Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of Kern County. Kenneth C. Twisselman, II, Judge., Super. Ct. No. JD109609.
Roni Keller, under appointment by the Court of Appeal, for Defendant and Appellant.
B.C. Barmann, County Counsel, and Susan M. Gill, Deputy County Counsel, for Plaintiff and Respondent.
OPINION
Before Wiseman, Acting P.J., Levy, J., and Kane, J.
Appellant Jonathan S. is the biological father of dependent child Holly M., whom the Kern County Superior Court freed for adoption (Welf. & Inst. Code, § 366.26) in September 2007. He contends the court wrongfully denied him any opportunity to exercise his parental rights before those rights were terminated. On review, we disagree and will affirm.
All statutory references are to the Welfare and Institutions Code unless otherwise indicated.
PROCEDURAL AND FACTUAL HISTORY
In February 2006, the Alameda County Superior Court adjudged Holly M. a dependent child and removed her from parental custody. She came to the attention of local child welfare authorities the previous December when a man, Brian B., who identified himself as her father, brought 10-month-old Holly to a hospital for medical treatment. He was under the influence of methamphetamine at the time and arrested as a result. The child’s mother meanwhile was incarcerated. She also had a history of drug abuse and mental health problems.
Although Brian B. considered himself the child’s father, his name did not appear on her birth certificate. According to the mother, a man named Jason R. might also be the baby’s father. Jason R. was “on the child support service” for Holly.
At the February 2006 dispositional hearing, the court ordered reunification services for the mother and alleged father Jason R. It denied services for Brian B. Also, having found the mother’s and Jason R.’s residence was in Kern County, the court transferred the dependency matter to Kern County.
Soon after the Kern County Superior Court accepted transfer of the case, alleged father Jason R. questioned his paternity and requested DNA testing. The court in turn ordered the testing.
While it awaited the DNA results, the court conducted its six month-status review of Holly’s dependency. It continued services for the mother and terminated services for Jason R. without prejudice. As for the other alleged father, Brian B., the court ordered no services for him as he had not sought to establish paternity.
Soon thereafter, DNA testing excluded Jason R. as Holly’s father. At the next hearing in December 2006, the court dismissed Jason R. as a party from the case based on the test results. Also, the mother’s counsel submitted appellant’s name as Holly’s possible father. The mother believed he was the father in light of the test results. She also thought he was incarcerated at Wasco State Prison.
With this information, respondent Kern County Department of Human Services (department) located appellant in state prison. He made his first appearance in late January 2007.
During the January hearing, the court conducted a paternity inquiry of the mother. She testified she was never married nor was she living with a man when she became pregnant. After she became pregnant, she lived with Brian B., the man who initially claimed to be Holly’s father. According to the mother, no man was named as Holly’s father on her birth certificate and no man came to sign paternity documents. After Holly was born, the mother believed Jason R. was the child’s father. Around the time she became pregnant, she had sexual relations with both Jason R. and appellant. To her knowledge, appellant never denied he was the father. She thought he might have acknowledged the fact to friends or family.
Consequently, the court appointed counsel to represent appellant as Holly’s alleged father. The appointed attorney was not present, however, at the January hearing. Over county counsel’s objection, the court continued the matter which was set for another status review hearing for approximately a month so that appellant and his attorney could participate.
Shortly thereafter, appellant’s counsel filed an ex parte application for a hearing to request paternity testing. The court granted the application and in early February 2007 ordered appellant to provide a DNA sample. That same day the clerk’s office filed appellant’s “STATEMENT REGARDING PATERNITY” in which he declared he did not know if he was the child’s father.
In late February, the court conducted the status review hearing it previously continued. Appellant’s counsel moved to continue the hearing again, for the results of paternity testing. As of the February date, the social worker had requested the test but a sample had not been taken from appellant. The court denied appellant’s continuance motion without prejudice to pursuing whatever rights he had. On the merits, the court terminated reunification services for the mother and set the case for a June 2007 section 366.26 hearing to select and implement a permanent plan for Holly. It also gave the mother and appellant notice of their writ remedy. Appellant did not pursue writ relief from this court.
In late March 2007, DNA testing revealed a 99.99 per cent probability that appellant was Holly’s biological father. The record is silent regarding when the department received these results. In any event, the department attached a copy of the results to a supplemental report it prepared for the court in June 2007. The department meanwhile prepared an adoption assessment recommending that the court find Holly adoptable and terminate parental rights.
Because the department belatedly filed its adoption assessment, the court had to continue the section 366.26 hearing. Nonetheless at the June 2007 hearing, the court granted appellant’s request to be elevated to biological father based on the DNA results.
Two months later, in August 2007, appellant’s attorney filed a request pursuant to section 388 to vacate the section 366.26 hearing and order reunification services for appellant. She recited as changed circumstances the fact that at the setting hearing no DNA results were available. Based on appellant’s belief that he would be out of custody soon, the petition alleged it would be in Holly’s best interest to have the opportunity to unite with him. In the interim, appellant enrolled in a Correctional Learning Network parenting course and had earned his G.E.D.
The court set the modification petition for hearing on the same August date scheduled for the section 366.26 hearing. Yet again, however, the parties requested that the hearing be continued. In appellant’s case, his counsel wanted to learn “exactly when he is getting out of custody.”
The court eventually conducted both the modification and the section 366.26 hearings in September 2007. In the interim, the department learned appellant had been arrested in April 2006 and pleaded guilty the following month to an auto theft charge (Veh. Code, 10851, subd. (a)) and admitted a prior conviction (Pen. Code, § 666.5). He was sentenced to a three year term.
