Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
Appeal from a postjudgment order of the Superior Court of Orange County No. DP015796, James Patrick Marion, Judge.
Elizabeth A. Wingate, under appointment by the Court of Appeal, for Defendant and Appellant.
Benjamin P. de Mayo, County Counsel, Karen L. Christensen and Aurelio Torre, Deputy County Counsel, for Plaintiff and Respondent.
OPINION
IKOLA, J.
In this dependency proceeding, K.R., the biological father of N.M., appeals a post-disposition order at the six-month review hearing, which he characterizes as refusing to establish him as the “presumed father” of N.M. and declining to provide reunification services to him. We affirm.
FACTS
Jurisdiction and Disposition
On August 7, 2007, a police officer observed three-year-old N.M. alone on a sidewalk. The officer subsequently located N.M.’s mother, unconscious at the bottom of the stairs of a nearby apartment complex. At the hospital, the mother admitted she had overdosed on prescription medication and had recently used methamphetamine. The mother identified K.R. as the father of the child, but his whereabouts were unknown to the mother on August 7. N.M. was taken into protective custody by the Orange County Social Services Agency (SSA) on August 7, and a juvenile dependency petition, Welfare and Institutions Code section 300 et seq., was filed on August 9. SSA’s August 10 detention report stated: “[N.M.’s] alleged father, [K.R.’]s full identity and whereabouts [are] unknown and he has failed to provide ongoing parental care and support for the child or maintain a relationship with the child.”
All further statutory references are to the Welfare and Institutions Code unless otherwise indicated.
The court held a detention hearing on August 10. K.R. had not yet been located and did not attend this hearing. The mother testified K.R. was the father of N.M.; was not on the birth certificate; never lived with her or N.M.; and was never married to her. The mother further testified she had last seen K.R. “maybe a year ago” and she was not aware of a current address, adding “[h]e’s never been involved in N.M.’s life.” The court instructed the mother to provide the last known telephone number for K.R. as soon as possible so SSA could provide him with notification of the proceedings. The court ordered N.M. detained and placed her in the temporary care and custody of SSA.
The court held a pretrial hearing on September 6, 2007. SSA’s jurisdiction/disposition report, submitted for consideration at the September 6 hearing, related information from an August 28 interview of the mother: “She stated that she has not had any contact with [K.R.] for over two years. She stated that the father has not seen the child even after she repeatedly called him for help with the child. She stated that he is inconsistent in his child support payments and she barely receives any support from him financially for the child.” K.R. appeared at the September 6 hearing, and counsel was appointed for him. K.R. testified: he was not on N.M.’s birth certificate; he had never lived with the child; he had paid child support since “just after she was born”; he told others N.M. was his child; he visited the child “once or twice a month” for a “couple of hours” at a time since she was approximately one year old; N.M. had called him “Daddy” on occasion; it had been “several months since” he had seen N.M. and there have been other periods in which he did not see her at all; and he did not hire an attorney or otherwise petition the family court for custody of N.M. at any time.
K.R. requested he be found N.M.’s presumed father, based on his contention a previous paternity test proved him to be the biological father and his contention he had been paying child support. K.R. also requested the court allow him to visit N.M. SSA objected to finding K.R. the presumed father, noting the mother was still married to another man (although the two were separated) and indicating the court should wait until the written results of the alleged paternity test were provided before deeming K.R. a biological father. SSA further objected on the ground K.R. would not qualify as a presumed father under Family Code section 7611 merely because he was the biological father and paid child support (by court order or otherwise). SSA explained, “If he is offered services in the future and the child resides with him, then yes, at that point in time he would qualify as a presumed father.”
The court announced its ruling at the September 6 hearing: “[M]y tentative is that we wait to see some proof of the test and that he is paying child support.” “It appears the law says that he’s not presumed at this point. Now, he may get some services. After the services and other further action, he has the power probably to rise to the level of presumed. It’s not impossible based on the law. [¶] I think we’re talking about people who haven’t done anything. Just because they’re bio[logical] fathers doesn’t mean anything, really, after a while. [¶] But there appears to be a possibility that if he does certain things, if he’s given an opportunity to get services — I’m not sure that’s going to happen. But let’s assume he does. Let’s assume [SSA] interviews him, finds out that he would be a good prospective parent; he gets some services, he goes to those services, he does other things.” “I think monitored visitation is appropriate at this point in time. We’re still in the early stages. It’s ordered monitored at this point. . . . [¶] I don’t want to give any authority to SSA to liberalize yet until I find out more information.” The ensuing minute order simply stated the “court finds [K.R.] to be the alleged father of the minor at this time.”
