Opinion
D041560.
7-30-2003
In re JAMES F., a Person Coming under the Juvenile Court Law. SAN DIEGO COUNTY HEALTH AND HUMAN SERVICES AGENCY, Plaintiff and Respondent, v. NOLAN F., Defendant and Appellant.
Nolan F., father of James F., appeals an order terminating his parental rights under Welfare and Institutions Code section 366.26 (all statutory references are to the Welfare and Institutions Code) and an order denying his petition under section 388 seeking modification of the order setting the section 366.26 hearing. Nolan contends the court erred in denying his request for an evidentiary hearing on the section 388 petition and that he was unconstitutionally deprived of his parental and due process rights to notice and the opportunity to be heard regarding the care and custody of his child. We affirm.
FACTUAL AND PROCEDURAL
BACKGROUND
In April 2002, the San Diego County Health and Human Services Agency (the Agency) filed a petition on behalf of five-day-old James under section 300, subdivision (b). The petition alleged the mother was unable to adequately care for James due to her mental illness and failure to comply with her medication regimen. The petition also alleged the mother had failed to care for and reunify with Jamess three older half siblings.
The Agencys detention report noted the mother told a social worker that Jamess father was James F., Sr. and that he knew of Jamess birth and wanted to be together as a family after his release from incarceration for slashing someones throat. The mother thought the father was in jail in Los Angeles County. The Agency initiated a parent search "for the alleged father, Mr. James [F.], Sr." At the detention hearing, the court ordered the Agency to conduct a reasonable search to locate and notify the father of the dependency proceedings.
The Agencys jurisdiction/disposition report filed on May 2, 2002, reported that the parent search was ongoing but results had not yet been received. The search included records of the Department of Motor Vehicles as well as tax and revenue, voter registration, and parole and probation records. The social worker had also searched the internet and made telephone calls to the federal and state prisoner locator and various jails in the Los Angeles area, but had not found a prisoner named James F.
On May 28, 2002, the court clerk sent a copy of the petition by certified mail to "James F." at Ironwood State Prison (Ironwood). At the jurisdiction hearing on June 14, the Agencys counsel told the court Nolan had been found at Ironwood State Prison. Counsel explained the mother had given the social worker the incorrect name of "James F." and the fathers correct name was Nolan F. The court sustained the petition but continued the disposition hearing to July 11, to allow sufficient time to serve Nolan under his correct name and produce him for the hearing. The court appointed counsel to represent Nolan.
Nolan was not present at the July 11, 2002 disposition hearing but was represented by counsel. His counsel told the court she had not communicated with Nolan and believed he had been moved from Ironwood to another prison, but she did not know when that occurred. Noting Ironwood was Nolans last known [* 4] address and notice had been sent there, the court found notice had been given in accordance with the law. The court declared James to be a dependent of the juvenile court and ordered that no reunification services were to be provided to the mother. The court set a section 366.26 hearing for November 6. Nolans counsel did not object to the courts notice finding or request a paternity test.
In the assessment report for the section 366.26 hearing, the social worker noted Nolan was incarcerated and had never seen James or supported him in any way or contacted the social worker to inquire about his well-being. The social worker recommended termination of parental rights and adoption as Jamess permanent plan. Notice of the section 366.26 hearing was sent to Nolan at Pleasant Valley State Prison in August 2002.
In October 2002, Nolan wrote a letter to the court asking to be present at the section 366.26 hearing. The court set an "additional section 366.26 hearing" for December 11, to allow sufficient time to arrange Nolans appearance at the hearing. On November 6, Nolans counsel filed a "special hearing information" containing an ex parte request for a paternity test. Counsel stated she received a letter from Nolan stating he had requested a paternity test from a social worker in May but still had not been tested. The court ordered the paternity test.
On December 11, 2002, the Agency filed an addendum report recommending the section 366.26 hearing be continued for 30 days to obtain the paternity test results. Long Beach Genetics, the company that was doing the testing, informed the social worker that Nolan had been moved to another facility before it had the opportunity to draw his blood, and it would not be able to draw the blood and test it by December 11.
According to the mother, Nolan would not be released from prison until August 2003. The social worker stated: "I believe that James needs a permanent plan that is more feasible, and that he deserves permanency before another nine months to a year from now. [Nolan] would need time to get a job and a place to live, and have a daycare plan set up if he were to be found to be able to care for James. However, James does not have a bond with [Nolan] due to his incarceration."
