Opinion
NOT TO BE PUBLISHED
Contra Costa County Super. Ct. No. J06-01668
Swager, J.
Appellant Peter G. appeals the order terminating his parental rights to his minor son, I. G., under Welfare and Institutions Code section 366.26. He contends the juvenile court erred by denying his motion to raise his status from that of “alleged” father to “presumed” father. We affirm.
All further statutory references are to the Welfare and Institutions Code, unless otherwise indicated.
FACTUAL BACKGROUND AND PROCEDURAL HISTORY
The Alameda County Social Services Agency (Agency) initiated dependency proceedings concerning I. G. soon after his birth in January 2006. The principle allegation of the petition was that Amber G. (I. G.’s mother) had tested positive for methamphetamine at I. G.’s birth, though her son tested negative. (§ 300, subd. (b).) The petition named appellant as a “presumed” father.
Amber is not a party to this appeal.
The juvenile court detained I. G. following a hearing with respect to Amber on March 9, 2006. The allegations of the petition were found true against appellant on March 23, 2006.
On April 12, 2006, the Agency filed an addendum report recommending that reunification services be provided to appellant. The report indicates the Agency had recently learned that Amber had two older children residing in Contra Costa County and that her parental rights had been terminated as to one child and were in the process of being terminated as to the other. At the disposition hearing held the next day, the court ordered reunification services for appellant.
In a report filed on July 26, 2006, the Agency’s social worker recommended the termination of reunification services to appellant. At this time, appellant was incarcerated at San Quentin State Prison. The report states that appellant had not had any contact with the social worker, nor had he maintained any visitation with his son. I. G. was to be placed in the maternal grandmother’s home in Contra Costa County as the grandmother was in the process of adopting Amber’s two older children.
On August 17, 2006, the court terminated appellant’s services, finding that he had made no progress towards reunification. On September 6, 2006, the case was transferred to Contra Costa County.
On March 19, 2007, the Contra Costa County Bureau of Children and Family Services (Bureau) filed a 12-month review report in which it recommended terminating Amber’s reunification services and setting a hearing pursuant to section 366.26. The report states that she had failed to participate in a drug treatment program and failed to register for drug testing. The report also notes appellant and Amber stated that they had married, however, they refused to provide any corroborating information. By this time, the maternal grandmother had decided that she could not adopt I. G., who was now living with a non-relative extended family member in Oakland.
On March 19, 2007, the juvenile court terminated Amber’s reunification services and ordered a hearing under section 366.26. On April 8, 2007, appellant was personally served notice of the section 366.26 hearing at his address in Oakland. The hearing was continued from July 3, 2007, to August 14, 2007. Notice of the new hearing date was sent to appellant, who by then was incarcerated at High Desert State Prison.
The Bureau filed a supplemental petition on July 2, 2007, naming appellant as an “alleged” father only. The Bureau’s jurisdiction/disposition report, filed on July 17, 2007, explains that the reason the Bureau decided to categorize him as an alleged father was that there was no record of genetic testing or of any prior court order granting him presumed father status. The report also indicates that a prospective adoptive home for I. G. had been found.
On August 3, 2007, appellant wrote a letter to the court claiming that he had never been advised about the dependency proceeding and had never received any notice from the courts. Counsel was appointed for appellant on August 27, 2007, and the section 366.26 hearing was continued to September 25, 2007.
At the hearing on September 25, 2007, appellant requested that his status be raised to that of presumed father. The request was denied. The juvenile court found that I. G. was an adoptable child and terminated Amber’s and appellant’s parental rights. This appeal followed.
DISCUSSION
Appellant claims that the juvenile court erred in failing to conduct an inquiry into his paternity and in finding that it would not be in I. G.’s best interest to elevate appellant’s status to that of a presumed father. He also claims that he met the conditions necessary to obtain presumed father status set forth in Family Code section 7611.
I. Standard of Review
Because appellant requested presumed father status only after the section 366.26 hearing had been set, we construe his request as having been made under section 388. (See In re Eric E. (2006) 137 Cal.App.4th 252 (Eric E.).) Section 388 authorizes a trial court to modify a prior order if a petitioning parent shows a change of circumstances or new evidence and establishes that modification is in the best interests of the child. (§ 388, subd. (c); In re Stephanie M. (1994) 7 Cal.4th 295, 317; Eric E., supra, at p. 260; In re Casey D. (1999) 70 Cal.App.4th 38, 47.)