On September 19, the court declared N.M. a dependent child after sustaining the petition detailing the mother’s history of neglect and substance abuse. The mother pleaded no contest to the allegations in the petition. N.M. was placed in the home of her maternal uncle, and the mother was ordered to undertake reunification services. The mother’s husband also appeared at the hearing. His attorney requested he be excused for all purposes based on the fact that he had not lived with the mother for seven years and was not the biological father of N.M. No parties objected, and the court ordered him excused for all purposes. Thus, the only potential father (of any classification —presumed, biological, or alleged) before the court from September 19, 2007 forward was K.R. The court set a paternity review for mid-October 2007 and a six-month review hearing for March 2008.
Paternity Determination and Six Month Review Hearing
K.R.’s paternity determination and related issues in the dependency proceedings languished following the September 6 hearing, due in part to K.R.’s lack of initiative and in part to SSA’s misinterpretation of the court’s September 6 instructions. In early October, K.R. informed SSA he could not locate the paternity paperwork and would be willing to submit to a new test. SSA provided information concerning paternity testing and reunification services, and reminded him of the upcoming October 19 hearing. SSA’s report noted: “The undersigned explained to the father that although referrals were submitted to him, reunification services along with visitation would not begin until the Court finds him to be the presumed father of the child. He stated he understood.” In a subsequent October 15 letter, K.R. “asked for services and visitation with the child.” K.R. did not actually submit to a paternity test until January 29, 2008.
There appears to be some confusion among K.R. and SSA as to whether K.R. was entitled to visitation while the determination of his status as biological and/or presumed father was pending. K.R. did not visit with the child at all prior to March 3, 2008. His attorney explained this was “because of his bad health but also because he was under the impression that he was not allowed visits until results from the paternity test came back in.” K.R. failed to appear at the October 19, 2007, December 14, 2007, or January 4, 2008, hearings scheduled to address his paternity issues, at which times the visitation issue could have been clarified.
At the March 3, 2008 six-month review hearing, K.R. requested the court find him to be the biological father of N.M. and order the creation of a family reunification service plan for him. Counsel for K.R. further stated: “If the court’s not inclined to grant that request, . . . I suppose I would be presenting a 388 motion to the court requesting family reunification service plan for the father.” No written motions (with concomitant evidentiary or legal support) were submitted by K.R. to the trial court seeking such relief. Counsel for SSA and for N.M. objected, claiming there was insufficient evidence in the record for a finding K.R. was a “presumed” father and explaining biological fathers are not entitled to reunification services. Counsel for K.R. attempted to argue it was in the child’s best interests to authorize reunification services; counsel for N.M. observed “I believe that’s something we’ll hear at hearing on the matter.”
The court found K.R. to be the biological father, and invited him to submit a section 388 modification petition requesting family reunification services. The court explained to counsel for K.R. that an oral motion at the six-month review hearing requesting family reunification services was insufficient, in that “both minor’s counsel and county counsel want to be heard on that . . . .” I’m going to leave it as is, but that doesn’t mean I won’t change my mind. I would ask [counsel for K.R. to] submit a 388 and do it as soon as possible.” “I’m not necessarily disagreeing with you at this time, but I think we have to have further argument on that. You may be exactly right.” Ruling on an issue not explicitly raised at the March 3 hearing (his status as a “presumed” father as opposed to “biological” father), the court’s minute order stated: “Father’s counsel’s request for presumed status and [family reunification] case plan for father is denied.” The court set a 12-month review hearing for August 20, 2008.
Confusion in the Record
Several pieces of information do not fit neatly into the preceding recitation of facts. It appears there may have been a disagreement or disconnect between SSA case workers and SSA attorneys. The status review report submitted to the court for the March 3 hearing states: “The child’s alleged father, [K.R.], had a paternity testing on January 29, 2008. [SSA] received the results of the paternity test on February 14, 2008. The results showed that [K.R.] is the biological father of the child. [SSA] has submitted an informational Ex-Parte report to the Court and a JV-180 respectfully requesting that the Court order reunification services for the father.” A JV-180 is the mandatory Judicial Council form for a request to change court order pursuant to section 388. A service plan for K.R. was included in the case plan update submitted to the court for the March 3 hearing. Thus, it appears the case workers intended to recommend reunification services for K.R. at the March 3 hearing.
