v. Superior Court
Filed 8/7/12 Ricardo D. v. Superior Court CA5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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opinion has not been certified for publication or ordered published for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
FIFTH APPELLATE DISTRICT
RICARDO D.,
Petitioner,
v.
THE SUPERIOR COURT OF TULARE
COUNTY,
Respondent;
TULARE COUNTY HEALTH AND HUMAN
SERVICES AGENCY,
Real Party in Interest.
F064961
(Super.
Ct. No. JJV066115B)
THE COURT
name="_ftnref1" title="">*
ORIGINAL PROCEEDINGS; petition for
Ricardo D., in pro. per., for
Petitioner.
No appearance for Respondent.
Kathleen
Bales-Lange, County Counsel, and Jason Chu, Deputy County Counsel, for Real
Party in Interest.
-ooOoo-
Ricardo D., the alleged father of two-year-old Nicholas,
seeks an extraordinary writ (Cal. Rules of Court, rule 8.452) from the juvenile
court’s order setting a Welfare and Institutions Code section 366.26 hearing
juvenile court to place Nicholas in his custody. We deny the petition.
PROCEDURAL AND FACTUAL SUMMARY
In March
2012, then 20-month-old Nicholas (born July 2010), and his then two-year-old
half-brother Samuel, were removed from the physical
custody of their temporary guardian (hereafter “the guardian”
by theTulare County Health and Human Services Agency (agency). The guardian assumed custody of the children
when their mother was incarcerated, however, soon became overwhelmed by their
aggressive behavior and could no longer care for them.
The mother
told a social worker from the agency that U.A. was Nicholas’s father. U.A. told the social worker that he cared for
Nicholas until he was incarcerated in 2011.
He was uncertain if he was Nicholas’s father and requested paternity
testing. The guardian provided the
agency Nicholas’s birth certificate and the space provided to designate the
father’s name was blank.
The agency
filed a dependency petition on behalf of Nicholas and Samuel, naming U.A. as
Nicholas’s father, without indicating his specific paternity status.
In April
2012, the juvenile court conducted the detention
hearing. Mother did not appear. U.A. appeared and was appointed counsel. He submitted a Statement of Paternity Form
(JV-505) in which he declared that he believed he was Nicholas’s father and
requested that the juvenile court enter a judgment of parentage. U.A. further declared in the JV-505 that he
signed a voluntary declaration of paternity in July 2010, that Nicholas lived
with him from birth until the age of six months and that he told various family
members that Nicholas was his child. The
juvenile court advised U.A. that if it entered a paternity judgment, U.A. would
be considered Nicholas’s presumed father and that he would be rescinding his
request for paternity testing. After
U.A. confirmed his understanding and assented, the juvenile court found him to
be Nicholas’s presumed father.
The guardian also appeared at the
detention hearing and informed the juvenile court that she was not contesting
the detention and that her guardianship would expire the next day. The juvenile court ordered the children
detained from the guardian and the mother and set the jurisdictional hearing
for April 25, 2012.
On April 10, 2012, Ricardo told an
agency social worker that he may be Nicholas’s father and requested paternity
testing. He said that he met the mother
in October or November of 2009 and saw her every day for approximately three
months. Mother told Ricardo that she was
pregnant and that the child was his.
They remained in a relationship on and off until Nicholas’s birth. After mother gave birth to Nicholas, she told
Ricardo that Nicholas was not his child and she was also in a relationship with
U.A. They severed ties when Nicholas was
approximately two to three weeks old.
Ricardo only saw Nicholas one time after that when he encountered mother
and Nicholas in a store. He said he and
his wife wanted custody of Nicholas if he was the father.
On April 17, 2012, a social worker
interviewed the mother who said she was married for 18 years and her divorce
was finalized in August 2011. She said
she had been separated from her husband for six years and was married when
Nicholas was conceived and born. She
said she met Ricardo while she was still in a relationship with U.A. She did not believe that Ricardo was
Nicholas’s father but said there was a very small chance that he was.
On April
25, 2012, Ricardo appeared at the jurisdictional hearing and completed a JV-505
in which he stated he did not know if he was Nicholas’s father and requested
paternity testing. The juvenile court
advised Ricardo that, based on the financial information he provided, it did
not appear that he qualified for court-appointed counsel. The juvenile court set aside its paternity
judgment as to U.A. given evidence that the mother was married to another man
when Nicholas was born and U.A.’s failure to produce a voluntary declaration of
paternity. The juvenile court invited
briefing on the paternity issue and set a hearing on May 17, 2012, to
adjudicate paternity and jurisdiction (combined hearing). The juvenile court advised Ricardo that it
could not appoint counsel for him but strongly suggested that he retain
counsel.