At the September 2007 hearing, appellant’s counsel submitted her section 388 petition without presenting any evidence. She reported having learned appellant’s release date was in January 2009. “So we will just submit it.” The court denied appellant’s petition for reunification, noting there were no changed circumstances and it was not in the child’s best interests.
On the issue of permanency planning, appellant had no evidence to introduce but objected to the department’s recommendation. Notably, the child was then in an adoptive placement. The department’s tentative plan had been for a relative caregiver to adopt Holly. However, recent medical problems caused the relative to no longer be able to provide Holly for the care she needed.
The court, having found Holly was adoptable, terminated parental rights.
DISCUSSION
As previously mentioned, appellant contends the court wrongfully denied him any opportunity to exercise his parental rights before those rights were terminated. In what amounts to a shot-gun approach, appellant appears to argue:
- the mother unilaterally precluded him from becoming Holly’s presumed father;
- the court improperly refused to continue the February 2007 status review hearing for his paternity test results;
- he did not have the opportunity to establish presumed father status and obtain reunification services;
- he was a non-offending parent;
- the court should have found termination was detrimental to Holly and permitted her to remain with her relative caregivers until he was released and had established a suitable residence for himself and Holly;
- he had a right to make a plan for Holly’s placement with his brother; and
- he was entitled to visit with Holly.
We are struck by the fact appellant’s arguments bear little, if any, resemblance to either the record we have reviewed or the applicable law. As discussed below, we conclude his claims are meritless.
To begin, there is no evidence that the mother prevented appellant from becoming Holly’s presumed father. According to her testimony, she believed Jason R. was the child’s father until his DNA testing proved otherwise. Furthermore, there was no evidence appellant met the definition of a Kelsey S. father, that is an unwed biological father who promptly came forward and demonstrated a full commitment to his parental responsibilities - emotional, financial, and otherwise, but whose attempt to achieve statutory presumed father status was thwarted by a third party. (Adoption of Kelsey S. (1992) 1 Cal.4th 816, 849.)
In any event, it was acknowledged by all in the trial court, including appellant’s trial counsel, that appellant could not achieve presumed father status as to Holly. (In re Spencer W. (1996) 48 Cal.App.4th 1647, 1652-1653 [It is the parent’s burden of proving the necessary elements for presumed parent status].) This is because he could not meet the statutory elements to be declared a presumed father under the Family Code (Fam. Code, § 7611). He and the mother were not married nor was there any evidence that they attempted to marry. Although a court may also declare a man a presumed father if he receives the child into his home and openly holds out the child as his natural child (Fam. Code, § 7611, subd. (d)), there was no evidence that appellant ever did so. It is precisely for these reasons appellant’s counsel could only request biological parent status for appellant.
To the extent appellant complains about the court’s denial of his continuance request in February 2007, his complaint is untimely and ignores what the court ruled in denying his request. First, any alleged error related to the court’s denial of appellant’s continuance request should have been raised by way of writ petition following the court’s setting order. (§ 366.26, subd. (l); In re Anthony B. (1999) 72 Cal.App.4th 1017, 1022.) As previously noted, appellant did not seek writ relief from this court and thus is foreclosed from claiming error on this appeal. (§ 366.26, subd. (l).) In addition, appellant overlooks the court’s language in denying his request, namely that its denial was without prejudice to any rights appellant might have.
No doubt appellant was Holly’s biological father. However, that status only afforded him limited rights. As a natural or biological father, appellant was not entitled to either placement or reunification services. (In re Zacharia D. (1993) 6 Cal.4th 435, 451 .) The juvenile court at best could have ordered services for him if it determined services, including visitation, would benefit the child. (§ 361.5, subd. (a).) Here, there was no evidence that services for appellant would benefit Holly. In addition, because Holly was less than three years old when she was first removed, services would be limited to six months. (§ 361.5, subd. (a)(2).) Even setting aside the approximate two years’ time that elapsed since Holly’s removal, in another six months’ time, appellant would remain incarcerated and thus unavailable for reunification. Indeed, appellant would remain incarcerated for approximately another 18 months. Furthermore, by the point of the section 366.26 hearing, Holly was entitled to stability and permanence which could be best achieved through adoption (In re Marilyn H. (1993) 5 Cal.4th 295, 309) absent a compelling statutory reason for finding termination of parental rights would be detrimental to the child. (In re Celine R. (2003) 31 Cal.4th 45, 53.) Again, appellant presented no evidence in this regard. As for visitation, there was no evidence appellant had ever met Holly or ever asked to visit her.
Furthermore, because appellant was not entitled to placement as Holly’s biological parent, his claim that he was somehow entitled to placement or other benefits as a non-offending parent (§ 361.2) is misguided. (See In re Zacharia D., supra, 6 Cal.4th at p. 451 .)
Appellant also ignores the fact he never argued to the trial court that:
it should have found termination was detrimental to Holly and permit her to remain with her relative caregivers until he was released; or
he should have been permitted to make a plan for Holly’s placement with his brother.
Each of these is a matter for the exercise of the court’s discretion. (In re Zachary G. (1999) 77 Cal.App.4th 799, 809 [it is the parent’s burden to show that termination would be detrimental under one of the statutory exceptions]; (In re Jasmine D. (2000) 78 Cal.App.4th 1339, 1351 [refusal to find termination would be detrimental is reviewed for abuse of discretion]; In re Daniel D. (1994) 24 Cal.App.4th 1823, 1830-1831 [placement involves the court’s exercise of discretion].) Having failed to pursue either of these discretionary issues with the trial court, appellant has forfeited those claims on appeal. (In re Lorenzo C. (1997) 54 Cal.App.4th 1330, 1339.)
DISPOSITION
The order terminating parental rights is affirmed.