Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of San Bernardino County No. J202078, Deborah Daniel, Temporary Judge. (Pursuant to Cal. Const., art. VI, § 21.).
Robert McLaughlin, under appointment by the Court of Appeal, for Defendant and Appellant.
Ruth E. Stringer, County Counsel, and Jeffrey L. Bryson, Deputy County Counsel, for Plaintiff and Respondent.
Linda M. Fabian, under appointment by the Court of Appeal, for Minor.
OPINION
HOLLENHORST, Acting P.J.
Appellant Lawrence R. appeals from a juvenile court’s orders denying his Welfare and Institutions Code section 388 petition and terminating parental rights regarding the child, Brian (the child). On appeal, appellant contends that the court denied him his due process rights by failing to hold an evidentiary hearing on his section 388 petition, and consequently erred in terminating his parental rights. We disagree and affirm the order.
All further statutory references will be to the Welfare and Institutions Code, unless otherwise indicated.
Counsel for the child filed a letter brief on April 24, 2007, joining in respondent’s brief and urging us to affirm the order.
FACTUAL AND PROCEDURAL BACKGROUND
On June 8, 2005, the San Bernardino County Department of Children’s Services (the department) filed a section 300 petition on behalf of the child, alleging that he came within section 300, subdivisions (b) (failure to protect), (d) (sexual abuse), and (g) (no provision for support). The child was four years old at the time. The detention report stated that the child’s mother (mother) had five children, who were all taken into protective custody after she left them with her disabled, elderly father, without telling him when she would return. (The other children are not subjects of this appeal.) After mother returned, the social worker interviewed her, and she reported that her children had various fathers, and stated that the child’s father was Brian J. Brian J. was not listed on the birth certificate, and he denied paternity.
Mother is not a party to this appeal.
The juvenile court detained the child in foster care.
In a jurisdiction/disposition report, the social worker reported that mother believed that Brian J. was the child’s father, but said that she also had a relationship with Kirk J. at the time of the child’s conception. Thus, she said that Kirk J. could also be the child’s father.
At the jurisdiction/disposition hearing on September 22, 2005, the court declared the child a dependent of the court and found that he came within section 300, subdivisions (b), (d), and (g). The court also found that Brian J. and Kirk J. were alleged fathers of the child. Brian J. later took a paternity test which revealed that he was not the child’s father.
On January 9, 2006, the child was moved from his foster placement into the foster home where his younger brother, L.G., was placed.
In the six-month status review report, the social worker reported that mother had made virtually no attempt to complete any part of her case plan. Accordingly, at the six-month review hearing, the court terminated mother’s reunification services and visitation, and set a section 366.26 hearing for July 20, 2006.
On May 2, 2006, the department received a phone call from a woman named Vernice H., who contended that her son, appellant, may be the child’s father. Appellant was in state prison at the time. On May 12, 2006, the court appointed counsel for father, ordered counsel to advise the court whether appellant would be requesting genetic testing, and continued the section 366.26 hearing to September 11, 2006. At a hearing on July 20, 2006, appellant’s counsel informed the court that he had corresponded with appellant. Appellant said he wanted to be present at the section 366.26 hearing, but he did not want to request genetic testing.
At another hearing, appellant’s counsel explained to the court that appellant was recently advised about the child, and he acknowledged that mother did not name appellant as the father. Nonetheless, appellant requested the court to consider Vernice H. (his mother) for placement of the child. Appellant’s counsel then requested a paternity test and set the matter contested. The court continued the section 366.26 hearing to September 18, 2006.
Section 388 Petition
On September 18, 2006, appellant filed a section 388 petition asking the court to change its previous order which placed the child in his current foster home. As to changed circumstances, the petition stated that the child’s father had been located, and the child’s paternal grandmother was willing to provide a permanent home for him. The petition requested the court to order the paternal grandmother’s home to be evaluated for placement, claiming that placement with her was in the child’s best interests because it would put the child “with his own family and give him family [and] cultural bonds that [were] not available in his current placement. . . .”
