Opinion
B233064
01-13-2012
In re VINCENT B., a Person Coming Under the Juvenile Court Law. LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent, v. VANESSA B. et al., Defendants and Appellants.
Aida Aslanian, under appointment by the Court of Appeal, for Defendant and Appellant Vanessa B. Christopher Blake, under appointment by the Court of Appeal, for Defendant and Appellant Jose Juan V. Andrea Sheridan Ordin, County Counsel, James M. Owens, Assistant County Counsel, and Peter Ferrera, Deputy County Counsel, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Los Angeles County Super. Ct. No. CK81350)
APPEALS from orders of the Superior Court of Los Angeles County. Terry Truong, Juvenile Court Referee. Affirmed.
Aida Aslanian, under appointment by the Court of Appeal, for Defendant and Appellant Vanessa B.
Christopher Blake, under appointment by the Court of Appeal, for Defendant and Appellant Jose Juan V.
Andrea Sheridan Ordin, County Counsel, James M. Owens, Assistant County Counsel, and Peter Ferrera, Deputy County Counsel, for Plaintiff and Respondent.
Vanessa B. (mother) appeals the termination of her parental rights to Vincent B. (minor), on the grounds that the juvenile court denied her effective assistance of counsel when it did not continue the permanency hearing under Welfare and Institutions Code section 366.26 to allow her counsel to review the record. Jose Juan V. (father) appeals the termination of his parental rights to the minor based on Adoption of Kelsey S. (1992) 1 Cal.4th 816 (Kelsey S.). Alternatively, he seeks reversal on the theory that the efforts made by the Department of Children and Family Services (Department) to locate him were not reasonable, or on the theory that the juvenile court erred by not granting him reunification services.
All further statutory references are to the Welfare and Institutions Code unless otherwise indicated.
We find no error and affirm.
FACTS
Background
Mother and father lived together in the home of the minor's paternal grandmother (grandmother). In March 2009, father was incarcerated. Mother moved. At the time, she was three months pregnant and father believed that the child was his. They remained in contact for a month and then "broke up and stopped talking." Mother remained in phone contact with grandmother.
The minor was born in August 2009. He and mother both tested positive for methamphetamine. Pursuant to a voluntary family reunification case plan agreement (VFR agreement), the minor was placed in foster care after he was released from the hospital. Even though mother called father Jose, she told the Department that his actual name was Juan Jose V. Further regarding father, she indicated to the Department that he was incarcerated. Though she provided father's date of birth, she was one year off on the year of birth. She explained that she could not care for the minor or go to any classes because she was homeless.
The minor has half siblings named A.B. and L.E. Neither one is a subject of this appeal. A.B. was placed with a paternal uncle who is now his legal guardian. L.E. was placed with her father.
The record is inconsistent. The detention report indicates that mother identified father as Jose V. But at the section 366.26 hearing, mother testified that she identified him as Juan Jose V. even though she calls him Jose. The juvenile court made a factual finding that mother informed the Department that father's named was Juan Jose V.
Detention
In February 2010, the Department determined that mother had failed to comply with the VFR agreement because she had not enrolled in parenting classes, entered into substance abuse counseling or submitted any drug test results. A team decision meeting was held. Mother consented to the minor being detained because she remained homeless and unable to provide the minor with care. Then, on March 2, 2010, the Department filed a section 300 petition alleging that mother's use of illicit drugs rendered her incapable of providing regular care for the minor. It further alleged that father (who the Department could not locate) had failed to provide the minor with the necessities of life such as food, clothing, shelter and medical care. In the petition, the Department misidentified father as Juan Jose V.
The jurisdictional/dispositional hearing; the Department's due diligence regarding father; father's release
At the jurisdictional and dispositional hearing on March 24, 2010, neither parent was present. The section 300 petition was sustained as to mother. The Department was instructed to provide mother with reunification services, including visitation. Because father was reportedly incarcerated, the section 300 petition pertaining to him was continued to another date. In a subsequent declaration of due diligence, the Department stated that it conducted a search for Juan Jose V. and could not find him. On July 2, 2010, father's whereabouts were unknown to the Department. The section 300 petition against him was sustained. In addition, he was found to be an alleged to father and, pursuant to section 361.5, subdivision (a), he was denied reunification services.
In June 2010, the Department filed a declaration indicating that it attempted to locate Juan V. also known as Juan Jose V or Jose V. The declaration established that the Department searched for Juan Jose V. but not Jose V. The Department again reported that father could not be located.
Unbeknownst to the Department, Father was released from prison in September 2010. Mother tried to contact him on the day of his release but was unsuccessful.
