Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of San Diego County, Ernest Borunda, Judge. (Retired Judge of the San Diego S.Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.), Super. Ct. No. J512669A - C
O'ROURKE, J.
R.A. appeals a juvenile court judgment terminating his parental rights to his minor daughters T.S. and F.S. (together the minors) under Welfare and Institutions Code section 366.26. R.A. contends: (1) his due process rights were violated when the court did not obtain a timely paternity test or give him proper notice regarding paternity; (2) the court erroneously terminated his parental rights based on these due process violations; (3) the evidence did not support the court's finding the minors were adoptable; and (4) the court erred by finding the sibling relationship exception to adoption did not apply to preclude terminating his parental rights. We affirm the judgment.
Statutory references are to the Welfare and Institutions Code unless otherwise specified.
FACTUAL AND PROCEDURAL BACKGROUND
In February 2005 the San Diego County Health and Human Services Agency (Agency) filed petitions on behalf of the five-year-old minors (who are twins) and their six-year-old sister Aisha, alleging their mother, Desiree B., subjected them to serious physical harm. (§ 300, subd. (a).) Desiree identified R.A. as the father of Aisha and the minors. R.A. was incarcerated and was a registered sex offender. The court appointed counsel for R.A. and ordered a paternity test for him.
Aisha is not a subject of this appeal. The minors have two other siblings, Brittney and Dion, who are also not subjects of this appeal.
At a settlement conference in April 2005 the court declared the minors dependents and placed them in foster care. The court again ordered paternity testing for R.A. because it had not yet occurred.
Two months later, R.A. informed the court paternity testing still had not occurred. The court ordered Agency to follow up.
By the six-month review hearing, R.A. had been released from prison but had not completed a paternity test or contacted his counsel or the social worker. His whereabouts were unknown. The court relieved R.A.'s counsel, continued services for Desiree and mailed notice of the next hearing to R.A. at his previous address in prison as well as his address in Lemon Grove. The court also mailed R.A. copies of the minute order from the 12-month review hearing and notified him of the 18-month hearing.
By the 18-month hearing, R.A. still had not contacted the social worker. Agency sent him notice of its recommendation to set a section 366.26 selection and implementation hearing for the minors. The court placed Aisha with Desiree, set a selection and implementation hearing for the minors and sent R.A. copies of the minute orders. The court also sent R.A. a copy of its minute order confirming previous notice findings.
Agency assessed the minors as adoptable and recommended adoption as their permanent plans. The minors were healthy and developing normally, but had some problems with hyperactivity. School personnel noted the minors had undergone a remarkable positive change in the past 18 months. They were in therapy and the social worker believed their behavior problems would decrease once they were in a permanent placement. The minors' caregiver said she was no longer able to adopt them. Agency had not yet identified a prospective adoptive home for the minors but was using special recruitment efforts to broaden its search for a permanent home for them.
The minors were visiting Aisha and seemed to enjoy the visits. However, the minors reported that Aisha told them she did not want them to return home. The minors were unkind to Aisha during visits and seemed jealous of her relationship with Desiree.
R.A. was personally served with a notice of hearing under section 366.26 informing him that adoption was recommended as the minors' permanent plans. He appeared in court and counsel was appointed for him.
R.A. asked the social worker about completing his paternity test and visiting the minors. Although R.A. claimed he was tested for paternity while in custody, the genetics lab reported otherwise. He blamed Desiree for his lack of contact and involvement with the minors.
The minors' teachers, therapist and caregiver reported the minors did not mention or discuss Desiree or their siblings. In the social worker's opinion, the minors loved their siblings but the relationship they had with them was not so strong as to outweigh the benefits of adoption. The crucial bond was between the minors. The social worker believed the minors were highly adoptable because they were bright, witty, outgoing, affectionate, thoughtful, loving and endearing. They were not yet in an adoptive home through no fault of their own.
R.A. filed a section 388 petition for modification based on paternity test findings that he was the minors' biological father. He asked to have standing to participate in the proceedings and wanted to take the necessary steps to become a presumed father. The court found R.A. was a biological father and allowed him to participate in the proceedings.