At the hearing on September 18, 2006, appellant’s counsel informed the court that he had filed the section 388 petition that morning. Counsel then alleged for the first time that Vernice H. had a prior relationship with the child, and that he had lived with her in the past. The court voiced its concerns that mother failed to identify appellant and that, during the social worker’s discussions with the child about adults in his life, the child never mentioned the alleged grandmother, Vernice H. The court decided to set a new contested section 366.26 hearing and a section 388 hearing on the same day, in order to allow the social worker an opportunity to investigate. The court noted that reunification was not an issue, at that point, so appellant would have to meet presumed father status and show that the child had a substantial relationship with his mother. Thus, the court stated it was not inclined to order genetic testing, since it made no difference whether appellant was the biological father. The court further stated that, without good cause, it would not hold an evidentiary hearing on the section 388 petition; rather, proof would be by declarations or reports only. The court set a pretrial settlement conference (PSC) and section 388 hearing for October 30, 2006, and a section 366.26 hearing for the next day. The court intended to rule on the section 388 petition at the PSC, unless there was good cause to hear testimony.
The Section 388 and Section 366.26 Hearing
On October 13, 2006, appellant filed an affidavit by Vernice H. in support of his section 388 petition. Vernice H. claimed that she knew mother when she was pregnant and first saw the child when he was one week old. She continued to see him at least once or twice a week until the middle of 2005, when mother moved away. Vernice H. claimed that the child lived with her exclusively for four months, from January 2005 to April 2005, and that he has always called her “grandma.”
In response, the social worker filed an addendum report recommending that parental rights be terminated and the permanent plan of adoption be implemented. The social worker recounted his first contact with Vernice H., when she called him on May 2, 2006. Vernice H. told the social worker that she had just found out two days prior that the child may be her grandson when a relative called to tell her about the child and inform her that appellant and mother were having sexual relations around the time that the child was conceived. Vernice H. told the social worker that if the child was her grandson, she wanted the opportunity to know him. The social worker reported that Vernice H.’s later claim that she formed a relationship with the child when he previously lived with her completely contradicted what she told him during their phone conversation.
The social worker further reported that he interviewed the child, in order to determine if he knew Vernice H. The child named his foster parents as his “‘mom and dad’” and their parents as his “‘grandma and grandpa.’” The social worker asked the child if he knew Vernice H. or appellant, and he said no. The social worker also interviewed three of the child’s siblings, and they all confirmed that the child never lived with Vernice H. or appellant, and said that they did not know who they were either.
In addition, the social worker reported that the child had made a great deal of improvements over the past nine months, while living with his current foster family. He went from not talking to becoming very talkative, and he stopped defecating in his pants. The child had a very strong bond with his brother L.G., as well as his foster parents’ extended family. The child told the social worker that he did not want to live in a home without L.G. The child’s foster parents said they loved him and considered him as their own child. They wished to adopt both the child and L.G. The social worker opined that removing the child from his current foster home would “be a complete and absolute detriment to [his] emotional well being.”
At the hearing on October 30, 2006, the court stated that it read and considered all of the evidence regarding the section 388 petition and found no good cause to hear testimony. The court stated that it particularly considered the best interests of the child consistent with his wishes and then denied the petition. The court found that it was likely that the child would be adopted, ordered adoption as the permanent plan, and then terminated the rights of mother and all alleged fathers.
ANALYSIS
The Court Properly Denied Appellant’s Section 388 Petition and Terminated Parental Rights
Appellant contends that the court denied him his due process rights by failing to hold an evidentiary hearing on the section 388 petition. Specifically, he argues that, since there was a direct conflict in the evidence regarding Vernice H.’s relationship with the child, the court was required to hold a full evidentiary hearing. Instead, the court denied the section 388 petition on the basis of the documentary evidence, and thereby denied him the chance to present live testimony and cross-examine witnesses. We reject defendant’s contention.
A. Standard of Review
“The [section 388] petition is addressed to the sound discretion of the juvenile court and its decision will not be disturbed on appeal in the absence of a clear abuse of discretion. [Citations.]” (In re Jasmon O. (1994) 8 Cal.4th 398, 415.)
