Opinion
G045206 Super. Ct. No. DP018007
12-15-2011
In re A.J., a Person Coming Under the Juvenile Court Law ORANGE COUNTY SOCIAL SERVICES AGENCY, Plaintiff and Respondent, v. TITO v. , Defendant and Appellant.
Mitchell Keiter, under appointment by the Court of Appeal, for Defendant and Appellant. Nicholas S. Chrisos, County Counsel, Karen L. Christensen and Julie J. Agin, Deputy County Counsel, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
OPINION
Appeal from an order of the Superior Court of Orange County, Dennis J. Keough, Judge. Affirmed.
Mitchell Keiter, under appointment by the Court of Appeal, for Defendant and Appellant.
Nicholas S. Chrisos, County Counsel, Karen L. Christensen and Julie J. Agin, Deputy County Counsel, for Plaintiff and Respondent.
Tito V. (Tito or father) appeals from the juvenile court order denying his Welfare and Institutions Code section 388 (all statutory references to the Welfare and Institutions Code unless otherwise noted) petition to modify a previous order terminating reunification services. Tito contends the juvenile court's rulings are void because the Orange County Social Services Agency (SSA) did not exercise reasonable diligence to locate and notify him of the proceedings. He also argues the evidence did not support section 300 jurisdiction or removal under section 361. He further contends the juvenile court erred by failing to appoint counsel for him in June 2010, and SSA failed to send him a parentage statement form that could have established his presumed father status at an earlier date. For the reasons expressed below, we affirm.
I
FACTUAL AND PROCEDURAL BACKGROUND
On January 4, 2009, A.J. (born August 2004) and her younger half siblings, B.J. (born April 2006) and Y.J. (born June 2008), were taken into protective custody after their mother, Kathleen J. (mother), brought seven-month-old Y.J. to the hospital with vaginal bleeding. A medical examination revealed Y.J. had suffered numerous injuries, including a rib fracture, a lacerated liver, probable arm and leg fractures, vaginal and anal tearing, and a swollen foot. Javier F., Y.J.'s father, confessed to police officers he digitally penetrated Y.J. while under the influence of methamphetamine.
SSA filed a petition under section 300 alleging the girls came within the juvenile court's jurisdiction because there was a substantial risk they had or would suffer serious physical harm (§ 300, subd. (a)), the children had suffered or were at risk of suffering serious physical harm resulting from the parents' inability to supervise or protect them (§ 300, subd. (b)), the children had suffered or were at risk of suffering sexual abuse (§ 300, subd. (d)), and Y.J. had been subjected to acts of cruelty (§ 300, subd. (i)).
The petition and detention report identified Tito as AJ.'s alleged father. According to the detention report, Tito's "whereabouts [were] unknown in Arizona." Tito's name was not listed on A.J.'s birth certificate and he had not signed a declaration of paternity. Mother reported they had not been married, he had never lived with or supported A.J., and claimed Tito had last seen A.J. when she was one month old.
At the detention hearing, mother's attorney represented that mother had contacted Tito's sister through the "MySpace" social networking Web site, and Tito had contacted mother the day before the detention hearing. Mother stated she believed Tito was in Tucson, Arizona, and she would provide the MySpace information to the social worker. The juvenile court directed mother to provide contact information for the paternal aunt, and directed SSA to "follow up with . . . any [child] support proceedings . . . to ascertain locations . . . with reference to paternity." The court reserved the issue of A.J.'s paternity. The girls were placed together in a foster home at the end of January 2009.
The initial report for the jurisdiction hearing described SSA's unsuccessful efforts to locate Tito. The social worker provided the MySpace address to SSA's Indian Child Welfare Act (ICWA) unit and was "informed that no previous ICWA referral had been submitted. One was completed and submitted with the contact data provided by" mother. A social worker assigned to SSA's Absent Parent Search Unit submitted a declaration detailing efforts he made to find Tito using combinations of his name, date of birth, and social security number. The search began after the worker received an "Absent Parent Search Referral." The referral did not provide Tito's physical description or "any names, addresses, or phone numbers of family or friends of the subject which would enhance the likelihood of obtaining his current address." The worker searched various state and private databases, including the Child Support Enforcement National Database, the Child Welfare System/Case Management Services, the Orange County Social Services Agency CalWIN Data System, the Orange County Bureau of Vital Statistics, the California State Index for Medi-Cal, the California Department of Motor Vehicles, Equifax Information Services System, the Pima County, Arizona Jail Index, and Pima County, Arizona Sheriff's Department Index System, and the California Department of Corrections. The search unit worker obtained two addresses for Tito in Tucson, and sent notice of the proceedings by certified mail. Receipt at one address was signed by a person other than Tito. SSA received no response from the second address. The declaration did not include information on whether the worker attempted to contact Tito through the paternal aunt's MySpace account.