At a contested selection and implementation hearing, the social worker testified she recently learned R.A. was the minors' biological father after receiving test results. R.A. initially told the social worker he was not sure he was the minors' biological father, and he did not immediately request visits. The minors had no memory of R.A. and no relationship with him. They believed the father of their younger siblings was their father.
The social worker further testified there were five families in San Diego County and eight out-of-county families interested in adopting the minors. Based on her extensive training in adoption assessments, she had no doubt the minors were adoptable. The minors were not currently in an adoptive home only because the social worker was looking for the best possible family for them.
R.A. testified he took a paternity test in 2001, but never received the results. He learned he was the minors' biological father a month ago. He admitted he was present when the court ordered paternity testing at his request. R.A. knew the minors were in foster care but did not remember if he asked for visits with them. He told the social worker he wanted a paternity test because he was unsure he was the minors' father. R.A. admitted he had not seen the minors in three or four years and had not had an active role in their lives.
After considering the evidence and hearing argument of counsel, the court found the minors were adoptable and none of the exceptions of section 366.26, subdivision (c)(1) applied to preclude terminating parental rights. The court terminated parental rights and referred the minors for adoptive placement.
Effective January 1, 2008, the Legislature amended section 366.26, subdivision (c)(1). (Stats. 2006, ch. 838, sec. 52.) Because the proceedings at issue here occurred before the statutory change, we refer to the earlier version of the statute.
DISCUSSION
I
R.A. contends the court violated his due process rights when it failed to obtain a paternity test in a timely, expedited manner so he could request reunification services. He asserts the court's and Agency's "inaction" with respect to enforcing the order to complete a paternity test prevented him from elevating his status from alleged to biological father, thus preventing him from fully participating in the proceedings.
A
There are three types of fathers in juvenile dependency law: presumed, biological and alleged. (In re Kobe A. (2007) 146 Cal.App.4th 1113, 1120.) Paternity status is important because it determines a father's rights in a dependency case and the extent to which he may participate in the proceedings. (Ibid.) A presumed father, as defined by Family Code section 7611, is entitled to appointed counsel, custody (if there is no finding of detriment) and reunification services. (Ibid.) A biological father is an individual whose paternity has been established but who has not shown he qualifies as the child's presumed father under Family Code section 7611. (In re Zacharia D. (1993) 6 Cal.4th 435, 449, fn. 15.) The juvenile court may provide reunification services to a biological father if it finds services will benefit the child. (§ 361.5, subd. (a).) An alleged father is a man who might be the father of a child, but whose biological paternity has not been established and thus, has no current interest in a child. (In re Joseph G. (2000) 83 Cal.App.4th 712, 715; In re O.S. (2002) 102 Cal.App.4th 1402, 1406.) An alleged father is not entitled to appointed counsel or to reunification services. (In re Kobe A., supra, 146 Cal.App.4th at p. 1120.) The due process rights of an alleged father are satisfied by giving him notice and an opportunity to appear, assert a position and attempt to change his paternity status. (Ibid.)
B
R.A. does not claim he was prejudiced by his inability to obtain presumed father status by which he would have been entitled to custody and reunification services. (See In re T.R. (2005) 132 Cal.App.4th 1202, 1209 [biological fatherhood alone is not sufficient to establish presumed father status].) Rather, he argues the court obtained paternity test results too late to be of any benefit to him in his effort to reunify with the minors as their biological father.
As the record shows, and Agency concedes, paternity testing had not occurred by the six-month review hearing despite several orders by the court and an admonition for the social worker to follow up on testing. Although test results should have been obtained sooner, this does not amount to a wholesale denial of process due a father in R.A.'s circumstances. (In re Paul H. (2003) 111 Cal.App.4th 753, 758-759.) R.A. had notice, a court order for a paternity test and the assistance of counsel to ensure his paternity was timely established. After he was released from prison, R.A.'s whereabouts became unknown. He failed to contact his attorney or the social worker and did not inquire about the minors or ask to complete paternity testing. Thus, any further delay in obtaining paternity test results is attributable solely to R.A.
