Opinion
NOT TO BE PUBLISHED
APPEAL from the orders of the Superior Court of Los Angeles County Super. Ct. No. CK61501, Richard D. Hughes, Juvenile Court Referee.
Joseph T. Tavano, under appointment by the Court of Appeal, for Defendant and Appellant.
Raymond G. Fortner, Jr., County Counsel, James M. Owens, Assistant County Counsel, and Jacklyn K. Louie, Senior Deputy County Counsel, for Plaintiff and Respondent.
KRIEGLER, J.
Anthony T. (Anthony) appeals from the orders denying his petition for reunification services under Welfare and Institutions Code section 388 and terminating parental rights to Kaliyah K. under section 366.26. Anthony contends the orders were an abuse of discretion because he was not given notice of the proceedings. As Anthony failed to show circumstances had changed such that Kaliyah’s best interests would be promoted by the proposed reunification services, the orders were not an abuse of discretion. Accordingly, we affirm.
Hereinafter, all statutory references are to the Welfare and Institutions Code unless otherwise specified.
FACTS AND PROCEDURAL BACKGROUND
In March 2005, Kaliyah was born to K.K. (mother) when mother was 15 years old and a dependent of the court. Mother and Kaliyah lived in a group home for teen mothers and their children.
Born in May 1989, mother was detained in 1992 and declared a dependent of the court in 1993. Her permanent plan was long-term foster care. In 2004, mother was placed under dual supervision by the Department and the probation department, pursuant to section 241.1. On December 21, 2005, mother was declared a ward of the delinquency court under section 602 and placed in a juvenile incarceration facility. Dependency court jurisdiction over mother was terminated in March 2006.
Anthony, who was involved in a gang, had an extensive criminal history. On July 28, 2005, he was arrested for attempted murder and a local ordinance violation, and remained in custody pending disposition of the charges.
Mother asserted Anthony was born December 6, 1987. The Department had information he was born August 9, 1984. Anthony’s rap sheet, which was obtained in August 2007, after he had come forward in the proceedings, indicates his date of birth is December 6, 1988.
On November 15, 2005, Kaliyah was detained from mother because of mother’s neglect of Kaliyah, destructive, aggressive, defiant, and truant behaviors, and absences without leave. At the detention hearing, on November 18, 2005, mother stated a belief that Anthony was the father but that Anthony had not signed papers establishing paternity at the hospital, she and Anthony were not married, Anthony did not hold himself out as father and accept the child openly in his home, and no paternity testing had been done. Mother stated Anthony was currently incarcerated at Sylmar and his birth date was December 6, 1987. The dependency court found Anthony was an alleged father and ordered a due diligence search for him. The court also ordered no visits until Anthony was interviewed by the Department and monitored visits thereafter. Kaliyah was placed with a maternal aunt.
In early December 2005, the Department reported that its search failed to locate Anthony. The search of the Probation Index yielded the following: “There is an investigation referral on [Anthony] (d.o.b. 12/6/88), X1930760 as of 12/2/2005. No other information provided. No further search possible.”
On February 23, 2006, at the dispositional hearing, the dependency court declared Kaliyah a dependent of the court. Custody was taken from the parents, reunification services were ordered for mother, and mother was granted monitored visits. The matter was continued to August 24, 2006, for a six-month review hearing.
On March 27, 2006, Anthony was convicted of assault with a firearm on a person in violation of Penal Code section 245, subdivision (a)(2). He was sentenced to nine years in state prison, sentence suspended, 36 months formal probation, and 365 days in county jail.
Anthony was released from custody in May 2006. On May 31, 2006, the social worker met with him. Anthony stated he believed he is Kaliyah’s father and that he and mother planned to live together as a family and raise Kaliyah. He wanted the court to order a paternity test. He requested visitation where he was living, monitored by a relative. The social worker told him where to get his relatives live-scanned. The social worker arranged for maternal aunt to be present during the first few monitored visits until Kaliyah felt comfortable enough to be left alone with Anthony and the monitor. As Anthony did not return the social worker’s calls between June 21 and August 16, 2006, and Anthony did not produce a monitor, these visits never began.
