Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. CK62866, Donna Levin, Juvenile Court Referee.
Linda Rehm, under appointment by the Court of Appeal, for Defendant and Appellant.
Office of the Los Angeles County Counsel, James M. Owens, Assistant County Counsel, and Aileen Wong, Deputy County Counsel, for Plaintiff and Respondent.
KRIEGLER, J.
Miguel M. appeals from the judgment of March 5, 2009, terminating parental rights to A. under Welfare and Institutions Code section 366.26. He contends the dependency court erred when it failed to find he was A.’s presumed father, denied his request for a contested section 366.26 hearing, and terminated parental rights without making a finding he was an unfit parent. As Miguel did not request presumed father status in the dependency court or file a petition under section 388 to revive the reunification issue, he forfeited his contention that he should have been granted presumed father status. Because Miguel did not raise any issues requiring a hearing, the order denying a contested section 366.26 hearing was not an abuse of discretion. Terminating the parental rights of a mere biological father does not require a finding of unfitness, and the dependency court did not err in terminating his parental rights. We affirm the judgment.
Hereinafter, all statutory references will be to the Welfare and Institutions Code unless otherwise indicated.
FACTS AND PROCEDURAL HISTORY
A., born in early 2007, was detained from mother’s custody at birth because A. was born with drugs in her system. Mother abused drugs during the pregnancy and received no prenatal care. Mother stated that Jose, the father of two siblings, was A.’s father.
On July 19, 2007, A. was declared a dependent of the court based on sustained allegations under section 300, subdivisions (a) and (b). Custody was taken from the parents and reunification services were not ordered. The Department of Children and Family Services (the Department) was ordered to obtain A.’s birth certificate.
The selection and implementation hearing pursuant to section 366.26 was set for January 24, 2008. A. was in the preadoptive home of the maternal aunt who had cared for her since spring 2007. A freed sibling was in the process of being adopted by this relative. A.’s other two siblings were adopted by another maternal aunt. The siblings visited with each other regularly. Adoption was identified as the permanent plan, and the section 366.26 hearing was continued from date to date to January 22, 2009, for, among other things, A.’s birth certificate.
On December 2, 2008, Miguel filed a petition in San Bernardino County Family Court to establish a parental relationship with A. In early January 2008, the Department learned that Miguel was claiming to be A.’s father. The social worker advised Miguel of the section 366.26 hearing that was scheduled for January 22, 2009. On January 12, 2009, Miguel informed the social worker he had not had contact with mother in several years. He stated he planned to attend the hearing.
Miguel had a criminal record. In 2002, he was convicted of accessory to a felony in violation of Penal Code section 32.
On January 22, 2009, Miguel appeared, claiming he was the biological father. An attorney was appointed to represent him. He acknowledged he had not had contact with the child. The dependency court advised him the case was past the reunification stage and was at the point of holding a section 366.26 hearing to terminate parental rights. “[Y]ou will need to talk to your attorney about what you would need to do to have any of this changed - - the court[’s] findings and orders changed.” Miguel asked for a continuance of the hearing to determine by paternity testing if he was the father and to have the social worker interview him. Stating that he doubted the court would order testing, Miguel asked for A. to be made available for a DNA test at his own expense. The dependency court asked the pre-adoptive family to cooperate with testing, but explained that a biological connection would not make any legal difference at this stage in the proceedings. The court stated Miguel could set the section 366.26 hearing for a contest. Miguel declined, indicating he preferred to wait until after the social worker interviewed him. Miguel’s request for visits was denied, as the court had no information on Miguel, the time for reunification had passed, and visits did not appear to be in the child’s best interest. The section 366.26 hearing was continued to March 5, 2009. The court ordered the social worker to interview Miguel and prepare a report.
Miguel arranged for DNA testing on February 24, 2009. On February 27, 2009, the testing lab report revealed that Miguel was the biological father. During an interview with the social worker, Miguel stated he met mother in March 2006. Mother said she was married and her husband was in prison. They had a brief affair and then she left. He believed she had returned to her husband. He did not know she was pregnant. In March 2007, he encountered a maternal relative and was told mother had a newborn child and the father was Jose. Eight months later, he located mother, who told him the baby was not his. Another year passed, and in October 2008, he hired a private investigator, who learned the child was living with the maternal aunt. That is when Miguel filed a Petition to Establish Parental Relationship.
