Opinion
NOT TO BE PUBLISHED
APPEALS from orders of the Superior Court of San Diego County No. J517623 Martin W. Staven, Judge. (Retired judge of the Tulare Sup. Ct., assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.)
AARON, J.
Richard E., the biological father of Breanna S., and Michael B., an alleged father of Breanna, appeal following a hearing on a supplemental petition (Welf. & Inst. Code, § 387) in Breanna's juvenile dependency case. Richard contends that the court erred by denying his requests for presumed father status and visitation. Michael contends that the court erred by denying him the opportunity to prove presumed father status and by denying his request for a continuance. We dismiss both appeals.
I
BACKGROUND
In September 2009, the San Diego County Health and Human Services Agency (the Agency) filed a petition on behalf of one-year-old Breanna after she tested positive for cocaine. At the time the petition was filed, Breanna's mother, Deanna S., was living with Michael. Deanna said that Breanna had tested positive because Michael smoked cocaine in their home. The petition named Richard as an alleged father. Richard had been in prison since Breanna was one week old.
Deanna initially referred to Michael as her boyfriend, but later said that he was a roommate.
In her parentage questionnaire, Deanna declared that Richard was Breanna's biological father; he was listed on Brianna's birth certificate and had been ordered to pay child support. Deanna stated that there was no judgment of paternity. In his questionnaire, Richard declared that there was a judgment that named him as Breanna's father, but said that he had not signed a paternity declaration.
Breanna was detained at Polinsky Children's Center and later, in a foster home. At the detention hearing, the court ordered supervised visits for Deanna and Richard. In October 2009, the Agency filed an amended petition adding an allegation that Breanna's "parents" had used cocaine. The court entered true findings on the amended petition and ordered Breanna placed in foster care.
In December 2009, after receiving paternity test results, the court found that Richard was Breanna's biological father. In January 2010, Breanna was returned to Deanna, who was in a residential treatment program for incarcerated women. By February 2010, Richard had been sentenced to nine years in prison. On February 8, the court granted Richard's request for presumed father status nunc pro tunc to December 2009. The court authorized contact visits between Breanna and Richard while Richard was in local custody, if the jail permitted it.
After the February 8, 2010 hearing, both the Agency and Breanna's counsel questioned the court's previous finding that Richard was a presumed father. At the next hearing on March 1, the court ordered the Agency to file an addendum report addressing the issue. Michael attended the March 1 hearing and identified himself as Breanna's stepfather, but did not participate in the hearing.
At the next hearing on March 18, 2010, Richard's counsel said that Michael was outside the courtroom and that Michael was claiming that he was a nonrelative extended family member and a friend of Richard's. According to Richard's counsel, Michael wished to have his home evaluated for Breanna's placement. The court told Richard's counsel to have Michael contact the social worker.
At the March 18, 2010 hearing, the court ordered the Agency to determine whether a paternity declaration had been filed for Breanna. A copy of Breanna's birth certificate was filed with the court at the hearing or shortly thereafter. On April 12, the court again ordered the Agency to determine whether a paternity declaration had been filed.
The Agency sent a paternity declaration search request to a "state analyst" and received a response that no paternity declaration had been filed with the state. Because there was no paternity declaration on file, the Agency took the position that Richard was not entitled to presumed father status or to reunification services, despite the fact that his name was on Breanna's birth certificate. On May 4, 2010, the Agency filed an addendum report in which it presented this information.
The Agency submitted its search request on March 19, 2010, and received a response on March 22. The record does not disclose why the Agency failed to report the results earlier. The minute order for April 12 states "(OFF THE RECORD AND AFTER THE HEARING IS CONCLUDED); THE CLERK NOTES THAT THERE IS NOT A DECLARATION OF PATERNITY ON FILE WITH THE STATE.[)]"
On May 24, 2010, the court found that there was no basis for its previous order granting Richard presumed father status, and voided the order. The court then stated that because Richard was not a presumed father, he was not entitled to reunification services. The court "terminate[d] any services previously ordered and/or offered...." The court noted that Breanna would probably be in high school by the time Richard was released from prison, and that there was no possibility of reunification within the statutory time frame.
In July 2010, the Agency filed a supplemental petition alleging that Deanna had been returned to prison. Breanna was detained in her previous foster home. The court denied Richard's request for supervised visitation. The court noted that two-year-old Breanna had never lived with Richard, and that he had not received services. The court concluded that it was not in Breanna's best interests to be introduced to an incarcerated man whom she might not know or remember.
In early August 2010, Michael called the social worker from jail, and also sent her a letter. Michael acknowledged that Richard was Breanna's biological father, but claimed that he, Michael, was Breanna's "Daddy." Michael said that he had been present at Brianna's birth, and that he was her "main line of support." The last time Michael had seen Breanna was in October 2009, before she was detained. Michael stated that he planned to marry Deanna when they were both released from custody, and said that he wanted to adopt Breanna.
