In re Robert S.

Filed 2/5/07  In re Robert S. CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b).  This opinion has not been certified for publication or ordered published for purposes of rule 977.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

            CONSOLIDATED APPEALS from a judgment of the Superior Court of San Diego County, Michael Imhoff, Referee.  Affirmed.

            In these consolidated appeals, O.A. challenges the denial of his Welfare and Institutions Code section  388^[1] modification petition and the termination of his parental rights to Robert S.  O. contends the juvenile court erred by ruling that his submission to paternity testing precluded him from later becoming Robert's presumed father via a paternity declaration.  He also contends the court erred by terminating parental rights without offering him the opportunity to reunify with Robert.  We affirm.

BACKGROUND

            In June 2005, just days after Robert's birth, the San Diego County Health and Human Services Agency (the Agency) filed a dependency petition alleging that both he and his mother, Teresa B., tested positive for drugs; he had withdrawal symptoms; she admitted drug and alcohol use during pregnancy and reportedly tested positive on three other occasions; and she had a long history of substance abuse that lead to the removal of three other children, with whom she did not reunify.  Robert was detained in the hospital.  In August 2005, he was moved to a foster home, where he remained throughout the case.

            The petition listed two alleged fathers:  O., for whom no address was given, and Thomas B., Teresa's husband.  Teresa denied Thomas was the father and Thomas stated he was incarcerated when Robert was conceived.  Teresa said there were two possible fathers:  O. and Oswaldo T.  She said both were incarcerated at Richard J. Donovan Correctional Facility (Donovan).

            O. was not given notice of the June 20, 2005 detention hearing and did not appear.  Teresa's paternity inquiry, filed on the day of the hearing, listed his California Department of Corrections (CDC) number.  The petition was amended to add Oswaldo as an alleged father, and to reflect that Thomas was a presumed father by marriage.

            On June 24, 2005, the Agency reported that it had found O.  The Agency listed his address as Donovan, with the same CDC number Teresa had supplied.  On June 28, the court issued an order to produce him for the July 11 jurisdictional hearing.

            O. was not produced for the July 11, 2005 hearing.  In a letter to Teresa dated July 7 and filed July 11, he said that he was aware of the hearing and wanted paternity testing.  At the hearing, the court appointed counsel for him, continued the hearing to August 9, ordered his counsel to prepare an order to produce if O. wished to be present, and ordered the clerk to serve him with the petition.  On July 13, the clerk served him by mail with the petition and notice of the hearing.

            O. was not present at the August 9, 2005 hearing.  The court set a special hearing for September 7 to address his paternity testing request and a contested jurisdictional and dispositional hearing for September 20.  It ordered counsel to prepare an order to produce if O. wished to be present.  On August 11, the court issued an order to produce O. for the September 7 hearing.

            O. was not produced on September 7, 2005.  The court granted his counsel's request for paternity testing, vacated the September 20 trial date, and set a new trial date of October 18.  It again ordered counsel to prepare an order to produce if O. wished to be present.  On September 13, the court issued an order to produce him for the October 18 hearing.

            In a form filed on October 17, 2005, O. waived his right to attend the October 18 hearing.  The court entered a true finding on the petition, entered judgments of nonpaternity as to Thomas and Oswaldo^[2], and reiterated its order of paternity testing for O.  It denied O.'s attorney's request to continue the jurisdictional hearing, granted his counsel's request to continue the dispositional hearing to December 8, and set a status conference for November 28 to address the paternity issue.  It ordered counsel to prepare an order to produce if O. wished to be present.  On October 25, the court issued an order to produce O. for the November 28 and December 8 hearings. 

            On November 3, 2005, paternity test results were filed, showing O. was not excluded as the biological father.  O. waived his right to be present on November 28, but the signed waiver had not been received at the time of the hearing.  The court granted his attorney's request to continue the hearing and set the status conference for November 29.

            By November 29, 2005, the court had received O.'s signed waiver.  It found he was the biological father, denied his attorney's request for a continuance of trial, and confirmed the December 8 dispositional trial date.

            In a letter postmarked November 30, 2005, and filed December 5, O. said he had waived his right to be present at past hearings because paternity had not been established, and he now wished to retain his parental rights " and do[] whats [sic] necessary to get [Robert] back to his biological parents."  He also said that he had written to his attorney twice with no response. ^[3]

            At the December 8, 2005 hearing, O.'s counsel said that on November 11, she sent him a copy of the paternity testing results, it appeared that he was not receiving his mail, and he wished to be present in court. ^[4]  Counsel also asked that paternal relatives be evaluated for placement, and requested services for O., and Robert's placement with him, noting that O.'s release date was January 16, 2006.  The court denied counsel's request for a continuance of trial, observing that nearly six months had passed since Robert was detained. ^[5]  It received evidence and continued the matter to December 12 for its ruling.

