Opinion
F075899
09-25-2017
JESUS L., Petitioner, v. THE SUPERIOR COURT OF FRESNO COUNTY, Respondent; FRESNO COUNTY DEPARTMENT OF SOCIAL SERVICES, Real Party in Interest.
Jesus L., in pro. per., for Petitioner. No appearance for Respondent. Daniel C. Cederborg, County Counsel, and Brent C. Woodward, Deputy County Counsel, for Real Party in Interest.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 16CEJ300203)
OPINION
THE COURT ORIGINAL PROCEEDINGS; petition for extraordinary writ review. Gary Green, Commissioner. Jesus L., in pro. per., for Petitioner. No appearance for Respondent. Daniel C. Cederborg, County Counsel, and Brent C. Woodward, Deputy County Counsel, for Real Party in Interest.
Before Levy, Acting P.J., Detjen, J. and Franson, J.
-ooOoo-
Petitioner Jesus L., in propria persona, seeks an extraordinary writ from the juvenile court's order setting a Welfare and Institutions Code section 366.26 hearing as to his now one-year-old daughter, Ana L. Jesus contends his court appointed counsel was ineffective. We deny the petition.
All statutory references are to the Welfare and Institutions Code, unless otherwise noted.
FACTUAL AND PROCEDURAL BACKGROUND
In July 2016, the Fresno County Department of Social Services (department) responded to a report that newborn Ana and her mother, Raven, tested positive for amphetamines and opiates. Raven admitted using methamphetamine and heroin during her pregnancy. She identified Jesus as Ana's father, although she was not certain of his paternity. Jesus doubted he was Ana's father and refused to sign a declaration of paternity. The department placed Ana in a foster home.
The juvenile court ordered Ana detained pursuant to a dependency petition, which identified Jesus as Ana's alleged father. In August 2016, the court adjudged Ana a dependent child and set the matter for disposition. The court continued the dispositional hearing multiple times and conducted it in January 2017.
Meanwhile, Jesus and Raven made their first appearances at a hearing in October 2016 and the juvenile court appointed them counsel. Jesus filed a "Statement Regarding Parentage" (form JV-505), stating he believed he was Ana's father and asking the court to enter a judgment of parentage. He said he told relatives and anyone who asked that she was his child and he visited her in the hospital after she was born. He claimed to have provided money for diapers, clothes and other baby supplies. He explained he did not come forward sooner because he hoped to force Raven into treatment for substance abuse. The court ordered paternity testing for Jesus.
On January 24, 2017, at the dispositional hearing, the juvenile court ordered Ana removed from Raven's custody and ordered Raven to participate in reunification services. The court denied Jesus reunification services because, as Ana's alleged father, he was not entitled to them. (§ 361.5, subd. (a).) The court set the six-month review hearing for June 2017.
In March 2017, the juvenile court conducted a paternity hearing on Jesus's form JV-505. Jesus's attorney appeared on his behalf. County counsel informed the court that Jesus had missed two appointments for paternity testing. Jesus's attorney stated he called Jesus several times and he was aware that Jesus had not attended his appointments. The court declined to elevate Jesus's paternity status to presumed father based on his form JV-505.
In June 2017, the juvenile court terminated Raven's reunification services for noncompliance and set a section 366.26 hearing. Neither parent personally appeared and Jesus's attorney submitted the matter for the court's ruling.
Jesus filed an extraordinary writ petition. (Cal. Rules of Court, rule 8.452.)
Raven did not file a writ petition. --------
DISCUSSION
Jesus contends trial counsel was ineffective for not communicating with him. He states, "Since this case began I've had little to no contact with my lawyer. [T]he time I spoke to him was at a hearing I attended in which he told me I would not be getting reunification services due to a prior felony conviction I received back [on] 4/16/95." He also asserts, "throughout the case I received no phone calls and one letter from my attorney. [¶] I wasn't given a fair chance to show the courts that I am a capable father and the best place [for] Ana to be [is] with [ ] me. It should be a natural choice for a child to be with a fitting biological father." He requests that the juvenile court be ordered to vacate the section 366.26 hearing now scheduled for October 10, 2017.
To prove ineffectiveness of counsel, the petitioner must show trial counsel's representation fell below an objective standard of reasonableness and the deficiency resulted in demonstrable prejudice. (In re Kristin H. (1996) 46 Cal.App.4th 1635, 1667-1668.) We need not evaluate counsel's representation if petitioner fails to prove prejudicial error; i.e., absent counsel's errors, there is a reasonable probability of a more favorable outcome. (In re Nada R. (2001) 89 Cal.App.4th 1166, 1180.) Therefore, to prevail on a claim of ineffectiveness of counsel, Jesus must show that but for counsel's representation, the juvenile court would have elevated his paternity status and given him the opportunity to reunify with Ana.
Indigent parents have a right to appointed counsel in dependency proceedings (§ 317, subd. (b)) and "[a]ll parties who are represented by counsel at dependency proceedings shall be entitled to competent counsel" (§ 317.5, subd. (a)). To act competent, counsel in dependency cases must know the subject area and act in a manner consistent with other reasonably competent attorneys acting as diligent advocates. In dependency practice, a reasonably competent attorney knows that a "father's" rights and the extent to which he may participate in dependency proceedings are dependent on his paternal status. (In re O.S. (2002) 102 Cal.App.4th 1402, 1406-1408.)
The dependency statutes differentiate between alleged, biological and presumed fathers. A presumed father is the child's "parent" and is accorded the greatest paternity rights, including custody and reunification services. (In re Zacharia D. (1993) 6 Cal.4th 435, 448-449 (Zacharia D.).) The presumed father may or may not be biologically related to the child. Nevertheless, he satisfies a legal presumption of paternity. (Fam. Code, § 7611.) Jesus does not claim to be Ana's presumed father.
A biological father is one whose biological paternity has been established but who has not achieved presumed father status. (Zacharia D., supra, 6 Cal.4th at p. 449, fn. 15.) The biological father is not entitled to reunification services but the juvenile court may order them for him if it determines services will benefit the child. (§ 361.5, subd. (a).)
An alleged father is a man who may be the father of a child, but who has not established biological paternity or presumed father status. (Zacharia D., supra, 6 Cal.4th at p. 449, fn. 15.) As a result, he has no cognizable interest in the child. (In re Emily R. (2000) 80 Cal.App.4th 1344, 1352.) Consequently, he does not have a statutory right to counsel and is entitled only to notice and an opportunity to appear, assert a position and attempt to change his paternity status. (In re O.S., supra, 102 Cal.App.4th at p. 1408.)
Jesus refers to himself in his petition as Ana's biological father, although there is no evidence in the record to support it. Since biological paternity is the highest status Jesus could attain, he would have to show trial counsel was ineffective for not ascertaining his biological paternity and advocating for reunification services.
According to the record, the juvenile court ordered paternity testing for Jesus and he missed both appointments the department made for him to be tested. In addition, he failed to appear at any hearing subsequent to his first appearance in October 2016. Consequently, Jesus failed in his responsibility to establish his biological paternity by not testing and, therefore, gave his attorney no grounds to argue for reunification services. He cannot now fault his attorney for the outcome in this case.
We conclude Jesus failed to show his court appointed counsel was ineffective.
DISPOSITION
The petition for extraordinary writ is denied. This opinion is final forthwith as to this court.