Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of Riverside County. No. RIJ113192 Kenneth Fernandez, Temporary Judge. (Pursuant to Cal. Const., art. VI, § 21.)
Michael D. Randall, under appointment by the Court of Appeal, for Defendant and Appellant.
Pamela J. Walls, County Counsel, and Carole A. Nunes Fong, Deputy CSounty Counsel, for Plaintiff and Respondent.
RICHLI, J.
“She’s just a girl who says that I am the one/But the kid is not my son.” (“Billie Jean, ” chorus, Michael Jackson (1982).)
Appellant N.B. (the father) is the alleged father of a toddler-age girl, A.W. He contends that, when the trial court terminated his parental rights to A.W., it erred by denying his request for a free paternity test. He is not claiming that a test would have shown that he was the biological father. He also is not complaining that he was erroneously deprived of anything that a biological father would have been entitled to, such as appointed counsel (which he had) or reunification services (which he was denied for other reasons).
Rather, he seems to be claiming that a test would have shown that he was not the biological father. If so, we find it hard to see how he was harmed by an order terminating his parental rights. In any event, we reject his contention that at that point he had a constitutional right, as a matter of either due process or equal protection, to a free paternity test.
I
FACTUAL AND PROCEDURAL BACKGROUND
A.W. was born in January 2008 and was detained almost immediately. The Department of Public Social Services (the Department) filed a dependency petition regarding her, alleging that the mother’s parental rights to an older child (by a different father) had already been terminated and that the father’s whereabouts were unknown.
The mother named the father as A.W.’s biological father. She said he was incarcerated, but she did not say where.
In February 2008, at the jurisdictional/dispositional hearing, the juvenile court sustained the allegations of the petition. It ordered reunification services for the mother; it denied the father reunification services because he was merely an alleged father (Welf. & Inst. Code, § 361.5, subd. (a)) and because his whereabouts were unknown (id., subd. (b)(1)).
In June 2008, A.W. was placed with foster parents, who eventually became the prospective adoptive parents.
By August 2008, through a parent locator search, the Department had located the father in state prison. His estimated release date was June 2012. The social worker sent the father a blank form JV 505 (Statement Regarding Parentage), along with a self-addressed stamped envelope, but he never returned the form.
By checking the appropriate boxes on this form, the father could have requested either paternity testing or a judgment of parentage.
Later in August 2008, the Department filed an amended petition, which added allegations that the mother had a history of substance abuse and that the father was in prison and had a criminal history including robbery, domestic violence, stalking and “[u]nder the [i]nfluence....” The juvenile court appointed counsel for the father. The father waived his personal appearance at subsequent hearings. By letter to the Department, he requested a paternity test, “as he questions paternity.” However, he also said that, if he were found to be the biological father, he would want “involvement in his child’s life....” He asked that the child be placed with his mother; the Department investigated her but found that, in the absence of an exemption, her criminal history disqualified her for placement.
In November 2008, at a further jurisdictional hearing, the juvenile court sustained the allegations of the amended petition. It also granted the foster parents de facto parent status. At a further dispositional hearing, it denied the father reunification services, again because he was only an alleged father, but also because of his “length of incarceration.” The father’s counsel did not object.
In May 2009, at the six-month review hearing, the juvenile court terminated reunification services and set a hearing pursuant to Welfare and Institutions Code section 366.26 (section 366.26).
In September 2009, at the section 366.26 hearing, the father was personally present for the first time. His counsel did not object to termination of parental rights. However, he did request a paternity test:
“... I am asking the court to authorize paternity testing for this child. I think it is in the child’s benefit to know if my client is in fact the biological parent.
“... I think, again, knowing father’s medical history that would be in the benefit of the child as well, if he is in fact the biological father.”
The juvenile court responded: “I don’t think it would be appropriate to order the [D]epartment to pay for that given the procedural posture of this case. I suppose if there was a desire by the de facto parents to know the biological history of the child, that would be one issue, but I don’t think it’s really appropriate for the court to be making an order for the testing. I would feel comfortable authorizing it so long as the test was not to be paid by the [D]epartment and the information was requested by the de facto parents.” The de facto parents indicated that they did not want paternity testing. The juvenile court then proceeded to terminate parental rights.
II
DISCUSSION
The father’s sole appellate contention is that he had a constitutional right, as a matter of both due process and equal protection, to a free paternity test in connection with the section 366.26 hearing.
We do not understand him to be challenging the failure or refusal to provide him with a free paternity test at any time before the section 366.26 hearing. (See Cal. Rules of Court, rule 8.204(a)(1)(B) [brief must state each point under a separate heading or subheading summarizing the point].) We note - if only out of an excess of caution - that the time has long passed for him to raise this contention in connection with any previous orders. “‘“[A]n unappealed disposition or postdisposition order is final and binding and may not be attacked on an appeal from a later appealable order.” [Citation.]’ [Citations.]” (In re S.B. (2009) 46 Cal.4th 529, 532.)
Turning, then, to the refusal to provide the father with a free paternity test at the section 366.26 hearing, we conclude that he forfeited his contention by failing to raise it then and there. In the juvenile court, his counsel did not argue that the father himself had any interest in obtaining a paternity test; he merely argued that a paternity test would benefit the child. He did not argue that he was entitled to a paternity test as a matter of either due process or equal protection. “A party may not assert theories on appeal which were not raised in the trial court. [Citation.]” (In re Dakota H. (2005) 132 Cal.App.4th 212, 222 [parent forfeited due process argument]; accord, In re Cynthia C. (1997) 58 Cal.App.4th 1479, 1491.)