At a special hearing in late August 2010, the court appointed counsel for Michael. Michael's counsel requested presumed father status for Michael and agreed to a continuance so that the issue could be addressed. The court set a hearing for September 1.
On September 1, 2010, Michael's counsel informed the court that she had not received a copy of the file. She requested a continuance so that she could investigate the presumed father issue. The court found that Michael had not shown that he was entitled to presumed father status and that he lacked standing, and relieved Michael's attorney. The court also denied Richard's request for visitation.
The hearing on the supplemental petition took place on September 10, 2010. Richard's counsel argued that Richard was a presumed father, and that as such, he was entitled to services. The court responded that Richard was a biological father, and noted that the court had terminated his services several months earlier, and that Richard had not appealed from that order. The court therefore limited Richard's participation in the hearing to the issues of visitation and the factual basis for the petition.
The court made a true finding on the supplemental petition and ordered Breanna placed in foster care The court found that visitation with Richard would not be in Breanna's best interests and that it would be detrimental to her. The court allowed Richard to send Breanna correspondence through the social worker, but denied Richard's request for telephone contact.
II
DISCUSSION
A
Agency's Request for Judicial Notice
The Agency requests that we take judicial notice of the juvenile court's minute order dated February 16, 2011. According to that minute order, both Deanna and Richard signed a paternity declaration on that date, and the court found that Richard was a presumed father. The court amended the September 10, 2010 minute order nunc pro tunc to read that visitation for Richard was appropriate and that visitation with Richard would be in Breanna's best interests while Richard is in local custody.
Based on the February 16, 2011 minute order, the Agency requests that Richard's appeal be dismissed as moot. As discussed below, Richard's appeal is moot. In addition, his challenge to the order denying him presumed father status is untimely. For both of these reasons, we dismiss his appeal. The court's February 16, 2011 minute order also has implications for Michael's appeal. We discuss those implications below.
We grant the request for judicial notice. (Evid. Code, §§ 452, subd. (d)(1), 459; In re Sabrina H. (2007) 149 Cal.App.4th 1403, 1417.) Our taking judicial notice of the February 16, 2011 minute order does not contravene In re Zeth S. (2003) 31 Cal.4th 396. First, the postjudgment evidence consists of an order of the juvenile court, not an unsworn statement of counsel. (Id. at p. 407.) Second, the evidence is not offered to obtain a reversal (In re Josiah Z. (2005) 36 Cal.4th 664, 676), and taking judicial notice of the order will not overturn a judgment terminating parental rights, nor will it impair "the juvenile law's purpose of 'expediting the proceedings and promoting the finality of the juvenile court's orders and judgment.' " (In re Salvador M. (2005) 133 Cal.App.4th 1415, 1421, quoting In re Zeth S., supra, at p. 413.) Third, the minute order relates solely to the question whether the appeals should be dismissed as moot, not to the merits of the appeals or the correctness of the judgment. (In re Josiah Z., supra, at p. 676, citing In re Zeth S., supra, at p. 413.)
B
Richard's Appeal of the Order Denying Him Presumed Father Status is Moot
" 'An appeal becomes moot when, through no fault of the respondent, the occurrence of an event renders it impossible for the appellate court to grant the appellant effective relief. [Citation.]' [Citation.] 'However, a reviewing court may exercise its inherent discretion to resolve an issue rendered moot by subsequent events if the question to be decided is of continuing public importance and is a question capable of repetition, yet evading review. [Citations.] We decide on a case-by-case basis whether subsequent events in a juvenile dependency matter make a case moot and whether our decision would affect the outcome in a subsequent proceeding. [Citations.]' [Citation.]" (In re Anna S. (2010) 180 Cal.App.4th 1489, 1498.)
In light of the February 16, 2011 minute order, which we have judicially noticed, Richard's challenge to the denial of presumed father status is moot. Richard argues that the issue is not moot, absent proof that the paternity declaration was properly executed and that it has been filed with the Department of Child Support Services (Fam. Code, §§ 7571, 7573). (In re Liam L. (2000) 84 Cal.App.4th 739, 746-747 [man who has established paternity by voluntary declaration pursuant to Fam. Code § 7570 et seq. is entitled to presumed father status].) Richard further argues that we should exercise our discretion to decide the issue because it " 'is of continuing public importance and is... capable of repetition, yet evading review.' " (In re Anna S., supra, 180 Cal.App.4th at p. 1498, quoting In re Yvonne W. (2008) 165 Cal.App.4th 1394, 1404.) Because Richard's appeal of the denial of presumed father status is untimely, as discussed below, we need not address these arguments. In any event, ensuring that the paternity declaration was properly executed and that it has been filed is clearly beyond the power of this court in this appeal. (Cf. In re Raphael P. (2002) 97 Cal.App.4th 716, 738 [prima facie proof that appellant signed a paternity declaration, i.e., by showing that his name was on the birth certificate, created a presumption that the declaration was properly filed].)
