an order terminating his parental rights to M. He contends that the order must be reversed because the court failed to find that he was a presumed father and order reunification services for him, and terminated his rights without making a finding of detriment. We affirm.

Facts^[1]

The Welfare and Institutions Code^[2]section 300 petition in this case was filed on July 1, 2005, after DCFS learned that M.'s mother, herself a minor, had been arrested for drug use and had left 9-month-old M. with her mother ("Grandmother"). DCFS detained M. and placed him with Grandmother, where he has remained throughout the dependency. The petition was later sustained on allegations concerning Mother's drug use.

DCFS did not originally know the identity of M.'s father, but later in July, Mother told the social worker that M.'s biological father was someone named Ezekiel, who had raped her at a party. Mother said that appellant was her boyfriend and that they had lived together for periods of time, either in Grandmother's house or in his mother's house. He had been present at M.'s birth, and he and Mother had signed a declaration of paternity. However, appellant's mother had insisted on a DNA test, and the test established that appellant was not M.'s biological father. DCFS attached a copy of the voluntary declaration of paternity to its next report.

DCFS then spoke to appellant, who also said that the DNA test established that he was not M.'s biological father. He told the social worker that he was willing to raise M. as his own child and assume all responsibilities for him, and that he was willing to

drug test and enter a drug program. DCFS concluded that appellant would qualify as a presumed father. Thereafter, he was frequently referred to as "father" in DCFS reports. DCFS also reported that appellant had been visiting M. regularly, with Grandmother as the monitor, with no problems, that he had failed to keep a July 27, 2005 appointment for a live scan, further interview, and referrals, and that the social worker informed him that if he failed to reunify with M. within six months, M. would be placed for adoption.

The next hearing in the case was on August 1. Appellant was given notice of that hearing. The notice informed appellant that he had the right to attend the hearing and present evidence, and that counsel would be appointed for him if he could not afford counsel, information which was repeated in subsequent notices. He did not attend the hearing.

On August 1, DCFS filed an amended section 300 petition, alleging that appellant was M.'s father, and that he had a history of drug use and was a current user of drugs. However, when the case was called, DCFS sought to withdraw the amended petition, arguing that appellant did not have standing and was not the father. The court granted the motion. Nonetheless, appellant is often referred to as "father" in subsequent minute orders.

The court sustained the petition as to Mother and ordered reunification services for her.

There was a six month review hearing on January 30, 2006. Appellant was served with notice of the hearing and with a copy of the DCFS report, which states that appellant had been asked to drug test in late August and on three subsequent occasions, but had not tested, and that he visited M. daily and appeared to be "very responsive" to Mother and M. That report also states that Mother was not in compliance with her case plan, and includes DCFS's recommendation that reunification services be terminated. Appellant did not attend the hearing.

At the January hearing, the court set a section 366.26 hearing. Immediately after the hearing, appellant was served with a copy of the minute order, advisement concerning the necessity of a writ, and so on. Then, on March 7, 2006, appellant was served with notice of the section 366.26 hearing, then set for May 11, 2006. Appellant was not present on that date, or on May 18, 2006, when the hearing concluded. At the section 366.26 hearing, the court ordered legal guardianship with Grandmother as M.'s permanent plan. The order specifies that appellant, listed as "father," would have visits.

Review hearings took place in November 2006, in May and October 2007, and in April 2008. Appellant did not attend any of the hearings. (Our record includes notice to appellant of the November 2006 hearing, and May 2007 hearing, but not of the later hearings, though in each instance the juvenile court found that appropriate notices were given.) Appellant visited M. throughout that period, and prior to the November 2006 hearing, asked the social worker if he could drug test. The social worker told appellant that DCFS could not fund the testing, since he was not the biological father, but that he could arrange and pay for drug testing on his own.

In June 2008, Mother gave birth to a son, A. He had a positive toxicology screen for drugs. He was detained and placed with Grandmother. We do not have full details of A.'s dependency, but our record does establish that appellant was deemed A.'s presumed father, that the section 300 petition concerning A. was sustained in part on allegations about appellant's drug use, that counsel was appointed for him, that he attended at least some hearings, and that reunification services were ordered for him. In October 2008, the court found that appellant was complying with the court's orders, had completed parenting classes, was testing clean, and that his monitored visits were frequent and of good quality. He and Mother were living together.

Mother was still struggling with drug use, and by January 2009, Grandmother, who had earlier insisted on guardianship, was interested in adopting M. DCFS made that recommendation.

Appellant was present at a January 14, 2009 hearing concerning both A. and M. Concerning M., the court noted the recommendation of a permanent plan of adoption, and invited argument. There were no objections, and the court set a new section 366.26 hearing for May 13, 2009. As to appellant, notice of the hearing went to a new address, his mother's house. Appellant's counsel was also noticed.

