Terrance W. v. Super. Ct.

Filed 11/14/08 Terrance W. v. Super. Ct. CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

COURT OF APPEAL - FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

PROCEEDINGS in mandate after referral to a Welfare and Institutions Code section 366.26 hearing. Elizabeth A. Riggs, Judge. (Retired Judge of the San Diego Sup. Ct. assigned by the Chief Justice pursuant to art. VI, 6 of the Cal. Const.) Petition denied.

Terrance W. seeks review of juvenile court orders setting a hearing under Welfare and Institutions Code section 366.26.^[1] Terrance contends the court erred when it summarily denied his petition for modification under section 388 and denied his request to change his status from biological to presumed father. Terrance also asserts he did not receive adequate notice of the dependency proceedings. We deny the petition.

FACTUAL AND PROCEDURAL BACKGROUND

Terrance W. is the biological father of three children, Terrance D., born in March 2005, Jayden W., born in September 2006 (together, siblings) and Shaun D., born in October 2007.^[2] This proceeding concerns only Shaun.

In April 2007 Terrance and Carolyn accepted an offer of voluntary services from the San Diego County Health and Human Services Agency (Agency) to improve home conditions. In August Terrance was arrested on charges of domestic violence. He left San Diego rather than comply with Agency requirements. The Agency filed petitions on behalf of the siblings (2007 proceedings) and initiated a parent search for Terrance. The Agency sent notices to Terrance's last known addresses but did not locate him. In October the court sustained the petitions, removed the siblings from parental custody and ordered a plan of reunification services for Carolyn.

Shaun was born after Terrance left. Carolyn accepted a voluntary services plan, and the Agency did not detain Shaun at that time.

In March 2008 Carolyn left Shaun with his maternal grandmother without making arrangements for his care and support. The maternal grandmother had a history of involvement with child protective services. On March 14 the Agency initiated a second parent search for Terrance. On March 25 the Agency filed a petition on Shaun's behalf under section 300, subdivision (b) (2008 proceedings).

Terrance's whereabouts remained unknown. The maternal grandmother reported that he telephoned her home from a San Diego pay phone on March 17, 2008, and she heard him talking in the background when she spoke with Carolyn on March 19.

Carolyn acknowledged she had telephone and in-person contact with Terrance. She did not provide the Agency with his contact information. Carolyn informed the social worker that Terrance was aware of the 2007 and 2008 proceedings and knew the children were in out-of-home care. Carolyn facilitated telephone calls between Terrance and Terrance D., their oldest son. The children's caregiver reported during a telephone conversation on April 11, Carolyn allowed Terrance to speak to Terrance D. Terrance asked Terrance D. whether he wanted to come home.

On April 16, 2008, the court continued the jurisdiction hearing and ordered the Agency to conduct a reasonable search to locate and notify Terrance of the 2008 proceedings. On April 23 the court found that proper notice had been given and directed the Agency to continue to search for Terrance. The court sustained the section 300 petition, removed Shaun from Carolyn's custody for placement in foster care and ordered a plan of family reunification services.

On May 26, 2008, Terrance contacted the Agency and met with a social worker. Terrance had returned to San Diego in March. He was involved with Carolyn, allegedly acting as her pimp. On June 2 Terrance met seven-month-old Shaun for the first time. Genetic testing confirmed that Terrance was Shaun's biological father.

At the six-month hearing in the 2007 proceedings, the court terminated Carolyn's reunification services and set a hearing to select and implement a permanency plan for the siblings. On June 10, 2008, the Agency filed a petition to modify the disposition order in Shaun's case to deny reunification services to Carolyn. The court set a hearing on the Agency's modification petition for August 20.

On August 19, 2008, Terrance filed a petition to vacate the court's jurisdictional findings because he did not receive adequate notice of the 2008 proceedings (section 388 petition). Terrance asserted the Agency had not conducted a reasonable search because they had not contacted his relatives in Alabama and Virginia, with whom he had been living, and the social worker did not specifically ask Carolyn for Terrance's address or direct Carolyn to tell Terrance to contact her. He acknowledged he knew of the dependency proceedings but did not immediately contact the social worker. Terrance requested reunification services. He asserted the modification was in Shaun's best interests because he consistently and successfully visited Shaun and his siblings during the previous two months.