The record does not include a JV-180 form. The informational ex parte application was not actually filed until March 11 — after the six-month hearing. The application did not provide any recommendation as to the action the court should take with regard to the test results (there was a 99.97 probability K.R. was the father of N.M.). As noted above, SSA’s attorneys joined in N.M.’s objection to reunification services at the six-month hearing, seemingly contradicting the position taken by the case workers in the status review report and case plan update.
DISCUSSION
K.R. timely filed a notice of appeal following the court’s March 3 order, citing the court’s denial (in the minute order) of presumed father status and reunification services to K.R. K.R.’s briefs raise three legal issues related to the court’s March 3 order: the conduct of the court’s parentage inquiry; the legal standard utilized in the court’s denial of reunification services; and the court’s refusal to designate K.R. as a “presumed father.” We review each of these issues in turn.
The Court’s Parentage Inquiry
K.R. first argues the court never conducted an appropriate inquiry into the parentage of N.M. pursuant to section 316.2, subdivision (a), and California Rules of Court, rule 5.635. In particular, K.R. claims the court ignored California Rules of Court, rule 5.635(d)(1) by failing to ask those present “whether any parentage finding has been made, and, if so, what court made it, or whether a voluntary declaration has been executed and filed under the Family Code” and rule 5.635(d)(2) by failing to “direct the court clerk to prepare and transmit Parentage Inquiry — Juvenile (form JV-500) to the local child support agency requesting an inquiry regarding whether or not parentage has been established through any superior court order or judgment or through the execution and filing of a voluntary declaration under the Family Code.”
There are three distinct problems with K.R.’s argument. First, K.R. complains about the court’s September 6, 2007 order and not the court’s March 3, 2008 order. Referencing the September 6 hearing transcript, K.R.’s brief states: “In the present case, the father asked to be found a presumed father. [Citation.] The court determined there was insufficient evidence to find father a presumed father at the contested jurisdiction/disposition hearing and set the matter for a paternity hearing. [Citation.] The court failed to do its duty and put the burden on the father to produce a judgment of paternity or a paternity test which is not what the law requires.” The order made at the September 6 hearing could have been appealed within 60 days of the September 19 disposition. (§ 395; In re Meranda P. (1997) 56 Cal.App.4th 1143, 1149-1150.) However, “an appellate court in a dependency proceeding may not inquire into the merits of a prior final appealable order on an appeal from a later appealable order . . . .” (In re Meranda P., at p. 1151.) K.R.’s untimely attempt to appeal the court’s September 6, 2007 order through the court’s March 3, 2008 order is improper.
Second, K.R. forfeited the right to appeal the court’s alleged failure to conduct a thorough parentage inquiry by failing to raise this issue to the court — even at the March 3, 2008 hearing. “Failure to preserve an issue in the trial court by means of an appropriate request ordinarily will preclude a party from raising the point on appeal. [Citation.] It is unfair to the trial court and the adverse party to give appellate consideration to an alleged procedural defect which could have been presented to, and may well have been cured by, the trial court.” (Steve J. v. Superior Court (1995) 35 Cal.App.4th 798, 810-811.) K.R., represented by counsel since his first appearance in the proceeding on September 6, never made this argument to the court, and we therefore would not consider it here even if it were timely.
Finally, this alleged error may have been harmless, and, alternatively, the issue is moot on appeal. K.R. is deliberately vague in his appellate briefs as to whether such a judgment of paternity actually exists, stating, “If the court had conducted the proper paternity inquiry the court would have determined if there was an existing judgment of paternity. An existing final judgment of paternity would have shown the court the issue of paternity had been previously resolved . . . .” (Italics added.) Thus, there is no indication immediate compliance (in September 2007) with California Rules of Court, rule 5.635(d)(1) would have necessarily made any difference in promptly resolving the question of N.M.’s parentage. In addition, the court found K.R. was the biological father at the March 3 hearing based on the parties’ agreement that his January 2008 paternity test results supported that finding. Thus, by the time K.R. appealed, the court had already deemed him the biological father, thereby resolving the issue of parentage.
K.R. argues in his reply brief he was prejudiced by the court’s insufficient parentage inquiry because “[a] judgment of paternity would have elevated K.R. to presumed father status regardless of whether K.R. had not lived with the child, was not listed on the child’s birth certificate, and had periodic visitation.” We will discuss this contention below.