The six-month review
The Department reported that the minor's foster parents wanted to adopt him; the minor was thriving in his foster home and was appropriately attached to his foster parents; mother failed to provide proof of participation in court-ordered counseling programs; mother failed to submit drug test results throughout the life of the case; mother continued to state that she could not care for the minor or go to any programs because she was homeless. At the ensuing six-month review hearing, the juvenile court found that mother had not made any progress in drug rehabilitation, parenting classes or individual counseling, and also that mother had not regularly and consistently visited with the minor. The juvenile court terminated mother's reunification services and scheduled a section 366.26 hearing.
The second due diligence declaration; the first two section 366.26 hearings; father's section 388 petition
The Department filed a declaration indicating it had attempted to locate Juan Jose V. but that his whereabouts were unknown. The initial section 366.26 hearing was held on January 20, 2011. Neither mother nor father was present. Though the juvenile court found that notice to mother was proper, it instructed the Department to serve father by publication. To allow time to comply, the Department requested and was granted a 90-day continuance.
In the meantime, father and mother communicated through Facebook. He learned the minor had been declared a dependent.
The Department reported that the minor had been diagnosed with developmental delays. He had been in his foster home since he was six weeks old and appeared to be bonded with his foster parents. The foster parents had done research and were working with the minor to correct sensory problems.
Father appeared at the subsequent hearing on March 17, 2011. His attorney requested a continuance so that he could review the file to confirm proper notice. The hearing was continued to May 16, 2011. Subsequently, father filed a section 388 petition. He asked the juvenile court to vacate the jurisdictional order and all subsequent orders. According to father, he did not receive actual or constructive notice of the dependency proceedings until he communicated with mother on Facebook in February 2011.
Father's visitation
For the eight weeks leading up to the section 366.26 hearing, father visited the minor for two hours a week. As reported, father was on time and appropriate. But for the first few weeks, the minor had difficulty adjusting. He cried for his foster mother and needed distraction during visitations.
The third section 366.26 hearing
Mother made her first appearance on May 16, 2011, the date scheduled for a hearing on father's section 388 petition as well as a contested section 366.26 hearing. In addition, A.B.'s dependency case was set for a pretrial resolution conference. Mother was represented by attorney Ama Kumi Thomas (Thomas). Thomas indicated that she was generally appearing regarding the matter as to A.B. but that she was only specially appearing as to proceedings for the minor.
At the beginning of the hearing, Mother was questioned about A.B. The juvenile court asked if the address it had for mother was her permanent address. She said it was. Not only did mother testify about Mr. E. who was listed as A.B.'s father on her birth certificate, mother also testified that father's name was not on the minor's birth certificate; that father never lived with the minor; and that father never provided the minor with any financial support.
After the juvenile court entered orders regarding A.B., it asked Thomas if she waived notice on father's section 388 petition. She replied: "As I stated before the court, I am specially appearing only, and in my brief perusal of the file, I don't believe notice is proper. And so, I would like time to be able to file a motion to set aside findings made on the jurisdictional hearing." The juvenile court inquired as to what about the notice was improper. Thomas stated: "I'm specially appearing. I need an opportunity to review the notices."
Mother was called as a witness in connection with father's section 388 petition. She was asked questions by the minor's counsel and testified that when the minor was detained, she told the Department that father's name was Juan Jose V. and that he was 31-years old. Also, she gave the Department father's address. When asked about father's name, she stated that father told her his name was Juan Jose V. However, she called him Jose. She was then asked how she knew to tell father about the section 366.26 hearing. Mother replied: "Because I got the packet in the mail." Minor's counsel asked: "And was that the first packet you had gotten, or you had gotten some before." Mother stated: "I've gotten some before." At that point, the juvenile court cut off questioning about notice to mother because she was unrepresented. But during cross-examination by the Department's attorney, mother testified that she had received notices to come to hearings for the minor but did not attend, explaining: "It was really hard for me to get over here, as far as I was going to school, and I had other things I was doing." Then mother was posed this question: "So since March of 2010, you couldn't come to a hearing for [the minor]?" Mother stated: "Yeah, I could have." Mother was asked about an address in Pomona, and whether she received mail there. Mother said it was her "mom's house," she received mail there, and that she had lived there off and on since the minor was detained. Father's counsel asked mother if she had been living at the Pomona address consistently since the minor was removed. In response, mother stated: "Most of the time, yes."
Father testified next. He said he was incarcerated when the minor was born. When he was released, he looked for mother in familiar places and on the Internet. He went to the place he thought she used to live but the person who answered the door did not know anything about mother. When they finally communicated through Facebook, she told him that the minor was in foster care and had a court date. She gave father the date and address.