The court found that the section 388 petition did not state a prima facie case and denied Terrance an evidentiary hearing. The court proceeded to a hearing on the Agency's petition to deny services to Carolyn. The court admitted in evidence the Agency's reports of March 26, April 16, April 23, June 10 (two reports), July 17 (due diligence report), August 7 and August 18, 2008. The court took judicial notice of the minute orders in the 2007 proceedings terminating Carolyn's reunification services. No other evidence was presented. The court granted the Agency's petition and set a hearing to select and implement a permanency plan for Shaun

Terrance asked the court for status as Shaun's presumed father under Family Code section 7611, subdivision (d) or alternatively, for an opportunity to establish his status as a presumed father under Adoption of Kelsey S. (1992) 1 Cal.4th 816 (Kelsey S.). The court denied the request.

Terrance filed a petition for writ review under California Rules of Court, rule 8.452; this court issued an order to show cause and the parties waived oral argument.

DISCUSSION

A

The Court Did Not Err When It Denied Terrance's Request

to Change His Paternity Status

Terrace maintains the court erred when it denied him status as Shaun's presumed father under Family Code section 7611 or the opportunity to establish himself as Shaun's presumed father under Kelsey S. He argues his visitation with Shaun in June and July 2008 was sufficient to establish paternity under Family Code section 7611. Terrance maintains he was denied the opportunity to establish his paternity as to Shaun because he did not know Shaun was a dependent of the juvenile court.

Terrance's contentions are without merit. To establish paternity under Family Code section 7611, a man who has not legally married nor attempted to legally marry the mother of his child cannot become a presumed father unless he "receives the child into his home and openly holds out the child as his natural child." (Fam. Code, 7611, subd. (d); In re Spencer W. (1996) 48 Cal.App.4th 1647, 1652.) Terrance left Carolyn when she was seven months pregnant with Shaun. Terrance did not receive Shaun into his home and made no attempt to visit him for more than seven months. Terrance was not entitled to status as Shaun's presumed father under Family Code section 7611.

To qualify as a Kelsey S. father, the child's biological father must show that he promptly stepped forward to assume full parental responsibilities for the child's well-being, including a financial, emotional or other commitment, that the child's mother thwarted his efforts to assume his parental responsibilities and that he demonstrated a willingness to assume full custody of the child. (Kelsey S., supra, 1 Cal.4th at p. 849; Adoption of Michael H. (1995) 10 Cal.4th 1043, 1060.) The court correctly determined Terrance did not meet any Kelsey S. requirements.

Shaun remained in Carolyn's custody until March 2008. Carolyn did not prevent Terrance from assuming his parental responsibilities; rather, the record shows Terrance was aware of Shaun's birth and did not come forward to assume responsibility for the child. Shaun remained in Carolyn's custody for five months. Further, the record belies Terrance's claim he did not know Shaun was a dependent of the juvenile court. In his section 388 petition, Terrance acknowledged he did not contact the social worker when he originally discovered that Shaun and his siblings were involved in dependency proceedings. Terrance did not attempt to support Shaun financially, emotionally or in any other manner, either before or after dependency proceedings were initiated. The court correctly determined Terrance was not entitled to Kelsey S. status. (In re Zacharia D. (1993) 6 Cal.4th 435, 451.)

B

The Court Did Not Abuse Its Discretion When It Summarily

Denied Terrance's Section 388 Petition

Terrance asserts the court erred when it summarily denied the section 388 petition without granting an evidentiary hearing. Terrance argues the section 388 petition states a prima facie case of changed circumstances in that it shows the Agency did not conduct a reasonable search for him, and he only became aware of Shaun's foster care placement in May 2008. Terrance contends reversal of all postjurisdiction findings and orders is in Shaun's best interests because he was a nonoffending parent and established a loving, close parent-child bond with Shaun during visitation.