The Court’s Denial of Reunification Services
As explained above, the court declined to provide reunification services to K.R. on March 3 and requested K.R. submit a section 388 petition seeking such reunification services. It appears the court intended to allow the parties to brief the issues now before us on appeal, submit any evidence not before the court on March 3, and prepare for a hearing specifically devoted to the question of whether to initiate reunification services to K.R. Despite the court’s invitation to K.R. at the March 3 hearing to “submit a 388 and do it as soon as possible,” K.R. appealed the March 3 minute order.
Based on the conflicting positions taken by SSA on the desirability of K.R. receiving reunification services, there may have been new facts to marshal and offer into evidence. It is impossible for us to know what to make of the apparent change in position by SSA between preparing the reports submitted for the March 3 hearing and the March 3 hearing.
K.R. raises several arguments, each of which relate to the applicability of two sections of the Welfare & Institutions Code to the facts in this case. Section 361.5, subdivision (a), provides in relevant part: “[W]henever a child is removed from a parent’s . . . custody, the juvenile court shall order the social worker to provide child welfare services to the child and the child’s mother and statutorily presumed father . . . . Upon a finding and declaration of paternity by the juvenile court or proof of a prior declaration of paternity by any court of competent jurisdiction, the juvenile court may order services for the child and the biological father, if the court determines that the services will benefit the child.” (Italics added.) Thus, a presumed father is entitled to reunification services, while a biological father may be awarded services if the court determines the services will benefit the child. Section 388, subdivision (a), provides, in relevant part: “Any parent . . . may, upon grounds of change of circumstance or new evidence, petition the court . . . for a hearing to change, modify, or set aside any order of court previously made . . . .” Any modification of a prior order in a dependency proceeding requires a showing that the modification is in the “best interests of the child . . . .” (§ 388, subd. (c).)
As set forth above, on September 6, 2007, the court ruled K.R. was an alleged father, not a presumed father. The court denied reunification services at that time. The court changed K.R.’s status to biological father on March 3, 2008. The court requested further briefing and argument (pursuant to section 388) on the issue of reunification services, thereby denying such services as of March 3. In its March 3 minute order, the court observed K.R. was still not the presumed father.
K.R. primarily asserts the court utilized the wrong legal standard in determining whether K.R. should receive reunification services as a “biological” father. At the March 3 hearing, the parties (including counsel for K.R.) advocated for and against reunification services on the basis of the “best interests of the child” pursuant to section 388, subdivision (c). K.R. now contends the standard should have been whether “the services will benefit the child” pursuant to section 361.5, subdivision (a). Relatedly, K.R. contends he was not required to file a section 388 petition for modification of a prior court order in seeking reunification services, as requested by the court (and as conceded on the record by K.R.’s counsel).
K.R.’s appellate arguments are inappropriately raised here without having first been made to the trial court. (In re Elijah V. (2005) 127 Cal.App.4th 576, 582.) Nevertheless, we will address the arguments on their merits.
The debate over the necessity of a section 388 petition is purely academic under the circumstances, as we see no possibility of K.R. being harmed by the application of the “best interests of the child” standard rather than an inquiry into whether the “services will benefit the child.” K.R. does not explain (or cite any authority explaining) how reunification services could “benefit” N.M., but not be in her best interests (or conversely, how services could be in her best interests but not benefit her). The parties’ discussion of the “best interests of the child” was relevant to whether reunification services were appropriate, and there is no legal or factual support for K.R.’s contention that the court prejudiced him by relying on the wrong legal standard.
Had K.R. been deemed a presumed father on March 3, a different case would be presented. A presumed father is entitled to reunification services and is not required to show such services would “benefit” the child prior to the setting of a section 366.26 hearing to terminate parental rights. “‘[U]p until the time the section 366.26 hearing is set, the parent’s interest in reunification is given precedence over a child’s need for stability and permanency.’ [Citation.] ‘Once reunification services are ordered terminated, the focus shifts to the needs of the child for permanency and stability.’ [Citation.] ‘The burden thereafter is on the parent to prove changed circumstances pursuant to section 388 to revive the reunification issue. Section 388 provides the “escape mechanism” that . . . must be built into the process to allow the court to consider new information.’” (In re Zacharia D. (1993) 6 Cal.4th 435, 447.)
Moreover, the court did not abuse its discretion by denying reunification services on March 3. (See In re Joshua R. (2002) 104 Cal.App.4th 1020, 1026 [affirming implied exercise of discretion to disallow reunification services to potential biological father].) K.R. had not visited the child at all during the dependency proceedings. K.R. delayed his paternity testing for four months. In conjunction with K.R.’s tenuous relationship with N.M. prior to the initiation of dependency proceedings, the court was justified in exercising caution by denying reunification services at the March 3 hearing and calling for further consideration of the issue.
