Opinion
B207306
9-19-2008
In re K.T., a Person Coming Under the Juvenile Court Law. LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Petitioner and Respondent, v. RONALD T., Defendant and Appellant.
Thomas S. Szakall, under appointment by the Court of Appeal, for Defendant and Appellant. Raymond G. Fortner, Jr., County Counsel, James M. Owens, Assistant County Counsel, and Aleen L. Langton, Deputy County Counsel, for Petitioner and Respondent.
Not to be Published
INTRODUCTION
Defendant and appellant, Ronald T. (father) was identified by mother as the alleged father of K.T. at the detention hearing. Father, however, did not appear until after the disposition hearing and, despite being represented by counsel at several hearings thereafter, he never attempted to establish presumed father status or challenge the juvenile courts previous orders. Ultimately, his parental rights were terminated.
Father purports to appeal from the order terminating his parental rights but, in his brief, he instead challenges the juvenile courts failure to appoint counsel for him at the disposition hearing, its failure at the detention and disposition hearings to inquire adequately into his parentage of K.T., and its failure to send him notices of hearings or the statutorily mandated form regarding paternity after he was declared K.T.s alleged father at the detention hearing.
We hold that because (i) father failed to identify in his notice of appeal the issues he now raises; (ii) the time to appeal those issues has expired; and (iii) father lacks standing to appeal, the issues he now raises are not properly before us. Moreover, father forfeited those issues on appeal by failing to raise them with the juvenile court at any time. And, any asserted error would be harmless in any event, because despite being afforded ample opportunity to do so, father never developed the required parent-child relationship with K.T. We therefore affirm the order of the juvenile court terminating fathers parental rights.
FACTUAL AND PROCEDURAL BACKGROUND
On May 17, 2005, the Los Angeles County Department of Children and Family Services (Department) filed a Welfare and Institutions Code section 300 petition against the mother of then seven-month-old K.T. and her older siblings. The Department alleged that the mother had illicit drugs and drug paraphernalia in the family home within access of the children; that the mother allowed a known gang member to frequent and sell drugs from her home; that the mother had a history of substance abuse; and that three of the mothers children were prior dependents of the juvenile court. The petition and detention report stated that the identity of K.T.s fathers was unknown. K.T.s birth certificate did not name a father.
All further statutory references are to the Welfare and Institutions Code, unless otherwise indicated.
Only K.T. is the subject of this appeal.
At the initial hearing, the juvenile court detained K.T. and her siblings in foster care. The mother identified Ronald T. as K.T.s father, and advised the juvenile court that father was incarcerated in a state facility. The juvenile court determined father to be an alleged father, and ordered the Department to prepare a due diligence search for father and a statewide jail removal order to bring him to court on June 17, 2005.
On June 17, 2005, the Department reported initiating a due diligence search for father, but his whereabouts remained unknown. The mother did not report any significant relationship between K.T. and father. The Department reported that the juvenile court previously found father to be an alleged father and recommended no family reunification services for father.
At a July 19, 2005, hearing, at which neither mother nor father appeared, the Department reported locating father, who was incarcerated at the United States Penitentiary in Atlanta, Georgia. Fathers expected release date was January 20, 2006. The Department sent a copy of the section 300 petition and the jurisdiction and disposition report to father. The juvenile court sustained one count of the petition against the mother, pursuant to section 300, subdivision (b), finding that the mother created a detrimental home environment for her children, including having illicit drugs and drug paraphernalia in the family home within access of the children, and allowing a known gang member to frequent and sell drugs from her home. The juvenile court declared K.T. a dependent of the court and family reunification services were ordered for the mother only. The juvenile court, pursuant to section 361.5, subdivision (a), denied services to father, as he was deemed to be an "alleged" father. The juvenile court ordered that father could not visit K.T. until he contacted the Department, and then he could visit her three times per week.
At the six month review hearing on January 17, 2006, the juvenile court continued the hearing due to a substandard report and notice deficiencies. The juvenile court also ordered an updated due diligence search for father, whose whereabouts, according to the court, remained unknown.
At the March 1, 2006, hearing, the Department reported that although it had previously determined that father was incarcerated in Georgia, the notices sent to an Avalon Boulevard address in Los Angeles were returned unclaimed, and fathers whereabouts remained unknown. The juvenile court found that legal notice had been given. Also at the March 1, 2006, hearing, the juvenile court terminated family reunification services for the mother and set a progress hearing for April 10, 2006, a section 366.26 hearing for June 28, 2006, and a review of permanent plan hearing for August 30, 2006.
