Opinion
E044181
4-25-2008
In re NICHOLAS R., a Person Coming Under the Juvenile Court Law. RIVERSIDE COUNTY DEPARTMENT OF PUBLIC SOCIAL SERVICES, Plaintiff and Respondent, v. GILBERT M., Defendant and Appellant.
Konrad S. Lee, under appointment by the Court of Appeal, for Defendant and Appellant. Joe S. Rank, County Counsel, and Prabhath Shettigar, Deputy County Counsel, for Plaintiff and Respondent. Leslie A. Barry, under appointment by the Court of Appeal, for Minor.
NOT TO BE PUBLISHED
Defendant and appellant Gilbert M. (father) appeals an order of the juvenile court terminating his parental rights to his son, Nicholas R. (the child). Father contends he received ineffective assistance of counsel (IAC) at the selection and implementation hearing. He further contends that the juvenile court erred in failing to recognize counsels remarks as an oral petition to modify the courts orders under Welfare and Institutions Code section 388, and consequently in failing to grant a hearing on the presumed motion. We affirm.
FACTS AND PROCEDURAL HISTORY
The child and his half sister came to the attention of the Riverside County Department of Public Social Services (DPSS) in September 2005. The children were in the custody of and being cared for by their mother, but mother had problems of her own. Mother had stopped taking her mental health medications, and used inappropriate physical discipline on the children. She also deprived the children of food and did not give them their medications.
At the time the petition was filed, DPSS conducted a search for father, who was alleged to be the childs father. DPSS searched for fathers whereabouts, including prison locator records, local jails, and child support records. San Bernardino County reported that father had been released from custody in September 2005, but did not have a current address for father. DPSS mailed notice of the proceedings to fathers last known address. State prison records confirmed that father had formerly been incarcerated there, but again no current address was found. The paternal grandmother reported that father lived in Beaumont, but she did not know his address. She promised to provide DPSS with a telephone number for father, but never did so.
The juvenile court never made a finding that father was the childs presumed father. Mother and father were not, so far as the record shows, ever married, and there was no showing that they lived together for any significant period of time.
DPSS checked court records in the family law department and found no orders concerning the child. Father was not listed as the father on the childs birth certificate. Father did have child support orders, but he had six other children from various relationships.
Father was not involved in the childs life. He had once taken the child for an overnight visit to the home of the paternal grandmother, but the visit had not gone well. Mother had picked up the child at fathers girlfriends house; he was sick and wearing flannel clothing in 100-degree weather.
At a jurisdictional and dispositional hearing in February 2006, the juvenile court found true the allegations of the petition, e.g., that father was not a member of the household and had failed to provide for the child. The court ordered family reunification services for the mother, but denied them to father under Welfare and Institutions Code section 361.5, subdivision (b)(1) [whereabouts of the parent is unknown].
Fathers whereabouts remained unknown at the six-month and 12-month review hearings. Father made no contact with DPSS or with the child throughout the reunification period. At the 12-month review, the court terminated reunification services for mother and set a selection and implementation hearing. The court authorized DPSS to serve father with notice by publication if a parent locator search was unable to find him.
Before the date of the selection and implementation hearing, DPSS did conduct a further parent locator search, and this time (April 2007) turned up an address for father in Beaumont. DPSS served a timely notice of the hearing on father.
Once father received notice of the selection and implementation hearing, he requested visitation. Father admitted that he had not had contact with the child for seven or eight years, although the child had ongoing visitation with the paternal grandmother. DPSS did schedule a visit for father with the child, but the child was adamant that he did not want to see father.
Father made his first appearance in the case at the selection and implementation hearing in July 2007. Fathers attorney asked for a continuance so that he could be served with the petition. He also requested conjoint counseling and mediation, stating that father wanted to have a relationship with the child. The court granted a continuance and authorized conjoint counseling and visitation in a therapeutic setting, but ordered that any such counseling or visitation be with the childs consent.
Father filed a form claiming that a court judgment had established his paternity, but he did not provide any documentation to substantiate this claim.
At the continued selection and implementation hearing, father argued that his parental rights should not be terminated, as he wanted to get to know the child and to try to establish a relationship with him. Father presented no affirmative evidence to establish his paternity, and he did not contest any of the courts findings with respect to adoptability or the prospective adoptive placement.
The court terminated fathers parental rights and selected adoption as the childs permanent plan.
Father appeals.
ANALYSIS
I. As an Alleged Father, Father Has No Established Interest in the Dependency Proceedings
DPSS challenges fathers appeal at the threshold, urging that father was never adjudicated a presumed father. An alleged father is entitled to notice of the proceedings, but notice alone does not make an alleged father a party to the proceedings with an interest therein. (In re Joseph G. (2000) 83 Cal.App.4th 712, 715.) "An alleged father in dependency or permanency proceedings does not have a known current interest because his paternity has not yet been established." (In re Emily R. (2000) 80 Cal.App.4th 1344, 1352.)
Here, fathers paternity was never established by the juvenile court. Father did fill out a statement of paternity, but it was not a declaration under penalty of perjury. He reported that his paternity had been adjudicated, but he provided no case name, no case number, and no copies of any documents to verify the claim. There was no outstanding child support order as to the child. Father had not seen the child for seven or eight years and had had no involvement with him. There was no evidence that mother and father were ever married. Father was not named on the childs birth certificate. Father never became more than an alleged father; he had no interest in the proceedings and thus does not have standing to appeal.
II. There Was No Ineffective Assistance of Counsel
Accepting for the sake of the argument that father does have the right to appeal, we turn next to his claim of IAC. Father criticizes his trial counsel for failing to file a petition under Welfare and Institutions Code section 388 (section 388) to vacate the jurisdictional and dispositional orders as to father. His sole argument is that "a section 388 petition was [fathers] only chance to stop the termination of his parental rights at this late stage," and that there could have been "no rational tactical purpose for the omission."
