In re I.P.

Filed 2/5/10 In re I.P. CA2/5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

APPEAL from a judgment of the Superior Court of Los Angeles County, D. Zeke Zeidler, Judge. Affirmed.

Janette Freeman Cochran, under appointment by the Court of Appeal, for Defendant and Appellant.

Office of the Los Angeles County Counsel, James M. Owens, Assistant County Counsel, and O. Raquel Ramirez, Deputy County Counsel, for Plaintiff and Respondent.

______________________________

Jose P. appeals from the judgment of May 7, 2009, declaring I.P., born in February 2009, a dependent of the court under Welfare and Institutions Code section 300.^[1] He contends he was not served with Judicial Council form JV-505 (Statement Regarding Parentage), substantial evidence does not support the sustained allegations of the petition, and denial of reunification services was an abuse of discretion. Jose forfeited the contention that he was not served with form JV-505 by failing to object in the trial court. Substantial evidence supports the allegations, and the dependency courts denial of reunification services was not an abuse of discretion. Accordingly, we affirm the judgment.

STATEMENT OF FACTS AND PROCEDURE

I.s mother had a history of substance abuse and criminal convictions. She lost custody of her five older children. Jose had an extensive criminal record of drug and theft offenses dating from 1995. On March 17, 2008, he was convicted of petty theft with a prior conviction and placed on three years probation on condition he serve 90 days in jail. Mother and Jose were arrested for possession of a controlled substance on June 6, 2008. On November 12, 2008, mother and Jose were arrested for petty theft with a prior conviction. On December 18, 2008, mother and Jose were convicted of felony petty theft with a prior conviction. Mother was sentenced to 16 months in state prison, and Jose was sentenced to two years in state prison.

While incarcerated, mother gave birth to I. A father was not identified on the hospital birth certificate. Mother released I. to a maternal aunts care. The maternal aunt stated mother indicated that Jose was the biological father.^[2]

On February 26, 2009, the Department of Children and Family Services (the Department) detained I. and placed him with the maternal aunt. A petition to declare I. a dependent of the court was filed. The petition identified Jose as an alleged father. Mother was transferred to the Family Foundations Program-Alternative Sentencing Program for pregnant and parenting incarcerated mothers. Notice of the detention hearing scheduled for March 3, 2009, the petition, and the social workers report were mailed to Jose in prison.

Neither mother nor Jose was present at the detention hearing on March 3, 2009. The dependency court ordered I. detained with maternal aunt. The matter was continued to April 8, 2009.

On March 6, 2009, the dependency court issued a removal order for Jose to attend the hearing on April 8, 2009. Notice of the April 8, 2009 hearing to declare I. a dependent of the court was mailed to Jose in prison on March 30, 2009. The prison where he was incarcerated was 336 miles from I.s placement.

On April 1, 2009, Jose signed a waiver of the right to be present at the April 8, 2009 hearing and requested appointment of an attorney to represent him and appear for him at the hearing. At the hearing on April 8, 2009, an attorney was appointed to represent Jose. The dependency court ordered counsel to contact Jose. The matter was continued to May 7, 2009.

On April 13, 2009, the dependency court issued a removal order for Jose to attend the hearing on May 7, 2009, to declare I. a dependent of the court. On April 29, 2009, Jose signed a waiver of the right to be present at the hearing and authorized his attorney to represent him at the hearing. Notice of the May 7, 2009 jurisdiction/disposition hearing was mailed to Jose on April 30, 2009.

Mother made her first appearance in the proceedings on May 7, 2009. She filled out a paternity questionnaire stating she believed Jose was the father. Jose did not sign papers establishing paternity at the hospital, they were not married, he did not hold himself out as the father and accept I. openly in his home, and no paternity testing was done. Jose was not present but appeared by his attorney. Counsel did not wish to be heard on the issue of a paternity finding. The dependency court found Jose to be an alleged father, without objection from Joses attorney. Counsel made a motion to dismiss the petition as to Jose on the ground of lack of evidence. The dependency court denied the motion.

I. was declared a dependent of the court under section 300, subdivisions (b) and (g), based on sustained allegations that mother has a history of substance abuse, two of I.s siblings received permanent placement services, and Jose failed to provide I. with the necessities of life and is currently incarcerated. Custody was removed from Jose to the extent he had custody, and the dependency court [did] not exercise[e] its discretion to grant [Jose] reunification services. [Jose] didnt even come to this court hearing. . . . I understand that inmates sometimes dont want to lose time, but here is his child, as far as he knows, is going into a foster home, could possibly be adopted and he signed a waiver instead, come to court hearings to participate. I. was placed in home-of-parent-mother in mothers alternative sentencing program. Jose was granted monitored visitation.

DISCUSSION

Jose Forfeited His Contention Concerning Service of Form JV-505

Jose contends he was not served with form JV-505, as required by section 316.2,^[3]so that he could be found to be a presumed father.^[4] Form JV-505 specifically informs an alleged father that he can compel the court to determine his paternity[.] (In re Kobe A. (2007) 146 Cal.App.4th 1113, 1121.) The issue was forfeited by failure to raise it below.

A parents failure to raise an issue in the juvenile court prevents him or her from presenting the issue to the appellate court. (In re Elijah V. (2005) 127 Cal.App.4th 576, 582; accord, In re S.B. (2004) 32 Cal.4th 1287, 1293 [a reviewing court ordinarily will not consider a challenge to a ruling if an objection could have been but was not made in the trial court]; In re Dakota H. (2005) 132 Cal.App.4th 212, 221 [A party forfeits the right to claim error as grounds for reversal on appeal when he or she fails to raise the objection in the trial court.].)