            At the December 12, 2005 hearing, the court found that it would be detrimental to Robert to place him with O.   It ordered Robert placed in a foster home, denied O. and Teresa reunification services,^[6] ordered that paternal relatives be evaluated for placement, and set a section  366.26 hearing for April 4, 2006.

            O. was released from prison on January 13, 2006.  On February 6, his attorney requested a special hearing to allow O. and Teresa to sign a paternity declaration so that O. could attain presumed father status.  The court set a hearing for February 28.  On February 9, O. filed a section  388 petition seeking modification of the December 12, 2005 denial of reunification services and also requesting that Robert be placed with paternal relatives pending his return to O.  The court set a hearing on the petition for March 9, 2006.  On February 28, the court continued the special hearing to March 2 so Teresa could be produced from custody.^[7]  On March 2, O. and Teresa signed the paternity declaration.  The court deferred ordering the declaration mailed to the State of California, continued the special hearing to March 9, and ordered counsel to submit memoranda of points and authorities addressing whether O. could use the declaration to achieve presumed father status.

            On March 9, 2006, O.'s counsel filed points and authorities.  The court denied her request for presumed father status for O., and for a contested hearing on the issue, stating that the request was premature because the paternity declaration had not been processed by the state.  It ordered that the declaration be processed.^[8]  It denied without prejudice counsel's request to continue the section  366.26 hearing.  It set an evidentiary hearing on the section  388 petition for March 23 (to address relative placement) and April 18 (to address reunification services).  It ordered the Agency evaluate the home of a paternal aunt for placement.

            On March 23, 2006, at the request of O.'s counsel, the court continued the section  388 hearing to April 18.  On April 4, it set a contested section  366.26 hearing for May 18.  On April 18, it continued the section  388 hearing to May 18.

            At the outset of the May 18, 2006 hearing, the court stated that it had reviewed the paternity declaration and would find that O. was the presumed father under Family Code  section 7611.  The Agency and Robert's counsel objected.  The court then determined that O. could not use the paternity declaration to attain presumed father status, as he had chosen to establish his status by paternity testing.  It denied presumed father status.  During the hearing, O.'s counsel withdrew the request for relative placement because no relatives were available.^[9]  Counsel confirmed that O. still wanted reunification services as stated in his section  388 petition, and sought Robert's return to his custody.  The court continued the hearing on the section  388 petition and the section  366.26 hearing to June 12.

            On June 12, 2006, the court denied O.'s section  388 petition.  It concluded that although he had met his burden of showing a change in circumstance, he had not met his burden of showing that offering him reunification services would be in Robert's best interests.^[10]  It continued the section  366.26 hearing to June 13.

            On June 13, 2006, the court denied O.'s request that the section  366.26 hearing be deferred pending his appeal of the denial of his section  388 petition.  It terminated parental rights.

DISCUSSION

            O. contends the juvenile court erred by ruling that his submission to paternity testing precluded him from later becoming Robert's presumed father via a voluntary paternity declaration.  The child's appellate counsel agrees.  The Agency  concedes the point, although it contends a married woman cannot execute a declaration.  O. contends that the declaration established his presumed father status (Fam. Code, §§  7611, 7570 et. seq; In re Liam L. (2000) 84 Cal.App.4th 739, 746-747), and that he was entitled to that status without having to file a section 388 petition.  He asserts that he was prejudiced by the denial of that status because he was not given a hearing pursuant to section 361.5 to determine whether, as a presumed father, rather than a mere biological father, he was eligible for reunification services.^[11]  Because we disagree with this assertion, as discussed below, we need not decide the merits of the foregoing contentions.

            On December 12, 2005, the court denied O. reunification services.  It noted that he was incarcerated, " need[ed] to address some significant issues," and would need " a substantial period" after his release " to stabilize his own life," while Robert was young and needed permanence.  By June 12, 2006, when the court denied O.'s section  388 petition, he had been out of prison for five months and Robert was not quite one year old.  The court observed that " the evidence [was] uncontroverted" that Robert was attached to his foster parents, viewed them as his parents, and demonstrated " great separation anxiety" when he was away from them.  On the other hand, Robert showed no such anxiety when separating from O.  Moreover, O. had not yet established the stability Robert needed, and it would probably take him more than six months to do so.

