re T.C.





Filed 3/2/11 In re T.C. 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

In re T.C., a Person Coming Under the Juvenile Court Law.
ORANGE COUNTY SOCIAL SERVICES AGENCY, Plaintiff and Respondent, v. HENRY C., Defendant and Appellant.	G043891 (Super. Ct. No. DP016762) O P I N I O N

Appeal from orders of the Superior Court of Orange County, Dennis J. Keough, Judge. Affirmed.
Diana W. Prince, under appointment by the Court of Appeal, for Defendant and Appellant.
Benjamin P. de Mayo, County Counsel, Karen L. Christensen and Jeannie Su, Deputy County Counsel, for Plaintiff and Respondent.
No appearance for the Minor.
Henry C. (father) appeals from the juvenile court’s orders denying his Welfare and Institutions Code section 388 (all further statutory reference are to this code) petition for modification and terminating parental rights to now 12-and-a-half-year-old T.C. under section 366.26. He contends the court erred in requiring him to file a section 388 petition in order to receive reunification services and, alternatively, failing to evaluate all the relevant factors in denying the petition. Finding no error, we affirm.

FACTS

Orange County Social Services Agency (SSA) took the child into custody in March 2008 after mother (not a party to this appeal) was arrested and detained on a psychiatric hold. For some time prior, mother had repeatedly left the child at home without supervision or adequate food and had stopped homeschooling her. The child was filthy, having not bathed in a month, and had an extreme case of head lice.
The detention and jurisdiction reports listed father as the alleged father with an unknown address in Peru, as inquiries to mother and others yielded no contact information. Mother told SSA father had left the United States and never returned or provided for the child. The child stated father lived in Peru, she had no contact with him, and she had last seen him when she was “five or three years old.” The court found SSA had exercised due diligence in attempting to locate father, entered his default, and declared the child a dependent.
The six-month status report stated the child loved and was happy with her foster parents, whom she wanted to adopt her if adoption was the plan. She was later placed with her maternal aunt Clotilde in the family home on the condition mother stayed away and did not attempt to contact her. Father’s whereabouts were still listed as unknown. The court found returning the child to parents would be detrimental to her but continued reunification services for mother.
During the 12-month review period, the child continued to live with Clotilde. They visited Peru in late 2008 but were unable to contact father. The child expressed a desire to be adopted by Clotilde if mother did not recover. SSA reported father’s whereabouts remained unknown.
At the 12-month review hearing in May 2009, the court terminated reunification services. The child was returned to her prior foster parents after Clotilde became ill. Another maternal aunt, Patty, requested the child be placed with her in New Jersey.
The next month, the court continued the section 366.26 hearing to allow SSA more time to obtain father’s telephone number. After he was located and appointed counsel, father contacted SSA. SSA explained the court process and the status of the case.
Father told SSA “he wanted . . . his child . . . adopted by the maternal aunt [Patty] because he knows she will stay with family.” He had been deported and thus could not physically visit the child but wanted to continue calling her. He had been calling the child at her foster home and told SSA they would “talk for hours” when she lived with Clotilde, though the child said their conversations lasted less than 30 minutes. Father was granted two 15-minute monitored calls a week, but the child sometimes did not want to talk to him and would “cut the call short.”
In July, the court found father to be the child’s presumed father but kept the September section 366.26 hearing date set pursuant to a stipulation signed by the parties. The child did not want to be adopted by Patty and refused all contact with her; she wished to remain with her foster parents, who desired to adopt her. Additionally, SSA questioned Patty’s honesty and was concerned that she had taken the child to Las Vegas in June without authorization. Placement with Patty was later denied due to her lack of cooperation.
Father told SSA he wanted custody of the child if she could not be adopted by maternal relatives. He filed a section 388 petition for modification, requesting permission to raise the child in Peru under a reunification plan, or alternatively, a trial visit and “frequent, liberal, unmonitored phone and e-mail contact . . . .” In his declaration, he stated he had ongoing contact with the child until she was three years old when he was deported to Peru in 2001. Although he remained in telephone contact for a few years, mother divorced him in 2003 without his knowledge and cut off communication, changing her phone number repeatedly to prevent him from calling. His sister-in-law Juana kept him apprised of the child’s well-being from 2003 to 2009 and he sent gifts to the child through Juana until she told him to stop because mother was throwing them away.
Although father was allowed monitored visits, he was unable to attend any in California because he had been deported. Nevertheless he visited with the child “[w]henever possible” and embraced her once in 2005 or 2006 when she was in Peru. He attempted to provide for the child financially and in 2001 sent mother a $34,000 settlement check that he received as compensation for an accident.
Father spoke with the child every day for an hour on the telephone when she lived with Clotilde but foster parents were curt with him and told him the child was busy. When they did speak, their conversations were about how much they missed each other, what they would do together, and the little she remembered about him; they laughed a lot. They also e-mailed each other until the foster mother said that was no longer allowed.
Father declared he was “ready, willing and able to take” custody of the child. He was single, lived in five-bedroom house in Peru, and had relatives nearby. He was employed and a psychological evaluation showed he had no mental impairments and an IQ of 120.
