Opinion
NOT TO BE PUBLISHED
Appeal from an order of the Superior Court of Los Angeles County, No. CK51007, Stephen C. Marpet, Juvenile Court Referee.
Judy Weissberg-Ortiz, under appointment by the Court of Appeal, for Defendant and Appellant.
Andrea Sheridan Ordin, County Counsel, James M. Owens, Assistant County Counsel, and Byron G. Shibata, Deputy County Counsel, for Plaintiff and Respondent.
GRIMES, J.
SUMMARY
D.M. (father) appeals from the trial court’s order terminating his parental rights under section 366.26 of the Welfare and Institutions Code as to his now two-year-old daughter, K.R.-M. Mother is not a party to this appeal. Father contends that his substantive due process rights were violated when he was deprived of his court-ordered visitation with K.R.-M., preventing him from establishing an exception to the termination of his parental rights under section 366.26, subdivision (c)(1)(B)(i). Because we conclude that any claim of error was forfeited, and in any case resulted in no prejudice, we affirm.
All further statutory references are to the Welfare and Institutions Code.
FACTUAL AND PROCEDURAL BACKGROUND
K.R.-M. came to the attention of the Department of Children and Family Services when she was seven months old, living with mother at a homeless shelter. A shelter staff member overheard mother yelling at K.R.-M., telling her to “[s]hut up you B----.” Mother complained of hearing voices and was seen talking to herself. She had a prior history with the department, with sustained petitions for three other children resulting in the termination of her parental rights. Her previous cases with the department showed that she suffered from paranoid schizophrenia, which rendered her unable to care for her children. When questioned by the department, mother reported that D.M. was K.R.-M.’s father.
The department contacted father, and he “stated that he [was] unable to take care of the child at this time. He denied having any relatives available to care for the child.” K.R.-M. was taken into protective custody, and a dependency petition was filed alleging that mother’s mental health rendered her unable to care for K.R.-M., and that father failed to provide K.R.-M. with the necessities of life and was unwilling to care for or supervise her. (§ 300, subds. (b) & (g).) The department later tried to reach father by telephone to discuss the detention, but his line was busy, or he did not answer. The department left a message informing him that K.R.-M. had been detained.
1. Dependency Proceedings and Father’s Visitation
Father was not present at the December 24, 2009 detention hearing. Mother testified that she and father had a common law marriage. She was not sure if father signed any documents acknowledging that he was K.R.-M.’s father, or whether his name appeared on the birth certificate. The trial court issued a temporary detention order, finding a sufficient prima facie showing that it was contrary to K.R.-M.’s welfare to stay in her parents’ care. Monitored visits were ordered for mother. The court’s visitation order did not mention father. The court held the paternity determination in abeyance.
The department summarized its efforts to contact father in a late-January 2010 jurisdiction and disposition report. Department Investigator Monique Simmons made an appointment to interview father at department offices on January 12, 2010. He did not show up for the interview, and he did not call to cancel. She noted that “father... has not made himself available to the Department to be interviewed or to obtain information regarding the well being of his child.”
At the January 29, 2010 pretrial resolution conference, counsel was appointed to represent father, who was not present at the hearing but had called the court and reported he was ill and that he wanted to participate in the proceedings. The hearing was continued, and the case was set for a contested adjudication hearing.
In the meantime, the department continued its efforts to contact father. In a multidisciplinary team assessment, social worker Marisol Garduno noted that she made phone contact with father on February 5, 2010. Father made inconsistent statements to Ms. Garduno. He reported attending parenting classes, but the case manager confirmed that this was not true. Father expressed an interest in obtaining visits with K.R.-M.
Neither parent personally appeared at the contested adjudication hearing on February 26, 2010. Father’s counsel informed the court that “I have no direction from my client. There are two statements by my client in the report that would seem to confirm what the petition says, but I cannot verify them. He hasn’t been present -- he is not present today. He hasn’t been present at the previous court dates. I would be objecting to sustaining the petition.” The trial court sustained the allegations in the petition, based on the department’s reports. The court also found father to be an alleged father. The trial court scheduled a contested disposition hearing, and reserved its determination of whether mother and father were entitled to reunification services until then.
