In re N.V.
Filed 3/14/13 In re N.V. CA3
NOT TO BE PUBLISHED
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opinion has not been certified for publication or ordered published for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
THIRD APPELLATE
DISTRICT
(San
Joaquin)
----
>
In re N.V., a Person Coming Under the Juvenile Court Law. | |
SAN JOAQUIN COUNTY HUMAN SERVICES AGENCY, Plaintiff and Respondent, v. M.V., Defendant and Appellant. | C071788 (Super. Ct. No. J05419) |
Mario V.,
found to be the alleged father of minor Nadine V. (minor), appeals from the
juvenile court’s order terminating his parental
rights. (Welf. & Inst. Code,
§ 366.26.) He first contends that
the juvenile court violated his right to due process by failing to designate
him a presumed father. He further
contends that section 366.26, subdivision (c)(2)(A) precluded termination of
his parental rights because “reasonable reunification services†were not
provided to him. As we explain, because
his claims are either forfeited or lack merit or both, we shall affirm.
(the Agency) filed a section 300 petition as to minor, then a newborn, on April 19, 2010. The petition named mother
and Mario as minor’s parents and alleged that they lived on Aurora
Street in Stockton. The petition alleged that minor and mother
had tested positive for methamphetamine at minor’s birth in April 2010. Minor showed symptoms of drug exposure. Mother admitted using methamphetamine while
pregnant up to nearly the time of minor’s birth, in the company of Mario, and
that she knew it would place minor at risk.
She did not obtain prenatal care.
Her other children had been in the care of their maternal grandmother
for the past year, and neither mother nor Mario had cared for or supported
them. Mother and Mario had criminal
records and a history of domestic violence. Mario’s whereabouts were unknown.
The
detention/jurisdiction report indicated that mother reported Mario had been
incarcerated for a week and was also currently on parole. The social worker urged mother to notify him
of the impending detention hearing.
Mario did
not appear at the detention hearing held on April 20, 2010.
Mother told the court that Mario was minor’s father, was at the hospital
when minor was born, and signed a voluntary declaration of paternity (VDOP),
but she did not know where he was at the time of the hearing. The court found that notice had been given as
required by law and designated Mario as minor’s alleged father.
Mario did
not appear at the jurisdiction hearing, held on May 4, 2010. The
juvenile court found the allegations of the section 300 petition true as to Mario
in his absence. Although the proof of
service in the record shows service by certified mail to Mario at the Aurora
Street address, county counsel indicted she had
not received confirmation of receipt.
The court summarily found that notice had been given as required.
Mario did
not appear at the next hearing, held on May
11, 2010. County counsel
represented to the juvenile court that an absent parent locator had revealed a
different address for Mario, on Willow Street
in Stockton, and he had been served
there. The proof of service shows
service to the Willow Street
address by first-class mail. The court
found that notice had been given and reaffirmed its prior jurisdictional
findings as to Mario.
On May 13, 2010, the juvenile court
asked the San Joaquin County Department of Child Support Services (DCSS)
whether minor’s paternity had been declared.
DCSS replied that it had no record of a declaration of paternity.
The
disposition report confirmed that the Agency was not in contact with Mario--he
had not responded to any correspondence, he had not attended any court
hearings, and he had neither visited nor inquired about minor. The report noted that the superior court had
revoked Mario’s probation on April 27,
2010, and issued a bench warrant for his arrest on April 28, 2010, for failure to attend
drug court. The Agency recommended that
the juvenile court not offer services to Mario pursuant to section 361.5,
subdivision (b)(1) (whereabouts unknown), but noted that if he established paternity
at some later date, he could receive services.
The Agency
sent notice of the dispositional hearing to Mario by first-class mail at both
the Aurora Street address
and the Willow Street
address. He did not appear at the
hearing, held on June 15, 2010,
and the juvenile court ordered minor placed in foster care and reunification
services to mother. The court denied
services to Mario under section 361.5, subdivision (b)(1).
The
six-month status review report, filed November
8, 2010, stated that the Agency had had no contact with Mario
during the reporting period and his current circumstances were unknown. The Agency recommended terminating mother’s
reunification services and selecting a permanent plan of adoption for minor.
The Agency
sent notice of the upcoming hearing to Mario by first-class mail at the Aurora
Street address.
Mario did not attend the status hearing, held on January 21, 2011.
The juvenile court terminated mother’s services and set a section 366.26
hearing and a status review.
The status
review report filed May 9, 2011,
recommended adoption as the permanent plan.
The section 366.26 report, filed May
11, 2011, recommended the termination of mother’s and Mario’s
parental rights.
On August 17, 2011, the juvenile court
continued the section 366.26 hearing to November
2, 2011. On September 29,
2011, the Agency filed proof of service of the upcoming hearing on Mario, who
was apparently in custody at Deuel Vocational Institute (DVI).
custody to the hearing and to receive appointed counsel; his request was filed
on September 15, 2011.
On
September 21, 2011, the Agency applied ex parte for an order to change minor’s
last name to match that shown on her birth certificate, a certified copy of
which was attached to the application.