Neither appellant nor his counsel were present at the hearing. The court initially found that the notice was invalid, but counsel for DCFS represented that Grandmother said that the address was appellant's correct address. The court found the notice valid and terminated rights as to Mother and appellant, as M.'s father.

Discussion

Appellant argues that his relationship with Mother, his cohabitation with Mother at the likely time of conception, and his statements to DCFS concerning his willingness to care for M. mean that he qualified as a presumed father (Fam. Code, 7611, subd. (d)), and also argues that the voluntary declaration of paternity established his paternity.^[3] He concludes that the court erred because it did not find that he was a presumed father and order reunification services for him. He also argues that because he was a presumed father, the court erred under the statutory scheme and violated his due process rights by terminating his parental rights without a finding of unfitness.

This case certainly had some unfortunate procedural aspects. Appellant was sometimes referred to as "father" and was in some ways treated as one, in that he was allowed visits and sent notice of hearings. DCFS several times wrote that the court should make findings about appellant's status, but never raised the issue at any hearing. There was never any finding concerning his legal status, no mention of him in the sustained petition, and no order for reunification services. His parental rights were terminated without a finding that he had any such rights.

However, we do not see that appellant can raise any of these issues now. He had contact with Mother, Grandmother, and DCFS, so that he knew of the dependency and progress of the dependency. He was given formal notice of crucial hearings and was informed that if he came to court, counsel would be appointed for him. Yet, he never appeared or attempted to carry his burden of proving that he was a presumed father. (In re Spencer W. (1996) 48 Cal.App.4th 1647, 1652.) He never asked to be considered as a placement for M. ( 361.2) or asked for reunification services. This was true even after DCFS informed him that he was not being treated as a father, and told him that if he wanted drug tests, he would have to pay for them. This was true even after he was receiving reunification services for A. His claims have thus been forfeited. (In re S.B. (2004) 32 Cal.4th 1287, 1293; In re Jason J. (2009) 175 Cal.App.4th 922, 932.)

Appellant relies on In re Gladys L. (2006) 141 Cal.App.4th 845 and In re G.S.R. (2008) 159 Cal.App.4th 1202, 1205, but we find those cases dissimilar on the facts, and thus not controlling. Both those cases involve men who came to court in (at least) the early stages of the case and were found to be presumed fathers and non-offending parents. In both cases, parental rights were terminated although there was no allegation of unfitness or finding of unfitness, and the court of appeal reversed.

The father in G.S.R. was involved in the children's lives and repeatedly told the court and social worker that he wanted custody. Forfeiture was not an issue.

The father in Gladys L. disappeared for most of the dependency, but in reliance on In re Gerardo A. (2004) 119 Cal.App.4th 988, Gladys L. found no forfeiture. (In re Gladys L., supra, 141 Cal.App.4th at p. 849.) Gerardo A. concerned a father who was not located and noticed until late in the dependency. Given that fact, and the fact that he and his lawyer did not receive information of mother's claims of Indian heritage, the Court of Appeal found that the father had not forfeited an issue of Indian Child Welfare Act compliance. The appeal was the first time in which he could have raised the issue. (In re Gerardo A., supra, 119 Cal.App.4th at p. 993.)

Here, in contrast, appellant was given repeated notices. He argues that he could not have raised the claims below, because he was not entitled to representation in the juvenile court. The argument contradicts his other argument, that he was a presumed father. If he had gone to court, that contradiction could have been resolved. Appellant could have raised all the issues he now seeks to raise.

Nor are we persuaded by appellant's next argument, that the court erred when it "refused to allow [his] counsel to appear on his behalf." He cites to two hearings at which he was represented concerning A.'s dependency, and the fact that that lawyer did not participate in the final section 366.26 hearing. We see no error or due process violation. Appellant never appeared in M.'s dependency, or otherwise sought to be part of that proceeding. Thus, he was not represented in M.'s dependency, and the court never refused to allow counsel to appear in that proceeding.

As appellant argues, we may hear claims for the first time on appeal, even in dependency cases, if the case presents an important legal issue. We cannot see, however, that this was such a case. (In re S.B., supra, 32 Cal.4th at p. 1293.)

Disposition

The order terminating appellant's parental rights as to M. is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

ARMSTRONG, J.

We concur:

TURNER, P. J. MOSK, J.

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^[1]DCFS's request that we take judicial notice of various documents inadvertently omitted from the record is granted.

^[2]All further statutory references are to that code unless otherwise indicated.

^[3]Under Family Code section 7573, a voluntary declaration of paternity which has been filed with the Department of Child Support Services establishes the paternity of a child. We see nothing in the record which would indicate that this form was so filed. Further, as DCFS points out, a voluntary declaration of paternity signed by a minor parent does not establish paternity until 60 days after both parents have reached the age of 18 years. (Fam. Code, 7577, subd. (a).) Mother was only 16 when she signed the voluntary declaration.