Mother’s behavior deteriorated. She was frequently AWOL from placement and refused to take her medications or attend school. She was incarcerated in a juvenile detention facility on July 20, 2006. She threatened to kidnap Kaliyah.
On August 16, 2006, the social worker received a three-way telephone call from mother and Anthony, who was out-of-state, about pending court dates. Anthony “seemed very angry and often used vulgar language. [Anthony] explained . . . that he no longer wanted a paternity test by stating, ‘I just want to get this fucking thing over with.’” Anthony told the social worker he was moving back and forth to Colorado and he wanted to visit Kaliyah.
Anthony did not appear on August 24, 2006, for the six-month review hearing (§ 366.21, subd. (e)). Mother requested a contested hearing, and the matter was continued.
On September 26, 2006, mother told the social worker that Anthony had moved to Colorado and was not reachable at that time. Mother’s whereabouts became unknown.
On November 1, 2006, the dependency court terminated reunification services for mother and set the matter for a section 366.26 hearing on February 28, 2007.
On February 28, 2007, the date for the section 366.26 hearing, Anthony made his first appearance in the case. An attorney was appointed to represent him. Anthony signed a Statement Regarding Parentage (JV-505), stating a belief he was the parent, requesting a judgment of parentage, and requesting a finding he is the presumed parent. His statement indicated he had not spent time with Kaliyah or provided support, and he did not request paternity testing. The section 366.26 hearing was continued to April 27, 2007.
Kaliyah’s birth certificate, attached to the February 28, 2007 status review report, did not name anyone as father, but indicated that the unnamed father’s date of birth was December 6, 1987.
Anthony did not contact the social worker to schedule visitation.
Anthony was arrested on April 21, 2007, and charged with assault with a firearm on a person in violation of Penal Code section 245, subdivision (a)(2). He remained in custody for the rest of the case.
At the hearing on April 27, 2007, the dependency court reiterated that Anthony was an alleged father. Anthony’s attorney requested a paternity test “so that he could be a presumed father.” He asserted Anthony had not been given notice of earlier hearings and appeared as soon as he found out about the proceedings. He asked for custody or reunification services. The dependency court stated that “[a] paternity test is not going to get him to the finding of a presumed father[,]” did not order paternity testing, and stated Anthony needed to file a noticed motion. The section 366.26 hearing was continued to August 1, 2007.
On July 6, 2007, Anthony filed a petition under section 388 to (1) vacate the disposition order of February 23, 2006, denying him reunification services, and (2) grant him reunification services. He alleged the information the dependency court did not have when it made the original order was that he was incarcerated in the Sylmar Juvenile Detention Center from July 2005 to April 2006, and the Department failed to properly investigate his whereabouts and provide notice of the proceedings to him while he was incarcerated. The petition stated: “Had [Anthony] had proper notice he could have asserted his rights to his daughter in a timely manner, raised his paternity status from alleged to presumed, and received reunification services which would have enabled him to reunify with his daughter.” He alleged that he was unaware he had a daughter until after his release from Sylmar. He alleged it would be in the child’s best interests to have a relationship with her father. The dependency court set the matter for a hearing on the section 388 petition.
On August 29, 2007, the dependency court requested briefing on what is the remedy for a violation of due process notice and whether Anthony should be granted family reunification services. Anthony’s brief requested an order restoring the case to the detention stage and granting Anthony presumed father status under Family Code section 7573.
Family Code section 7573 provides: “Except as provided in Sections 7575, 7576, and 7577, a completed voluntary declaration of paternity, as described in Section 7574, that has been filed with the Department of Child Support Services shall establish the paternity of a child and shall have the same force and effect as a judgment for paternity issued by a court of competent jurisdiction. The voluntary declaration of paternity shall be recognized as a basis for the establishment of an order for child custody, visitation, or child support.”
The section 388 petition was heard on October 5, 2007. There was no evidence Anthony and mother had filed a voluntary declaration of paternity under Family Code section 7573. After hearing argument, the dependency court denied the section 388 petition. The section 366.26 hearing immediately followed. Parental rights were terminated. Anthony timely appealed.