At a hearing in early February 2009, mother informed the court she had given the assigned social worker the MySpace information for the paternal aunt. SSA's counsel noted she did not "see a reference to that in the search" declaration. The court directed SSA to follow up with the information provided by mother. On February 11, the court ordered SSA to provide further notice to Tito pursuant to a stipulation of the parties.
A February 26 addendum report included a narrative from an ICWA social worker describing the investigative steps taken after mother suggested Tito might have Indian ancestry. Mother stated she communicated with the paternal aunt through MySpace and agreed to provide any contact information for Tito if she could obtain it. The social worker received a call from the paternal great-grandmother stating she and the paternal grandmother were registered with the Pascua Yaqui tribe, but she did not know if Tito was registered. She provided "all known family information," but she did not have contact information for Tito or the paternal grandmother. The paternal great-grandmother did not return the ICWA worker's subsequent calls.
The report also contained information from the search unit worker stating he "was not aware that we utilized My Space sites for search efforts. I would need to create an account on My Space to do so. I will speak with my supervisor regarding this issue. Please provide relative's contacts if I need to contact relatives." The assigned social worker spoke with mother, who told her she sent a message via MySpace to the paternal aunt for information concerning ICWA and asked the aunt to contact the ICWA social worker directly. Mother said she no longer had access to the Internet and or other means to contact the aunt.
On March 5, 2009, mother pleaded no contest to the allegations of SSA's petition as amended. The court found SSA had exercised due diligence in its efforts to locate Tito, notice of the hearing had been provided as required by law, and the court entered his default. The court ordered family reunification services for mother.
Mother initially complied with the case plan, and the court returned the children to her care with a family maintenance plan in December 2009. But in May 2010, SSA filed a supplemental petition (§ 387) asserting the previous disposition had been ineffective in protecting the children. SSA reported mother left its mother-child residential facility after several rule violations, became homeless with her daughters and moved to an unapproved residence without notifying SSA. She also missed required drug tests, failed to attend 12-step meetings or participate in counseling, and had exposed her daughters to domestic violence committed by a current boyfriend, Ricardo, by whom she had become pregnant. Mother admitted she could not currently provide adequate care for her daughters. She desired to move to Arizona, and have her mother care for the girls.
SSA's supplemental petition detention report noted Tito was "reported to be in prison in Arizona" and SSA planned a search referral. At the detention hearing, mother's lawyer reported mother believed Tito was in an Arizona prison. Mother stated he had written her twice and called her once months earlier. She believed he had an original release date in May 2010, but later was sentenced to more time in custody. Court staff could not locate Tito on California or Arizona prison web sites. The court directed mother to provide contact information to the social worker.
In her initial report for the jurisdiction hearing on the supplemental petition, the social worker advised the court the family had exhausted the limit for reunification services, the prognosis for reunification was poor, and recommended setting a selection and implementation hearing (§ 366.26). The social worker reported Tito telephoned her on June 2, 2010, and acknowledged he had received court documents concerning A.J.He explained he had entered prison three months after A.J. was born and lost touch with mother after she moved to California. He was married now and had a two-year-old daughter. He claimed to have written mother asking for information about A.J., and wanted to "'see how I can help with the situation so long as [mother]'s gonna get [A.J.] back.'"
On June 28, SSA submitted a declaration from an absent parent search worker reflecting he obtained an address for father in Sahuarita, Arizona, through the Child Support Enforcement National Database. This address had not appeared in the prior absent parent search. The worker sent father notice of the June 28 hearing along with a copy of the JV-505 parentage statement. The worker received acknowledgment of receipt bearing father's apparent signature.
Tito admitted never supporting A.J., but claimed he always told mother "'where I was at.'" He held himself out as A.J.'s father, and was willing to take care of his daughter and "'[w]hatever I got to do to be in my daughter's life, I'll do.'" Tito wanted an attorney appointed to assist him. The social worker responded he should attend the hearing scheduled for June 28, 2010, if it did not violate terms of his probation, and should immediately complete and return a parentage statement. Tito declared he intended to attend the hearing and would return the parentage form.