B. As An Alleged Father, Appellant Had No Due Process Right to Confront Witnesses
“Rule 1432(f) of the California Rules of Court provides for a live hearing on a section 388 petition ‘if . . . there is a due process right to confront and cross-examine witnesses. Otherwise, proof may be by declaration and other documentary evidence, or by testimony, or both, at the discretion of the court.’” (In re Clifton V. (2001) 93 Cal.App.4th 1400, 1404 (Clifton V.).) The crux of appellant’s argument is that the court denied him his alleged right to present live testimony and cross-examine witnesses regarding the claims in his section 388 petition. Thus, the central issue is whether appellant had a due process right to confront and cross-examine witnesses.
“The extent to which a father may participate in dependency proceedings and his rights in those proceedings are dependent on his paternal status. ‘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.]’ [Citation.]” (In re Paul H. (2003) 111 Cal.App.4th 753, 760 (Paul H.), italics omitted.)
Here, as it was never determined whether appellant was the child’s biological father, and as appellant did not request consideration as a presumed father, his status was that of an alleged father throughout the proceedings. (Paul H., supra, 111 Cal.App.4th at p. 760.) “As an alleged father, appellant had limited due process and statutory rights.” (Ibid.) “Due process for an alleged father requires only 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.]” (Ibid., italics added.) In other words, “[u]nless and until appellant was able to elevate his status to that of a biological or presumed father, the only issues on which he was entitled to assert a position concerned his paternal status and his intent and desires regarding the minor if his paternal status became more than just a potentiality.” (In re Christopher M. (2003) 113 Cal.App.4th 155, 160 (Christopher M.).) Thus, appellant essentially was in no position to request that the child be placed with Vernice H., and he certainly had no “due process right” to present live testimony or cross-examine witnesses concerning his section 388 petition.
Furthermore, the court did not summarily deny appellant’s section 388 petition, as it probably could have done. The court carefully considered the evidence submitted concerning whether it would be in the child’s best interests to be placed with Vernice H. Although the evidence was in conflict regarding whether the child knew Vernice H. and/or previously lived with her, the evidence clearly showed that the child did not presently recognize her, much less have a relationship with her. It also undisputedly showed that the child was thriving in his current placement, that he wanted to live with his brother L.G., and that the foster parents wanted to adopt him. In view of all the evidence, the court did not abuse its discretion in denying the section 388 petition.
Appellant relies on In re Matthew P. (1999) 71 Cal.App.4th 841 (Matthew P.) and Clifton V., supra, 93 Cal.App.4th 1400 in support of his position that the court was required to hold a full evidentiary hearing on his section 388 petition. Both cases are distinguishable. Matthew P. is distinguishable because the section 388 petitioners in that case had been foster parents for the dependent children for about three years and were granted de facto parent status. (Matthew P., at pp. 845-847.) The petitioners’ de facto parent status meant that they were entitled to the same procedural rights as natural parents. (Id. at p. 850.) The appellate court concluded that the circumstances required the juvenile court to conduct a full hearing, given the petitioners’ three-year history of providing the dependent children with daily parental concern, affection, and care. (Id. at p. 851.)
Clifton V., supra, 93 Cal.App.4th 1400 involved the denial of a mother’s section 388 petition. (Id. at p. 1403.) The mother obviously gave birth to the child, and lived with the child until he was three years old. (Id. at p. 1402.)
In contrast, appellant was merely an alleged father with limited due process rights. Despite acknowledging that an alleged father has limited due process rights, appellant maintains that natural parents, de facto parents, and alleged fathers “all share the basic due process rights to notice an opportunity to be heard.” Appellant’s general assertion falls short of mentioning that “[d]ue process for an alleged father requires only that the alleged father be given notice and an opportunity to appear and assert a position and attempt to change his paternity status.” (Paul H., supra, 111 Cal.App.4th at p. 760; see also, Christopher M., supra, 113 Cal.App.4th at p. 160.)
In sum, the court did not deny appellant his due process rights in only considering the documentary evidence concerning his section 388 petition. Moreover, the court properly denied the petition and terminated parental rights.
DISPOSITION
The judgment is affirmed.
We concur: McKINSTER J., RICHLI, J.