In
re Brianna B.
Filed 1/24/13
In re Brianna B. CA2/4
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 This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115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 FOUR
In re BRIANNA B., a Person
Coming Under the Juvenile Court Law.
B239673
LOS ANGELES COUNTY DEPARTMENT
OF CHILDREN AND FAMILY SERVICES,
Plaintiff and Respondent,
v.
CARLOS G.,
Defendant and Appellant.
(Los Angeles
County
Super. Ct.
No. CK47347)
APPEAL from
orders of the Superior Court
of
County, Jacqueline Lewis, Referee. Affirmed.
Joseph D.
MacKenzie, under appointment by the Court of Appeal, for Defendant and
Appellant.
Office of
the County Counsel, John F. Krattli, County Counsel, James M. Owens, Assistant
County Counsel, and William D. Thetford, Principal Deputy County Counsel for
Plaintiff and Respondent.
>
Appellant
Carlos G., the biological father of Brianna B., argues the juvenile court erred
by denying his request to continue a hearing under Welfare and Institutions
Code section 366.26
title="">[1] in order to set a contested hearing at a later
date. He also contends the court erred
in stating that it was only terminating the
and presumed father, Martin R. We find
no reversible error and affirm.
FACTUAL AND PROCEDURAL SUMMARY
Brianna B.
was born in August 2001, while her mother, Evelyn B., was married to Martin
R. Neither Martin R. nor mother is a
party to this appeal. DNA testing
confirmed that appellant is Brianna’s biological father. He was incarcerated when she was born, and
remained in custody throughout this dependency matter. He did not qualify as a presumed father
either by executing a voluntary declaration of paternity at her birth, or by
taking her into his home and holding her out as his own under Family Code
section 7611, subdivision (d).
In December
2001, Brianna was the subject of a prior dependency
petition which alleged the child had witnessed an episode of domestic
violence between mother and Martin and that mother had endangered her by driving
with her in a dangerous and erratic manner while fleeing from law enforcement
officers. During those proceedings, on January 9, 2002, the juvenile court
found that Martin R. is Brianna’s presumed father. But in the present case, Martin R. declined
to care for the child.
The present
petition was filed by the Department of
Children and Family Services (DCFS) in March 2011, alleging that Brianna
comes within the jurisdiction of the juvenile court under section 300,
subdivisions (a), (b), (d), and (g). The
petition alleged mother had physically abused Brianna, and that she had been
sexually and physically abused when mother left her in the care of various
adults while mother was incarcerated in 2008.
The petition also alleged that appellant had failed to provide Brianna
with the necessities of life. When the
petition was filed, both mother and appellant were incarcerated. Appellant filed a Statement Regarding
Parentage (form JV-505) stating he was Brianna’s biological father based on the
earlier DNA tests. The court found him
to be her alleged father. DCFS reported
that no reunification services were available to appellant at the place where
he was incarcerated, but recommended that they be ordered in light of the
possibility that after his release, he could complete the programs before the
section 366.22 review hearing.
The amended
petition was sustained and Brianna was declared a dependent child. Mother and appellant were denied
reunification services under section 361.5, subdivision (e) in light of their
incarcerations. A permanent planning
hearing was set under section 366.26.
Brianna was placed with Ms. V., the sister of presumed father Martin R.,
with whom the child had lived for two years before coming to California. Ms. V. and her husband were willing to adopt
her.
At the
section 366.26 hearing on February 12, 2012, counsel for appellant informed the
court that his client expected to be released from prison in June. Appellant was eager to resume contact with
Brianna. Since his anticipated release
was just a few months away, appellant sought a continuance of the hearing. Alternatively, he sought a contested hearing,
based on his belief that he had bonded with Brianna through correspondence. Since appellant is the biological and alleged
father, but not the presumed father, the court asked counsel to identify the
basis for a contested hearing. Counsel
did not cite authority in support of the request.
The court
observed that Martin R. had been found to be the presumed father, and that he
and mother were the only legal parents.
It indicated some uncertainty about whether appellant had a right to
request a continuance, but concluded:
“[E]ven though the Court found your client [appellant] to be the
biological father, he is not a legal father.
And I do not believe he has a right to set this for contest because I
wouldn’t actually be terminating his parental rights. I’m only terminating the parental rights of
the legal parents.†Brianna was found
adoptable by clear and convincing
evidence. The court terminated the
parental rights of mother and Martin R. and “anyone else that claims to be a
parent to this child . . . .â€
This timely appeal followed.