Father related a conversation with a social worker. He stated: "I told her that when [mother] did respond to me in late January, early February, [mother] stated that [the minor] was fine and that she was in a relationship. And I had told [the social worker] that . . . I didn't want to cause any trouble for [mother] . . . until—you know, I didn't want to pressure her to let me see [the minor] until, you know, [mother] came forth and told me that he was going up for adoption."
The juvenile court stated: "At this time, I do not believe that there has been any mistake committed in this case by the [D]epartment. The [D]epartment had the information given to it by [mother] in this case, albeit confusing information, from [mother]. [¶] The [D]epartment did conduct a due diligence, and it was a due diligence with the information that it was provided with the name of 'Juan Jose [V.]' [Mother] did provide the correct date of birth, the correct month. There is one year off on the year of the birth. [¶] However, with regards to the due diligence itself, it was properly done. So, in that sense, there is nothing wrong with what the [D]epartment did. . . . [¶] On the other hand, I recognize the fact that [father], apparently, goes by a different name. I do not have any government-issued identification to indicate that he goes by that name. It would help me in this situation, one way or the other. I also recognize the fact that he's giving me a different date of birth than what the [D]epartment has for him. [¶] At this time, I am going to grant the [section 388 petition]. However, that granting of the [section 388 petition], all it does is it vacates my sustaining of the two counts against [father]."
The two counts were dismissed. The juvenile court then stated: "As far as I can tell, [father] is still only an alleged father in this case. I am not ordering family reunification services for [father]. [¶] I can, also, at this time find by clear and convincing evidence that there is a substantial danger if I were to return [the minor] to [father]. He has never lived with [the minor], as far as I can tell. He has no relationship with [the minor]. [¶] I can find that there's substantial danger to [the minor's] physical health, safety, protection, or physical or emotional well-being, and there are no reasonable means by which his physical health can be protected without removing him from [father's] physical custody."
Before proceeding to the section 366.26 hearing, the juvenile court asked Thomas if she had any input. She stated: "Your honor, this is the mother's first appearance. I am specially appearing for mother. I am requesting, as previously stated, a continuance to make sure the notice was appropriate for the mother." In response, the juvenile court stated: "No. [Mother] has already testified that [the Pomona address] is her mailing address. She lived there for most of the time while [the minor] was in foster care." Thomas objected that she was unable to participate in the portion of hearing during which mother testified. The juvenile court replied: "So that's the reason why I need for you to tell me what the problem is with the notice because, otherwise, I cannot see any reason why I should continue this for [mother]. She's had notice of this hearing. She testified that she received mail regarding [the minor's] case." Thomas objected that "when [mother] was testifying, at that point, she was without counsel. I did not know that this matter was going to be heard today. I didn't have time to prepare." The juvenile court denied the requested continuance. Thomas then stated: "Then, your honor, at this point, I will request that I be taken off." The juvenile court replied: "You're not on the case. You're only specially appearing. You have refused to take this case."
The juvenile court proceeded with the section 366.26 hearing. Father's counsel indicated that father signed a declaration of paternity the morning of the hearing. Then counsel stated that father wanted to reunify with the minor and that his behavior "would indicate that he . . . may [make] a Kelsey S. motion later on in the case to change [his] status from alleged to presumed." The juvenile court replied: "He knew of this case since February [of 2010]. Why wasn't a declaration signed since then? It's not acceptable that it gets signed on the day of the contested [section 366.26 hearing]. That's not appropriate. That is too late." In addition, the juvenile court stated that the declaration was not filed with the state and therefore "I do not have a proper declaration of paternity at this point." The juvenile court found that the minor was adoptable and terminated parental rights.
To be effective, a declaration of paternity under Family Code section 7571, subdivision (d) must be signed by both parents, notarized and mailed to the Department of Child Support Services. There is no indication in the record that the declaration was signed by mother or notarized. Nor does it appear that father mailed it to the state or even filed it with the juvenile court. His declaration did not give rise to a presumption of paternity. (In re D.R. (2011) 193 Cal.App.4th 1494, 1507-1511 [rejecting declaration not properly witnessed or filed with the state].)
These appeals followed.
DISCUSSION
I. Mother's appeal.
Mother contends that the order terminating parental rights must be reversed because she was denied equal protection under the law as well as her statutory and due process right to representation. We disagree. In doing so, we exercise our independent review regarding constitutional challenges and issues of law (People ex rel. Lockyer v. Sun Pacific Farming Co. (2000) 77 Cal.App.4th 619, 632 (Sun Pacific); Clayworth v. Pfizer, Inc. (2010) 49 Cal.4th 758, 790), and we uphold factual findings if they are supported by substantial evidence. (Professional Engineers in California Government v. Kempton (2007) 40 Cal.4th 1016, 1031.)