The court found father had made a prima facie case for an evidentiary hearing on the section 388 petition. The child testified she last saw father when she was three or four years old and had good memories of him. When living with Clotilde, she was excited when father finally called and they talked about three times a week or 30 times total. After returning to her foster parents, they talked twice a week for two months but he recently stopped calling. Although she enjoyed the calls, during which she told him she loved him and they asked each other what they were doing, she preferred them to be monitored because she did not want father to get upset and angry with her again for not wanting to live with him in Peru. She felt sad and trapped when he said that would make him unhappy even though it would make her happy not to live with him.
The child originally wanted to live with father when he first called because he was family but she changed her mind because she would be uncomfortable living with him in Peru. She considered her foster parents her “real family,” who was more important to her than father or her other relatives. She trusted her foster parents and wanted to be adopted by them, even if it meant not seeing father or other relatives.
The social worker opined the child should be adopted by the foster parents because she had found stability and a “structured living arrangement.” When the dependency proceedings began, she had asked mother, Juana, and Clotilde if they knew where father lived. Mother refused to tell her anything; Juana and Clotilde only said father was in Peru and that they would try to find him but offered no other information. Clotilde told the social worker she and the child had looked for father when they went to Peru for vacation in December 2008 but were unable to locate him. The address they went to was the same one where SSA had sent father his notice. Upon discovering the child and father were talking by telephone, the social worker asked Clotilde for his phone number but she never received it.
When father called the social worker in mid-June 2009, she explained the case history and its current status, and that adoption by the foster parents was in the child’s best interests. She also told him he was considered an alleged father and that to reunify he needed to contact his attorney and be found presumed. Father wanted the child to be placed with relatives.
The social worker would not have objected to providing father services had he come forward during the reunification period. But she believed it would be traumatic for the child to leave her home, culture, and country and try to build a relationship with father, who she did not know well and was absent for most of her life. A major factor was that they had no father-daughter relationship.
Testifying by phone from Peru, father stated Juana had his address and phone number and kept him “informed about [the child’s] health and whereabouts and things like that.” Although he always knew where the child lived, he never tried to mail her anything and could not visit her because he did not have a visa.
In early 2009, father called his former house, having found the number on the internet, and the child answered; that was the first time they had spoken in eight years. Clotilde explained the child was in dependency proceedings and that she was seeking to adopt her. She did not give him the social worker’s number or tell him to contact SSA but stated he would be receiving a letter and not to worry because the child would still have his last name and he would be able to see her when he wanted.
Father received written notice about the proceedings in May or June 2009 and called the social worker. He wanted custody and was willing to participate in any reunification services required, but if that was not possible he wanted the child to live with Clotilde because she was family. Although he had been deported for entering the United States with a false visa and missing a court date, he had no criminal record in Peru. He worked long hours providing taxi services for executives in order to meet the income criteria for a visa to allow him to visit the child and had relatives who lived with him who could help care for the child. He contacted both the U.S. embassy and the Peruvian consulate.
After the child went to live with her foster parents, father spoke less with the child and often could not get through to her when he called. They spoke about one to three times a week for three to four minutes and she responded bluntly with yes and no answers in contrast to before when they talked for half an hour to an hour every day. He e-mailed her several times a week.
Father’s former attorney testified father had told her he was fine with the child being adopted by a maternal aunt, though he preferred legal guardianship. Father knew the child did not want to live with him and “[h]e was okay with that.” Beginning in July 2009, father expressed interest in family reunification and the attorney explained the documents needed to file a section 388 petition. Father believed “family reunification” meant “the child be reunited with a family member, not necessarily that he would be participating in services with the hope of at one point receiving the child back in his care.” Although the attorney explained “the difference between placing the child with a relative and seeking [her] return” to him several times, a month later father maintained his preference for the child to be placed with a relative, though he would take her if that is what she wanted. Several weeks later, he repeated his desire the child be placed with her material aunt and did not “understand why he had to do any services.” Father did not request custody until late August. The attorney received the necessary documents in September but was relieved as counsel the next day before she could file the petition.
The court concluded it was necessary to proceed under section 388 because father did not become a presumed father until after reunification services had terminated. It denied the petition because although father had shown a change of circumstances in terms of his understanding of the proceedings and the “ratcheting up of” his efforts for placement after relative placements had fallen through, he failed to prove the requested relief would be in the child’s best interests. At the section 366.26 hearing, the court found the child adoptable and terminated parental rights.