DISCUSSION
“California
law distinguishes ‘“alleged,â€â€™ ‘“biological,â€â€™ and ‘“presumedâ€â€™ fathers. (In re
J.L. (2008) 159 Cal.App.4th 1010, 1018.)
‘“A man who may be the father of a child, but whose biological paternity
has not been established, or, in the alternative, has not achieved presumed
father status, is an ‘alleged’ father.â€â€™
(Ibid.) ‘“A biological or natural father is one whose
biological paternity has been established, but who has not achieved presumed
father status . . . .â€â€™ (
793, 801), and ‘[o]nly presumed fathers are entitled to reunification services
and to possible custody of the child.’ (
726.)â€
Hunter W. (2011) 200 Cal.App.4th 1454, 1461.) Appellant is an alleged or biological father,
but never attained presumed father status as to Brianna.
The Supreme
Court has applied the definitions of “parent†found in the United Parentage Act
(Family Code, § 7600 et seq.) to dependency cases. (In re
Zacharia D. (1993) 6 Cal.4th 435, 451; In
re M.C. (2011) 195 Cal.App.4th 197, 211.)
Interpreting former Civil Code section 197, now codified in Family Code
section 3010, the Zacharia D. court
held: “only a presumed father is
entitled to custody of his child; custody is the consequence of either a
successful reunification plan or a placement of the child with the father under
section 361.2.†(6 Cal.4th at p. 451.) “Under the dependency law scheme, only mothers
and presumed parents have legal status as ‘parents,’ entitled to the rights
afforded such persons in dependency proceedings, including standing, the
appointment of counsel and reunification services. [Citations.]â€
(In re M.C.,
Jesusa V. (2004) 32 Cal.4th 588, 603 (Jesusa
V.).)
The
juvenile court may terminate the rights of both presumed and biological fathers
in a dependency proceeding. (Francisco
G. v. Superior Court (2001) 91 Cal.App.4th 586, 596.) The rights of a “mere biological father
. . . may be terminated based solely upon the child’s best
interest and without any requirement for a finding of detriment or unfitness .
. . .’ [Citations.].†(In re
Jason J. (2009) 175 Cal.App.4th 922, 933–934.)
Where a
biological father has not qualified as a presumed father before the dependency
case is in permanency planning, the only remedy available is to show under
section 388 that it is in the child’s best interest to vacate the permanent
planning orders and provide the biological father with reunification services
in order to allow him to qualify as a presumed father entitled to custody. (In re
Vincent M. (2008) 161 Cal.App.4th 943, 956.) This was the only route open to appellant
here, but he has not claimed presumed father status either in the juvenile
court or on appeal.
Appellant
cites Adoption of Kelsey S. (1992) 1
Cal.4th 816, for the proposition that the biological connection between a
father and his child is entitled to constitutional protection. He contends that as a biological father, he
was more than an alleged father whose rights in a dependency case are limited
to the right to notice and an opportunity to establish his paternity of the
child. There is no claim that mother, or
anyone else, prevented appellant from achieving presumed father status. Instead, he attributes his inability to do so
to his extended incarceration. Under
these circumstances, appellant does not qualify as a Kelsey S. father.
The
juvenile court stated that it was not terminating appellant’s parental rights
because he was only a biological father.
But the court terminated the parental rights of “anyone else [who]
claims to be a parent to this child,†which included appellant. On this record, this was not error. “[A] biological father’s rights are limited
to establishing his right to presumed father status, and the court does not err
by terminating a biological father’s parental rights when he has had the
opportunity to show presumed father status and has not done so. [Citations.].†(In re
A.S. (2009) 180 Cal.App.4th 351, 362.)
Under these
circumstances, we conclude that appellant did not have the right to either
continue the section 366.26 hearing or to set it for a contested hearing. The juvenile court did not err in denying
appellant’s requests.
DISPOSITION
The orders
of the juvenile court are affirmed.
EPSTEIN,
P. J.
We concur:
WILLHITE,
J.
MANELLA,
J.
name="_ftn1" title=""> [1] Statutory references are to the Welfare and
Institutions Code unless otherwise indicated.
name="_ftn2" title=""> [2] The court has discretion to order
reunification services for a biological father.
(In re Raphael P. (2002) 97
Cal.App.4th 716, 725, fn. 7.)