Jose was served with a copy of the petition, which identified him as an alleged father. He waived his presence at the initial date for the petition hearing. Counsel was appointed to represent him and ordered to contact him. Jose waived his presence at the jurisdiction/disposition hearing and appeared by his attorney. As he did not raise any issue concerning form JV-505 at the hearing, request a paternity finding, or object to being found an alleged father, he forfeited the contention that he was not served with form JV-505.

Substantial Evidence Supports the Findings of the Petition

Jose contends substantial evidence does not support the allegations under section 300, subdivisions (b) and (g), that he failed to provide I. with the necessities of life and such failure places I. at risk. We disagree.

In reviewing the jurisdictional findings and the disposition, we look to see if substantial evidence, contradicted or uncontradicted, supports them. [Citation.] In making this determination, we draw all reasonable inferences from the evidence to support the findings and orders of the dependency court; we review the record in the light most favorable to the courts determinations; and we note that issues of fact and credibility are the province of the trial court. [Citation.] (In re Heather A. (1996) 52 Cal.App.4th 183, 193.) We do not reweigh the evidence or exercise independent judgment, but merely determine if there are sufficient facts to support the findings of the trial court. (In re Matthew S. (1988) 201 Cal.App.3d 315, 321.)

Section 300, subdivision (b), describes a child, inter alia, who is at substantial risk of serious physical harm or illness due to a parents failure or inability to adequately protect or willful or negligent failure to provide with adequate food, clothing, shelter, or medical care. Section 300, subdivision (g), describes a child, inter alia, who has been left without provision for support or whose parent has been incarcerated and cannot arrange for care for the child.

Substantial evidence supports the findings Jose failed to provide I. with the necessities of life ( 300, subd. (b)) and support ( 300, subd. (g)). There is no evidence Jose provided for I. while he was incarcerated. During the period mother was pregnant with I., father used drugs and suffered arrests and incarceration. The maternal great-aunt stated, I dont think [Jose] has ever worked. He has never been stable for long periods of time to work and have money to provide for any of his children. I hired him and [mother] to help me clean up my mothers old house. They would both show up very late at 3:30 p.m. after probably sleeping all day and they would show up behaving very strange and incoherent. It is reasonable to infer from the foregoing that father could not, and did not, provide for mother while she was pregnant with I.

Moreover, Joses incarceration created a risk I. will suffer serious harm under section 300, subdivision (b), and, while incarcerated, he failed to arrange for I.s care under section 300, subdivision (g). (In re James C. (2002) 104 Cal.App.4th 470, 483-484.) He made no arrangement for I.s care and custody and did not provide names of any relatives who could care for I. His absence left him unable to protect I. from the risks posed by mothers drug abuse and incarceration.

The foregoing is substantial evidence supporting the allegations against Jose under section 300, subdivisions (b) and (g).

The Denial of Reunification Services Was Not an Abuse of Discretion

Jose contends the dependency courts denial of reunification services was an abuse of discretion under section 361.2, subdivision (a), to grant reunification services to him as a noncustodial parent. The contention is devoid of merit.

Section 361.2 provides that, when a child is removed from a parent, the dependency court has discretion to place the child with the noncustodial parent and, if so, inter alia, may order reunification services for the formerly custodial parent. ( 361.2, subds. (a) & (b)(3).) Here, custody of I. was given to mother, but Jose was not the formerly custodial parent. Section 361.2 provided no basis for the dependency court to grant reunification services to Jose. (Compare In re V.F. (2007) 157 Cal.App.4th 962, 969 [ 361.2, subd. (a) applies when the child is removed from parental custody].)

To the extent Jose contends that he should have been granted reunification services under section 361.5, subdivision (b), he is mistaken. Section 361.5, subdivision (a), gives the dependency court discretion to grant reunification services to the biological father from whom the child was removed, if such services will benefit the child. The dependency court exercised its discretion and denied Jose reunification services. Jose does not demonstrate that this decision was an abuse of discretion. Jose was not concerned enough about I.s welfare and about his parental role to ask for rehabilitation services, provide support, refrain from criminal activity, remain free of incarceration, attend the court hearings, communicate with the social worker about I., or contact I.s caretaker. He was serving a two-year sentence in a prison that was over 300 miles away. His anticipated release date was more than six months away. He had longstanding problems of drug abuse and criminal activity, had a track record of not being amenable to rehabilitation services, and previously failed to reunify with an older child. Denial of reunification services was not an abuse of discretion.

DISPOSITION

The judgment is affirmed.

KRIEGLER, J.

We concur:

ARMSTRONG, Acting P. J.

MOSK, J.

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^[1] All further statutory references are to the Welfare and Institutions Code, unless otherwise indicated.

^[2] Jose was the biological father of one of mothers older children, J., born in 2002. J. was declared a dependent of the court in January 2004, based on sustained allegations of the parents drug abuse and medical abuse of J. Neither Jose nor mother responded to services, and J. was adopted.

^[3] Section 316.2 provides that alleged fathers shall be provided notice of the proceedings, and such notice shall include form JV-505.

^[4] A man is presumed to be a childs father, inter alia, if [h]e receives the child into his home and openly holds out the child as his natural child. (Fam. Code, 7611, subd. (d).)