Matthew H. v. Superior Court

Filed 8/22/06 Matthew H. v. Superior Court CA2/4

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION FOUR

ORIGINAL PROCEEDINGS in mandate. Sherri S. Sobel, Referee. Petition denied.

Mathew Thomas H., in pro. per., for Petitioner.

No appearance for Respondent.

Raymond G. Fortner, Jr., County Counsel, Larry Cory, Assistant County Counsel, and Lisa Proft, Deputy County Counsel, for Real Party in Interest.

Petitioner Mathew Thomas H., the alleged father of the minor, A.A., seeks an extraordinary writ (Cal. Rules of Court, rules 38-38.1) to order the juvenile court to provide reunification services, visitation, and custody to him. He also challenges the order of the juvenile court setting a Welfare and Institutions Code section 366.26[1] hearing. We shall deny the petition.

FACTUAL AND PROCEDURAL SUMMARY

Newborn A.A. was removed from the custody of her mother by the Department of Children and Family Services (DCFS) after mother[2] and child tested positive for methamphetamine and marijuana. Mother has a 10-year history of drug use and drug-related criminal involvement. She has two other children with whom she has not reunified. She had another child who died of sudden infant death syndrome with amphetamines in his system.

Mother identified petitioner as A.A.'s alleged father. (He is not related to her previous children.) At the time A.A. was born, petitioner was in custody in Susanville, California. His expected date of release is November 2008. Petitioner did not receive notice of the February 14 detention hearing because his whereabouts were unknown. At that hearing, the juvenile court placed A.A. with the maternal aunt and uncle.

The juvenile court continued the March 6 hearing because petitioner had not received proper notice. After receiving notice of the next hearing, petitioner waived his appearance, but requested that an attorney be appointed to represent him and appear for him at the hearing. In its dispositional report, DCFS recommended the court deny reunification services to petitioner because he was an alleged father only. DCFS also recommended that the court deny reunification services to mother because of her unresolved drug use, neglect of her other children, and criminal involvement.

On April 18, 2006, the juvenile court conducted the adjudication hearing. It sustained the section 300 petition and declared A.A. a dependent. Counsel was appointed and appeared for petitioner. The court found petitioner to be an alleged father pursuant to section 361.5, subdivision (a). He was denied reunification services and contact with the child. Through his attorney, petitioner requested a paternity test and indicated that his family would get involved if the test was positive. The request was denied, but the court offered to make the minor available if petitioner paid for the test. The court also denied reunification services for mother, finding that services were not in the best interests of the child. The court scheduled a section 366.26 hearing.

This writ petition followed.

DISCUSSION

Although the petition is vague, it sets forth petitioner's claims sufficiently to be treated on their merits. Petitioner challenges the juvenile court's order setting a section 366.26 hearing. He contends the court erred in denying him the option of placing A.A. with his mother. He also requests visitation, reunification services, and custody.

DCFS contends that petitioner forfeited his right to raise these issues on appeal because he did not expressly raise them below. Petitioner waived his right to attend the adjudication hearing. His attorney informed the court that petitioner's family would â€