Contrary to R.A.'s position, his trial counsel did not abandon him before paternity was established. Rather, counsel asked to be relieved when his efforts to locate R.A. were unsuccessful and R.A.'s whereabouts became unknown.
Even had the results of a paternity test earlier confirmed R.A. was the minors' biological father, he was not entitled to reunification services. Rather, the court had discretion to offer him reunification services only if doing so would benefit the minors. (§ 361.5, subd. (a); In re Zacharia D., supra, 6 Cal.4th at p. 451.)
At the time the minors became dependents, R.A. was incarcerated. He had never been involved in the minors' lives and had not seen them in three or four years. The minors had no memory of R.A. and believed another man was their father. Once R.A. was released from prison, he made no attempt to contact the minors, choosing instead to deny his paternity until proven otherwise. R.A. expressed an interest in the minors only after learning their permanent plan was adoption. Still, he was only willing to pursue reunification if they were his biological children. The minors had been in foster care for more than two years and desperately needed the security and stability of an adoptive home. Under these circumstances, it is not reasonably likely the court would have found reunification services for R.A. would benefit the minors. (Francisco G. v. Superior Court (2001) 91 Cal.App.4th 586, 597 [legislature has determined it is generally in best interests of child to be reunited with presumed father but not necessarily with mere biological father]; In re Elijah V. (2005) 127 Cal.App.4th 576, 589 [court properly denied reunification services to biological father].) The court did not violate R.A.'s due process rights.
II
R.A. contends his due process rights were violated when the court failed to provide proper notice regarding paternity. Specifically, he asserts he was not served with Judicial Council form JV-505 (entitled Statement Regarding Parentage), which would have informed him about his options for establishing paternity and allowed him to fully participate in the proceedings and receive reunification services.
A
Section 316.2 sets forth the statutory procedure that protects an alleged father's limited due process rights. Subdivision (b) of that section directs the clerk of the juvenile court to provide notice to an alleged father "that he is or could be the father of the child." (§ 316.2, subd. (b).) The statute also requires Judicial Council form JV-505 be included with the notice. (Ibid.; see also Cal. Rules of Court, rule 5.635.) Form JV-505 allows an alleged father to indicate his position with regard to paternity and representation by counsel, and advises him of his rights and options. (In re Kobe A., supra, 146 Cal.App.4th at p. 1121.)
B
Agency asserts R.A. forfeited the right to claim he did not receive form JV-505 by not raising the issue in the trial court. As a general rule, a parent's failure to object or raise certain issues in the juvenile court prevents the parent from claiming error on appeal. (In re S.B. (2004) 32 Cal.4th 1287, 1293; In re Lorenzo C. (1997) 54 Cal.App.4th 1330, 1338.) Application of the forfeiture rule, although not automatic, is designed to keep litigants from acquiescing and later seeking relief for error that could have been prevented or cured. (In re S.B., supra, 32 Cal.4th at p. 1293; In re Riva M. (1991) 235 Cal.App.3d 403, 412.) " ' "The law casts upon the party the duty of looking after his legal rights and of calling the judge's attention to any infringement of them. If any other rule were to obtain, the party would in most cases be careful to be silent as to his objections until it would be too late to obviate them, and the result would be that few judgments would stand the test of an appeal." [Citation.]' " (In re Christina L. (1992) 3 Cal.App.4th 404, 416; see also People v. Barnum (2003) 29 Cal.4th 1210, 1223-1224 [even constitutional rights may be forfeited].) Although we have discretion to excuse forfeiture, we exercise that discretion rarely and only in cases presenting an important legal issue. (In re S.B., supra, 32 Cal.4th at p. 1293.) This is especially true in dependency proceedings where "considerations such as permanency and stability are of paramount importance." (Ibid.)
Here, the court appointed counsel for R.A. at the detention hearing. Counsel, who was presumably aware of form JV-505 and the issues that could be raised regarding paternity, requested paternity testing for R.A. Although R.A., his counsel or both of them were present at several hearings at which paternity testing and parentage were discussed, they did not inform the court R.A. was not served with form JV-505. By his silence and acquiescence, R.A. has forfeited his right to claim lack of notice in accordance with the form. (See In re Lorenzo C., supra, 54 Cal.App.4th at p. 1339.)