On May 17,
2012, the juvenile court convened the combined hearing and deemed U.A. and
Ricardo Nicholas’s alleged fathers and ordered paternity testing for them. Ricardo appeared unrepresented and waived his
trial rights. The juvenile court advised
him that the agency was not recommending reunification services for the mother
and that, as Nicholas’s alleged father, he was not entitled to them. The juvenile court further advised Ricardo
that if it denied mother services, it would set a hearing to select a permanent
plan for Nicholas and that the permanent plan options were adoption, legal
guardianship or a planned permanent living arrangement. In the meantime, if the paternity test
results did not exclude Ricardo as Nicholas’s biological father, the juvenile
court explained to Ricardo that it would not automatically take action on the
results. Instead, Ricardo would have to
bring a motion before the juvenile court to modify any of its orders based on
new information concerning his paternity.
At the
conclusion of the combined hearing, the juvenile court adjudged the children
dependents of the court and set the dispositional hearing for later in the
month, as mother had not been served a copy of the agency’s report. The juvenile court told Ricardo he could, but
was not required to, appear at the hearing.
Finally, the juvenile court set a section 366.26 hearing for September
2012 and advised Ricardo of his right to file a writ petition.
In an addendum report for the
dispositional hearing, the agency advised the juvenile court that, a week
before, it completed and processed a genetic testing referral for Ricardo. On May 31, 2012, at the dispositional
hearing, the juvenile court denied mother reunification services and asked the
agency to expedite the paternity testing.
This petition ensued.
DISCUSSION
Ricardo appears on this writ petition
in propria persona and it is unclear from the petition on what grounds he
argues the juvenile court erred.
name="_ftnref3" title="">[2] He asserts that neither the juvenile court
nor the agency was aware that he could be Nicholas’s biological father and he
informs this court that, at the time he filed the writ petition, he was waiting
to undergo paternity testing. To the
extent that Ricardo argues that the juvenile court and/or the agency should
have identified him as a potential father sooner or delayed him in elevating
his paternity status, he fails to show that on this record, as we now
explain.
Section 316.2, subdivision (a) requires the juvenile court
to inquire of the mother and any other appropriate person at the detention
hearing, or as soon as practicable thereafter, as to the identity and address
of all possible presumed or alleged fathers.
A presumed father is one who has neither legally married nor attempted
to marry the mother of his child, but who physically received the child into
his home and openly held the child out as his natural child. (Fam. Code, § 7611, subd. (d).) An alleged father is one “who may be the
father of a child, but whose biological paternity has not been
established .…” (
449, fn. 15.) Until the alleged father
establishes his paternity, he has no legal interest in the child (
1406 (O.S.)) and is not entitled to reunification services. (§ 361.5, subd. (a).) Due
process requires only that he be given notice and an opportunity to appear,
assert a position, and attempt to change his paternity status. (In re
Paul H. (2003) 111 Cal.App.4th 753, 760.)
It is the alleged father’s responsibility to obtain paternity
testing. (O.S., supra, 102
Cal.App.4th at p. 1410.)
In this case, mother
was not present at the detention hearing for the juvenile court to inquire of
her as to the identity of all possible fathers for Nicholas. However, the agency previously conducted such
an inquiry of mother and she did not identify Ricardo as a possible
father. Consequently, the court’s
paternity inquiry at the detention hearing was limited to the information
provided by mother.
Further, as soon as Ricardo made it
known that he could be Nicholas’s father, the agency questioned mother about
her relationship with him. In addition,
the juvenile court vacated its paternity judgment as to U.A. and ordered
paternity testing for Ricardo. The court
also advised Ricardo how the case would proceed, notified him of the hearing
dates, and recommended that he retain an attorney. The court also informed Ricardo that it was
his responsibility to take legal action if the paternity test results
established his biological paternity by probability.
We find no error in the juvenile
court’s exercise of its duty to identify Ricardo as a possible father and give
him the opportunity to elevate his paternity status. To the extent, Ricardo believes that his
biological paternity could have been ascertained sooner, nothing prevented him
from pursuing paternity testing on his own.
The petition for extraordinary writ
is denied. This opinion is final
forthwith as to this court.
name="_ftn1" title="">* Before
Cornell, Acting P.J., Gomes, J. and Franson, J.
name="_ftn2" title="">[1] All
further statutory references are to the Welfare and Institutions Code unless
otherwise indicated.