Tito called a few days later and left a message asking whether the "'next court [date] on July 8'" was for a trial or to set another date "'so I could [k]now if to be there or not.'" The social worker advised him to attend the June 28 hearing "as previously discussed, to be assigned an attorney and evaluated for presumed status."
The social worker spoke with Tito again on June 21. He was uncertain whether he would attend the upcoming hearings, and claimed he did not receive the parentage form. The social worker told him she would send another form via certified mail and that he should return it immediately.
Tito did not appear at the June 28 or July 8 hearings, nor did he return the parentage form. On July 8, mother pleaded no contest to the amended allegations of the section 387 petition. The juvenile court found SSA had exercised due diligence to locate father and entered his default. The court also found A.J. was ineligible for registration as an Indian child under ICWA.
The disposition hearing was continued several times. On November 3, 2010, the juvenile court appointed counsel to represent Tito. On January 14, 2011, the court conducted a paternity hearing with Tito testifying telephonically from an Arizona jail. Tito claimed he was A.J.'s father, acknowledged he had never married mother, but lived with her during most of the pregnancy. They lived in Tucson and then moved to Las Vegas and lived with the maternal grandmother, but he moved out of the house before A.J. was born. He was not present at A.J.'s birth, but arrived 30 minutes later. He explained he did not sign the birth certificate because he did not have valid identification. He lived with mother and A.J. at the maternal grandmother's home for three months after A.J. was born. They did not pay rent, but he helped pay for diapers and clothing. After that, he visited mother and A.J. until he went to prison two months later. He told family and friends he was A.J.'s father. He talked to mother on the phone when she lived in Las Vegas, but lost contact when she moved to California. He last spoke with A.J. in 2008, and tried contacting her by phone and letters. He acknowledged he had never paid child support. He testified he would sign a voluntary declaration of paternity and have his name added to the birth certificate. Tito spent 2009 in prison, then gained his release, but was again arrested and in custody since September 2010, awaiting a January trial on charges of illegally possessing a firearm. Tito did not know how long he would have to serve if convicted.
The court denied without prejudice Tito's request for presumed father status under Family Code section 7611 because he did not receive the child into his home and there was no evidence "he held [A.J.] out generally" as his daughter. The parties agreed Tito might qualify under Family Code section 7574 if he and mother executed a declaration of paternity.
Section 7611 provides, in relevant part: "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: [¶] . . . [¶] . . . (d) He receives the child into his home and openly holds out the child as his natural child."
On January 19, the juvenile court declared the children dependents of the juvenile court and that reasonable efforts had been made to eliminate the need to remove the children from the home. The court found that vesting custody with the parents would be detrimental to the children and further reunification services need not be offered. The court scheduled a hearing to select a permanent plan (§ 366.26) for May 18, 2011.
Tito filed a modification petition (§ 388) requesting the juvenile court change its January 19, 2011, order that denied Tito presumed father status and terminated family reunification services. He again sought presumed father status, asserting he and mother had signed and submitted to Nevada authorities a voluntary declaration of paternity form. He requested family reunification services and a visitation plan, and asked the court to vacate the section 366.26 hearing and set a six-month review. He also asked that his family members be evaluated for placement. He asserted it was in A.J.'s "best interest to have a relationship with her father and her paternal family, including the opportunity to reunify with her biological father and relatives who love and care for her."
At the April 4 hearing on the section 388 petition, Tito argued his declaration of paternity in Nevada entitled him to presumed father status and at least 12 months of reunification services even though the "reunification period had passed." Counsel asserted the social worker should have arranged to have counsel appointed for Tito after the June telephone conversation, but allowed him to "slip[] through the cracks" and therefore he had no legal representation until November 3. She argued if counsel had been appointed in June 2010, Tito could have established paternity before the reunification period ended, around July 7, 2010, and received reunification services or even placement of A.J., since he was not then in custody. Counsel also complained the social worker did not ask Tito in June 2010 about his "wants or . . . desires" or inquire into his background.
The juvenile court granted Tito presumed father status, but denied his request for reunification services because "time has expired for reunification services." The court noted A.J. was six years old, Tito had not been involved in her life, and he did not take any steps in June 2010 to "follow through to secure an appointment [of counsel] or to take any . . . affirmative steps, to establish his paternity." The court scheduled a further hearing to determine whether visitation with Tito would be detrimental and whether paternal relatives should be evaluated for possible placement if the current placement failed.