The birth certificate shows Mario’s name as the father. On November 2, 2011, the juvenile court
appointed counsel for Mario, scheduled a consolidated section 300 hearing (as
to him) and section 366.26 hearing on December 7, 2011, and ordered his
appearance at the hearing. On that date,
the hearing was apparently continued to January 4, 2012.
On December
29, 2011, Mario’s counsel filed a pleading captioned “Notice of Motion to
Return Case to Dispositional Hearing -- Defective Notice.†The motion asserted: (1) the Agency failed to give Mario the
required notice of prior proceedings because its notice was either nonexistent
or untimely, and (2) the Agency had not undertaken a diligent search to locate
Mario. The motion did not attach a
declaration from Mario or counsel.
On January
12, 2012, the Agency filed a response to Mario’s motion, arguing: (1) the Agency made a good faith effort to
locate Mario and provide him with notice, (2) Mario had produced no evidence
that he did not receive actual notice
of the proceedings, and (3) it would not be in minor’s best interest to return
the case to the dispositional stage.
On January
25, 2012, the juvenile court summarily denied Mario’s motion to reopen the
disposition, after finding in part that:
“[F]rom everything I see here, [Mario] at least knew there was a case
going on. Never made any attempt to come
to court. And he knew.†On August 8, 2012, the juvenile court denied
Mario’s attempt to “renew†his motion and terminated his parental rights.
I
Claim of Presumed Fatherhood
Mario first contends that the
juvenile court deprived him of due process by failing to designate him as a
presumed father.
A. Forfeiture
Although
Mario raised the claim of deprivation of due process in the juvenile court, in
doing so he relied exclusively on his
argument that he did not receive sufficient notice of ongoing proceedings. On appeal, he argues for the first time that
the juvenile court erred when it failed to designate him a presumed father--a
request that he never made to the juvenile court.
“‘It is a
general rule applicable in civil cases that a constitutional question must be
raised at the earliest opportunity or it will be considered as waived.’â€
(Hershey v. Reclamation Dist. No. 108 (1927) 200 Cal. 550,
564.) This general rule applies in dependency cases. (In
re S.B. (2004) 32 Cal.4th 1287, 1293.)
As we explained in a criminal case: “[I]t is generally true that
‘constitutional objections must be interposed before the trial judge in order
to preserve such contentions for appeal.’ [Citation.] Even a claim
that the defendant’s due process right to notice was violated may be waived by
the failure to assert the claim in the trial court. [Citation.] The
purpose of the waiver doctrine is to encourage a defendant to bring any errors
to the trial court’s attention so the court may correct or avoid the errors and
provide the defendant with a fair trial.†(People v. Marchand
(2002) 98 Cal.App.4th 1056, 1060.)
Here, Mario
raised a due process claim regarding
lack of notice in the juvenile court,
but at no point did he raise a due process claim about presumed
fatherhood. Raising one constitutional claim does not preserve other
constitutional claims. (Cf. Wolfgram v. Wells Fargo Bank
(1997) 53 Cal.App.4th 43, 50 [“We are unaware of any doctrine which insulates a
statute from one constitutional attack, simply because it has survived a
different constitutional attackâ€].) By failing to raise his presumed
fatherhood challenge in the juvenile court, Mario has failed to preserve the
point for appeal. Because the parties’
briefing does not address forfeiture, we reach the merits of Mario’s claim
B. Standard
of Review
The Agency
asserts that we should apply the substantial evidence standard. Mario does not delineate the applicable
standard of review in his opening brief, but asserts in his reply brief that we
should review for plain error.
We deem
Mario’s argument for plain error review forfeited because it was raised for the
first time in Mario’s reply brief without any showing why it could not have
been raised sooner. (
52 Cal.App.4th 754, 764-765.) In
any event, Mario cites no authority for his argument.
As Mario
argues in effect that insufficient evidence supports his designation by the
juvenile court as no more than an alleged father, we review for substantial
evidence. (See In re Dakota H. (2005) 132 Cal.App.4th 212, 227-228 [applying
substantial evidence standard to claim of insufficient evidence supporting
court’s finding that beneficial parental relationship exception did not
apply].)
Law
“
‘Dependency law recognizes three types of fathers: presumed, alleged and biological.’ [Citation.]
A biological father is one whose paternity of the child has been
established, but who has not established that he qualifies as the child’s
presumed father under Family Code section 7611.
[Citation.] ‘ “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
Kobe A. (2007) 146 Cal.App.4th 1113, 1120.)
“ ‘A
father’s status is significant in dependency cases because it determines the
extent to which the father may participate in the proceedings and the rights to
which he is entitled. [Citation.] . . . Presumed father status
entitles the father to appointed counsel, custody (absent a finding of detriment),
and a reunification plan.
[Citations.]’ [Citation.] The court may
provide reunification services to a biological father, if it determines that
the provision of services will benefit the child. (§ 361.5, subd. (a).) Due process for an alleged father requires
only that he be given notice and an opportunity to appear and assert a position
and attempt to change his paternity status, in accordance with procedures set
out in section 316.2. [Citation.] He is not entitled to appointed counsel or to
reunification services.