In order to prevail on an IAC claim, the complaining party must show both that counsels representation fell below an objective standard of reasonableness, and that there is a reasonable probability that, but for the error or omission, the party would have obtained a more favorable result. (Strickland v. Washington (1984) 466 U.S. 668, 684-685 [104 S.Ct. 2052, 80 L.Ed.2d 674]; In re Kristin H. (1996) 46 Cal.App.4th 1635, 1667-1668.)
Here, the record militates against either showing. Father characterizes the operative finding against him as merely that his whereabouts were unknown. By the time of the selection and implementation hearing, his whereabouts had become known. Thus, he argues, the reason leading to the dependency, as to him, no longer applied. We disagree.
First, father has emphasized only the inferences most favorable to himself. In fact, the weight of the evidence is otherwise. Father did not pay support for the child or visit the child for seven or eight years. He had no relationship or bond with the child. Father did request visitation at the late stage of the proceedings, but he did so largely in contemplation of postadoption contact. Fathers criminal record over the period was extensive. He admitted to the social worker that, although he was now married and working full time, he was still trying to "get his life together." He had several children with various mothers. He had outstanding child support orders as to some of these children.
Second, the courts findings encompassed more than simply that fathers whereabouts were unknown. Father knew he had a child and had one visit with him many years earlier. During that visit, father essentially ignored the child. After that, father did not see the child again for a period of seven to eight years. Father had the ability to keep contact with the child either directly or through the paternal grandmother, but he manifested no interest in the child. Necessarily, father had failed to provide for the child, and he neglected the childs welfare for that extended period. DPSSs ultimate discovery of his whereabouts did not alleviate the neglect and failure to provide.
There is nothing to indicate that counsels requests, as to postadoption planning, were anything other than in accordance with fathers own wishes. There was no showing that there could have been no reasonable tactical purpose in failing to file a section 388 petition. There was also no showing of prejudice, in that there was no showing that modified orders were in the childs best interest. (See In re Kristen H., supra, 46 Cal.App.4th 1635, 1671-1672.) In fact, the record showed otherwise, as the child actively wished no relationship with father, and evidence was presented to show that forcing such a relationship would be traumatic to him.
Father has shown neither that counsels conduct was unreasonable or incompetent, nor that he suffered any prejudice as a result of counsels supposed failures. The IAC claim fails.
III. The Court Did Not Err in Not Holding a Section 388 Hearing
Father next urges that the juvenile court should have treated his counsels remarks (i.e., that father wanted to establish a relationship with the child) as a de facto oral motion for modification under section 388, and that, had it done so, it should have ordered a hearing on the motion.
While it is true that a parent need make only a prima facie showing in a section 388 petition to trigger the right to proceed to a full hearing (In re Marilyn H. (1993) 5 Cal.4th 295, 309-310), father failed to make such a showing here. "There are two parts to the prima facie showing: The parent must demonstrate (1) a genuine change of circumstances or new evidence, and that (2) revoking the previous order would be in the best interests of the children. [Citation.] If the liberally construed allegations of the petition do not show changed circumstances such that the childs best interests will be promoted by the proposed change of order, the dependency court need not order a hearing. [Citation.] We review the juvenile courts summary denial of a section 388 petition for abuse of discretion." (In re Anthony W. (2001) 87 Cal.App.4th 246, 250.) In addition, "the court is not required to entertain an oral motion under section 388 at the time set for the [Welfare and Institutions Code section] 366.26 hearing." (In re Baby Boy L. (1994) 24 Cal.App.4th 596, 609.)
There was no evidence presented or proffered to show that changing the courts orders would be in the childs best interest. There was no ongoing relationship or bond between father and the child. To the contrary, the child vehemently wanted nothing to do with father, and it was found that forcing such a relationship on him would be traumatic. There was also no showing of changed circumstances.
The courts failure to hold a hearing on alleged changed circumstances was not an abuse of discretion, and the court was not required to hold such a hearing at the termination stage.
IV. DPSS Provided Good Faith Notice to Father
Father contends that the order terminating his parental rights should be vacated because DPSS failed to provide him with proper notice of the dependency proceedings. To the contrary, the juvenile court found that DPSS had made good faith efforts to attempt to locate father, and to provide him with notice.
At the beginning of the case, fathers whereabouts were unknown. Even fathers own mother did not know where he was. DPSS undertook several varieties of search to locate father. Among other things, those searches disclosed that father had been in and out of state prison and in and out of jail at various times, but none of their efforts turned up a valid current address. "[T]here is no due process violation when there has been a good faith attempt to provide notice to a parent who is transient and whose whereabouts are unknown for the majority of the proceedings." (In re Justice P. (2004) 123 Cal.App.4th 181, 188.)
V. No Express Finding of Unfitness Is Required
Finally, father complains that the juvenile court erred in terminating his parental rights in the absence of finding him to be an unfit parent by clear and convincing evidence.
Father was only an alleged father; no finding of unfitness was required to terminate his parental rights. (In re Sarah C. (1992) 8 Cal.App.4th 964, 979-981.)
In any case, father was not a nonoffending parent. (See In re Gladys L. (2006) 141 Cal.App.4th 845, 847.) Father here had a serious criminal history. He had neglected and failed to provide for the child for a period of seven or eight years. He was only recently beginning to "get his life together." The sustained findings and admitted facts were more than sufficient to support termination of fathers parental rights. (In re P.A. (2007) 155 Cal.App.4th 1197, 1212.)
DISPOSITION
The order terminating fathers parental rights is affirmed.
We Concur:
GAUT, J.
MILLER, J.