DISCUSSION

1. Denial of Reunification Services
Father argues the court erred in denying him reunification services and requiring him to proceed under section 388 because he was not responsible for the child’s removal from the home, did not receive SSA’s earlier notices, contacted the child as best he could and before the termination of the reunification services, and was found to be a presumed father before the end of the statutory 18-month period. We disagree.
“[A] biological father is not entitled to custody under section 361.2[] or reunification services under section 361.5 if he does not attain presumed father status prior to the termination of any reunification period, [but] he may move under section 388 for a hearing to reconsider the juvenile court’s earlier rulings based on new evidence or changed circumstances. [Citations.]” (In re Zacharia D. (1993) 6 Cal.4th 435, 454-455, fn. omitted.) Here, the juvenile court terminated reunification services at the 12-month review hearing and the presumed father finding was not made until two months later. This may have been within the statutory 18-month maximum time period for reunification as father claims (§ 361.5, subd. (a)(3)), but it was after services had already been terminated. Because father did not seek presumed father status before that time, he was required to file a section 388 petition to obtain reunification services.
Father maintains this case is distinguishable from Zacharia D. and cases expressing the same principle because SSA and the court knew he was married to mother and had lived with her and the child until he was deported; there was thus no need for him to prove he was a presumed father and the only question was his whereabouts. But he cites no authority that would have allowed him to proceed after the termination of reunification services except under section 388.
Father analogizes this case to Adoption of Kelsey S. (1992) 1 Cal.4th 816, which held “to the extent that the statutes allow a mother unilaterally to preclude her child’s biological father from becoming a presumed father,” “[i]f an unwed [biological] father promptly comes forward and demonstrates a full commitment to his parental responsibilities—emotional, financial, and otherwise—his federal constitutional right to due process prohibits the termination of his parental relationship absent a showing of his unfitness as a parent.” (Id. at p. 849, italics omitted.) But father did not make that showing. The court inferred from the evidence that father had received SSA’s initial notice of the proceedings sent in April 2008. Additionally, although father claims to have contacted the child in early 2009, and was informed of the dependency proceedings by Clotilde, he did not contact SSA or the court until after the reunification period had been terminated.
Father maintains that “[h]aving lived in Peru since [the child] was three years old, he could not be expected to understand the dependency process, nor was Clotilde able to explain [it] to him, other than to tell him she was in the process of adopting [the child] and that was the only solution.” But even after the social worker explained the proceedings to him in June 2009, father maintained for the better of the next two months that he preferred the child placed with relatives rather than him. According to his former attorney, father did not request custody until the end of August. Kelsey S. is thus inapposite.