At the section 366.26 hearing on March 5, 2009, Miguel asked for visitation until the section 366.26 hearing was held, stating “nobody knew that he even existed, but he does exist.” The dependency court stated: “This is the [section 366].26. [¶] [Miguel’s counsel]: Well, until his parental rights are terminated. I need an opportunity to review the legal file and to see whether any orders - -. [¶] The court: Well, [counsel], you were appointed... at the last hearing. As you know, the law is, even though he’s a biological father, the only thing to be contested at the.26 is whether or not he has bonded with this child. By all reports, he’s never even seen the child before he came into the court last time. [¶] So there is no requirement that I afford him visits. What I have to do is look to see what’s in the best interest of the child. The child has been in this home - - [with siblings] almost since birth. I did not order a DNA test for [Miguel]. He took that upon himself. I don’t know on what basis he thought that that was going to change anything, but it doesn’t. [¶] You know, it is unfortunate that he did not know about the child sooner, but that is not the law, that he come forward and have a DNA test and suddenly say, ‘I am the father. I want my child.’ [¶] [Miguel’s counsel]: He’s not saying that, your honor.... [¶]... [¶] The court: [You] certainly [had enough] time to go through the file.” “I do not think it is in the child’s best interest at this time to order visits. [¶] I think it is confusing for the child. I think [Miguel] does not have a right to those visits[.]”
Miguel’s counsel requested a contested section 366.26 hearing. The dependency court denied the request. “The court: I do not believe that he has that right, considering what has gone on. [¶]... [¶] He would have to meet the exception to [section] 366.26, which is to show that it is not in the best interest of the child to sever the relationship. [¶] First he has to establish that there was a relationship. He cannot establish that. By his own admission, he hasn’t really seen this child or had any kind of bonding. [¶] The only relationship he has to this child is biological. He is basically a sperm donor to this child. He is not - - he is not the father, the presumed father, the actual father of this child. He is the biological father. [¶] He has no other rights than that. He has come to court at the [section 366].26.... [H]is parental rights would have been terminated way before this if we were able to get a birth certificate. This is only because this matter has had to be continued to long, and this is what happens in these cases. He has shown up. Somebody told him he may be the father. He took it upon himself to have a DNA, and this court did not order the DNA test. [¶]... So he has no right here to contest the [section 366].26. He does not have a relationship with this child. That is the only issue on which he can contest the [section 366].26. [¶] [Miguel’s counsel]: May I just respond, for the record? [¶] The court: Yes. [¶] [Miguel’s counsel]: The court did appoint him a lawyer. [¶]... [¶] The court: “I appointed him a lawyer so that somebody can explain to him... where we’re at, and what it does or what it doesn’t give him. Just because I appointed him a lawyer, that doesn’t give him any special rights that he would have had otherwise. It is the same rights. [¶] The reason why I appointed him a lawyer is because he came to court, and I thought it would be his best interest and in the child’s interest to have an attorney to explain his rights to him.”
Miguel objected to terminating parental rights at the hearing. When asked the basis for Miguel’s opposition, Miguel’s counsel stated: “Well, first of all, I have not had an opportunity to review the file and see if he has adequate notice. I wanted to see the results of the paternity test.” The dependency court pointed out that Miguel came into the process late. His name was never mentioned and did not appear anywhere, and no one knew about him. “You have had the case for six weeks, and if you needed to go through the file, you have had enough time. At this time, I don’t have any ground for granting a contested [section 366].26[.]”
The dependency court then terminated parental rights. Miguel requested the issue of visitation be referred to mediation. The court granted the request and referred the matter to the mediator.
DISCUSSION
Presumed Father Status and Revival of the Reunification Issue
Only presumed fathers are entitled to custody and reunification. (E. g., In re Zacharia D. (1993) 6 Cal.4th 435, 449.) Miguel contends he was entitled to presumed father status and therefore to reunification services and visitation. Miguel did not ask the dependency court to rule he was a presumed father. He did not object when the court found he was merely a biological father. All he asked the court for was visitation pending the section 366.26 hearing and a contested section 366.26 hearing. The Department contends that Miguel forfeited the presumed father status issue by failing to raise it below. We agree. “A parent’s failure to raise an issue in the juvenile court prevents him or her from presenting the issue to the appellate court.” (In re Elijah V. (2005) 127 Cal.App.4th 576, 582; accord, In re S.B. (2004) 32 Cal.4th 1287, 1293 [“a reviewing court ordinarily will not consider a challenge to a ruling if an objection could have been but was not made in the trial court”]; In re Dakota H. (2005) 132 Cal.App.4th 212, 221 [“A party forfeits the right to claim error as grounds for reversal on appeal when he or she fails to raise the objection in the trial court”].)
