Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of San Diego County, Super. Ct. No. EJ02075G, Hideo Chino, Juvenile Court Referee.
HUFFMAN, Acting P. J.
Louis P. and Michelle G. appeal a judgment of the juvenile court terminating their parental rights to their minor son, Isaiah G., under Welfare and Institutions Code section 366.26. Louis contends his due process rights were violated because the court failed to (1) provide him with proper notice regarding paternity and (2) timely obtain a paternity test. Louis further contends the court erred by summarily denying his section 388 petition for modification seeking reunification services. Isaiah's mother, Michelle G., joins in and adopts these arguments. We affirm the order.
Statutory references are to the Welfare and Institutions Code unless otherwise specified.
Michelle lacks standing to raise the issues presented in Louis's appeal. Michelle's interest is limited to maintaining or terminating her own parental rights. (In re Caitlin B. (2000) 78 Cal.App.4th 1190, 1193-1194; In re Frank L. (2000) 81 Cal.App.4th 700, 703.) Thus, she cannot assert either Louis's statutory right to a particular form of notice, his more generalized due process challenge, or the summary denial of his section 388 modification petition, all of which are personal to him as they relate to his parental rights. (In re Caitlin B., supra, at p. 1194.) In any event, because we conclude Louis's contentions have no merit, Michelle is not entitled to reinstatement of her parental rights or any other form of relief.
FACTUAL AND PROCEDURAL BACKGROUND
In March 2006 the San Diego County Health and Human Services Agency (Agency) filed a petition in the juvenile court under section 300, subdivision (b) alleging Isaiah was born with a positive toxicology for drugs, Michelle admitted using methamphetamine while pregnant with Isaiah, she had a history of alcohol abuse and domestic violence, and five of her other children were previously removed from her custody. Michelle identified Louis as Isaiah's father and said he was incarcerated at Chino State Prison.
At a detention hearing, the court appointed counsel for Louis and ordered paternity testing for him at the prison. The court also ordered the social worker to arrange the testing directly with the laboratory. The court made a prima facie finding on the allegations of the petition and detained Isaiah in out-of-home care.
Michelle and Louis had extensive criminal histories. Louis was expected to be released from prison in 2007. Agency recommended the court deny reunification services to both parents and set a section 366.26 selection and implementation hearing.
Louis was produced for a hearing on May 10, 2006, but paternity testing had not yet been done. As a result, the court ordered Laboratory Corporation of America (Lab Corp) to conduct its test while Louis was held in local custody.
On June 29, 2006, Louis's counsel told the court that Lab Corp had not completed paternity testing. Agency noted it would have recommended no services for Louis even if he had established paternity. The court sustained the allegations of the petition, declared Isaiah a dependent and placed him with Louis's parents as nonrelative extended family members. The court denied services for Michelle and set a section 366.26 selection and implementation hearing. At the request of Louis's counsel, the court ordered Louis to remain in local custody until paternity testing was completed. Two months later, Agency was informed that the detention facility at which Louis was being held had requested an original paternity testing order with the court's signature, seal and stamp. The court issued the order.
According to an assessment report, Isaiah's caregivers took him to visit Louis twice a week at the jail. Louis could see Isaiah through the glass but could not hold him. In early September 2006 another paternity test request was sent to Lab Corp.
On the date set for the selection and implementation hearing, the court noted there was an outstanding order for paternity testing. Louis had been incarcerated locally at three different facilities. His counsel acknowledged the social worker "has been chasing [Louis] around trying to do this." The court again authorized Lab Corp to test Louis at any of the three detention facilities and ordered the social worker to ensure testing occurred.
Lab Corp administered Louis's paternity test on October 25, 2006. Following receipt of test results on November 17, 2006, the court declared Louis to be Isaiah's biological father and entered a judgment of parentage on December 6, 2006.
