Opinion
NOT TO BE PUBLISHED
Alameda County Super. Ct. No. HJ07006974
Lambden, J.
Frank G. (petitioner) is an alleged father in these dependency proceedings for infant child Vanessa A., born to Jennifer A. (the mother). Petitioner seeks review (Cal. Rules of Court, rule 8.452; Welf. & Inst. Code, § 366.26, subd. (l)) of orders of July 2, 2007, establishing jurisdiction and setting a plan selection hearing for the child. We dismiss his petition for lack of standing to raise these issues.
All unspecified section references are to the Welfare and Institutions Code, and all unstated dates are in the current year, 2007.
Background
Vanessa was born in May 2007, while petitioner and the mother, each with long criminal records and histories with child protective services (CPS), were serving prison terms. The mother was in Santa Rita Jail, had nearly a year remaining on a term she was serving at Chowchilla State Prison, and had previously lost six children to adoption or guardianship owing to drug abuse, instability, incarcerations, and failures to reunify.
Vanessa was taken into protective custody, and the Alameda County Social Services Agency (agency) filed a dependency petition on May 18. Petitioner’s alleged paternity was not at first known, and the petition alleged, as failure to support (§ 300, subd. (g)), that the father’s identity, whereabouts and circumstances were unknown. For the mother, the petition alleged failure to provide support (ibid.) due to her own incarceration, plus failure to protect (§ 300, subd. (b)) in that she (b-1) gave birth while jailed for a term ending April 2008, and had no family member or relative willing to care for Vanessa, and (b-2) had a serious drug problem that impaired her ability to care and provide. Allegations under b-2 were that: (a) she was serving a three-year term for drug charges; (b) she had failed to reunify with any of her children and had three of them (Jasmine, Angel and Raymond) adopted through CPS after failing to reunify, complete case plan requirements or treat the problems leading to removal; (c) the grandparents had become legal guardians, through probate court, for two others (Corrina and Jose) due to mother’s problems and incarcerations; and (d) mother had been given extensive services to reunite with her other children but failed to complete drug treatment, or case plan requirements, and would not be receiving services for Vanessa.
On May 21, counsel was appointed for the mother. Vanessa was detained in foster care, and the matter was set for a further hearing of June 4.
A jurisdiction/disposition report filed on May 25 identified petitioner as an “alleged father.” The report also recommended no services for either party, noting that the agency had no services obligation toward petitioner, as an alleged father, unless and until he established a legal basis for receiving them. The report noted petitioner’s failure to reunify in proceedings for Angel G. (born in April 2003), one of Vanessa’s now-adopted siblings.
At the June 4 further hearing, petitioner was appointed counsel Risé Donlon, who also represented him in ongoing proceedings involving Angel. The mother’s appointed counsel, Tamiza Hockenhull, was likewise her attorney in those other proceedings. The court invited comment on the jurisdiction/disposition report and set a contested hearing for July 2, to coincide with a “hearing set in the sibling cases.” Counsel for the agency and petitioner each observed that petitioner was an alleged, not presumed, father. Neither petitioner nor the mother was present, but petitioner’s counsel represented that Vanessa was “a full sibling of [his] other child who is on calendar for July 2nd” and said petitioner had told her his name was on the birth certificate. Agency counsel insisted on seeing the certificate, but it was not offered then. It would develop later, in testimony by the mother at the July 2 hearing, that petitioner’s name was not, in fact, on the certificate. The mother explained: “I gave his name, but he wasn’t able to be there to sign the birth certificate, so they don’t list his name. They just list his birth date.”
Judith Walton, self-identified on the record as a “[f]amily friend,” was in court on June 4, when the contest was set. Ms. Donlon referred to her as “a potential placement for the child” and said that she “would like to see the child placed with Ms. Walton so that the other siblings have access to her . . . .”
Petitioner remained incarcerated and appeared only through counsel at the July 2 contest. Mother appeared personally, testified and presented other witnesses, trying to establish that she had adequately provided for the baby by arranging with Judith Walton, while in custody prior to the birth, to take care of the child in her home and, if needed, adopt. Walton testified that she remained willing to take the child, and to adopt “if necessary,” and the mother’s position was that she wanted Walton to have Vanessa now and opposed Vanessa having been placed, instead, with the adoptive parents of another of her children, her four-year-old daughter Angel.
On the question of paternity, the mother testified that petitioner was the father and explained that they both were out of custody when she got pregnant. She conceded, however, that she had never been married, did not communicate with petitioner about the baby before the birth, had no direct word from him since, about his desires in the matter, and testified that he was in custody at the time of birth and, as already noted, that his name was not on the birth certificate.
Counsel for petitioner asked, midway through the hearing, that petitioner “be permitted to establish paternity” and that the court order paternity testing. Counsel said petitioner agreed with the mother’s position regarding placement, and argued, building on the mother’s argument against jurisdiction, that the mother had adequately provided for the child’s care. Petitioner, counsel represented, “does hold the minor out to the community as his.”
The court found that mother had not given consents and taken other “very important” steps within her power to transfer caretaking responsibilities, but that she had taken “the most important and fundamental step in arranging for alternative care, and that is identifying the person who is willing and able to assume care.” This, the court felt, was a “pretty effective challenge to jurisdiction” if it had rested only on section 300, subdivision (g). “However, this is not a 300 (g) only case. We have the (b) allegations, which indicate inability of mother to provide care, or rather a parent because of . . . substance abuse. And it is just that; she has a documented problem with substance abuse, but in addition, has [a] history of failure to reunify with the children that were removed because of the same problem. So I do think that the agency has [established an] independent ground under 300 (b) for the court to take jurisdiction, and so the court will be doing so, although I will be making a finding that the [g-2] allegation [mother being in jail and unable to care] has not been met.” The court struck the g-2 allegation and found the petition true as amended.