A. Mother was not denied equal protection.
Under the concept of equal protection, similarly situated persons should receive the same treatment. (Cooley v. Superior Court (2002) 29 Cal.4th 228, 253; People v. Wutzke (2002) 28 Cal.4th 923, 943 (Wutzke) ["equal protection of the laws means 'that no person or class of persons shall be denied the same protection of the laws which is enjoyed by other persons or other classes in like circumstances in their lives, liberty and property and in their pursuit of happiness'"].)
Mother argues that she was denied equal protection because father was given a continuance of the March 17, 2011, hearing but she was not given a continuance of the May 16, 2011, hearing. But as the Department points out, mother and father were not similarly situated. He appeared at the March 17, 2011, hearing and she did not. And there is no indication in the record that he was aware of the case from its inception. She was. The record indicates that mother was in communication with social workers from the moment the minor was detained and made no effort until the eleventh hour to appear in court. It is the law that "'neither the Fourteenth Amendment of the Constitution of the United States nor the California Constitution [citations] precludes classification by the Legislature or requires uniform operation of the law [for] persons who are different . . . "with respect to the legitimate purpose of the law."' [Citation.]" (Wutzke, supra, 28 Cal.4th at pp. 943-944.) The juvenile court's legitimate purpose at the May 16, 2011, hearing was to make a decision on a permanent plan for the minor after the case had been pending for more than a year, and after mother had squandered all of that time not taking advantage of services.
B. The denial of representation was harmless error.
Absent a knowing and intelligent waiver, an indigent parent has a statutory right to the appointment of and representation by competent counsel at a section 366.26 hearing. (§§ 317, subd. (b), 317.5, 366.26, subd. (f); In re Andrew S. (1994) 27 Cal.App.4th 541, 547-549.) And in some but not all cases, a parent in a dependency proceeding has a right to appointed counsel under the due process clause of the federal constitution. (Lassiter v. Department of Social Services (1981) 452 U.S. 18, 31-34; In re Emilye A. (1992) 9 Cal.App.4th 1695, 1708; In re David H. (2008) 165 Cal.App.4th 1626, 1634, fn. 9 (David H.).) Mother argues that she was denied her statutory and due process right to representation because she was not given a continuance so that Thomas could review the record. Assuming that there was statutory and constitutional error, we must assess whether mother was prejudiced.
"With respect to a parent's assertion of a violation of the statutory right to representation or the statutory right to adequate representation, the parent must . . . show 'it is "reasonably probable . . . a result more favorable to the appealing party would have been reached in the absence of the error."' [Citations.]" (In re Meranda P. (1997) 56 Cal.App.4th 1143, 1153, applying the harmless error standard set forth in People v. Watson (1956) 46 Cal.2d 818 (Watson) as quoted by In re Kristin H. (1996) 46 Cal.App.4th 1635, 1668.) Denial of the constitutional right to representation at a dependency proceeding is reversible unless it is harmless beyond a reasonable doubt (David H., supra, 165 Cal.App.4th at p. 1634, fn. 9). This is the general standard set forth by Chapman v. California (1967) 386 U.S. 18, 24 (Chapman) regarding error with a constitutional dimension.
The record establishes harmless error under either Watson or Chapman because we can say beyond a reasonable doubt that mother would not have obtained a better result if she had been given a continuance of the section 366.26 hearing for Thomas to review the record. Mother does not contend on appeal that notice of the dependency proceedings was inadequate. Further, she does not contend, nor could she, that the juvenile court erred when it found that the minor was adoptable. Indeed, the record reveals that his foster parents wanted to adopt him. The only way for mother to prevail at a continued section 366.26 hearing would be to establish an exception to termination under section 366.26, subdivision (c)(1)(B). She does not argue that any of the exceptions are supported by the record. And, as the Department points out, she could not establish the beneficial relationship exception under section 366.26, subdivision (c)(1)(B)(i) because she did not maintain regular visitation and contact with the minor, and there was no evidence that severing the parent/child relationship would deprive the minor of a substantial, positive emotional attachment such that the minor would be greatly harmed. (In re Autumn H. (1994) 27 Cal.App.4th 567, 575 (Autumn H.).) Notably, the minor never lived with mother and reunification services were terminated at the six-month review because she did not comply with the case plan.
II. Father's appeal.
Father's Kelsey S. claim is premised on the violation of his constitutional rights to equal protection and due process. As we indicated in connection with mother's appeal, constitutional challenges call for independent review. (Sun Pacific, supra, 77 Cal.App.4th at p. 632.) The same is true of all other issues that are purely legal. (Owens v. Sands (2009) 176 Cal.App.4th 985, 989.) Factual determinations and the denial of reunification services will be upheld unless there is an absence of substantial evidence. (People v. Holmes (2004) 32 Cal.4th 432, 442; Jose O. v. Superior Court (2008) 169 Cal.App.4th 703, 708.)