Louis filed a section 388 petition for modification seeking reunification services and placement of Isaiah with him when released from custody. As changed circumstances, Louis alleged he had established paternity and his due process rights had been violated because he did not get a paternity test in a timely manner. Louis later amended the petition to allege the following changed circumstances: (1) pending paternity testing, he had been kept in local custody where no reunification services were available; (2) once he was returned to prison, it was too late to participate in services; and (3) he was no longer in custody. As to best interests, Louis alleged he has maintained regular contact with the paternal grandparents who are Isaiah's caregivers, Louis's due process rights were violated, and "[r]ather than have this case come back on appeal, all issues should be dealt with at the trial court level." The court summarily denied the petition.
At a selection and implementation hearing, the court received into evidence Agency's reports and Louis's stipulated testimony that he loves Isaiah and did not want his parental rights terminated. The court found Isaiah was adoptable and none of the circumstances of section 366.26, subdivision (c)(1) applied to preclude terminating parental rights.
DISCUSSION
I
Louis contends his due process rights were violated when the court failed to provide proper notice regarding paternity. Specifically, he asserts he was not served with Judicial Council form JV-505 (entitled Statement Regarding Parentage), which would have informed him about his options for establishing paternity and allowed him to fully participate in the proceedings and receive reunification services.
A
Section 316.2 sets forth the statutory procedure that protects an alleged father's limited due process rights. Subdivision (b) of that section directs the clerk of the juvenile court to provide notice to an alleged father "that he is or could be the father of the child." (§ 316.2, sub d. (b).) The statute also requires Judicial Council form JV-505 be included with the notice. (Ibid.; see also Cal. Rules of Court, rule 5.635.) Form JV-505 allows an alleged father to indicate his position with regard to paternity and representation by counsel, and advises him of his rights and options. (In re Kobe A. (2007) 146 Cal.App.4th 1113, 1121.)
Rule references are to the California Rules of Court.
B
Agency argues Louis forfeited the right to claim he did not receive form JV-505 by not raising the issue in the trial court. As a general rule, a parent's failure to object or raise certain issues in the juvenile court prevents the parent from claiming error on appeal. (In re S.B. (2004) 32 Cal.4th 1287, 1293; In re Lorenzo C. (1997) 54 Cal.App.4th 1330, 1338.) Application of the forfeiture rule, although not automatic, is designed to keep litigants from acquiescing and later seeking relief for error that could have been prevented or cured. (In re S.B., supra, 32 Cal.4th at p. 1293; In re Riva M. (1991) 235 Cal.App.3d 403, 412.) " ' "The law casts upon the party the duty of looking after his legal rights and of calling the judge's attention to any infringement of them. If any other rule were to obtain, the party would in most cases be careful to be silent as to his objections until it would be too late to obviate them, and the result would be that few judgments would stand the test of an appeal." [Citation.]' " (In re Christina L. (1992) 3 Cal.App.4th 404, 416; see also People v. Barnum (2003) 29 Cal.4th 1210, 1223-1224 [even constitutional rights may be forfeited].) Although we have discretion to excuse forfeiture, we exercise that discretion rarely and only in cases presenting an important legal issue. (In re S.B., supra, 32 Cal.4th at p. 1293.) This is especially true in dependency proceedings where "considerations such as permanency and stability are of paramount importance." (Ibid.)
Here, the court appointed counsel for Louis at the detention hearing. Counsel, who was presumably aware of form JV-505 and the issues that could be raised regarding paternity, immediately requested paternity testing for Louis. Although both Louis and his counsel were present at several hearings at which paternity testing and parentage were discussed, they did not inform the court Louis was not served with form JV-505. By his silence and acquiescence, Louis has forfeited his right to claim lack of notice in accordance with the form. (See In re Lorenzo C., supra, 54 Cal.App.4th at p. 1339.)