“A man is presumed to be the natural father of a child if... [¶]... [¶]... [h]e receives the child into his home and openly holds out the child as his natural child.” (Fam. Code, § 7611, subd. (d).) Miguel did not receive A. into his home and openly hold her out as his child. He had no contact or relationship with her. A man may be a presumed father without being the biological father. (In re Nicholas H. (2002) 28 Cal.4th 56, 62-63.)
Moreover, “a biological father seeking reunification with a child, who does not come forward in the dependency proceeding until after the reunification period has ended, must establish under section 388 that there are changed circumstances or new evidence demonstrating the child’s best interest would be promoted by reunification services. The rule is the same whether his paternity was concealed from him or not.” (In re Vincent M. (2008) 161 Cal.App.4th 943, 947.) The dependency court advised Miguel to consult with his attorney about what he needed to do at that stage of the proceedings if he wanted to change prior court orders. Miguel did not file a section 388 petition or request a continuance to file a section 388 petition. Thus, he chose not to ask the court to exercise discretion under section 388 to revive the reunification issue. As he did not seek to invoke an exercise of discretion in the manner required by law, he cannot complain on appeal that the court abused its discretion in failing to order reunification services for him. (Compare In re Baby Boy V. (2006) 140 Cal.App.4th 1108, 1116 & fn. 8 [an alleged father’s failure to file a section 388 petition to revive the reunification issue was excused because the dependency court did not allow him to make any requests in the proceedings].)
Under section 388, the dependency court has discretion to modify an order if circumstances have changed such that it would be in the child’s best interests for a modification to be made. (In re Kimberly F. (1997) 56 Cal.App.4th 519, 526 & fn. 5.) “Whether a previously made order should be modified rests within the dependency court’s discretion, and its determination will not be disturbed on appeal unless an abuse of discretion is clearly established.” (In re Michael B. (1992) 8 Cal.App.4th 1698, 1704.)
Miguel argues the dependency court erred in denying reunification services to him as a biological father, he had rights under Adoption of Kelsey S. (1992) 1 Cal.4th 816 (Kelsey S.), and the court should have provided him with form JV-505. Those contentions were also forfeited by his failure to file a section 388 petition, because those contentions relate to the issue of reviving reunification. (See In re Vincent M, supra, 161 Cal.App.4th at p. 947.)
Moreover, Miguel forfeited the contention that he had rights under Kelsey S., because he did not ask the dependency court to be considered a Kelsey S. father or object when the dependency court did not consider him a Kelsey S. father. (In re Jason J. (2009) 175 Cal.App.4th 922, 932; In re Elijah V., supra, 127 Cal.App.4th at p. 582 [a “party seeking status as a father under Kelsey S. must be clear he wants to be so declared”].)
Further, Miguel’s contention that the failure to provide him with form JV-505, as required by section 316.2, subdivision (b), was prejudicial, because had he been provided with the form, he would have requested a judgment of parentage and a finding he was the presumed father. We have reviewed form JV-505 and compared it with the social worker’s court-ordered interview of Miguel immediately after he first appeared in the proceedings, and we conclude the interview covered the inquiries contained in form JV-505, which relate to the issue of whether Miguel was a presumed father. (Compare In re Paul H. (2003) 111 Cal.App.4th 753, 756-762 [failure to comply with the procedures in § 316.2 required reversal where the alleged father appeared in the proceeding before reunification was cut off, was denied access to paternity testing, was never interviewed by the social worker, and it could not be concluded that he would have been denied reunification had he established his paternity].)
Pursuant to section 316.2, subdivision (b), each alleged father shall be provided with form JV-505.
“We typically apply a harmless-error analysis when a statutory mandate is disobeyed, except in a narrow category of circumstances when we deem the error reversible per se. This practice derives from article VI, section 13 of the California Constitution, which provides: ‘No judgment shall be set aside, or new trial granted, in any cause... for any error as to any matter of procedure, unless, after an examination of the entire cause, including the evidence, the court shall be of the opinion that the error complained of has resulted in a miscarriage of justice.’” (In re Jesusa V. (2004) 32 Cal.4th 588, 624.)
The fact he previously filed a Petition to Establish a Parental Relationship in family court does not indicate he would have requested presumed father status in the dependency proceedings had he been provided with form JV-505. Custody decisions in the dependency and family law contexts involve different considerations. (See In re Vincent M., supra, 161 Cal.App.4th at p. 958.)
Miguel’s contention that the dependency court erred when it failed to order paternity testing is moot, because paternity testing occurred.
