Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
APPEAL from the Superior Court of Riverside County Super.Ct.No. RIJ111208. Elva R. Soper, Judge. (Retired judge of the Los Angeles Super. Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.).
Dabney Finch, under appointment by the Court of Appeal, for Defendant and Appellant.
Joe S. Rank, County Counsel, and Carol A. Nunes Fong, Deputy County Counsel, for Plaintiff and Respondent.
Jennifer Mack, under appointment by the Court of Appeal, for Minors.
OPINION
HOLLENHORST, Acting P.J.
Antonio V. appeals from the order of the juvenile court terminating parental rights as to Antonio V., Jr., and Andrew V. (the children) and selecting adoption as the permanent plan. Appellant claims his due process rights as an alleged father were violated. We conclude that the notice given to him did not comply with the statutory requirements for notice to an alleged father, but find the error harmless. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
On December 9, 2005, the Riverside County Department of Public Social Services (the department) filed a Welfare and Institutions Code section 300 petition on behalf of the children. Antonio V., Jr., was six years old at the time, and Andrew V. was four years old. The petition named appellant as an alleged father. The petition alleged that the children came within the provisions of section 300, subdivisions (b) (failure to protect) and (g) (no provision for support). Specifically, the petition included the allegations that the children’s mother (mother) abused controlled substances, that appellant had a criminal history, that appellant was not a member of the children’s household and was unable to provide for them, and that appellant was currently incarcerated with a release date of June 3, 2011. Soon thereafter, the court dismissed the petition at the department’s request, after mother agreed to “Voluntary Family Maintenance Services.” However, the petition was reactivated on March 20, 2006, with essentially the same allegations concerning appellant.
All further statutory references will be to the Welfare and Institutions Code, unless otherwise noted.
The petition also included two of the children’s mother’s other children, who are not subjects of this appeal.
Mother is not a party to this appeal.
Detention
The social worker filed a detention report and stated that an emergency response social worker asked mother about appellant. Mother said appellant had an anger problem and was in prison for beating her. She also said appellant stayed in touch with the children through letters. The social worker called the state prison where appellant was incarcerated and left a message that a hearing was going to take place regarding the children.
At the detention hearing on March 21, 2006, the court appointed counsel for appellant. The court detained the children in foster care.
Jurisdiction/disposition
The social worker filed a jurisdiction/disposition report. She reported that the Indian Child Welfare Act (ICWA) did not apply here since mother told her there was no Indian ancestry in the family. The social worker further reported that appellant was serving a prison sentence for corporal injury on a spouse/cohabitant (mother) and transportation/sales of a controlled substance. He was scheduled for release from prison on June 3, 2011. She also recommended that it was in the best interests of the children to not offer reunification services to appellant, in light of the time period of his incarceration.
Notice of the jurisdictional hearing was sent to appellant in prison on March 24, 2006. The notice indicated the date, time and location of the hearing, that a section 300 petition had been filed on behalf of the children, and that reunification services may not be offered to him. Another notice was sent on April 5, 2006, stating that appellant had the right to be present at the hearing, that the court would decide whether or not to offer him reunification services, and that the social worker was recommending that services not be offered to him. The notice further warned that if the court denied reunification services under section 361.5, subdivision (b), a permanency planning hearing would be scheduled, at which the court could terminate appellant’s parental rights and free the children for adoption. The notice finally stated, “[t]o protect your rights it is advised that you appear at the April 20, 2006[,] [h]earing as the court may proceed without your presence to deny reunification services and proceed to set a Permanency Planning Hearing.”
The jurisdictional hearing was held on April 20, 2006. Appellant was represented by counsel, but waived his appearance. The court found that the children came within section 300, subdivisions (b) and (g) and adjudged them dependents of the court. The court noted that appellant was in state prison until 2011 and thus denied him reunification services under section 361.5, subdivision (e)(1).
The clerk’s transcript for the hearing states that appellant was present in court, but according to the reporter’s transcript, appellant waived his appearance.
Status Review Hearing
The social worker filed a status review report on June 1, 2007, and recommended adoption as the permanent plan. The children had been placed in their maternal grandparents’ home since April 24, 2007. There was a pending preliminary adoption assessment for the children with the maternal grandparents. At the status review hearing on June 11, 2007, appellant was represented by counsel, who submitted on the department’s recommendation. The court followed the recommendation.
Section 366.26 Hearing
Appellant made his first appearance in court at the section 366.26 hearing on August 1, 2007. He requested the court to consider a permanent plan of guardianship instead of adoption, so that he could maintain contact with the children. The court denied the request. The court found that it was likely that the children would be adopted, and terminated the parental rights of appellant and mother.
ANALYSIS
Any Error Was Harmless
Appellant argues he was not afforded his due process right to a determination of his parental status, in that he was not given his right to assert a position in the proceedings or the right to attempt to change his parental status. He specifically asserts that he was not sent the required paternity form, JV-505. We agree, but find any error harmless.
“‘Dependency law recognizes three types of fathers: presumed, alleged and biological.’ [Citation.] A biological father is one whose paternity of the child has been established, but who has not established that he qualifies as the child’s presumed father under Family Code section 7611. [Citation.] ‘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.’ [Citation.] [¶] . . . Due process for an alleged father requires only that he be given notice and an opportunity to appear and assert a position and attempt to change his paternity status, in accordance with procedures set out in section 316.2. [Citation.]” (In re Kobe A. (2007) 146 Cal.App.4th 1113, 1120 (Kobe A.).)
Section 316.2, subdivision (b) provides: “If, after the court inquiry, one or more men are identified as an alleged father, each alleged father 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. Judicial Council form Paternity-Waiver of Rights (JV-505) shall be included with the notice.”