At the April 10, 2006, progress hearing, the Department reported that father was incarcerated at Folsom State Prison in California. The June 28, 2006, section 366.26 report indicated that in the past year while K.T. resided in foster care, her parents failed to participate in any case plan to have her placed in their care.
On August 30, 2006, father made his first appearance at the review of permanent plan hearing. The juvenile court appointed counsel for father. Counsel indicated that father had American Indian heritage, but was unclear as to which tribe. The juvenile court ordered the Department to provide notice in compliance with the Indian Child Welfare Act (ICWA) (25 U.S.C., § 1902, et seq.). Father provided the juvenile court an Anzac Avenue address for all future notices. The juvenile court confirmed fathers visits were to be a minimum of three times per week, three hours per visit.
Fathers counsel and father appeared in court on October 25, 2006, at the section 366.26 hearing. The Department reported speaking to father on September 12, 2006, regarding his claim of American Indian heritage. As father did not have much information regarding the alleged heritage, the childrens social worker (CSW) scheduled a future date to speak with him. The CSW called father on September 15, September 18, October 3, and October 11, 2006. On three occasions the CSW left messages with household members, but father never returned the CSWs call. The Department considered moving K.T.s placement and reported that she was likely to be adopted.
On December 7, 2006, the Department addressed moving K.T. into her siblings foster home so they could be adopted together. Father did not appear at the hearing, but was represented by counsel.
At the February 21, 2007, section 366.26 hearing, the Department reported continuing efforts to move K.T. into her siblings foster home. The caretaker had been referred to mediate a post-adoption contract for post-adoption visitation with family members. The Department recommended termination of parental rights for K.T. The juvenile court found the ICWA notice proper, and that ICWA did not apply in this case. Father did not appear at this hearing, but was represented by counsel.
A few days later, at the February 28, 2007, status review hearing, the Department reported that father had not had any visitation with K.T. Father did not appear for this hearing, but again was represented by counsel.
Father appeared in court at the June 14, 2007, section 366.26 hearing with counsel. The Department recommended termination of parental rights for K.T. Father objected to the recommendation and stated that the caretaker and CSW had not allowed visits by him. He asked the juvenile court to enforce the visitation order. The court stated, "I can order that. Thats not a problem . . . [Father has] been gone for a long time. There may be other reasons why he hasnt visited."
On August 29, 2007, at a status review hearing, the Department reported that father had two monitored visits with K.T.—one on June 22, 2007, and one on July 6, 2007. Father reported that he planned to attend a parenting class, find employment, and prove that he could be a good provider for K.T., who had been moved to her new foster home. As fathers two telephone numbers were disconnected, the CSW was not able to reach father to give him K.T.s new contact information. Father also had not contacted the CSW for K.T.s updated information.
At the January 25, 2008, section 366.26 hearing, the Department reported the approval of the adoption homestudy for K.T.s caretaker and that the caretaker committed to adopting K.T. and her sister. K.T. had been placed in the home since June 2007. Father did not appear at the hearing, but was represented by counsel. The juvenile court set the case for a contested hearing on the parents behalf.
On February 28, 2008, father did not appear in court, but he was represented by counsel. The Department reported that during the past review period, father visited K.T. one time on February 5, 2008, although he had other opportunities to visit. Father had at least two other scheduled visits that he did not attend. From the time K.T. was placed in her new home, father had minimal contact with the Department. On one occasion he left a message for the CSW indicating he would not be able to make future visits for some time due to the passing of a relative. On another occasion, father missed a scheduled visit without notifying the caretaker ahead of time. The adoption process continued.
Father appeared in court represented by counsel at the March 24, 2008, section 366.26 hearing. The juvenile court ordered father to return on April 21, 2008. The court also ordered a report regarding fathers visitation with K.T.
At the April 21, 2008, contested hearing, father appeared represented by counsel. The Department reported that father was allowed monitored visits with K.T. three times per week. Father was required to confirm his visits with the caretaker. Father scheduled visits for February 5 and February 8, 2008. On both dates, he visited for only half an hour, even though he was allowed two hours per visit. Father also scheduled visits for February 21, April 8 and April 9, 2008, but failed to appear for those visits. Father did not make any telephone contact with K.T. or with the Department during this period. The Department stated that fathers visitation was inconsistent and that based on this pattern, father did not appear interested in maintaining a relationship with K.T.