A. The rights of a father under the dependency scheme.
Under the dependency scheme, a father's status can be presumed, natural or alleged. A father is presumed if he meets one of the definitions of Family Code section 7611. (In re Zacharia D. (1993) 6 Cal.4th 435, 445 (Zacharia D.).) One such definition is that the father received the child into his home and openly held out the child as his natural child. (Fam. Code, § 7611, subd. (d).) Family Code section 7611 has been construed to mean that a man who files a voluntary declaration of paternity under Family Code section 7611 qualifies as a presumed father. (In re Liam L. (2000) 84 Cal.App.4th 739, 746.) A father qualifies as a natural father if his biological paternity has been established but he does not qualify as a presumed father. A father is alleged if he might be the child's father but paternity has not been established. (Zacharia D., supra, 6 Cal.4th at pp. 448-449, fn. 15.)
Because this case hinges upon father's status, it is important to acknowledge all grounds for presumed father status. Family Code section 7611 provides in full: "A man is presumed to be the natural father of a child if he meets the conditions provided in Chapter 1 (commencing with Section 7540) or Chapter 3 (commencing with Section 7570) of Part 2 or in any of the following subdivisions: [¶] (a) He and the child's natural mother are or have been married to each other and the child is born during the marriage, or within 300 days after the marriage is terminated by death, annulment, declaration of invalidity, or divorce, or after a judgment of separation is entered by a court. [¶] (b) Before the child's birth, he and the child's natural mother have attempted to marry each other by a marriage solemnized in apparent compliance with law, although the attempted marriage is or could be declared invalid, and either of the following is true: [¶] (1) If the attempted marriage could be declared invalid only by a court, the child is born during the attempted marriage, or within 300 days after its termination by death, annulment, declaration of invalidity, or divorce. [¶] (2) If the attempted marriage is invalid without a court order, the child is born within 300 days after the termination of cohabitation. [¶] (c) After the child's birth, he and the child's natural mother have married, or attempted to marry, each other by a marriage solemnized in apparent compliance with law, although the attempted marriage is or could be declared invalid, and either of the following is true: [¶] (1) With his consent, he is named as the child's father on the child's birth certificate. [¶] (2) He is obligated to support the child under a written voluntary promise or by court order. [¶] (d) He receives the child into his home and openly holds out the child as his natural child. [¶] (e) If the child was born and resides in a nation with which the United States engages in an Orderly Departure Program or successor program, he acknowledges that he is the child's father in a declaration under penalty of perjury, as specified in Section 2015.5 of the Code of Civil Procedure. This subdivision shall remain in effect only until January 1, 1997, and on that date shall become inoperative. [¶] (f) The child is in utero after the death of the decedent and the conditions set forth in Section 249.5 of the Probate Code are satisfied."
Only a presumed father is entitled to reunification services under section 361.5 and custody of his child under section 361.2. (In re Jerry P. (2002) 95 Cal.App.4th 793, 801.) If services would benefit the child, they can be granted to a natural father. (§ 361.5, subd. (a).) "'Alleged fathers have [fewer] rights in dependency proceedings than biological and presumed fathers. [Citation.] An alleged father does not have a current interest in a child because his paternity has not yet been established. [Citation.]' [Citation.] Thus, for example, 'an alleged father is not entitled to appointed counsel or reunification services. [Citations.]' [Citation.] Due process for an alleged father requires only that he 'be given notice and "an opportunity to appear and assert a position and attempt to change his paternity status. [Citations.]"' [Citation.]" (In re Christopher M. (2003) 113 Cal.App.4th 155, 160.)
Father argues that section 361.5, subdivision (a) authorizes the juvenile court the discretionary power to grant reunification services to an alleged father. That statutory provisions provides: "Except as provided in subdivision (b), or when the parent has voluntarily relinquished the child and the relinquishment has been filed with the State Department of Social Services, or upon the establishment of an order of guardianship pursuant to Section 360, whenever 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 dependency scheme set forth in this statutory provision does not support father's contention.
B. A natural father's limited constitutional rights.
In Kelsey S., the court reviewed various statutory schemes—including the precursor to Family Code section 7611—and held they violated "the federal constitutional guarantees of equal protection and due process for unwed fathers to the extent that the statutes allow a mother unilaterally to preclude her child's biological father from becoming a presumed father and thereby allowing the state to terminate his parental rights on nothing more than a showing of the child's best interest." (Kelsey S., supra, 1 Cal.4th at p. 849.) Kelsey S. explained the rule thusly: If a natural father promptly comes forward and demonstrates a full commitment to his parental responsibilities, his parental relationship cannot be terminated absent a showing of his unfitness as a parent. (Ibid.) A court must consider the "father's conduct both before and after the child's birth. . . . Once the father knows or reasonably should know of the pregnancy, he must promptly attempt to assume his parental responsibilities as fully as the mother will allow and his circumstances permit. In particular, the father must demonstrate 'a willingness himself to assume full custody of the child—not merely to block adoption by others.' [Citation.] A court should also consider the father's public acknowledgement of paternity, payment of pregnancy and birth expenses commensurate with his ability to do so, and prompt legal action to seek custody of the child." (Kelsey, supra, at p. 849, fns. omitted; In re Elijah V. (2005) 127 Cal.App.4th 576, 583.)