2. Consideration of Relevant Factors
When a petition for modification is brought after reunification efforts have terminated, the court focuses on promoting the child’s needs for permanency and stability as opposed to reunification. (In re Marilyn H. (1993) 5 Cal.4th 295, 309.) The child’s best interests are the paramount consideration and “there is a rebuttable presumption that continued foster care is in the best interest of the child. [Citation.]” (In re Stephanie M. (1994) 7 Cal.4th 295, 317.) In determining best interests at this stage, the court looks to the child’s needs for permanence and stability (ibid.) and may consider “(1) [t]he seriousness of the problem which led to the dependency, and the reason for any continuation of that problem; (2) the strength of relative bonds between the dependent children to both parent and caretakers; and (3) the degree to which the problem may be easily removed or ameliorated, and the degree to which it actually has been.” (In re Kimberly F. (1997) 56 Cal.App.4th 519, 532, italics omitted.)
Father argues the court abused its discretion in basing its denial of his section 388 petition “primarily on [the child’s] wishes and without considering the other factors delineated in Kimberly F. . . .” To the contrary, the record shows the court considered all three factors. Regarding the first and third, the court found mother’s mental illness, along with father’s unknown whereabouts and his “striking” absence from the child’s life, were serious enough to justify the jurisdictional and dispositional finding of detriment to the child. It was “puzzl[ed]” by father’s knowledge the child was living “in the home [father] owned jointly with mother” and that he “seem[ed] to have resources[] and . . . is a determined individual” as shown by his efforts to obtain a visa to visit the United States, yet failed to exert that “same energy and the same determination . . . early and significantly in the child’s life.” He made “rudimentary attempts” to ask about “her welfare and status or situation with relatives, but [there was a] . . . lack[] . . . of any type of meaningful expression to the child from . . . father, either directly or indirectly.”
The court noted father’s physical absence and lack of communication with the child from 2003 to 2009. It was not until the beginning of 2009 that father made “an effort to contact the aunt and . . . establish . . . [a] line of communication.” Before that, “there was never an attempt to enforce or to maintain contact between [father] and [the child] . . . .” Father apparently “chose not to participate” in the divorce proceedings or to “seek recourse to legal means to enforce his visitation, whether that be telephonically or in other fashions.” Although he may not have had a reason to know of mother’s illness, “there is again no indication that he sought out through relatives or any other source [of] information[ a]nd clearly he could have and did on other occasions seek information from relatives.” Even after contact was established, there were no “in-person contacts,” which was “not insignificant.”
Father attempted to address these failures and become “meaningfully involved” only when “it became apparent that the family placement option was breaking down. At that point, he “expressed significant interest in the . . . case and . . . desire[d] to have his daughter . . . either with him or with his family . . . .”
The court also heard and considered evidence addressing the second factor, the relative strength of child’s bonds to him and to her caretakers. The child is more closely bonded to her foster parents, with whom she has lived with for the majority of over two years of dependency. She viewed them as her “real family” and wished to be adopted by them. In contrast, she has not seen father for about nine years and still preferred adoption even if that meant she could not see her father or other relatives. The court found “the element of [father’s] relationship with the child was simply lacking” and despite almost a year of communication with the child, “the relationship seems to be stilted . . . .” Father concedes the second factor weighs against his position.
The court evaluated all of the relevant factors and denied the petition, noting that granting it would “carry a significant risk of . . . further emotionally damaging [the child].” Because the ruling did not “‘exceed[] the bounds of reason’” (In re Stephanie M., supra, 7 Cal.4th at pp. 318-319), we cannot conclude the court abused its discretion.
Father maintains some of the court’s findings were not supported by the record. He essentially requests that we reweigh the evidence, which we may not do. (In re Stephanie M., supra, 7 Cal.4th at p. 319.)
Father argues that although he knew where the child lived, he had no means of contacting her as he could not enter the United States and mother repeatedly changed the telephone number and threw away the gifts he sent through Juana. But he demonstrated he knew how to contact the child in 2009 by calling the family home after finding the phone number on the internet. No explanation has been given why father did not do so earlier. And even if mother threw his gifts away, father has not shown he could not have sent her cards or letters either directly by mail or through one of the aunts.
We reject father’s claim the record does not support the court’s determination “there was no significant change in [his] behavior until it was clear placement with relatives was not going to succeed.” The social worker testified that when father called her in June 2009 he told her he wanted the child placed with relatives. Father’s former attorney also testified that from July to August, father persistently maintained his desire that the child be placed with an aunt and did not “understand why he had to do any services.” By the time he requested custody in late August, placement with Clotilde had fallen through and problems had arisen with placement with Patty.
Father takes issue with the court’s finding that he “chose” not enforce his visitation rights, claiming it was too late to do anything by the time he was served with the divorce papers and that he did not know how to contest it in any event because he could not leave Peru. Even if it was too late to contest the divorce, father fails to explain why he could not have sought a modification of the visitation order.
Nor are we persuaded the evidence does not support the court’s inference “father received notice early on in the case and chose to ignore the notice because the address where the initial notice was sent and the address used at the time of the permanency hearing were similar.” The addresses were quite similar, with the first notice sent to “Avenue Jacinto Benayente 477 City Camp Rimac, Lima, Peru” and the section 366.26 hearing notice sent to “Av Jacinto Benayente 477, CY Camp Rimac, Lima, Peru.” SSA received a return receipt for the section 366.26 hearing notice, signed by someone with the same last name as father, a fact noted by the court. Clotilde’s testimony that she

and the child could not find father when they went in December 2008 to the address in Peru where the first notice was sent does not refute this evidence. Moreover, father told the social worker he did not see them during that visit because he recently changed his phone number “and contact was difficult with family members,” implying that relatives lived at that location.
Resolving all evidentiary conflicts and drawing all legitimate inferences in favor of the juvenile court’s ruling (In re Jason L. (1990) 222 Cal.App.3d 1206, 1214), we conclude substantial evidence supports the court’s findings.

DISPOSITION

The orders are affirmed.




RYLAARSDAM, ACTING P. J.

WE CONCUR:



BEDSWORTH, J.



ARONSON, J.



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