Even assuming Louis did not receive form JV-505, any error was harmless beyond a reasonable doubt. (In re Angela C. (2002) 99 Cal.App.4th 389, 393-395 [errors in notice do not automatically require reversal, but are reviewed to determine whether they are harmless beyond a reasonable doubt]; In re Daniel S. (2004) 115 Cal.App.4th 903, 912-913 [same].) Louis knew Isaiah was in the dependency system and he had actual notice of the hearings and the benefit of appointed counsel who, at the earliest opportunity, sought to establish paternity on his behalf. This is not a case where an alleged father was unaware he potentially had paternal rights. (Cf. In re Paul H. (2003) 111 Cal.App.4th 753, 762.) Under these circumstances, we cannot say Louis would have obtained a more favorable result had form JV-505 been sent to him. (In re Kobe A., supra, 146 Cal.App.4th at p. 1123; In re Angela C., supra, 99 Cal.App.4th at pp. 393-394.) No due process violation occurred.
II
Louis contends his due process rights were violated when paternity testing was delayed. He asserts the court's and Agency's "inaction" with respect to enforcing the order to complete a paternity test caused him to lose the opportunity to participate in reunification services.
Louis's position on appeal regarding services is not entirely consistent with his stated intention before tests confirmed he was Isaiah's biological father. In June 2006 Louis told the social worker he did not want reunification services, but wanted the paternal grandparents to have custody of Isaiah.
A
There are three types of fathers in juvenile dependency law: presumed, biological and alleged. (In re Kobe A., supra, 146 Cal.App.4th at p. 1120.) Paternity status is important because it determines a father's rights in a dependency case and the extent to which he may participate in the proceedings. (Ibid.) A presumed father, as defined by Family Code section 7611, is entitled to appointed counsel, custody (if there is no finding of detriment) and reunification services. (Ibid.) A biological father is an individual whose paternity has been established but who has not shown he qualifies as the child's presumed father under Family Code section 7611. (In re Zacharia D. (1993) 6 Cal.4th 435, 449, fn. 15.) The juvenile court may provide reunification services to a biological father if it finds services will benefit the child. (§ 361.5, sub d. (a).) An alleged father is a man who might be the father of a child, but whose biological paternity has not been established. (In re Joseph G. (2000) 83 Cal.App.4th 712, 715.) Because his paternity has not yet been established, an alleged father does not have a current interest in a child. (In re O.S. (2002) 102 Cal.App.4th 1402, 1406.) Thus, alleged fathers have significantly fewer rights than biological fathers and presumed fathers. An alleged father is not entitled to appointed counsel or to reunification services. (In re Kobe A., supra, 146 Cal.App.4th at p. 1120.) The due process rights of an alleged father are satisfied by giving him notice and an opportunity to appear, assert a position and attempt to change his paternity status. (Ibid.)
B
Louis does not claim he was prejudiced by his inability to obtain presumed father status by which he would have been entitled to custody and reunification services. (See In re T.R. (2005) 132 Cal.App.4th 1202, 1209 [biological fatherhood alone is not sufficient to establish presumed father status].) Rather, he argues the court obtained paternity test results too late to be of any benefit to him in his effort to reunify with Isaiah as his biological father.
For reasons not entirely apparent in the record, paternity testing was unreasonably delayed. The court repeatedly ordered testing and the social worker attempted to implement the court's order but was required to "chas[e] [Louis] around" as he was moved among various local detention facilities. Although test results should have been obtained sooner, this does not amount to a wholesale denial of process due a father in Louis's circumstances. (Cf. In re Paul H., supra, 111 Cal.App.4th at pp. 758-759.) As we previously discussed, Louis had notice, a court order for a paternity test and the assistance of counsel to ensure his paternity was timely established. Even had the results of a paternity test earlier confirmed Louis was Isaiah's biological father, he was not entitled to reunification services. Rather, the court had discretion to offer him reunification services only if doing so would benefit Isaiah. (§ 361.5, sub d. (a); In re Zacharia D., supra, 6 Cal.4th at p. 451.)