A Kelsey S. father cannot obtain presumed father status on the theory that he would have received the child into his home if not for being blocked from doing so by the conduct of the mother or a third party. (Adoption of O.M. (2008) 169 Cal.App.4th 672, 678-679 (O.M.).) Moreover, a father "'"cannot compensate for his failure to [promptly come forward to offer support] by attempting to assume his parental responsibilities many months after learning of the pregnancy." [Citation.]' [Citation.]" (Id. at p. 679.) It does not violate "equal protection or due process in holding an unwed father's own criminal activity against him when assessing whether he has met the criteria for Kelsey S. rights." (O.M., supra, 169 Cal.App.4th at p. 680.) In other words, if an unwed father's criminal activity and incarceration were the main obstacles to his assumption of a parental role, Kelsey S. does not apply.
C. Father cannot attain Kelsey S. status.
Father argues that this matter should be remanded so he can make a case for Kelsey S. status and obtain reunification services.
The facts are not on father's side. At the time he was incarcerated in March 2009, he believed mother carried his child. In fact, she was three months pregnant. Yet there is no evidence that father attempted to make arrangements for the minor's care and support, or that he attempted to confirm paternity by asking mother or the courts for a paternity test. Nor is there evidence that he asked grandmother to investigate whether the minor was receiving proper care. Until he got out of prison, father did not pursue fatherhood. Based on the evidence, the primary reason he did not assume a parental role in the minor's life was his criminal activity and subsequent incarceration rather than the conduct of mother or the Department. Then, when he learned about the dependency proceeding in February 2011, he did not attempt to assume parental responsibilities by going to the Department and requesting reunification services or visitation, nor did he demonstrate a willingness to take full custody. His testimony established that he did not want to pressure mother for visitation. He did not pursue his rights until he learned that the minor might be adopted by his foster parents. Even then, father did not request a paternity test in order to change his status. And he delayed signing a faulty declaration of paternity until the section 366.26 hearing that took place on May 16, 2011, months after he learned of the case. He bears the blame for not making a prompt attempt to change his status. Having failed to establish paternity or presumed father status, father was only an alleged father. Substantial evidence supports the juvenile court's implied finding that father could not establish Kelsey S. status and that there was no impediment to the termination of parental rights.
Our conclusion is supported by Zacharia D. In that case, the appellant learned that he might be a father in October or November 2009. He met his putative child a few months later but did not attempt to form a relationship. Moreover, the appellant did not indicate a willingness to provide the child with support, nor did he communicate his suspicions of paternity to the juvenile court or to the county agency responsible for overseeing the case. Fearing that mother would lose custody, the appellant made his first appearance at the 18-month review hearing on March 14, 1991, and requested a paternity test. His request was granted and paternity was eventually established. At the end of May 1991, while he was incarcerated, the appellant filed a motion to establish a parental relationship. In particular, he sought custody and visitation rights. The motion was denied. In October 1991, the appellant's parental rights were terminated. The Zacharia D. court held that the appellant did not qualify for relief under Kelsey S. (Zacharia D., supra, 6 Cal.4th at pp. 439-444.) In the case at bar, father suspected paternity for a long period of time like the appellant in Zacharia D. And like the appellant in Zacharia D., father did not get involved in the dependency proceeding until he feared that the minor would be adopted.
Father argues that reversal is supported by In re Baby Boy V. (2006) 140 Cal.App.4th 1108 (Baby Boy V.). That case involved the following facts. The child at issue was born in February 2005. Eight months later, the child's mother first informed the appellant of his probable paternity. He immediately went to the Department's offices, asked for reunification services and said he was willing to comply with all of the juvenile court's orders. The Department refused to allow the appellant to visit the child. Instead, it told him to simply appear at the section 366.26 hearing that was scheduled for more than a month later. Subsequently, the appellant's lawyer requested a paternity test. The juvenile court denied the request and terminated parental rights. The reviewing court reversed because the facts indicated that the appellant had come forward promptly. It instructed the juvenile court to determine whether the appellant satisfied the requirements of Kelsey S. and, if so, to determine paternity. If the appellant was a natural father and a fit parent, then the juvenile court was instructed to provide him with reunification services and visitation and to reconsider anew the permanent plan. (Baby Boy V., supra, 140 Cal.App.4th at pp. 1117, 1119.)