II
DISCUSSION
A. Section 388 — Standard of Review
Father appeals from the juvenile court order denying his modification petition under section 388. To prevail under this section, Tito bore the burden to show both a change of circumstances and that the proposal change was in the child's best interests. (In re Alexis W. (1999) 71 Cal.App.4th 28, 36; see, e.g., In re Anthony W. (2001) 87 Cal.App.4th 246, 251 [petitioner must "demonstrate how a change in the order would be in the best interest of these children"].) Section 388 serves "as an 'escape mechanism' to ensure that new evidence may be considered before the actual, final termination of parental rights." (In re Hunter S. (2006) 142 Cal.App.4th 1497, 1506.) "[T]he change of circumstances or new evidence must be of such significant nature that it requires a setting aside or modification of the challenged prior order." (Ansley v. Superior Court (1986) 185 Cal.App.3d 477, 485.) We review a juvenile court's summary denial of a modification petition for abuse of discretion (In re Stephanie M. (1994) 7 Cal.4th 295, 316-319), and therefore must affirm unless the decision "'"exceeded the bounds of reason . . ."'" (In re Brittany K. (2005) 127 Cal.App.4th 1497, 1505; In re Kimberly F. (1997) 56 Cal.App.4th 519, 532). B. Tito Forfeited Claims Concerning Notice
Father first contends the juvenile court's "decisions are void" because SSA failed to exercise reasonable diligence in locating him, resulting in delayed notification of the proceedings and a violation of his constitutional right to adequate notice. He asserts SSA did not impress upon mother or the paternal great-grandmother the importance of finding father to enable him to participate in the proceedings and did not ask them if they knew of his friends or other relatives who might have known how to locate him. He also complains SSA ignored information that mother communicated with the paternal aunt through the MySpace social networking platform.
Based on his citations to the record, father complains on appeal that SSA's failure to locate him in advance of the March 2009 jurisdictional hearing on the initial petition resulted in his default. Tito's section 388 petition, however, did not seek to set aside the March 2009 jurisdictional order or his associated default. Rather, Tito's April 2011 modification petition focused on the delay in appointing counsel after Tito surfaced in early June 2010. He failed to clearly raise the adequacy of SSA's search efforts and notice leading up to the March 2009 jurisdictional hearing. Moreover, Tito waited until April 2011 to raise the notice issue, although the court appointed counsel in November 2010. As SSA argues, parties must promptly raise notice issues in the juvenile court so that ameliorative action can be taken. (In re Wilford J. (2005) 131 Cal.App.4th 742.)
In In re P.A. (2007) 155 Cal.App.4th 1197, a father sought to overturn the order terminating his parental rights, claiming he had not received notice of the jurisdiction and disposition hearings. The court concluded he forfeited the claims because he failed to raise the issue at several subsequent hearings once he became aware of the proceedings. (Id. at p. 1204.) Had Tito apprised the juvenile court of the issues he now raises, the court could have heard testimony from the social worker and other witnesses to clarify SSA's efforts to locate him, including whether SSA impressed upon mother and the paternal relatives the importance of finding father, whether SSA requested the paternal great-grandmother to provide contact information for father if she obtained any, and whether and how SSA utilized the paternal aunt's MySpace information. He may not raise these issues for the first time on appeal. C. SSA Exercised Due Diligence in Attempting to Provide Notice
Based on the record, Tito's arguments also fail on the merits. Parents have a fundamental interest in the care, companionship, and custody of their children. (Santosky v. Kramer (1982) 455 U.S. 745, 758.) Due process requires an alleged father receive notice and an opportunity to appear so that he may argue for a change to his paternity status. (In re Paul H. (2003) 111 Cal.App.4th 753, 760.) SSA must exercise "'reasonable diligence'" in locating an alleged parent or otherwise to provide notice. (David B. v. Superior Court (1994) 21 Cal.App.4th 1010, 1016 (David B.).) Reasonable diligence means a "'thorough, systematic investigation and inquiry conducted in good faith . . . .'" (Ibid.) There 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 . . . ." (In re Justice P. (2004) 123 Cal.App.4th 181, 188.)