At the December 11, 2002 hearing, the court reauthorized Nolans paternity test and set a contested section 366.26 hearing for January 15, 2003. At a pretrial status conference on January 8, the court again ordered Long Beach Genetics to enter the facility in which Nolan was housed to do the paternity test, noting it was Nolans third request for the test. The court rescheduled the contested section 366.26 hearing for January 24.
In an addendum report filed on January 14, 2003, the Agency reported that Long Beach Genetics needed about 30 days to obtain paternity test results on Nolan. Nolan had been in three different facilities since the court first ordered the test, and the facility where he was currently housed required a signed court order with an embossed stamp to allow the testing. The Agency recommended the court provide such an order and the matter be continued to obtain the test results. However, at a pretrial status conference on January 14, the Agency stated its recommendations (presumably regarding Jamess permanent plan) would not change even if Nolans paternity were established. The court ordered the contested section 366.26 hearing would remain scheduled for January 24.
On January 22, 2003, Nolan filed a section 388 petition requesting "that any hearing be stayed pending paternity tests, which have not been completed despite being ordered and requested several times." The petition alleged the requested relief was in Jamess best interest because Nolans due process rights were being violated and it was in Jamess best interest to be with Nolan or Nolans family. At another point in the petition Nolan alleged: "It is in the childs best interest to grant the motion as [Nolan] and his family want to be involved in his life. In addition, it is in childs best interest to expedite the due process issues in this court as opposed to the Court of Appeals [sic]." As changed circumstances or new evidence Nolan alleged, in addition to various facts already reflected in the court file, that the Agency did not make reasonable search efforts between the detention and jurisdiction hearings; he did not receive notice of the jurisdiction hearing; the delay in establishing paternity prevented him from establishing himself as more than an alleged father and left him with "no position with regard to any issues relating to a [section] 366.26 hearing;" and he first attempted to get a paternity test in May 2002 and "was not given the opportunity to establish his paternity despite clearly requesting it in person and through counsel."
In an addendum report filed on January 24, 2003, the Agency reported that Long Beach Genetics had obtained a blood sample from Nolan, but would take two to three weeks to process the results. The Agency recommended the section 366.26 hearing proceed as scheduled. The social worker reported that Nolan had not been in contact with her except for one letter, had not sought visitation with James and would not be released from prison until October 2004. The social worker believed it was in Jamess best interest to remain in his current placement with a stable and loving family that wanted to adopt him. The social worker stated: "It would be a disservice for [James] to be expected to wait for his alleged fathers release in October of 2004, over a year and a half away."
The court held the section 366.26 hearing on January 24, 2003, as scheduled. Regarding Nolans section 388 petition, the court noted that although Nolan was appointed counsel on June 14, 2002, he did not request a paternity test until November 2002. The court suggested it would be pointless to grant the section 388 petition because a judgment of paternity would not affect the outcome of the section 366.26 hearing. After hearing argument, the court denied the petition without an evidentiary hearing on the ground there was no indication the requested relief would be in the Jamess best interest. On the section 366.26 matter, the court received various Agency reports into evidence and heard testimony from the mother. The court found James adoptable and terminated parental rights.
DISCUSSION
I. Section 388 Petition
Nolan contends the court erred by not holding an evidentiary hearing on his section 388 petition. Section 388 provides that, "any parent or other person having an interest in a child who is a dependent child of the juvenile court . . . may, upon grounds of change of circumstance or new evidence, petition the court in the same action in which the child was found to be a dependent child of the juvenile court . . . for a hearing to change, modify, or set aside any order of court previously made or to terminate the jurisdiction of the court."
To be entitled to a full hearing on a section 388 petition, the petitioner must make a prima facie showing that (1) there is a genuine change of circumstances or new evidence and (2) the requested modification would be in the childs best interests. (In re Anthony W. (2001) 87 Cal.App.4th 246, 250.) Whether a parent makes a prima facie showing entitling him or her to a hearing depends on the facts alleged in the petition, as well as the undisputed facts established by the courts own file. (In re Angel B. (2002) 97 Cal.App.4th 454, 461.) We review a summary denial of a section 388 petition for abuse of discretion. (In re Jeremy W. (1992) 3 Cal.App.4th 1407, 1413; In re Angel B., supra, 97 Cal.App.4th at p. 460; In re Anthony W., supra, 87 Cal.App.4th at p. 250.) The appropriate test for abuse of discretion is whether the court exceeded the bounds of reason. (In re Stephanie M. (1994) 7 Cal.4th 295, 318-319, 867 P.2d 706.)