Baby Boy V. is distinguishable. Unlike the appellant in Baby Boy V., father did not promptly come forward. Father sat on his suspicions of paternity for two years. And he did not approach the Department or the juvenile court to seek visitation or reunification services for several months after learning of the dependency proceeding. Quite simply, father waited too long to come forward.
In re Julia U. (1998) 64 Cal.App.4th 532 (Julia U.) does not compel a contrary conclusion. In that case, the appellant did not delay in asserting his interest in the child. He had contact with the Department only two months after the child was removed from her mother, and only three weeks after the Department failed to locate the appellant at the mother's address. Upon contacting the Department, he immediately said he wanted a relationship with the child if the paternity test showed that he was the natural father. In the next few weeks, he moved to California from Arizona and appeared in court to show he was committed to a parental relationship. (Id. at pp. 541-543.) Here, father did not demonstrate the same level of commitment that was demonstrated by the appellant in Julia U. And the appellant in Julia U. asserted rights before the section 366.26 hearing was set. Julia U. is distinguishable.
D. The Department's conduct is not grounds for reversal.
Under California Rules of Court, rule 5.635(g), the Department must serve an alleged father with a copy of the section 300 petition, notice of the next hearing and the Statement Regarding Parentage form (form JV-505). And according to recent case law, the Department "has a constitutional responsibility to use due diligence to notify absent parents before depriving them of that 'most basic of civil rights'—the care, custody, and companionship of their children. [Citation.]" (County of Orange v. Carl D. (1999) 76 Cal.App.4th 429, 439; In re Megan P. (2002) 102 Cal.App.4th 480 (Megan P.).) In instances in which the Department did not exercise due diligence to locate a father, some cases have reversed the dispositional orders and every subsequent order and have instructed the juvenile court to start anew. (Id. at pp. 488-490; In re Arlyne A. (2000) 85 Cal.App.4th 591, 598-600.) Nonetheless, the termination of parental rights will be affirmed if the Department's failures were harmless beyond a reasonable doubt under Chapman. (In re J.H. (2007) 158 Cal.App.4th 174, 184-185 (J.H.).)
"Form JV-505 specifically informs an alleged father that he can compel the court to determine his paternity, and gives him the means to request appointment of counsel, state his belief that he is the father of the child, and ask that the court enter judgment of paternity." (In re Kobe A. (2007) 146 Cal.App.4th 1113, 1121 (Kobe A.).) The form also advises an alleged father of his options with respect to receiving appointed counsel and participating in the case. (Id. at pp. 1121 -1122.)
"'Reasonable diligence denotes a thorough, systematic investigation and an inquiry conducted in good faith. . . . [Citation.]" (J.H., supra, 158 Cal.App.4th at p. 182.) Because the Department's due diligence declarations indicate that father was also known as Jose V., it is at least arguable that the Department should have searched for Jose V. as well as Juan Jose V. For the sake of argument, we accept father's contention that the Department was dilatory. However, we conclude that the Department's dilatory conduct was harmless beyond a reasonable doubt.
Though section 361.5, subdivision (e)(1) contemplates providing an incarcerated parent with reunification services, a juvenile court can deny those services if there is clear and convincing evidence that they would be detrimental to the child. "In determining detriment, the court shall consider the age of the child, the degree of parent-child bonding, the length of the sentence, . . . the nature of the crime . . . , [and] the degree of detriment to the child if services are not offered[.]" (§ 361, subd. (e)(1).) The minor was less than one-year old for most of the reunification period, and he had developmental delays. Father did not get out of prison until the reunification period had expired. Because they had never met, father and the minor had no bond and there was no risk of detriment to the minor. Beyond that, father never obtained a paternity test or filed a voluntary declaration of paternity, which means that he never changed his status. Given the facts, it is not likely that the juvenile court would have granted father reunification services while he was incarcerated.
Nor is it likely father would have been granted reunification services when he was released from prison. Undeniably, the minor was under three years old when he was detained. Section 361.5, subdivision (a)(1)(B) therefore applied. It provides that "court- ordered services shall be provided for a period of six months from the dispositional hearing as provided in subdivision (e) of Section 366.21, but no longer than 12 months from the date the child entered foster care . . . unless the child is returned to the home of the parent or guardian." (§ 361.5, subd. (a)(1)(B).) At the six-month review, the juvenile court was authorized by section 366.21, subdivision (e) to terminate reunification services and schedule a section 366.26 hearing. The juvenile court did so.