Under section 388, a parent may petition the court to change, modify or set aside a previous order on the grounds of changed circumstances or new evidence. ( 388, subd. (a).) The petitioner has the burden to show a change of circumstances or new evidence and the proposed modification is in the child's best interests. (In re Jasmon O. (1994) 8 Cal.4th 398, 415.) If the liberally construed allegations of the petition do not make a prima facie showing of changed circumstances and that the proposed change would promote the best interests of the child, the court need not order a hearing on the petition. The prima facie requirement is not met unless the facts alleged, if supported by evidence given credit at the hearing, would sustain a favorable decision on the petition. (In re Zachary G. (1999) 77 Cal.App.4th 799, 806.)

We review the court's summary denial of a section 388 petition for abuse of discretion. (In re C.J.W. (2007) 157 Cal.App.4th 1075, 1079.)

In support of his request for an evidentiary hearing on the section 388 petition, Terrance stated the Agency initiated parent searches in October 2007 and March 2008. Based on information the Agency had at the time, search efforts were focused in Alabama and Virginia. Terrance lived with his mother when he moved to Alabama. Terrance alleged the search efforts were unreasonable because the Agency did not contact his relatives or ask Carolyn to provide contact information for his relatives.

The court determined that Terrance did not establish a prima facie case that the Agency's search for him was unreasonable. The court noted that it had ordered Carolyn to provide the paternal relatives' contact information to the Agency. Under the circumstances, the Agency met its responsibilities. Based on Terrance's lack of contact with Shaun, the court found that it was not in Shaun's best interests to set a hearing on the section 388 petition.

The court did not abuse its discretion when it summarily denied the section 388 petition. Terrance's arguments concerning alleged defects in the 2007 search are without merit; Terrance returned to San Diego before the Agency filed a petition on Shaun's behalf. By the time the Agency located the paternal relatives' contact information, the social worker had learned that Terrance was in San Diego. Terrance did not allege his relatives knew his current whereabouts. The court properly determined the Agency acted reasonably when it did not ask Carolyn for the paternal relatives' contact information; Carolyn did not comply with a court order to disclose that information.

Further, Terrance did not show a modification of the prior order was in Shaun's best interests. His contention he was a "nonoffending parent" is without merit. Terrance was responsible for the unsafe home conditions that led to initial Agency involvement with the family. He refused to participate in voluntary services and threatened to kill a social worker if the siblings were removed. Terrance had a lengthy criminal record, injured Carolyn during a domestic argument, encouraged her to prostitute herself to support their family and left her when she was seven months pregnant with their third child. When Terrance returned to San Diego, he did not attempt to contact Shaun for more than two months. He did not meet Shaun until the child was almost eight months old.

The court's summary dismissal of the section 388 petition was a sound exercise of discretion. (In re Zachary G., supra, 77 Cal.App.4th at p. 808.)

C

The Record Shows the Agency Conducted a Reasonable Search but Did Not Attempt to Send Notice to Terrance's Last Known Address; Any Error Is Harmless

Terrance contends all postjurisdiction findings and orders must be reversed because the Agency did not make a reasonably diligent attempt to notify him of the 2008 dependency proceedings. He argues the Agency did not make any attempt to mail notice to his last known address, contact his paternal relatives in Alabama and Virginia or ask Carolyn for his contact information. Terrance asserts the burden was on the Agency to notice him of the proceedings and not on him to contact the Agency.

"Notice is both a constitutional and statutory imperative. In juvenile dependency proceedings, due process requires parents be given notice that is reasonably calculated to advise them an action is pending and afford them an opportunity to defend. (See, e.g., In re DeJohn B. (2000) 84 Cal.App.4th 100, 106.)" (In re Jasmine G. (2005) 127 Cal.App.4th 1109, 1114.)