C
Richard's Appeal of the Order Denying Him Presumed Father Status is Untimely
" ' "An appeal from the most recent order entered in a dependency matter may not challenge prior orders, for which the statutory time for filing an appeal has passed." ' [Citations.] '[A]n unappealed disposition or postdisposition order is final and binding and may not be attacked on an appeal from a later appealable order.' [Citation.] " (In re Liliana S. (2004) 115 Cal.App.4th 585, 589.)
The juvenile court voided its previous order granting Richard presumed father status on May 24, 2010. Richard did not file his notice of appeal of this order until September 27 — well beyond the 60-day period allowed for filing a notice of appeal. (Cal. Rules of Court, rule 8.406(a)(1).) Thus, Richard's challenge to the denial of presumed father status is untimely. Contrary to Richard's suggestion, we cannot excuse the untimeliness of his appeal. The cases on which Richard relies in arguing that we may overlook the untimeliness of his appeal all implicate due process concerns. There are no such concerns in this case.
D
Richard's Appeal of the Order Denying Him Visitation is Moot
Absent an applicable exception, a presumed father is entitled to reunification services, including visitation, and "the juvenile court may order services for the child and the biological father, if the court determines that the services will benefit the child." (Welf. & Inst. Code, § 361.5, subd. (a).) Richard contends that the court abused its discretion by denying him visitation in September 2010. In light of the judicially noticed February 16, 2011 order granting Richard visitation, his challenge to the September 2010 orders denying visitation is moot. The relief he requests in this appeal has already been granted. Thus, it is impossible for this court to grant him effective relief.
In any case, there was substantial evidence supporting the juvenile court's conclusion that visitation would not be in Breanna's best interests and that it would be detrimental to her (In re Mark L. (2001) 94 Cal.App.4th 573, 580-581.) Breanna did not have a relationship with Richard. They had three visits during this case, all at jail, "behind glass" and over a telephone—a difficult situation for a two-year-old child. Some of the visits were very stressful for Breanna. The social worker believed that it would not be in Breanna's best interests to continue to visit Richard, and expressed the opinion that such visitation would be detrimental to her. The court expressly found that Breanna cried for the entire February 2010 visit and became sick, and that further visits "would be very traumatic."
E
Although the Court Abused Its Discretion By Denying Michael's Request for a Continuance, Michael's Contention That He Was Prevented From Proving Presumed Father Status is Moot
One week after the court appointed counsel for Michael, Michael's counsel had not received a copy of the case file. Counsel requested a continuance on September 1, 2010, so that she could obtain a copy of the file and further investigate and research the issue of Michael's entitlement to presumed father status. Counsel noted that the confusion surrounding Richard's status as a presumed father made it particularly important for her to review the file.
Michael's counsel also requested an evidentiary hearing on the issue of presumed father status for Michael. Counsel made an offer of proof that Breanna had lived with Michael for at least a year; that Michael had held her out as his daughter; and, according to his paternity questionnaire, Michael had claimed her as his dependent for purposes of his Veterans' Administration benefits and other medical insurance.
In his paternity questionnaire, Michael also declared that he had supported Breanna financially and emotionally and she believed that he was her father. Michael's letter to the social worker elaborated on his loving relationship with Breanna.
This showing is sufficient to require an evidentiary hearing on Michael's entitlement to presumed father status. (In re Jason J. (2009) 175 Cal.App.4th 922, 932 [man who has not married or attempted to marry the mother, or signed a paternity declaration, may become a presumed father by receiving the child into his home and openly holding her out as his child]; In re Nicholas H. (2002) 28 Cal.4th 56, 63 [a finding that a man is the biological father is not a prerequisite to presumed father status].) Thus, the court should have granted Michael's request for a brief continuance to allow his counsel to obtain the case file and prepare for an evidentiary hearing.
Granting a continuance for this purpose and conducting an evidentiary hearing on the issue would not have been contrary to Breanna's best interests. (Welf. & Inst. Code, § 352, subd. (a).) In September 2010, when the court denied Michael's counsel's requests for a continuance and evidentiary hearing, Breanna did not have a presumed father. However, as shown by the February 16, 2011 minute order, Richard has since been named her presumed father. A child can have only one presumed father. (In re Jesusa V. (2004) 32 Cal.4th 588, 603; Kevin Q. v. Lauren W. (2009) 175 Cal.App.4th 1119, 1139.) Because the court has determined that Richard is Breanna's presumed father, it would be impossible for us to grant Michael any effective relief. For this reason, we dismiss his appeal as moot.
DISPOSITION
The appeals are dismissed.
WE CONCUR: BENKE, Acting P. J., McDONALD, J.