The court did not exceed the bounds of reason in denying Nolans section 388 petition without an evidentiary hearing. The issue facing the court was whether the allegations of the petition and the undisputed facts established by the court file constituted a prima facie showing that it would be in Jamess best interests to continue the section 366.26 hearing until the results of Nolans paternity test were available. The courts conclusion that the required prima facie showing was not made was reasonable because, as the court noted, even if the paternity test showed Nolan was Jamess biological father, the fact of his paternity would not have resulted in a different outcome at the section 366.26 hearing. The court file established that Nolan had never seen or supported James, asked for visitation or even asked an Agency social worker about his well-being. Nolan would not be released from prison until August 2003 (according to the mother) or as late as October 2004 (according to the Agencys most recent addendum report dated January 24, 2003). The file also established that James had been placed in a good, stable home with loving foster parents who wanted to adopt him. Although Nolans petition included a conclusory allegation that it would be "in [Jamess] best interest to "remain with [Nolan] or [Nolans family[,]" the petition did not allege specific facts to support either that conclusory allegation or the specific relief sought in the petition — i.e., staying the section 366.26 hearing until the paternity test results were available. The court was presented with no established facts or allegations that, if true, would support a finding that it was in Jamess best interests to delay the section 366.26 hearing pending the outcome of Nolans paternity test.
Nolan contends he was prejudiced by the delay in determining his paternity because it deprived him and his family members of the opportunity to be part of Jamess life. He argues that once he established his paternity, he could have sought reunification services through another section 388 petition. However, the court is not required to grant reunification services to a biological father who is not a presumed father; the court may order services for a biological father if it finds services would benefit the child. ( § 361.5, subd. (a).) If Nolan had been allowed to establish biological paternity before the section 366.26 hearing, there still would have been no basis for the court to find it would benefit James to vacate the hearing and provide Nolan reunification services under section 361.5, subdivision (a).
Nolans suggestion that his family members would become involved in Jamess life if his biological paternity were established was not a reasonable basis for staying the section 366.26 hearing because Nolan did not identify, and the Agency was not aware of, any members of Nolans family who might qualify for placement. (Nolans sister contacted the Agency about caring for James until Nolans release from prison but told the social worker she had a felony conviction for possession or sale of drugs.) In any event, the statutory preference for relative placement ( § 361.3) does not apply once the juvenile court has terminated reunification services and set a section 366.26 hearing. (In re Sarah H. (1996) 43 Cal.App.4th 274, 285-286.) When, as here, the focus of a dependency case is no longer reunification and the court is faced with a proposed plan of adoption, only a "relative caretaker" who seeks to adopt the child is entitled to preferential consideration. (Id. at pp. 285-286; § 366.26, subd. (k).) There were no such relative caretakers in this case. It was not an abuse of discretion for the court to summarily deny Nolans section 388 petition on the ground Nolan failed to make a prima facie showing that the proposed modification (staying the section 366.26 hearing pending completion of paternity testing) was in Jamess best interest.
II. Due Process
Nolan contends that as an unwed father, he was unconstitutionally denied his parental rights and due process right to notice and an opportunity to be heard on the custody and care of his child. Specifically, he contends the Agencys delay in establishing his paternity was unreasonable and violated his right to due process because it deprived him of the opportunity to obtain reunification services and have a say in the dependency proceedings.
It was Nolans, not the Agencys, burden to establish biological or presumed father status and, therefore, the onus was on his counsel to take affirmative steps to obtain paternity testing. (In re O S. (2002) 102 Cal.App.4th 1402, 1410.) In its January 24, 2003 addendum report, the Agency reported that when Nolan first spoke to a social worker in May 2002 and said he wanted James placed with someone in his family, the social worker told him he would have to establish his paternity in order for that to happen. Nolan was appointed counsel in June 2002 but did not request a paternity test until November. Nolans delay in requesting the test is not attributable to any improper action or inaction by the Agency or the court. Whether it reflects a deficiency in his counsels representation is not before us, as Nolan does not claim ineffective assistance of counsel.
Nolan also faults the Agency for not making services and visitation available to him and not considering placement or visitation with his unspecified relatives. However, as an alleged father, Nolan was not entitled to reunification services or visitation (In re O.S .,supra, 102 Cal.App.4th at p. 1410), and his relatives were not entitled to preferential consideration for placement until he established his paternity ( § 361.3, subds. (a), (c)(2)). Neither the Agency nor the court were responsible for Nolans delay in requesting a paternity test or the delays Long Beach Genetics encountered in attempting to obtain a blood sample from him. Nolan has not shown that his due process rights were violated.
DISPOSITION
The order denying Nolans section 388 petition and the order terminating parental rights and selecting adoption as Jamess permanent plan are affirmed.
WE CONCUR: BENKE, Acting P. J., McDONALD, J.