To the extent Miguel contends the dependency court erred in denying visitation, Miguel’s March 5, 2009 visitation request was for visitation pending the parental rights termination hearing, and parental rights were terminated that day.
Denial of Contested Section 366.26 Hearing
Miguel contends it was a violation of due process to deny his request for a contested section 366.26 hearing because he was not allowed to make an offer of proof. We disagree with the contention.
To the extent Miguel contends he was entitled to a contested hearing because he should have been found to be a presumed father and offered reunification services, we have previously concluded the issue of presumed father status and reunification was not preserved.
“The due process right to present evidence is limited to relevant evidence of significant probative value to the issue before the court.” (In re Jeanette V. (1998) 68 Cal.App.4th 811, 817.) The dependency court may require an offer of proof before holding a contested hearing on the exception to termination in section 366.26, subdivision (c)(1)(B)(i). (In re Tamika T. (2002) 97 Cal.App.4th 1114, 1121-1122.)
Under section 366.26, subdivision (c)(1)(B)(i), if reunification services have been terminated and the child is adoptable, the dependency court must terminate parental rights unless it “finds a compelling reason for determining that termination would be detrimental to the child due to [the circumstance that the parent has] [¶]... maintained regular visitation and contact with the child and the child would benefit from continuing the relationship.” The parent has the burden to prove the exception applies. (In re Cristella C. (1992) 6 Cal.App.4th 1363, 1373.) The type of parent-child relationship that triggers the exception is a relationship which “‘promotes the well-being of the child to such a degree as to outweigh the well-being the child would gain in a permanent home with new, adoptive parents....’ [Citation.]” (In re Brandon C. (1999) 71 Cal.App.4th 1530, 1534; accord, In re Jasmine D. (2000) 78 Cal.App.4th 1339, 1349-1350.)
“‘Once reunification services are ordered terminated, the focus shifts to the needs of the child for permanency and stability.’ [Citation.] ‘A section 366.26 hearing... is a hearing specifically designed to select and implement a permanent plan for the child.’ [Citation.] It is designed to protect children’s ‘compelling rights... to have a placement that is stable, permanent, and that allows the caretaker to make a full emotional commitment to the child.’ [Citation.] ‘The Legislature has declared that California has an interest in providing stable, permanent homes for children who have been removed from parental custody and for whom reunification efforts with their parents have been unsuccessful.’ [Citation.]” (In re Celine R. (2003) 31 Cal.4th 45, 52-53.) “At this stage of the proceedings, if an appropriate adoptive family is or likely will be available, the Legislature has made adoption the preferred choice. [Citation.]” (Id. at p. 49, fn. omitted.) “At this stage of the dependency proceedings, ‘it becomes inimical to the interests of the [child] to heavily burden efforts to place the child in a permanent alternative home.’ [Citation.] The statutory exceptions merely permit the court, in exceptional circumstances [citation], to choose an option other than the norm, which remains adoption.” (Id. at p. 53.)
Miguel’s contention he was not allowed to make an offer of proof mischaracterizes the record. When he asked for a contested hearing, the dependency court said he would have to prove the exception to termination in section 366.26, subdivision (c)(1)(B)(i), and then gave Miguel’s counsel an opportunity to respond. When Miguel objected to the dependency court terminating parental rights, the court inquired why he objected. Miguel’s counsel responded at both opportunities. In his responses, counsel raised no objection to finding A. adoptable, or to any of the other required findings, and did not assert he could prove the elements of the exception.
Plainly, despite opportunities, Miguel failed to raise any issues requiring a contested hearing. The order denying a contested section 366.26 hearing was not an abuse of discretion.
Parental Unfitness
Miguel contends the order terminating parental rights violated due process because no finding was made that he was an unfit parent. Miguel did not object on this ground in the dependency court. The Department responds that Miguel forfeited the issue. We agree with the Department. “‘“[A] constitutional right,” or a right of any other sort, “may be forfeited in criminal as well as civil cases by the failure to make timely assertion of the right before a tribunal having jurisdiction to determine it.”’ [Citations.]” (In re Sheena K. (2007) 40 Cal.4th 875, 880-881.)
In any event, a mere biological father’s parental rights may be terminated in the absence of an unfitness finding, without violating due process. (In re Jason J., supra, 175 Cal.App.4th at pp. 933-935.) As due process does not require the finding, there was no due process violation.
DISPOSITION
The judgment is affirmed.
We concur: TURNER, P. J. ARMSTRONG, J.