As noted above, SSA's petition and detention report identified Tito as an alleged father of unknown whereabouts, potentially living in Arizona. Mother reported Tito last saw A.J. when she was one month old. Mother informed the social worker she maintained contact with Tito's sister through MySpace, and claimed Tito contacted her the day before the detention hearing. She believed he was in Tucson, Arizona, and offered to provide the MySpace information to the social worker. The juvenile court directed SSA to "follow up with . . . any [child] support proceedings . . . to ascertain locations . . . with reference to paternity."
A man who may be the father of a child, but whose biological paternity has not been established, or, in the alternative, has not achieved presumed father status, is an "alleged" father. (See In re Shereece B. (1991) 231 Cal.App.3d 613, 620-621.)
The initial report for the jurisdiction hearing reflected Tito's whereabouts remained unknown. The social worker gave the aunt's MySpace address to the ICWA unit investigating Tito's Indian heritage. A social worker assigned to SSA's absent parent search unit submitted a declaration detailing efforts he made to find Tito using combinations of his name, date of birth, and social security number. Despite not having Tito's physical description or "any names, addresses, or phone numbers of family or friends of the subject which would enhance the likelihood of obtaining his current address," SSA's search of various governmental and private databases resulted in locating two addresses for Tito in Tucson. SSA mailed notice of the proceedings by certified mail. Receipt at one address was signed by a person other than Tito, and SSA received no response from the second mailing.
At a hearing in early February 2009, mother apprised the court she had supplied the MySpace information for the paternal aunt to the assigned social worker. SSA's counsel noted she did not "see a reference to that in the search dec[laration]." The court directed SSA to follow up with the information provided by mother, and on February 11, the court ordered SSA to provide further notice to Tito.
The February 26 addendum report included a narrative from the ICWA social worker who investigated Tito's ancestry. The social worker received a call from the paternal great-grandmother who provided "all known family information," but did not have contact information for Tito or the paternal grandmother. The paternal great-grandmother failed to return subsequent calls.
The report also contained a message from the search unit worker explaining he was unaware SSA used MySpace sites for search efforts, and to do so he would need to speak to his supervisor and create an account on MySpace. On March 5, 2009, mother pleaded no contest to the allegations of SSA's petition as amended. The court found SSA had exercised due diligence in its efforts to locate Tito, notice of the hearing had been provided as required by law, and the court entered his default.
The record demonstrates SSA contacted Tito's relatives and other persons likely to know of his whereabouts. SSA received all "all known family information" from mother and the paternal great-grandmother. There is nothing in the record to suggest mother or other relatives knew Tito's address or how to contact him. Indeed, SSA's follow-up calls to the paternal great-grandmother were not returned.
The record does not affirmatively demonstrate SSA ignored the aunt's MySpace information. Although it does not appear the search unit worker initially utilized the information, the juvenile court directed SSA to follow-up with the information about the paternal aunt. The assigned social worker stated she had submitted the My Space address to the ICWA unit. We may not assume in the absence of a record and findings to the contrary that SSA ignored the MySpace lead in attempting to contact Tito and ascertain an address for him. In any event, SSA points out mother did not know the paternal aunt's last name, had no physical address for her, and "[i]t is entirely speculative whether this social media could have ultimately enabled notice to Tito."
Tito complains about the lack of notice for the jurisdictional hearing, but he did receive notice of the supplemental petition. A comparison of the two declarations reflects search unit workers relied on the same databases and resources. The second search uncovered Tito's address, which had not appeared during the first search. We cannot deem the steps SSA took to locate Tito in the first search were inadequate when the identical steps proved successful in the second search. We must focus on whether SSA conducted a diligent inquiry in good faith, not on the ultimate result. We therefore conclude SSA exercised reasonable diligence to locate Tito and to provide notice before the juvenile court entered Tito's default in March 2009.
Tito relies on David B., supra, 21 Cal.App.4th 1010, but that case is distinguishable. There, a father sought to overturn a judgment terminating his parental rights on the ground that he lacked notice. The father's name was on the child's birth certificate and the Department of Social Services knew father was serving in the United States Marine Corps. "DSS failed to take the one step which patently appeared to hold the most promise of locating petitioner — an inquiry addressed to [the Marines]. That such an inquiry would have been fruitful is evidenced by the fact that the district attorney was able to find petitioner's address by the time the child was three months old. [¶] The term 'reasonable diligence' as used to justify service by publication 'denotes a thorough, systematic investigation and inquiry conducted in good faith . . . .' [Citation.] Where the party conducting the investigation ignores the most likely means of finding the defendant, the service is invalid even if the affidavit of diligence is sufficient." (Id. at p. 1016.)