As the father notes, we do have discretion to reach an issue that was not raised below, if it involves “‘“‘ a pure question of law which is presented by undisputed facts.’...”’ [Citations.]” (Renee J. v. Superior Court (2002) 96 Cal.App.4th 1450, 1459.) Here, however, the issue does involve at least one disputed factual question - whether the father was, in fact, indigent. Even if we had discretion to reach the issue, we would not exercise it here, because it has the potential to delay permanency for the child; thus, the father should be required to raise it timely below, or not at all.
We do not mean to imply that the contention, if not forfeited, would have merit. Due process did not require a paternity test because a paternity test was irrelevant to any issue that was before the juvenile court. “The issues before the court at a section 366.26 hearing are limited to the questions of whether the child is adoptable and whether there is a statutory exception to adoption. [Citation.]” (In re Erik P. (2002) 104 Cal.App.4th 395, 401, fn. 2.) The father’s biological paternity was not relevant to either of these issues.
Admittedly, the end result of the section 366.26 was the termination of the father’s parental rights. However, the juvenile court was not required to determine what his parental rights were, or even whether he had any. “Termination may not be ordered unless the court finds by clear and convincing evidence that the minor is likely to be adopted. [Citation.] The termination of all parental rights, including those of an unknown father or of a person who at the time of the hearing is not asserting any parental rights, is necessary to accomplish this objective.” (In re Jerred H. (2004) 121 Cal.App.4th 793, 797-798, italics added; see also Cal. Rules of Court, rule 5.725(g).)
The father relies on cases stating that “[d]ue process for an alleged father requires... that the alleged father be given notice and ‘an opportunity to appear and assert a position and attempt to change his paternity status. [Citations.]’ [Citation.]” (In re Paul H. (2003) 111 Cal.App.4th 753, 760; see also In re O.S. (2002) 102 Cal.App.4th 1402, 1408.) This does not mean, however, that he must be given an opportunity to change his paternity status at each and every hearing. The father had an ample opportunity to request a paternity test, through his appointed counsel, at numerous earlier hearings. Indeed, he could have forced the juvenile court to determine paternity simply by making a proper request. (Welf. & Inst. Code, § 316.2, subd. (d) [“[i]f a man appears in the dependency action and files an action under Section 7630 or 7631 of the Family Code, the court shall determine if he is the father”]; Cal. Rules of Court, rule 5.635(h) [“[i]f a person appears at a hearing in dependency matter... and requests a judgment of parentage on form JV 505, the court must determine: [¶]... [w]hether that person is the biological parent of the child”].) He did not do so. By the time the case reached the section 366.26 stage, biological paternity simply was no longer an issue.
In his reply brief, the father suggests that the social worker may have addressed the blank form JV 505 to the wrong zip code. He also complains that he was never advised that he had to return it by any particular deadline.
The father also relies on Little v. Streater (1981) 452 U.S. 1 [101 S.Ct. 2202, 68 L.Ed.2d 627], which held that, in an action brought by the state to establish paternity, an indigent defendant has a right to a paternity test at state expense as a matter of due process. (Id. at pp. 16-17.) The court noted, however: “The nature of paternity proceedings in Connecticut... bears heavily on appellant’s due process claim. Although the State characterizes such proceedings as ‘civil, ’ [citation], they have “quasicriminal” overtones.... [I]f a putative father ‘is found guilty, the court shall order him to stand charged with the support and maintenance of such child’ (emphasis added); and his subsequent failure to comply with the court’s support order is punishable by imprisonment.... [Citations.]” (Id. at p. 10.) It concluded that the putative father had a “pecuniary interest in avoiding a substantial support obligation and [a] liberty interest threatened by the possible sanctions for noncompliance....” (Id. at p. 13.) Here, by contrast, the section 366.26 hearing did not determine paternity; a fortiori, it could not have subjected the father to a support obligation or to imprisonment. The results of a paternity test would have had no effect on the outcome. Regardless of whether he was or was not the biological father, his parental rights still would have been terminated.
The father also argues that, as a result of collateral estoppel, his “name will be forever linked to the instant case regardless of whether he was alleged to be A.W.’s father in error. [Citation.] This could cast [him] in a bad light in any future case involving children who are clearly his own.” Once again, however, it is too late to challenge the jurisdictional and dispositional findings. At the section 366.26 hearing, all that was decided was that his parental rights - if he had any - should be terminated. We see no way in which this finding could prejudice him.
Last, but not least, the father contends that it was a violation of equal protection to order that he could have a paternity test only if he paid for it. He argues that this ruling discriminated against him based on poverty. But that is not what the juvenile court did. Rather, it ordered that the prospective adoptive parents could have a paternity test, as the long as the state did not pay for it. Thus, if it discriminated against anyone based on financial status, it was against the prospective adoptive parents, not against defendant.
It is worth noting that this “order” had virtually no practical effect. If the prospective adoptive parents did want a paternity test, and if they were willing to pay for it, the juvenile court did not have to authorize it. They could readily obtain a DNA sample (such as a cheek swab) from the child. And presumably the father would have been more than happy to supply his own DNA sample.
As we have already held, a paternity test was irrelevant to any issue that was before the juvenile court. The juvenile court could and would have denied the father’s request for a paternity test even if he had been Daddy Warbucks. It follows that it did not discriminate against him based on poverty.
III
DISPOSITION
The order appealed from is affirmed.
We concur: HOLLENHORST Acting P.J., KING J.
The father, however, had appointed counsel, and his appointed counsel had a duty to submit the form, if it was in the father’s interest to do so. (Cal. Rules of Court, rule 5.635(e)(1).) Accordingly, the father’s failure to submit the form may properly be deemed a forfeiture of a determination of paternity.