A trial court has broad discretion in resolving a petition to modify a prior order. Its determination will not be disturbed on appeal unless an abuse of discretion is clearly shown. (In re Stephanie M., supra, 7 Cal.4th 295, 318; In re Casey D., supra, 70 Cal.App.4th 38, 47.) “ ‘The appropriate test for abuse of discretion is whether the trial court exceeded the bounds of reason. When two or more inferences can reasonably be deduced from the facts, the reviewing court has no authority to substitute its decision for that of the trial court.’ [Citations]” (In re Stephanie M., supra, at pp. 318–319.) “The denial of a section 388 motion rarely merits reversal as an abuse of discretion.” (In re Amber M. (2002) 103 Cal.App.4th 681, 685–686.)
II. Duty of Inquiry
Appellant claims that the juvenile court did not meet its statutory obligation to inquire into his paternity after the Bureau “inexplicably” changed his parental status from presumed father to alleged father.
Section 316.2 “requires the juvenile court to inquire of the mother the identity of all alleged or presumed fathers at the detention hearing or as soon thereafter as practicable.” (Eric E., supra, 137 Cal.App.4th 252, 257.) Once potential fathers are identified, due process “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.] The statutory procedure that protects these limited due process rights is set forth in section 316.2. [¶] Section 316.2, subdivision (a), requires the juvenile court to conduct an inquiry as to the identity of all presumed or alleged fathers. Section 316.2, subdivision (b), describes the juvenile court’s duties once an alleged father has been identified. It provides: ‘[E]ach 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. . . .’ [Citation.]” (In re Paul H. (2003) 111 Cal.App.4th 753, 760 (Paul H.).)
Section 316.2 is implemented by California Rules of Court, rule 5.635(g), which provides: “If, after inquiry by the court or through other information obtained by the county welfare department or probation department, one or more persons are identified as alleged parents of a child for whom a petition under section 300, 601, or 602 has been filed, the clerk must provide to each named alleged parent, at the last known address, by certified mail, return receipt requested, a copy of the petition, notice of the next scheduled hearing, and Statement Regarding Paternity (Juvenile) (form JV-505) unless: [¶] (1) The petition has been dismissed; [¶] (2) Dependency or wardship has been terminated; [¶] (3) The parent has previously filed a form JV-505 denying parentage and waiving further notice; or [¶] (4) The parent has relinquished custody of the child to the county welfare department.”
Assuming that the juvenile court did err, we find the error to be harmless. “The primary purpose of achieving presumed father status in the dependency context is for the presumed father to have the right to reunification services and to custody.” (Eric E., supra, 137 Cal.App.4th 252, 258.) There can be no dispute that appellant was given notice of the proceedings, as he appeared by counsel at the jurisdiction hearing on March 23, 2006. He was provided with reunification services while this proceeding was in Alameda County. He does not assert any error in connection with the termination of his reunification services. He also never sought custody of I. G., nor would he have been able to provide a home for his son as he was incarcerated at the time of the section 366.26 hearing. Thus, the unsuccessful outcome of his case plan was not the result of the Contra Costa County juvenile court’s failure to identify him as a presumed father.
Appellant’s reliance on Paul H., supra, is misplaced. In Paul H., the court of appeal vacated an order terminating an alleged father’s parental rights because the juvenile court failed to comply with section 316.2. The man did appear early in the proceedings, putting the juvenile court on notice that he was an alleged father. However, that court did not order paternity testing and his efforts to establish paternity on his own were unsuccessful, in part because he did not have such an order. Under the circumstances of that case, the appellate court found that the alleged father was “prejudiced by the juvenile court’s failure to follow the procedures contained in section 316.2.” (Paul H., supra, 111 Cal.App.4th 753, 762.) The court vacated the order terminating parental rights, explaining: “We cannot assume, based on this dearth of information, that had appellant established his paternity and been appointed counsel, he would not have received reunification services.” (Ibid.)
Unlike the alleged father in Paul H., appellant was afforded reunification services, appointed counsel, and the opportunity to request an order to establish his paternity prior to the termination of his parental rights. The record contains sufficient information about his circumstances to permit us to conclude that the failure to give him the specific notice required by section 316.2 did not affect the ultimate outcome of the dependency proceedings. 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 California Rules of Court, rule 5.635(g).