Due to his criminal activity and incarceration, father was unable to provide the minor with a home during the reunification period, which was the first six months of the dependency case from March to September 2009. Thus, through no fault of mother or the Department, father's ability to participate in the case during the reunification period was hampered. While a juvenile court can extend the reunification period another six months for a minor subject to section 361.5, subdivision (a)(1)(B), that is only if there is a substantial probability that the minor might be returned to a parent. (§ 366.21, subd. (e).) On this record, it was not substantially probable that the minor would be returned to a parent in that time. At the end of the first six months of the case, mother had not complied with the case plan and father had only just been released from prison. Thus, the juvenile court would not have been able to extend reunification services for an additional six months. It bears mention that regardless of father's status, he could have been denied reunification services if the juvenile court found by clear and convincing evidence that he was a parent who was convicted of a violent felony as defined by Penal Code section 667.5, subdivision (c). The record, of course, does not disclose why father was in prison. This omission is glaring and undermines father's attempt to show his eligibility for reunification services.
Whether or not father received reunification services, we conclude that he could not have blocked the termination of parental rights even if he participated in the case as early as March 2010. There was no way for him to thwart the setting of the section 366.26 hearing. Pursuant to section 366.26, the juvenile court was required to terminate parental rights if it found by clear and convincing evidence that the minor was likely to be adopted. A parent can block the termination of parental rights if he demonstrates that he maintained regular visitation and contact and the child would benefit from continuing the relationship. (§ 366.26, subd (c)(1)(B)(i).) But proving the beneficial relationship exception is a high hurdle.
The exception applies when "regular visits and contact have continued or developed a significant, positive, emotional attachment from child to parent." (Autumn H., supra, 27 Cal.App.4th at p. 575.) In other words, there must be a showing that "the relationship promotes the well-being of the child to such a degree as to outweigh the well-being the child would gain in a permanent home with new, adoptive parents." (Ibid.) The juvenile court must balance "the strength and quality of the natural parent/child relationship in a tenuous placement against the security and the sense of belonging a new family would confer. If severing the natural parent/child relationship would deprive the child of a substantial, positive emotional attachment such that the child would be greatly harmed, the preference for adoption is overcome and the natural parent's rights are not terminated." (Ibid.) Incidental benefit to a child is insufficient to trigger the exception. (Ibid.) Indeed, a "parent[] must do more than demonstrate 'frequent and loving contact' [citation], an emotional bond with the child, or that the parent[] and child find their visits pleasant. [Citation.] Rather, the parent[] must show that [she] occup[ies] 'a parental role' in the child's life. [Citation.]" (In re Andrea R. (1999) 75 Cal.App.4th 1093, 1108-1109.)
A significant parent/child attachment "results from the adult's attention to the child's needs for physical care, nourishment, comfort, affection and stimulation. [Citation.] The relationship arises from day-to-day interaction, companionship and shared experiences." (Autumn H., supra, 27 Cal.App.4th at p. 575.) The exception is "examined on a case-by-case basis, taking into account the many variables which affect a parent/child bond. The age of the child, the portion of the child's life spent in the parent's custody, the 'positive' or 'negative' effect of interaction between parent and child, and the child's particular needs are some of the variables which logically affect a parent/child bond." (Id. at p. 576.)
The minor was one-year old when father was released from prison, and they never lived together. By the section 366.26 hearing, father had a minimal relationship with the minor based on eight visits when the minor was one-and-a-half years old. Further, the record establishes that the minor is bonded to his preadoptive family. It is doubtful that a few extra months of visits would have changed that dynamic. Borrowing language from Kobe A., we conclude that "[i]t is inconceivable that the [juvenile] court would . . . remove[] [the minor] from his stable foster-preadoptive placement to place him with a father he did not know who had only recently been released from prison." (Kobe A., supra, 146 Cal.App.4th at p. 1124.)
E. Father was properly denied reunification services.
Finally, father contends that the juvenile court should have provided him with reunification services at the section 366.26 hearing.
Father does not expressly make this argument, but he hints at it. The Department, for its part, states: "Regarding disposition, the [juvenile court] ruled [that] father remained an alleged father and, therefore, should not receive family reunification services; it is from this finding which father appeals."
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Substantial evidence supported the juvenile court's decision. Because father did not obtain presumed father status by the end of the reunification period, his claim must be rejected. Our Supreme Court has explained that if 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 . . . , he is not entitled to such services under section 361.5." (Zacharia D., supra, 6 Cal.4th at p. 453; In re Vincent M. (2008) 161 Cal.App.4th 943, 964.)
DISPOSITION
The orders are affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.
_________________________, J.
ASHMANN-GERST
We concur:
_________________________, P. J.
BOREN
_________________________, J.
DOI TODD