Ross B. v. Superior Court
Filed 9/29/08 Ross B. v. Superior Court CA2/3
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 THREE
ROSS B., Petitioner, v. SUPERIOR COURT OF THE COUNTY OF LOS ANGELES, Respondent. _________________________________ LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Real Party in Interest. _________________________________ | B209498 (Los Angeles County Super. Ct. No. CK62659) |
ORIGINAL PROCEEDINGS; petition for extraordinary writ. Debra L. Losnick, Judge. Petition denied.
Ross B., in pro. per., for Petitioner.
No appearance on behalf of Respondent.
Raymond G. Fortner, Jr., County Counsel, James M. Owens, Assistant County Counsel, and Jacklyn K. Louie, Deputy County Counsel, for Real Party in Interest.
INTRODUCTION
Ross B. in propria persona filed a petition for extraordinary writ review to challenge the juvenile courts order setting a hearing under Welfare and Institutions Code section 366.26.[1] He opposes the courts order denying him reunification services. Because Ross is the biological father of two-year-old Z.P., he was not entitled to services. We deny the writ.
FACTUAL AND PROCEDURAL BACKGROUND
At the time Z. was detained, her mother Samantha G. identified Jeffrey P. as the childs father.[2] The juvenile court found Jeffrey to be Z.s presumed father. On April 7, 2006, the court declared Z. a dependent of the court under section 300, subdivision (b), removed her from her parents custody, and ordered family reunification services for her mother and Jeffrey P.
Rosss name appears a year later, in April 2007, as a handwritten notation on the face of a section 342 petition filed against mother. In May 2007, mother indicated to the Department of Children and Family Services (the Department) that Ross might be Z.s father. An investigation revealed that Ross has a long criminal history that includes multiple drug-related convictions. He agreed to participate in random drug testing, but not immediately because he was undergoing chemotherapy for liver and colon cancer.
Ross submitted to the juvenile courts jurisdiction at the May 10, 2007 hearing, and the court appointed an attorney for him. Ross requested a paternity test to determine whether he was the childs father. The results revealed that Ross had a 99.99 percent probability of being Z.s biological father. The court found Ross was Z.s biological father, but not the presumed father and dismissed Rosss attorney. (Italics added.)
Ross visited Z. when he was not in the hospital for surgery or chemotherapy. But, in May 2007, he tested positive for methamphetamines and missed two drug tests because he was in the hospital.
Ross disappeared in September 2007 and the Department was unable to locate him. Mother reported that Ross was living with his mother in San Francisco but provided no telephone number for him. At the hearing in January 2008, the juvenile court ordered no contact between Ross and Z., even during mothers visits with the child, until further order.
Ross was arrested in February 2008 for possession of narcotics. Beginning in June 2008, Ross was given weekly monitored visits with Z. Out of four, he missed two and did not call to cancel.
In July 2008, the juvenile court terminated reunification services for mother and reiterated its order that there be no contact between Z. and Ross. The court then set the section 366.26 hearing for November 4, 2008. Ross filed his writ petition in propria persona.
CONTENTION
Ross contends that the juvenile court erred in failing to order reunification services for him because he is proven to be Z.s biological father and he tried to visit her when he was not in surgery or undergoing chemotherapy for his cancer. Ross stated his intention to seek custody of Z. in the family law court.
DISCUSSION
Where Ross is not a presumed father, he is either a biological or natural father. (In re Zacharia D. (1993) 6 Cal.4th 435, 449, fn. 15.) A biological or natural father is one whose biological paternity has been established, but who has not achieved presumed father status . . . . [Citations.] (Id. at p. 451.) [T]here can be only one presumed father. [Citation.] (In re Kiana A. (2001) 93 Cal.App.4th 1109, 1115, italics added.) The juvenile court found that Jeffrey P. was Z.s presumed father. Ross does not challenge that finding and so he can never be the presumed father.
As a biological father, Ross is not entitled to reunification services. [O]nly a presumed, not a mere biological, father is a parent entitled to receive reunification services under section 361.5. [Citation.] (In re Zacharia D., supra, 6 Cal.4th at p. 451.) Under Civil Code section 197 [now Fam. Code, 3010], only a presumed father is entitled to custody of his child . . . . (Ibid.; accord, Francisco G. v. Superior Court (2001) 91 Cal.App.4th 586, 596.) Thus, where Ross is merely a biological, not a presumed father, he was never entitled to reunification services or custody of Z. Indeed, Ross never requested services. The juvenile court did not err in failing to give Ross services and dismissing his attorney.[3]
DISPOSITION
The writ petition is denied. The order to show cause issued August 13, 2008, is discharged.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
ALDRICH, J.
We concur:
KLEIN, P. J. CROSKEY, J.
Publication courtesy of California free legal advice.
Analysis and review provided by Carlsbad Property line attorney.
San Diego Case Information provided by www.fearnotlaw.com
[1] All statutory references are to the Welfare and Institutions Code.
[2] Neither mother, Jeffrey P., nor Z. is a party to this writ proceeding.
[3] Although the juvenile court never ordered services for Ross, he voluntarily underwent drug testing and was allowed to visit Z. And yet, Ross did not follow through with those minimal tasks. Ross only visited the child a handful of times and dropped out of contact with the Department from September 2007 to June 2008, was arrested for drug possession, and tested positive for drugs, after which he was no longer allowed visits. Based on this track record, the juvenile court was absolutely correct to set the section 366 hearing.