The department made K.R.-M. available for visitation on Wednesdays at 11 a.m., with one day advance notice to K.R.-M.’s foster mother. Father visited K.R.-M. once, on February 24, 2010, and again on April 21, 2010. The foster mother reported he was “appropriate with [K.R.-M.]” but he had limited interactions with her. Father left K.R.-M. sitting in her stroller while he sat nearby without engaging with her. Mother’s visitation with K.R.-M. was erratic, decreasing as the dependency proceedings progressed, and eventually the department lost contact with her. Messages were left with the homeless shelter, but in February 2010, the shelter informed the department that mother was no longer residing there.
At the March 24, 2010 disposition hearing, mother’s counsel informed the court that she was unable to reach her client and that all of her letters to mother were returned as undeliverable. Mother was denied reunification services under section 361.5, subdivision (b)(10), (11), due to her failure to reunify with her other children. Father was not present. His counsel requested but was denied reunification services, under section 361.5, subdivision (a), due to father’s failure to obtain presumed father status. The court further ordered that “the parent’s visits remain monitored with DCFS given the discretion to liberalize.” The court set a permanency planning hearing (§ 366.26) for July 20, 2010.
On May 26, 2010, father filed a statement of parentage form (JV-505) with the court, seeking a judgment finding him to be K.R.-M.’s presumed father.
2. Section 366.26 Permanency Planning
The department’s July 2010 permanency planning report stated there had been no additional contact between K.R.-M. and father, presumably since their April visit. Father appeared at the July 20, 2010 permanency planning hearing, where adoption was identified as the permanent plan. The trial court continued the hearing so that the department could complete its due diligence to locate mother, and to find an adoptive family for K.R-M., since her foster mother was not interested in adopting her. Father’s counsel informed the court that father had attempted to contact the department to obtain visitation, and that he stopped visiting K.R.-M. because he was told that his visits were terminated. The trial court ordered “reasonable, monitored visits for father.” The court confirmed father’s contact information.
In August 2010, K.R.-M. was removed from her foster home due to neglect. However, a preadoptive home was found, and K.R.-M. was placed there in September 2010.
After being placed in foster care, K.R.-M. presented with developmental delays, and was observed with a “flat affect” by department social workers. She was later diagnosed with environmental failure to thrive due to inadequacies with her foster placement, but immediately improved once moved to a preadoptive home.
Father visited K.R.-M. on October 14, October 21, October 28, November 4, and November 12, 2010. The social worker monitoring the visits noted that father required guidance. Initially, K.R.-M. cried for most of the visits, but father improved somewhat in his ability to console her. He still had difficulty engaging her once she was calm.
At the continued permanency planning hearing on November 16, 2010, father was present and represented by new counsel. Father requested a contested permanency planning hearing so that he could prove the existence of an exception to the termination of parental rights, and informed the court that he intended to file a section 388 petition. The court continued the hearing and permitted two-hour visits, twice a week for father.
Following the November hearing, father visited K.R.-M. on November 19, November 20, November 22, November 24, December 5, and December 6. The social worker noted that K.R.-M. did not demonstrate any significant attachment to father, and that father was unable to independently care for K.R.-M., often turning to the social worker for guidance during visits.
Father did not file a section 388 petition, and at the December 10, 2010 contested permanency planning hearing, father presented no evidence. His counsel simply argued: “Father would ask that the court choose a less permanent plan... a less dispositive plan than adoption. It does appear that the father did simply has [sic] certain limitations. It’s not a matter of him being abusive or not loving his child[;] he simply has certain limitations and apparently the department’s purview is not going to allow for him to ever care for his daughter. Doesn’t appear that having limitations that he does have should be a reason for him to totally lose any ability to have -- potentially have all contact with his daughter is what would occur with adoption. It does appear that he tries to visit as much as he can. There’s also current family very interested to continue to have contact with this child. [¶] For that reason, we simply ask the court to consider a plan of legal guardianship as opposed to adoption.” The court terminated mother and father’s parental rights. This timely appeal followed.
DISCUSSION
Father contends his substantive due process rights were violated when the department prevented him from participating in his court-ordered visitation, and thereby prohibited him from establishing an exception to the termination of his parental rights. The department contends that any claimed error was forfeited, as father did not raise any exception to the termination of his parental rights or address the issue of visitation at the contested permanency planning hearing. Alternatively, the department contends that father was not prejudiced, because he never achieved presumed father status. We agree with the department.