Presumed Father Status
Finally, K.R. asserts he should have been deemed a presumed father, which would have entitled him to reunification services as a matter of law as of the March 3 hearing. But K.R. provides no authority for his pronouncement that a biological father who has paid (or who has been ordered to pay) child support is necessarily a presumed father under Family Code section 7611 and thereby entitled to reunification services in the dependency context. As explained below, the court was not required to find him to be the presumed father as of March 3, 2008.
This argument was actually made in reference to the alleged prejudice of failing to conduct a proper parentage inquiry, as referenced in footnote 2, but we discuss it separately, as it affects both of the other issues raised by K.R. K.R.’s counsel did not explicitly request K.R. be designated a “presumed father” at the March 3 hearing. K.R.’s counsel only requested he be designated the “biological father” and receive reunification services.
“The Uniform Parentage Act (Fam. Code, § 7600 et seq.) . . . provides the statutory framework by which California courts make paternity determinations. [Citation.] Under this statutory scheme, California law distinguishes ‘alleged,’ ‘biological,’ and ‘presumed’ fathers. [Citations.] . . . ‘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.] ‘A biological or natural father is one whose biological paternity has been established, but who has not achieved presumed father status . . . .’” (In re J.L. (2008) 159 Cal.App.4th 1010, 1018.)
“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.” (In re Eric E. (2006) 137 Cal.App.4th 252, 258.) “[O]nly a presumed, not a mere biological, father is a ‘parent’ entitled to receive reunification services under section 361.5. [Citation.] ‘[P]arental rights are generally conferred on a man not merely based on biology but on the father’s connection to the mother [and/or] child through marriage (or attempted marriage) or his commitment to the child.’” (In re Vincent M. (2008) 161 Cal.App.4th 943, 954.)
Family Code section 7611 “sets out several rebuttable presumptions under which a man may qualify for [presumed father] status, generally by marrying or attempting to marry the child’s mother or by publicly acknowledging paternity and receiving the child into his home. [Citations.] Biological fatherhood does not, in and of itself, qualify a man for presumed father status under [Family Code] section 7611. On the contrary, presumed father status is based on the familial relationship between the man and child, rather than any biological connection.” (In re J.L., supra, 159 Cal.App.4th at p. 1018.)
“[Family Code section] 7611 also recognizes two other grounds for qualification as a presumed father that are outside the [Uniform Parentage] Act. These are an executed voluntary declaration of paternity [citation], and the so-called conclusive presumption of paternity [citations], which dictates the finding that a mother’s husband is her child’s father, provided the mother and her husband were married and cohabiting when the child was conceived. In addition, . . . an unmarried biological father may, under narrow circumstances, assert constitutional paternity rights, even though he does not qualify under any of the presumptions listed in [Family Code] section 7611.” (In re J.L., supra, 159 Cal.App.4th at p. 1018.)
K.R. admits he never married or attempted to marry N.M.’s mother. He admits he never lived with N.M.. He admits to limited contact with N.M. prior to the dependency proceedings. He admits he never attempted to obtain custody rights despite knowledge of N.M.’s existence for most of her life. There is no indication in the record K.R. signed a voluntary declaration of paternity. K.R. did not make the case in the trial court or on appeal that he is constitutionally entitled to presumed father status pursuant to the rationale of Adoption of Kelsey S. (1992) 1 Cal.4th 816, i.e., he was “thwarted by a third party” from exercising his parental rights and that he subsequently made “‘a full commitment to his parental responsibilities — emotional, financial, and otherwise.’” (In re Elijah V., supra, 127 Cal.App.4th at p. 583.)
As of March 3, the court had not yet determined whether K.R.’s status as a biological father would lead to him becoming the presumed father of N.M. But the court held open the possibility that it would determine K.R. was the presumed father at a later hearing. “In many cases involving alleged fathers, the question of paternity is undeniably relevant, for example, in cases concerning child support or inheritance rights. Paternity can also be relevant in a dependency proceeding where an alleged father desires to confirm his biological connection with a child as a step toward initiating a relationship that could lead to presumed father status.” (In re Joshua R., supra, 104 Cal.App.4th at p. 1027.) We cannot find error in the court’s decision to designate K.R. as the “biological” father rather than the “presumed” father at the March 3 hearing.
DISPOSITION
The postjudgment order is affirmed.
WE CONCUR: RYLAARSDAM, ACTING P. J., ARONSON, J.