Even assuming R.A. did not receive form JV-505, any error was harmless beyond a reasonable doubt. (In re Angela C. (2002) 99 Cal.App.4th 389, 393-395 [errors in notice do not automatically require reversal, but are reviewed to determine whether they are harmless beyond a reasonable doubt]; In re Daniel S. (2004) 115 Cal.App.4th 903, 912-913 [same].) Although R.A. claims form JV-505 would have offered him the opportunity to establish paternity without genetic testing, nothing in the record suggests R.A. was willing or able to have a judgment of paternity entered by declaration. (See In re Mary G. (2007) 151 Cal.App.4th 184, 198.) Throughout the proceedings, R.A. believed he might be the minors' father, but insisted on establishing his biological paternity through testing before he would assume that responsibility.
Moreover, R.A. knew the minors were in the dependency system and he had actual notice of the hearings and the benefit of appointed counsel who, at the earliest opportunity, sought to establish biological paternity on his behalf. This is not a case where an alleged father was unaware he potentially had paternal rights. (Cf. In re Paul H., supra, 111 Cal.App.4th at p. 762.) Under these circumstances, we cannot say R.A. would have obtained a more favorable result had form JV-505 been sent to him. (In re Kobe A., supra, 146 Cal.App.4th at p. 1123; In re Angela C., supra, 99 Cal.App.4th at pp. 393-394.) No due process violation occurred.
In light of our conclusion, we need not address R.A.'s contention the due process violation resulted in the erroneous termination of his parental rights.
III
R.A. challenges the sufficiency of the evidence to support the court's finding the minors were adoptable. He asserts the eight-year-old twins have medical, social and emotional problems and no adoptive families had been identified for them.
A
When reviewing a court's finding a minor is adoptable, we apply the substantial evidence test. (In re Josue G. (2003) 106 Cal.App.4th 725, 732; In re Lukas B. (2000) 79 Cal.App.4th 1145, 1154.) If, on the entire record, there is substantial evidence to support the findings of the juvenile court, we must uphold those findings. We do not pass on the credibility of witnesses, attempt to resolve conflicts in the evidence or weigh the evidence. (In re Casey D. (1999) 70 Cal.App.4th 38, 52.) Rather, we view the record favorably to the juvenile court's order and affirm the order even if there is substantial evidence supporting a contrary conclusion. (Id. at pp. 52-53.) The appellant has the burden of showing there is no evidence of a sufficiently substantial nature to support the finding or order. (In re L.Y.L. (2002) 101 Cal.App.4th 942, 947; In re Geoffrey G. (1979) 98 Cal.App.3d 412, 420.)
The court can terminate parental rights only if it determines by clear and convincing evidence the minor is likely to be adopted. (§ 366.26, subd. (c)(1).) The statute requires clear and convincing evidence of the likelihood adoption will be realized within a reasonable time. (In re Zeth S. (2003) 31 Cal.4th 396, 406; In re Amelia S. (1991) 229 Cal.App.3d 1060, 1065.) In determining adoptability, the focus is on whether a child's age, physical condition and emotional state will create difficulty in locating a family willing to adopt. (§ 366.22, subd. (b)(3); In re David H. (1995) 33 Cal.App.4th 368, 379.) The possibility a child may have future problems does not mean the child is not likely to be adopted. (In re Jennilee T. (1992) 3 Cal.App.4th 212, 223-225.) To be considered adoptable, a minor need not be in a prospective adoptive home and there need not be a prospective adoptive parent " 'waiting in the wings.' " (In re Sarah M. (1994) 22 Cal.App.4th 1642, 1649.)
B
Here, the evidence showed the minors were healthy and developmentally on target. They were bright, witty, outgoing, affectionate, thoughtful and loving. Although the minors had some behavior issues, their hyperactivity was being managed by medication and their therapist believed their problems would further diminish once they experienced the stability of a permanent home. School personnel reported the minors had made remarkable progress in the past 18 months. The minors' characteristics, while challenging, did not preclude a finding of adoptability.