Louis was incarcerated during the first year of Isaiah's life. He was released from prison in March 2007 and placed on parole for three years. He admittedly had no parenting skills, no job and no housing. Because Louis had no relationship with Isaiah and no ability to reunify with him during the statutory reunification period (§ 361.5, sub d. (a)(2)), it is not reasonably likely the court would have found reunification services would benefit Isaiah. (Francisco G. v. Superior Court (2001) 91 Cal.App.4th 586, 597 [legislature has determined it is generally in best interests of child to be reunited with presumed father but not necessarily with mere biological father]; In re Elijah V. (2005) 127 Cal.App.4th 576, 589 [court properly denied reunification services to biological father].) Under these circumstances, there was no due process violation.
III
Louis contends the court erred by summarily denying his section 388 modification petition seeking reunification services. He asserts he made a prima facie showing his circumstances had changed and the proposed modification was in Isaiah's best interests.
A
Under section 388, a party may petition the court to change, modify or set aside a previous court order. The petitioning party has the burden of showing, by a preponderance of the evidence, that (1) there is a change of circumstances or new evidence, and (2) the proposed change is in the child's best interests. (§ 388; In re Jasmon O. (1994) 8 Cal.4th 398, 415; In re Casey D. (1999) 70 Cal.App.4th 38, 47.) The petition must be liberally construed in favor of its sufficiency. (Rule 5.570(a); In re Marilyn H. (1993) 5 Cal.4th 295, 309.) "The parent need only make a prima facie showing to trigger the right to proceed by way of a full hearing." (In re Marilyn H., supra, 5 Cal.4th at p. 310.) " '[I]f the petition presents any evidence that a hearing would promote the best interests of the child, the court will order the hearing.' [Citation.]" (In re Jasmon O., supra, 8 Cal.4th at p. 415; see also In re Hashem H. (1996) 45 Cal.App.4th 1791, 1798-1799.) "However, if the liberally construed allegations of the petition do not make a prima facie showing of changed circumstances and that the proposed change would promote the best interests of the child, the court need not order a hearing on the petition. [Citations.] The prima facie requirement is not met unless the facts alleged, if supported by evidence given credit at the hearing, would sustain a favorable decision on the petition." (In re Zachary G. (1999) 77 Cal.App.4th 799, 806.)
B
Here, Louis alleged his circumstances had changed because he had obtained biological father status and was no longer in prison. However, Louis did not allege, nor could he show, that offering him reunification services was in Isaiah's best interests. Louis had a lengthy criminal history, including drug-related convictions, and was in prison at the time Isaiah was born. He would need a minimum of one year to address his drug and parenting issues. Isaiah has lived with his paternal grandparents since he was three months old and they have provided him with a stable, safe and loving home. He is bonded to them and they want to adopt him. The liberally construed allegations of the petition did not show Isaiah's best interests would be served by delaying permanency for him while Louis receives services. (See In re Stephanie M. (1994) 7 Cal.4th 295, 317.)
Although Louis claims that maintaining a parent-child relationship is in Isaiah's best interests, "[t]he presumption favoring natural parents by itself does not satisfy the best interests prong of section 388." (In re Justice P. (2004) 123 Cal.App.4th 181, 192.) The proper focus of this case was Isaiah's need for stability, continuity and permanency, regardless of Louis's interest in reunification. (In re Stephanie M., supra, 7 Cal.4th at pp. 317-318; In re Brittany K. (2005) 127 Cal.App.4th 1497, 1507.) Because the facts alleged would not have sustained a favorable decision on the section 388 petition, Louis was not entitled to an evidentiary hearing. (In re Zachary G., supra, 77 Cal.App.4th at p. 808; In re Mary G. (2007) 151 Cal.App.4th 184, 205-206.)
DISPOSITION
The judgment is affirmed.
WE CONCUR: HALLER, J., McINTYRE, J.