We also note that appellant waited until after the section 366.26 hearing had been set to bring his challenge and he has not satisfied the threshold requirement of a section 388 petition, which is to show that changing his status would be in the best interests of the child. Providing appellant with any further services would not be in I. G.’s best interests, especially in view of the fact that he has been placed in a prospective adoptive home.
III. Appellant Was Not Entitled to Presumed Father Status
Even if appellant had received the Judicial Council form advising him of the actions to take to establish his paternity status, he would not have met the statutory elements required to be declared a presumed father.
In the juvenile court, appellant claimed that he was entitled to presumed father status because he had presumably signed a voluntary declaration of paternity at the hospital when I. G. was born. “A voluntary declaration of paternity ‘shall establish the paternity of a child and shall have the same force and effect as a judgment of paternity by a court.’ [Citations.] In addition to other requirements, a voluntary declaration must contain a statement by the mother that the man signing the declaration is the only possible father, as well as a statement by the father that he is the biological father. [Citation.] A voluntary declaration of paternity entitles the man who signs it to presumed father status.” (In re Christopher M. (2003) 113 Cal.App.4th 155, 163.)
Family Code section 7573 provides: “Except as provided in Sections 7575, 7576, and 7577, a completed voluntary declaration of paternity, as described in Section 7574, that has been filed with the Department of Child Support Services shall establish the paternity of a child and shall have the same force and effect as a judgment for paternity issued by a court of competent jurisdiction. The voluntary declaration of paternity shall be recognized as a basis for the establishment of an order for child custody, visitation, or child support.” Rule 5.635(c) reads: “If a voluntary declaration as described in Family Code section 7570 et seq. has been executed and filed with the California Department of Social Services, the declaration establishes the paternity of a child and has the same force and effect as a judgment of paternity by a court. A man is presumed to be the father of the child under Family Code section 7611 if the voluntary declaration has been properly executed and filed.”
In the present case, the Bureau’s social worker contacted the Department of Child Support Services, which determined that there was no voluntary declaration on file for appellant. Thus, he did not qualify as a presumed father under the rules regarding voluntary declarations of paternity.
Appellant’s reliance on In re Raphael P. (2002) 97 Cal.App.4th 716 is misplaced. In that case, the court of appeal held that there is a presumption that a voluntary declaration has been signed where an alleged unmarried father is named on the birth certificate. The rationale for this rule is that a hospital would not allow an unwed father to be listed on the birth certificate unless he signed such a declaration. (Id., at pp. 737–738.) Here, whatever presumption might have accrued to appellant by his name being on I. G.’s birth certificate is rebutted by uncontroverted evidence that there is no record of such a declaration on file with the Department of Child Support Services. Moreover, it is not unreasonable to assume that the hospital would not have required appellant to sign a declaration as he and Amber reportedly indicated that they were married when they were at the hospital and she signed the birth certificate using appellant’s last name as her own.
On appeal, appellant also claims that he was a presumed father under Family Code section 7611, subdivision (c). We note that while he reported to social workers that he and Amber were legally married shortly after I. G. was born, he did not raise this ground in his argument in the juvenile court. As a general rule, a parent’s failure to object or raise certain issues in the juvenile court prevents the parent from claiming error on appeal. (In re S.B. (2004) 32 Cal.4th 1287, 1293; In re Lorenzo C. (1997) 54 Cal.App.4th 1330, 1338.) Application of the forfeiture rule, although not automatic, is designed to keep litigants from acquiescing and later seeking relief for error that could have been prevented or cured. (In re S.B., supra, at p. 1293; In re Riva M. (1991) 235 Cal.App.3d 403, 412.) We conclude that appellant has waived this issue.
Family Code section 7611, subdivision (c), provides, that a man is presumed to be the natural father of a child if “[a]fter the child’s birth, he and the child’s natural mother have married, or attempted to marry, each other by a marriage solemnized in apparent compliance with [the] law . .
In his reply brief, appellant argues that his counsel provided ineffective assistance in failing to raise this issue in the juvenile court. We are not persuaded, as both appellant and Amber reportedly refused to provide the social workers with any corroborating information regarding their purported marriage. In any event, for the reasons stated above, it is not reasonably probable that he would have obtained a more favorable result in the absence of the alleged error.
DISPOSITION
The order terminating appellant’s parental rights is affirmed.
We concur: Marchiano, P. J., Margulies, J.