[Citation.]†(
146 Cal.App.4th at p. 1120.)
Section
7611 sets forth the bulk of the requirements for presumed fatherhood of a minor
child, all of which require either marriage of the parents, their attempted
marriage, or involvement and support by the father. These provisions do not aid Mario. The record is devoid of evidence that Mario
and mother had ever married or attempted to marry, nor do we see
minor’s life or provided her with support, financial or otherwise (see section
7611, subdivision (d)). Without such
evidence, the fact that Mario is named as minor’s father on minor’s birth
certificate is insufficient to establish presumed fatherhood pursuant to
section 7611.
Mario
asserts he is entitled to presumed father status based on the voluntary
declaration of paternity that mother told the juvenile court he had signed,
pursuant to section 7570 et seq. Section 7571, subdivision (a), provides: “[U]pon the event of a live birth, prior to
an unmarried mother leaving any hospital, the person responsible for
registering live births under Section 102405 of the Health and Safety Code
shall provide to the natural mother and shall attempt to provide, at the place
of birth, to the man identified by the natural mother as the natural father, a
[VDOP] . . . [
name="_ftnref6" title="">[6]] Staff in the hospital shall witness the
signatures of parents signing a [VDOP] and shall forward the signed declaration
to the [DCSS] within 20 days of the date the declaration was signed. A copy of the declaration shall be made
available to each of the attesting parents.â€
Section
7573 provides in part: “[A] completed
[VDOP] . . . that has been filed with the [DCSS] 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.â€
A VDOP
executed and filed in compliance with the requirements of section 7570 et seq.
entitles the father to presumed father status in
Liam L. (2000) 84 Cal.App.4th 739, 747; accord, In re Gabriel G. (2012) 206 Cal.App.4th 1160, 1163, fn. 2;
113 Cal.App.4th 155, 161; see also Cal. Rules of Court, rule
5.635(c).)
Here, the
record does not conclusively show that Mario (or anyone for that matter)
completed a VDOP as to minor. The
is mother’s unsworn statement at the detention hearing and potentially Mario’s
name on minor’s birth certificate. This
scant evidence triggered the juvenile court’s duty of inquiry, which it
properly performed by inquiring of DCSS as to whether a VDOP had been filed. (§ 316.2, subd. (a)(5).) In response to the court’s timely inquiry,
DCSS notified the court that no voluntary
declaration of paternity had been filed.
After receiving DCSS’s negative response, absent further evidence of the
VDOP’s completion, the juvenile court could properly conclude that Mario never
executed a VDOP regardless of the fact that his name appeared on the birth
certificate. (See In re D.A. (2012) 204 Cal.App.4th 811, 826-827 [where no VDOP, no
averral by father that he executed VDOP, and no evidence the hospital staff
knew parents not married, no error in failing to apply presumption despite
father’s name on birth certificate].)
Thus, substantial evidence supports the court’s finding that Mario was
not entitled to presumed fatherhood under Family Code section 7570 et seq.
II
Sufficiency of Notice
Father makes an undeveloped argument
that he was afforded insufficient notice of the dependency proceedings under a
subheading to his due process argument, captioned: “C.
The Court’s Disposition Findings were made only as to mother.†To the extent that Mario intends to argue on
appeal, as he did to the juvenile court, that he was deprived of due process
due to inadequate notice of the dependency proceedings, the argument is
procedurally barred due to his failure to properly head his claim and provide
coherent supporting argument and authority.
(In re S.C. (2006) 138 Cal.App.4th 396, 408; see Cal.
Rules of Court, rule 8.204(a)(1)(B).)
Further,
due to Mario’s failure to head and coherently argue the claim of insufficient
notice that he raised in the trial court here on appeal, we deem his claim of
deprivation of due process through inadequate notice to be
abandoned. (See Berger v. Godden
(1985) 163 Cal.App.3d 1113, 1119-1120; Rossiter
v. Benoit (1979) 88 Cal.App.3d 706, 710-711).
III
Reasonable Services
Mario
finally contends that his parental rights could not be terminated because he
never received reasonable reunification services (cf. § 366.26, subd.
(c)(2)(A); Cal. Rules of Court, rule 5.725(e)) and because services were
denied to him due only to the fact that his whereabouts were unknown, a fact
that does not justify the termination of services and the setting of a section
366.26 hearing to consider adoption.
(§ 361.5, subd. (b)(1); In re
T.M. (2009) 175 Cal.App.4th 1166, 1174.)
Only a presumed
father is entitled to reunification services.
(§ 316.5, subd. (a); In re
Kobe A., supra, 146 Cal.App.4th at p. 1120.) As we have explained at length
father. Thus any alleged deficiency in
the provision of services or denial of services is completely irrelevant to our
analysis of error.
The order of the juvenile court
is affirmed.
DUARTE , J.
We concur:
ROBIE , Acting P. J.
MURRAY , J.
name="_ftn1" title="">[1] Further undesignated statutory references are
to the Welfare and Institutions Code.
name="_ftn2" title="">[2] Mother is not a party to this appeal.