DISCUSSION
The Section 388 Petition Was Properly Denied
Anthony contends the dependency court abused its discretion and deprived him of due process by denying his request under section 388 for reunification services and terminating parental rights, in that he was not given adequate notice of the proceedings when he was in Sylmar, which deprived him of the opportunity to become a presumed father. The contention is without merit. As Anthony did not show changed circumstances warranting the change of order, denial of the section 388 petition and termination of parental rights was not an abuse of discretion.
Under section 388, the dependency court should 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.) Abuse of discretion is established if the determination is not supported by substantial evidence. (Michael U. v. Jamie B. (1985) 39 Cal.3d 787, 796.) The party requesting the change of order has the burden of proof. (Cal. Rules of Court, rule 5.570(h)(1); In re Michael B., supra, 8 Cal.App.4th at p. 1703.)
Section 388 provides in pertinent part that a parent “may, upon grounds of change of circumstance or new evidence, petition the court . . . for a hearing to change, modify, or set aside any order of court previously made . . . . [¶] . . . [¶] If it appears that the best interests of the child may be promoted by the proposed change of order, . . . the court shall order that a hearing be held . . . .”
“[W]henever a child is removed from a parent’s or guardian’s custody, the juvenile court shall order the social worker to provide child welfare services to the child and the child’s mother and statutorily presumed father or guardians. Upon a finding and declaration of paternity by the juvenile court or proof of a prior declaration of paternity by any court of competent jurisdiction, the juvenile court may order services for the child and the biological father, if the court determines that the services will benefit the child.” (§ 361.5, subd. (a).)
The statutory presumption of paternity is contained in Family Code section 7611, which provides, in pertinent part: “A man is presumed to be the natural father of a child if . . . [¶] . . . [¶] (d) He receives the child into his home and openly holds out the child as his natural child.”
“[I]f a man fails to achieve presumed father status prior to the expiration of any reunification period in a dependency case, whether that period be 6, 12, or 18 months as in this case, he is not entitled to such services under section 361.5. . . . [After] the termination of reunification services[, his] only remedy [is] to file a motion to modify under section 388.” (In re Zacharia D. (1993) 6 Cal.4th 435, 453.) “While a biological father is not entitled to . . . reunification services under section 361.5 if he does not attain presumed father status prior to the termination of any reunification period, he may move under section 388 for a hearing to reconsider the juvenile court’s earlier rulings based on new evidence or changed circumstances.” (Id. at p. 454.) A man who may be the child’s father but whose biological paternity has not been established has no known interest in the child. (In re Joseph G. (2000) 83 Cal.App.4th 712, 715.)
Substantial evidence supports a finding that circumstances had not changed since the dispositional hearing that would warrant the change of order. No services were ordered for Anthony at the dispositional hearing because he was an alleged father whose biological paternity had not been established. In his section 388 motion, he presented no evidence this circumstance had changed. The Department’s failure, if any, to exercise due diligence in locating him at the outset, alone, did not authorize granting reunification services under section 388, because Anthony remained merely an alleged father whose biological paternity had not been established. By not claiming his parental responsibilities when he was out of custody during Kaliyah’s first four months of life, he failed to achieve presumed father status before the dependency court intervened. By not establishing biological paternity and not seizing the opportunity the dependency court granted him for visitation, Anthony did not achieve presumed father status after dependency court intervention. He made no showing supporting his contention that any failure to notice him at the outset prevented him from achieving presumed father status. Indeed, he was in-state, out-of-custody, and free from formal probationary supervision for no more than three of the 23 months Kaliyah was in placement.
Further, substantial evidence supported finding the child’s best interests would not be promoted by providing a reunification period for Anthony and thereby derailing Kaliyah’s adoption by maternal aunt. Anthony was incarcerated. Kaliyah was two years old, had no relationship with Anthony, and had lived in her adoptive home her whole life.
Substantial evidence supports the denial of the section 388 petition. Accordingly, the orders denying the section 388 petition and terminating parental rights were not an abuse of discretion.
DISPOSITION
The orders are affirmed.
We concur: TURNER, P. J., ARMSTRONG, J.