When dependency proceedings advance to the permanency planning stage because reunification efforts have failed, adoption -- and the concomitant termination of parental rights -- is the permanent plan preferred by the Legislature. If the court finds a child cannot be returned to his or her parents and is likely to be adopted, the court must select adoption as the permanent plan unless it finds termination of parental rights would be detrimental to the child under any of the exceptions enumerated in section 366.26, subdivision (c)(1). (In re Mary G. (2007) 151 Cal.App.4th 184, 206-207; § 366.26, subd. (c)(1).) At issue here is the exception under section 366.26, subdivision (c)(1), which provides that “the court shall terminate parental rights unless[:] [¶]... [¶] (B) The court finds a compelling reason for determining that termination would be detrimental to the child [because:] [¶] (i) The parents have maintained regular visitation and contact with the child and the child would benefit from continuing the relationship.” (§ 366.26, subd. (c)(1)(B)(i).) The parent bears the burden of proving the exception applies. (In re Mary G., supra, at p. 207.)
Father contends he was deprived of an opportunity to demonstrate the exception under section 366.26, subdivision (c)(1)(B)(i) applied, as the department prevented him from visiting K.R.-M. However, at the contested section 366.26 hearing, father did not ask the dependency court to find an exception to the termination of parental rights, he presented no evidence in support of any exception, he did not argue that he was prevented from establishing an exception due to the department’s failure to provide him with adequate visitation, and he did not request additional time or visitation to demonstrate the existence of any exception to the termination of his parental rights. “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.)
The final contested permanency planning hearing was continued a number of times, over a six-month period, giving father plenty of time to visit with K.R.-M. in the hope of establishing an exception to the termination of his parental rights. However, when the time came to meet his evidentiary burden, father remained silent and made no attempt to demonstrate that K.R.-M. would benefit from a continuing relationship with him, or complain that he was prevented from making such a showing. Tellingly, father did not file a reply brief contesting the department’s forfeiture theory.
Nothing in the record supports father’s claim that the department prevented him from visiting K.R.-M. The department made numerous attempts to contact father, but his participation in the proceedings and communications with the department were sporadic. The only reference in the record to the department having prevented visitation was father’s counsel’s representation at the initial July 2010 permanency planning hearing that father stopped visiting K.R.-M. because the department told him his visitation had been terminated. The department’s records, however, state that visitation was available on Wednesdays with notice to K.R.-M’s foster mother, and father only occasionally visited K.R.-M. in February and April 2010. Even if we were to credit counsel’s assertion, it is of no moment, due to father’s status as an alleged father, a status to which he never objected and never sought to change by filing a section 388 petition.
“Alleged fathers have fewer rights than presumed fathers and are not entitled to custody, reunification services, orvisitation.” (In re O. S. (2002) 102 Cal.App.4th 1402, 1410.) An alleged father’s participation in the proceedings is limited to an opportunity to change his paternity status. (In re Christopher M. (2003) 113 Cal.App.4th 155, 159-160.) Although father did file a “statement of parentage” following the disposition hearing, he was required to file a section 388 petition to change his paternity status at that point in the proceedings. He never did. (See In re Eric E. (2006) 137 Cal.App.4th 252, 258 [A request for presumed father status after the expiration of the reunification period is made by filing a section 388 petition seeking modification of a court order].)
We find the fault rests with father, not the department. Father failed to participate in the proceedings and seek visitation with K.R.-M. until the proceedings had advanced to the permanency planning stage, failed to take advantage of visitation that was offered to him following K.R.-M’s detention, and then failed to visit with K.R.-M. for several months following the trial court’s July visitation order. Father was not prejudiced because, as an alleged father who had not challenged his paternity status, he could not claim any exception to the termination of his parental rights at the permanency planning hearing. (See, e.g., In re Christopher M., supra, 113 Cal.App.4th at p. 160 [alleged father not entitled to a contested section 366.26 hearing].) And, in any event, nothing in the record suggests that father would have been able to establish the applicability of the exception, even if he had been provided with more visitation, as his relationship with K.R.-M. advanced very little in the 13 visits they had together.
DISPOSITION
The order is affirmed.
WE CONCUR: RUBIN, Acting P. J.FLIER, J.