“California Rules of Court, former rule 1413(g) then in effect, which implemented section 316.2, provided: ‘If, upon inquiry by the court, or through other information obtained by the county welfare department or probation department, one or more men are identified as alleged fathers of a child for whom a petition under section 300, 601, or 602 has been filed, the clerk must provide to each named alleged father, at the last known address, by certified mail, return receipt requested, a copy of the petition, notice of the next scheduled hearing, and Judicial Council form Statement Regarding Paternity [Juvenile] (JV-505) unless: [¶] (1) The petition has been dismissed; or [¶] (2) Dependency or wardship has been terminated; or [¶] (3) The man has previously filed a JV-505 form denying paternity and waiving further notice; or [¶] (4) The man has relinquished custody of the child to the county welfare department.’” (Kobe A., supra, 146 Cal.App.4th at p. 1121.) In sum, “[t]he procedures set forth in section 316.2, subdivision (b), and rule 1413 provide an alleged father with the notice to which he is entitled and the means by which to ‘assert a position and attempt to change his paternity status.’ [Citation.]” (In re Paul H. (2003) 111 Cal.App.4th 753, 761 (Paul H.).)
Hereinafter referred to as “rule 1413.”
Here, after appellant was identified as an alleged father, the department sent him notice of the jurisdictional hearing, which stated that the children were the subjects of proceedings under section 300 and that the proceedings could result in the termination of parental rights and adoption of the children. It is not clear from the record whether a copy of the petition was sent with the notice. In any case, appellant only asserts that he was not sent the JV-505 form. There is no evidence in the record that the clerk sent appellant the required form, and none of the exceptions listed in rule 1413 appear to apply. Furthermore, the notices sent to appellant did not provide him with the same or equivalent information about seeking an adjudication of his paternity. “Failure to provide the statutory notice denied appellant adequate notice of his rights and the ability to access the procedure for establishing paternity, obtaining reunification services, and ultimately seeking placement of [the children] in his home or with one of his relatives. [Citation.]” (Kobe A., supra, 146 Cal.App.4th at p. 1122.)
Nonetheless, we conclude that the error in this case was harmless since it did not result in a miscarriage of justice. (Kobe A., supra, 146 Cal.App.4th at p. 1122.) Even if he had received the Judicial Council form advising him of the actions to take to establish his paternity status, appellant would not have been able to meet the statutory elements to be declared a presumed father under Family Code section 7611. He was not married to mother, nor is there evidence or even a claim that he attempted to marry her, so he could not establish presumed status under Family Code section 7611, subdivisions (a), (b) or (c). Under subdivision (d), a man can be a presumed father if “[h]e receives the child into his home and openly holds out the child as his natural child.” There was no evidence to show that appellant did either. He was convicted of corporal injury to a spouse/cohabitant in March 1999 and transportation/sales of a controlled substance on September 14, 2000. Antonio V., Jr., was born in 1999 and Andrew V. was born in 2001. Since appellant has been incarcerated since at least September 14, 2000, and probably earlier, and is still incarcerated, there is no realistic possibility that he ever received the children into his home. Mother did mention that appellant kept in touch with the children through letters; however, this evidence alone does not demonstrate that appellant held the children out as his own.
More importantly, whether appellant was an alleged or presumed father, he was not scheduled for release from prison until June 3, 2011. Based on that fact, the court denied him reunification services under section 361.5, subdivision (e)(1). Section 361.5, subdivision (e)(1) provides: “If the parent or guardian is incarcerated or institutionalized, the court shall order reasonable services unless the court determines, by clear and convincing evidence, those services would be detrimental to the child. In determining detriment, the court shall consider the age of the child, the degree of parent-child bonding, the length of the sentence, . . . and any other appropriate factors. Reunification services are subject to the applicable time limitations imposed in subdivision (a).” Since the children were six years old and four years old at the time of the initial removal, court-ordered services could not exceed a period of 12 months, except that they could be extended to18 months after the date the children were originally removed from mother’s physical custody if it could be shown that the permanent plan was that they would be returned and safely maintained in the home within the extended time period. (§ 361.5, subd. (a)(3).) The children were removed from mother’s custody on March 21, 2006. Thus, the maximum 18-month period for reunification would have ended several years before appellant’s release from prison. Since the children could not be returned or safely maintained in appellant’s home within the extended time period, the court properly denied appellant reunification services.
Ultimately, whether or not appellant sought to change his paternity status, the course of the dependency case would not have been different. On this record, we conclude appellant was not prejudiced by the juvenile court’s failure to comply with the notice requirements of section 316.2 and rule 1413.
Appellant claims prejudice because a determination of paternity was needed for a determination of whether Antonio V., Jr., had Native American heritage. However, mother informed the social worker that there was no Indian ancestry in the family. Moreover, appellant has made no “offer of proof or other affirmative representation that, had he been asked, he would have been able to proffer some Indian connection sufficient to invoke the ICWA.” (In re Rebecca R. (2006) 143 Cal.App.4th 1426, 1431.) In the absence of such a representation, his claim now “amounts to nothing more than trifling with the courts.” (Ibid.)
Curiously, appellant did not include Andrew V. in this claim.
In addition, appellant claims prejudice under section 366.26, subdivision (i)(2). However, any claim under this provision would belong to the children, not appellant, since it allows a child who has not been adopted three years after parental rights were terminated to petition the court to reinstate parental rights. Moreover, the claim at this point is premature and speculative.
DISPOSITION
The order is affirmed.
We concur: RICHLI, J., KING, J.