If a man is identified as an alleged father, he "shall be provided notice at his last and usual place of abode by certified mail return receipt requested alleging that he is or could be the father of the child. The notice shall state that the child is the subject of proceedings under Section 300 and that the proceedings could result in the termination of parental rights and adoption of the child." ( 316.2, subd. (b).) An alleged father is also entitled to notice of the jurisdiction and disposition hearings. ( 291, subd. (a)(2).)^[3]

There is no due process violation when there has been a good faith attempt to provide notice to a parent who is transient and whose whereabouts are unknown for the majority of the proceedings. (In re J.H. (2007) 158 Cal.App.4th 174, 182.) Further, errors in notice do not automatically require reversal. (In re Angela C. (2002) 99 Cal.App.4th 389, 393-394.) We review such errors to determine whether they are harmless beyond a reasonable doubt. (Id. at pp. 392-395.)

In contrast to In re DeJohn B., supra, 84 Cal.App.4th at pages 103-104, the record shows the Agency conducted a reasonable search for Terrance.^[4] In October and November 2007 the Agency tried to locate Terrance to notify him of the 2007 proceedings. The Agency sent notices to his last known addresses in San Diego and Alabama; the notations are marked "N/R," which we infer means "no response" or "not returned." The Agency initiated a second parent search on March 14, 2008.

Before the Agency received the results from the second search, the Agency learned from several sources that Terrance was in San Diego. By April 11, the Agency knew Carolyn was in direct contact with Terrance. Carolyn informed the social worker that Terrance was aware that Shaun and his siblings were in out-of-home care. The Agency could reasonably conclude the most likely means of finding Terrance was through Carolyn. The record shows the Agency twice conducted a thorough, systematic good faith investigation and inquiry and did not ignore the most likely means of finding Terrance. (In re Arlyne A. (2000) 85 Cal.App.4th 591, 598.)

As Terrance contends, the record does not indicate that notice was mailed to Terrance's last known address in the 2008 proceedings as required by section 316.2, subdivision (b). When a statutory mandate is disobeyed, we typically apply a harmless-error analysis. (In re Jesusa V. (2004) 32 Cal.4th 588, 624.) Here we conclude the error was harmless beyond a reasonable doubt. (In re Angela C., supra, 99 Cal.App.4th at pp. 392-395.)

The Agency sent notices in the 2007 proceedings to Terrance's last known addresses in San Diego and Alabama and did not locate him at that time. There is no reason to believe Terrance would have received notice of the 2008 proceedings at his last known address or addresses, or at other addresses identified by April 2008. Terrance returned to San Diego before the Agency filed a petition in the 2008 proceedings. He was in San Diego on March 17, 2008; the jurisdiction and disposition hearings were held on April 23. (Cf. In re Angela C., supra, 99 Cal.App.4th at p. 393 [it is error to proceed at a section 366.26 hearing without some proof of actual notice to the parent].) Here Terrance acknowledged he had actual notice of the proceedings.^[5]

In his writ petition, Terrance acknowledges the court properly took jurisdiction of Shaun. As we discussed, ante, Terrance took no steps to establish paternity or to support Shaun in the months following his birth. As Shaun's biological father, Terrance was not entitled to reunification services. (In re Zacharia D., supra, 6 Cal.4th at pp. 451-452.) Further, with his history of noncompliance with services, disregard for the welfare of Shaun and his siblings, threats against a social worker, extensive criminal history and pending charges, Terrance would not be able to show that a discretionary grant of reunification services would benefit Shaun. ( 361.5, subd. (a).) The statutory notice error was harmless beyond a reasonable doubt. (In re Jesusa V., supra, 32 Cal.4th at p. 624.)

DISPOSITION

The petition is denied.

McCONNELL, P. J.

WE CONCUR:

HUFFMAN, J.

AARON, J.

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^[1] Unless otherwise specified, further statutory references are to the Welfare and Institutions Code.

^[2] The children's mother, Carolyn D., is not a party to this proceeding.

^[3] If the child is detained and the persons required to be noticed (including an alleged father) are not present at the detention hearing, the clerk of court shall provide notice by personal service or by certified mail, return receipt requested. ( 291, subd. (e)(1).)

^[4] Although the arguments overlap, the previous section concerns Terrance's failure to set forth a prima facie case in the 388 petition to support his assertion the Agency's search was unreasonable. ( 388.)

^[5] The record supports the reasonable inference Terrance did not want his location disclosed to a state agency; the State of Virginia had issued warrants for his arrest on burglary and other charges.