            Additionally, reunification services need not be provided to a parent described in section 361.5, subdivision (a) if the court finds, by clear and convincing evidence, that the parent's rights over the child's sibling or half-sibling have been terminated and the parent " has not subsequently made a reasonable effort to treat the problems that led to removal of the sibling or half-sibling of that child from the parent."   (§  361.5, subd. (b) (11).)  The factual prerequisites of section 361.5, subdivision (b)(11) appear to apply here.  O.'s daughter Kassandra A., born in November 2002, was declared a dependent in January 2003.  O. was not offered services in her case because he was in prison.  Parental rights over Kassandra were terminated in December 2003 and she was adopted by paternal relatives.  During the pendency of her case, O. was again sentenced to prison.  Before Robert was born, O. was sentenced to prison again.  O.'s offenses involve firearms and drugs.

            In view of the above factors, the court properly found that giving O. reunification services would not be in Robert's best interests.

DISPOSITION

            The judgment is affirmed.

McCONNELL, P. J.

WE CONCUR:

                                   HUFFMAN, J.

                                            IRION, J.

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

^[2]    The court determined that the presumption of Thomas's paternity, arising from his marriage to Teresa, had been rebutted by evidence that they did not have sexual intercourse near the time of Robert's conception.  Oswaldo's paternity test results excluded him as the biological father.

^[3]    It is unclear when O. learned the results of the paternity test.  He apparently did not receive correspondence his attorney sent him.  Furthermore, the social worker could not recall the date she sent O. the test results.  She first testified that she sent him a copy of the results " a few days after I received it."   She then testified that she sent him the results " a few days after I had done the court report."   After refreshing her recollection by looking in her file, she testified, " The addendum report was dated [November] 28.  So it would probably have been on [November] 29th or 30th."   After the court pointed out that she signed the report on November 3, she testified " it would have been like [November] 4th or the 5th that I sent it to him."

^[4]    In a form apparently faxed from prison on December 8, O. waived his right to be present at the hearing.  The form was attached to the order to produce the court issued on October 25.  There is no indication when O. signed the form.

^[5]         This was an apparent reference to section 352, subdivision (b), which states if a child is ordered detained, " no continuance shall be granted that would result in the dispositional hearing .  .  .  being completed longer than 60 days after the [detention] hearing .  .  . unless the court finds that there are exceptional circumstances requiring such a continuance.  The facts supporting such a continuance shall be entered upon the minutes of the court.  In no event shall the court grant continuances that would cause the [dispositional] hearing  .  .  .  to be completed more than six months after the [detention] hearing  .  .  .  ."   (§  352, subd. (b); accord (Cal. Rules of Court, rule 5.550(a)(3).)

^[6]    The basis for the denial of services to O. was section 361.5, subdivision (a).  With exceptions inapplicable here, that subdivision provides " whenever a child is removed from a parent's  .  .  .  custody, the juvenile court shall order the social worker to provide child welfare services to the child and the child's mother and statutorily presumed father  .  .  .  .  Upon a finding and declaration of paternity by the juvenile court  .  .  .  the juvenile court may order services for the child and the biological father, if the court determines that the services will benefit the child."   The court found that services to O. would not benefit Robert because O. was incarcerated, " need[ed] to address some significant issues," and would need " a substantial period" after his release " to stabilize his own life," while Robert was young and needed permanence.

^[7]    The record reflects that she was arrested in November 2005, although it does not reflect the dates of her incarceration.

^[8]    The paternity declaration was forwarded to the state on March 9.  On March 21, the social worker faxed a paternity declaration information request to the California Department of Child Support Services (the Department).  The Department received the information request on April 4.  That day, the Department faxed a response to the social worker, saying the information request form she had used was outdated and faxed to the wrong location, but that the Department would expedite the information request.  On April 5, the social worker received a fax saying there was no paternity declaration on file for Robert.  On May 16, she faxed another information request to the Department.  On May 18, she received a copy of the paternity declaration.  It stated that paternity was established on March 14.

^[9]         In light of the withdrawal of this request, we do not discuss the request further.

^[10]    While the court did not expressly deny O.'s request for custody of Robert, such a denial is the only logical conclusion to be drawn from the court's comments.

^[11]    The Agency contends the issue of O.'s entitlement to presumed father status is moot because his parental rights have been terminated and he has not raised any issues relating to the termination or to his section 388 petition.  The Agency is incorrect.  O. has filed notices of appeal from the May 18 order denying him presumed father status, the June 12 order denying his section 388 petition, and the June 13 terminating his parental rights.  Success on his contentions concerning presumed father status would necessarily affect the propriety of the denial of the petition and the termination of parental rights.