The social worker reported the minors were not currently in a prospective adoptive home through no fault of their own, and there were several approved adoptive families willing to adopt children with characteristics similar to those of the minors. She had "no doubt" the minors were adoptable. The court was entitled to find the social worker's opinion credible and give great weight to her assessment. (In re Casey D., supra, 70 Cal.App.4th at p. 53.) We cannot reweigh the evidence or substitute our judgment for that of the trial court. (Id. at pp. 52-53.) Substantial evidence supports the court's finding the minors were adoptable.
IV
R.A. challenges the sufficiency of the evidence to support the court's finding the sibling relationship exception of former section 366.26, subdivision (c)(1)(E) did not apply to preclude terminating parental rights. He asserts that if the minors are adopted, their relationship with each other is in jeopardy and their relationship with Aisha will be terminated.
This provision is now codified at section 366.26, subdivision (c)(1)(B)(v).
A
"Adoption, where possible, is the permanent plan preferred by the Legislature." (In re Autumn H. (1994) 27 Cal.App.4th 567, 573.) If the court finds a child cannot be returned to his or her parent and is likely to be adopted if parental rights are terminated, it must select adoption as the permanent plan unless it finds termination of parental rights would be detrimental to the child under one of six specified exceptions. (§ 366.26, subd. (c)(1)(A)-(F); In re Erik P. (2002) 104 Cal.App.4th 395, 401.)
The sibling relationship exception to terminating parental rights applies when the juvenile court finds there is a compelling reason for determining that termination would be detrimental to the child because it would substantially interfere with that child's sibling relationship. (§ 366.26, subds. (c)(1), (c)(1)(E).) Factors to be considered include the nature and extent of the relationship, whether the child was raised with a sibling in the same home and whether the child has strong bonds with a sibling. The court must also consider whether ongoing contact is in the child's best interests, including the child's long-term emotional interest, as compared to the benefit of legal permanence through adoption. (§ 366. 26, subd. (c)(1)(E).) The purpose of this exception is to preserve long- standing sibling relationships that "serve as anchors for dependent children whose lives are in turmoil." (In re Erik P., supra, 104 Cal.App.4th at p. 404.)
"The sibling relationship exception contains strong language creating a heavy burden for the party opposing adoption." (In re Daniel H. (2002) 99 Cal.App.4th 804, 813.) Similar to the beneficial parent-child relationship exception of section 366.26, subdivision (c)(1)(A), application of the sibling relationship exception requires a balancing of interests. (In re L.Y.L., supra, 101 Cal.App.4th at p. 951.) The parent must first show: (1) the existence of a significant sibling relationship; (2) termination of parental rights would substantially interfere with that relationship; and (3) it would be detrimental to the child if the relationship ended. (Id. at p. 952.) Once the parent shows a sibling relationship is so strong that its severance would be detrimental to the adoptive child, the court then decides whether the benefit to the child of continuing the sibling relationship outweighs the benefits of adoption. (Id. at pp. 952-953.)
B
Here, the evidence showed the minors had a crucial bond with each other and were being placed for adoption as a sibling set. Thus, R.A.'s concern about severing their sibling relationship is speculative.
Although the minors lived with Aisha until they were removed from Desiree's custody, they were placed in a separate foster home and Aisha was eventually returned to Desiree. During visits, the minors were unkind to Aisha, seemed jealous of her relationship with Desiree and complained that Aisha received better treatment from Desiree than they did. Aisha told the minors she did not want them to return home. When asked with whom they wanted to live, the minors did not mention Aisha, and they did not talk about Aisha or their other siblings to their foster mother, teachers or therapist.
In the social worker's opinion, the minors loved Aisha and were connected to her, but their relationship was not so strong as to outweigh the benefits of adoption. There was no "compelling reason" for the court to find it would be detrimental to the minors if the sibling relationship with Aisha ended. (§ 366.26, subds. (c)(1), (c)(1)(E).) Substantial evidence supports the court's finding the sibling relationship exception did not apply to preclude terminating parental rights.
DISPOSITION
The judgment is affirmed.
WE CONCUR: BENKE, Acting P. J., HUFFMAN, J.