Father testified that he was K.T.s father; he visited her every chance he could, which in the last six months was 10 to 11 times, possibly more, and usually stayed one hour; during visits he played with K.T., who called him "Daddy"; he wanted custody of K.T.; and he had a home for her. K.T.s counsel joined the Department in asking the juvenile court to terminate parental rights. K.T.s counsel suggested the possibility of a post-adoption contract.
The juvenile court found that fathers visitation was not adequate and that although K.T. enjoyed seeing and visiting with father, he did not do enough to fulfill the role of a father. The juvenile court found by clear and convincing evidence that K.T. was adoptable and terminated fathers and the mothers parental rights. The juvenile court referred the case to the Consortium for Children to assess post-adoption visits between the parents and K.T.
Father filed a notice of appeal on April 21, 2008. The notice listed the findings and orders appealed from as: "Termination of Parental Rights—Dated April 21, 2008."
DISCUSSION
On appeal, father now contends that at the jurisdiction/disposition hearing on July 19, 2005, the juvenile court was advised that father was incarcerated in a United States penitentiary in Atlanta, Georgia, but the court did not appoint counsel for him. Father argues that by failing to appoint counsel for over a year and in ruling that there would be no reunification services during that time, the juvenile court denied him due process. In addition, father contends that the juvenile court failed at the detention hearing or the disposition hearing to inquire concerning fathers parentage as required by section 316.2, subdivision (b) and California Rules of Court, rule 1413, subdivisions (a) and (b) [now rule 5.635, subdivisions (a) and (b)], and that he did not receive timely notice of hearings or the required form statement regarding paternity after he was identified as the alleged father at the detention hearing.
Counsel was not appointed until father first appeared in court on August 30, 2006.
The Department contends that the appeal should be dismissed because the notice of appeal does not list the orders father now challenges and is untimely as to those orders. The Department also contends that father has no standing to appeal because he is only an "alleged" father; he forfeited the issues he now seeks to raise; and, in any event, there were no prejudicial errors.
Fathers notice of appeal—which identified only the juvenile courts order terminating his parental rights—did not identify any of the issues he now raises in his brief. On an appeal from an order terminating parental rights, a parent cannot challenge prior orders for which the statutory time for filing an appeal has passed. (Steve J. v. Superior Court (1995) 35 Cal.App.4th 798, 811.)
It is true that father was not appointed counsel until after the appeal period had expired for those 2005 orders. But we do not have to determine whether to dismiss the appeal because, at no time did father raise these issues with the juvenile court, despite being represented by counsel at several subsequent hearings. Generally, an appellate court does not consider challenges to procedural defects or erroneous rulings when an objection could have been but was not made in the trial court. (In re S.B. (2004) 32 Cal.4th 1287, 1293; In re Dakota S. (2000) 85 Cal.App.4th 494, 501.) Father maintians that by the time counsel had been appointed and father appeared in the juvenile court, the section 366.26 hearing was set, the burden of proof had shifted to him, and the circumstances had changed. But that did not preclude father from raising with the juvenile court the very issues he now raises here. Had such matters been raised and assuming they were meritorious, the juvenile court could have adjusted the proceedings accordingly.
In addition, father, as an alleged father, has not shown that he is an aggrieved party with standing to appeal. (Code Civ. Proc., § 902.) An alleged father is not a party to a dependency proceeding. (See In re Joseph G. (2000) 83 Cal.App.4th 712, 715-716.) Between August 30, 2006—when the juvenile court appointed counsel for father—and the April 21, 2008, hearing at which his parental rights were finally terminated, father never asked the juvenile court to change his paternity status.
Finally, even if there were any errors, they were harmless. Father never lived with K.T., his visitation and contacts with her were sporadic, at best, despite being afforded ample opportunity to visit regularly, and he did nothing else to act in a parental role. He does not even contend that he should have been entitled to presumed father status based on his limited contacts with K.T. On this record, there is no reasonable probability that father could have obtained a different result if the claimed errors had not been made.
DISPOSITION
The juvenile courts order terminating fathers parental rights is affirmed.
We concur:
ARMSTRONG, Acting P. J.
KRIEGLER, J.