The court declared dependency and, for disposition, followed the recommendation of no reunification services, noting that petitioner was not a presumed parent. The court rejected placement with Walton and continued Vanessa with the adoptive parent of the sibling. The report showed that this was “a fost adopt placement,” and an addendum related that it was working very well for Vanessa, her four-year-old sibling “thrilled to have her sister at home.”
The court ordered paternity testing for petitioner and set a plan selection hearing for October 25. Petitioner and the mother each have sought writ review in this court; mother’s petition is separately docketed as Jennifer A. v. Superior Court (A118583).
Discussion
Petitioner raises no issues regarding his alleged paternity or denial of services, and he does not directly dispute the placement. Rather, he attacks the jurisdictional findings. He implicitly concedes support for the g-1 allegation of his own incarceration but notes that the g-1 allegation as to him only stated that the father’s identity, whereabouts and circumstances were unknown. He then mirrors arguments that the mother raises in her own petition. He builds on the court’s determination that mother’s own incarceration did not render her unable to arrange for Vanessa’s care (§ 300, subd. (g); In re Aaron S. (1991) 228 Cal.App.3d 202, 208) and then relies on his own post-petition acquiescence in the arrangements she made with Judith Walton as showing that he, too, could arrange for the child’s care. He further argues that no evidence supports a connection between the mother’s drug use (§ 300, subd. (b)) and substantial risk of harm to the child.
Whatever saliency these arguments might have for a presumed or even a proven biological father, the problem for petitioner is that, at the time of the July 2 orders he challenges, he was only an alleged father. He does not dispute that status, legally, and the record supports none of the pertinent grounds for presumed father status (Fam. Code, § 7611). He never married or attempted to marry the mother (id., subds. (a)-(c)); he was not named with consent on the birth certificate (id. subd. (c)(1)); and despite his counsel’s mysterious argument that petitioner “held out” Vanessa to others as his own (evidently meaning while jailed), we are directed to no evidence of his receiving the child into his home and openly holding her out as his child (id., subd. (d); Adoption of Michael H. (1995) 10 Cal.4th 1043, 1051; In re Emily R. (2000) 80 Cal.App.4th 1344, 1354-1355).
Petitioner was identified early on as an alleged father and, on June 4, appointed counsel with whom he already had a professional relationship in another such case. This appointment was four weeks before the July 2 orders he challenges, and it was clear from the petition and report that mother was not going to be offered services. Nothing shows that, during that four weeks, he executed a voluntary declaration of paternity (Fam. Code, § 7571), sought a paternity test, or in any way attempted to establish or assert his paternal status (e.g., In re Daniel M. (2003) 110 Cal.App.4th 703, 708 [petition to have name placed on birth certificate]). Uncontradicted testimony from the mother was that she wrote to him, while both were in custody, about the impending birth, that he never communicated with her about this and, even by the time of the July 2 hearing, had not directly apprised her of his desires. Petitioner did not attend the July 2 hearing, despite being held in local custody, and it was there, when a permanency planning hearing was expected to be set, that he made his first request (through counsel) for paternity testing.
On this record, and with petitioner failing to brief how he has standing, we agree with the agency that he lacks standing to raise the jurisdictional issues he does.
“ ‘The Family Code and the Welfare and Institutions Code differentiate between “alleged,” “natural,” and “presumed” fathers. [Citation.]’ [Citation.] The extent to which a father may participate in dependency proceedings and his rights in those proceedings are dependent on his paternal status. ‘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.]” (In re Paul H. (2003) 111 Cal.App.4th 753, 760.) A presumed father, but not a biological father, is entitled to reunification services. (In re Zacharia D. (1993) 6 Cal.4th 435, 451), and petitioner has established neither status on this record. “[I]f a man fails to achieve presumed father status prior to the expiration of any reunification period in a dependency case, . . . he is not entitled to such services . . . .” (Id. at p. 453.)
We are not apprised that petitioner has had a paternity test since July 2.
Thus an alleged father lacks standing to challenge a termination of whatever parental rights he may have had (In re Daniel M., supra, 110 Cal.App.4th at pp. 707-709; In re Joseph G. (2000) 83 Cal.App.4th 712, 715-716 [party status also not achieved]), or to challenge a plan setting order based on denial of a continuance to await the results of a paternity test (In re Karla C. (2003) 113 Cal.App.4th 166, 180).
There are issues that an alleged father may raise, notably lack of notice. (In re Paul H., supra, 111 Cal.App.4th at p. 759; In re O. S. (2002) 102 Cal.App.4th 1402, 1408.) An alleged father is entitled to notice that allows him an opportunity to appear, assert a position, attempt to change his paternity status (ibid.), and seek to become a party to the proceedings (In re Karla C., at p. 179). It is undisputed that petitioner received such notice here, four weeks before the July 2 hearing, with an issued report warning that mother was not being offered services. Time was thus short. Petitioner was appointed counsel but evidently did nothing during that time interval to seek paternity status. He was allowed to appear at the hearing, through counsel, and assert his position about placement, but it was only then, at the setting of a permanency planning hearing, that he sought paternity testing.
We conclude that petitioner lacks standing to raise the issues he presents.
Disposition
The petition is dismissed. Given the imminency of the hearing set for October 25, our decision is final immediately (Cal. Rules of Court, rule 8.260(b)(3)).
We concur: Kline, P.J., Richman, J.