Opinion
F052457
6-8-2007
EMMANUEL W., Petitioner, v. THE SUPERIOR COURT OF KERN COUNTY, Respondent, KERN COUNTY DEPARTMENT OF HUMAN SERVICES, Real Party In Interest.
Law Offices of David G. Duket and David G. Duket, for Petitioner. No appearance for Respondent. B.C. Barmann, Sr., County Counsel, and Marl L. Nations, Deputy County Counsel, for Real Party In Interest.
NOT TO BE PUBLISHED
OPINION
THE COURT
Before Vartabedian, Acting P.J., Harris, J., and Levy, J.
Petitioner seeks an extraordinary writ (Cal. Rules of Court, rule 8.450-8.452) to vacate the orders of the juvenile court denying him reunification services and setting a Welfare and Institutions Code section 366.26 hearing as to his daughter M. We will deny the petition.
All further statutory references are to the Welfare and Institutions Code unless otherwise indicated.
STATEMENT OF THE CASE AND FACTS
In July 2006, then two-year-old M. was removed from the custody of her minor mother T. in Los Angeles County because T. left M. with an unrelated caregiver without making provisions for her care. The Los Angeles County juvenile court adjudged M. a dependent child and transferred the case to Kern County where M. was placed with maternal relatives. At the time, petitioner, then M.s alleged father, was incarcerated on a parole violation.
T. did not file a writ petition in this case.
In December 2006, the Kern County juvenile court assumed dependency jurisdiction and ordered six months of reunification services for T. After paternity testing, the court deemed petitioner M.s biological father.
In March 2007, the court conducted a contested dispositional hearing to consider whether to offer petitioner reunification services. County counsel argued services would not benefit M. and therefore should be denied pursuant to section 361.5, subdivision (a). In addition, county counsel argued services would be detrimental to M. given petitioners incarceration and should be denied pursuant to section 361.5, subdivision (e)(1).
Petitioner appeared in custody and argued for services. He testified he had never seen M. or provided for her support because his relationship with T. was very brief and he did not know of M.s existence until T. identified him as M.s alleged father. He further testified he completed anger management, domestic living and a substance abuse program while incarcerated and was scheduled to be released from custody in September 2007 after which he planned to live with his mother and attend school.
During cross-examination, county counsel elicited information about petitioners criminal history. Seven years previously, at the age of 17, petitioner was committed to the Department of Corrections and Rehabilitation, Juvenile Justice for felony assault for biting an adult male on the finger. He was released in September 2004 and remained out of custody until October 2005.
The Department of Corrections and Rehabilitation, Juvenile Justice was formerly known as the California Youth Authority.
Following testimony and argument, the court denied petitioner reunification services pursuant to section 361.5, subdivisions (a) and (e)(1). After issuing its dispositional orders as to petitioner, the court conducted an uncontested review of T.s dependency, terminated her services and set a section 366.26 hearing.
DISCUSSION
Petitioner argues the court abused its discretion in denying him reunification services under section 361.5, subdivision (a). Alternatively, he argues there is insufficient evidence to support a denial of services under section 361.5, subdivision (e)(1). We disagree.
When a juvenile court orders a child removed from parental custody, section 361.5, subdivision (a) (subdivision (a)) requires that it order services for a statutorily presumed father. With respect to a biological father, the court has discretion under subdivision (a) to order services if they will benefit the child.
Petitioner claims his prompt action to elevate his paternity and establish a plan for himself upon his release from custody sufficiently established his commitment to M. and compelled a finding that services would benefit her. Petitioner likens the fullness of his commitment to that of the biological fathers in In re Julia U. (1998) 64 Cal.App.4th 532 (Julia U.) and In re Andrew L. (2004) 122 Cal.App.4th 178 (Andrew L.) and argues he merits the same result; i.e., the opportunity to reunify with his child. However, petitioner ignores one fundamental fact which makes his case fatally distinguishable: the fathers in Julia U. and Andrew L. sought to elevate their paternity status to presumed father on constitutional grounds based on their unique circumstances and prevailed. (Julia U., supra, 64 Cal.App.4th at p. 538; Andrew L., supra, 122 Cal.App.4th at p. 184.) Petitioner never claimed to be any more than M.s biological father. Consequently, the authority of Julia U. and Andrew L. is unavailing.
Further, other evidence weighed against a finding that services would benefit M. namely, petitioners six remaining months of incarceration, his extensive criminal history, the absence of a parent/child bond and maternal relatives anxious to adopt M. Based on the foregoing, we find no abuse of discretion in the courts denial of services under subdivision (a).
Having affirmed the courts denial of services under subdivision (a), we need not review the courts denial under section 361.5, subdivision (e)(1) (subdivision (e)(1)). However, were we to review it, we would affirm it as well. Subdivision (e)(1) requires the juvenile court to order services to an incarcerated "parent" unless, the court finds by clear and convincing evidence, those services would be detrimental to the child. As a biological father, petitioner is not considered a "parent" within the statutory definition. "[O]nly a presumed, not a mere biological, father is a `parent entitled to receive reunification services under section 361.5. [Citation.]" (In re Zacharia D. (1993) 6 Cal.4th 435, 451.) We find no error on this record.
DISPOSITION
The petition for extraordinary writ is denied. This opinion is final forthwith as to this court.