Here, the evidence did not show contacting A.J.'s paternal aunt was the most likely means of finding Tito. Even assuming the paternal aunt would have responded to a MySpace inquiry, no evidence showed she had information that would help SSA contact Tito. As described above, SSA conducted a diligent inquiry in good faith. The absence of evidence to support Tito's claim may stem from Tito's failure to raise the issue below. Thus, Tito forfeited the issue of defective notice, but the claim lacks merit in any event. D. Tito Forfeited Claims Concerning Jurisdictional and Detriment Findings
Father next complains the juvenile "court erred in finding detriment from father's custody of [A.J.]" Tito notes the court entered his default at the March 2009 jurisdiction hearing, and the petition made several allegations "against" him, including that he knew or should have known A.J. was at risk of abuse and he failed to provide ongoing care or maintain a relationship with her. But he contends "none of these asserted grounds properly established detriment; Father was nonoffending regarding the dependency proceedings." Tito asserts his "failure to protect" could not support jurisdiction under section 300, subdivision (b), because he "had no reason to know of Stepfather's abuse." He notes mother and A.J.'s babysitter did not suspect Y.J. was being abused, and "[e]ven if [he] had remained in regular telephone contact with Mother, he would not have learned anything . . . ."
Tito also argues there was no evidence the children lacked food, clothing, or other necessities. But this is not a case where jurisdiction and disposition were premised solely on a finding of lack of support. (In re Anthony G. (2011) 194 Cal.App.4th 1060, 1065 [no jurisdiction for failing to provide necessities where child receives them from another source].)
We must reject Tito's claim because he did not attack the March 2009 jurisdictional or dispositional findings in his section 388 petition. Nor did he raise these claims at any other time during the proceedings. He may not do so for the first time on appeal. In re G.S.R. (2008) 159 Cal.App.4th 1202 (G.S.R.)does not provide to the contrary. There, the appellate court reversed a juvenile court's termination of a presumed father's parental rights because it had never found him to be an unfit parent. The appellate court rejected the agency's assertions the father waived his right to complain by failing to object to or appeal from the disposition orders, by which he agreed the boys could be placed with his mother. "We cannot see the benefit of a rule that would require a parent to seek appellate review when the allegations against him have been stricken, and the only problem is that the juvenile court's focus was directed at Gerardo's sobriety, an issue that no longer existed, and a disposition plan Gerardo believed was temporary." (Id. at p. 1213, fn. 6, italics added.) Here, unlike the procedure in G.S.R., the court made specific findings, but Tito took no action in the lower court to have the section 300 allegations or detriment findings set aside. E. The Juvenile Court Did Not Err in Making Its Jurisdictional Findings
Tito's claims also fail on the merits. If Tito did not know of mother's precarious domestic situation and the stepfather's abuse, which placed A.J. at risk of severe physical and emotional harm, it was because he had abandoned A.J. when she was a month old. Although he did not directly commit any physical abuse, his neglect can hardly be described as benign. His failure to maintain a relationship with A.J. resulted in his failure to protect her, which established detriment. It is pointless to speculate what father would have learned had he established and maintained regular contact with his daughter.
In In re Gladys L. (2006) 141 Cal.App.4th 845, the father appeared at the detention hearing, submitted to the court's jurisdiction and then disappeared for three years. In contrast to this case, the agency "never filed a petition alleging that [the father] violated any provision of the Welfare and Institutions Code, and he was never adjudicated to be an unfit parent," and the court never found the return of his daughter to his custody would cause her detriment. (Id. at p. 848.) Here, the juvenile court found Tito failed to protect A.J. from the risk of physical and emotional abuse (§ 300, subd. (b)), and also found return of A.J. to her parents would cause detriment.
Similarly, in G.S.R., the appellate court noted the lack of detriment concerning the father in that case was "compelling. He ha[d] been involved with his sons throughout their lives, before and during this dependency proceeding. He always provided financial support, visited regularly, participated in the boys' schooling by helping with homework, and attending an IEP meeting and awards ceremony, and maintained contact with DCFS even when he lacked a place to live. The record strongly suggest[ed] the only reason Gerardo did not obtain custody of the boys was his inability to obtain suitable housing for financial reasons. [Fn. omitted.]" (G.S.R., supra, 159 Cal.App.4th at p. 1212, original italics.) The same cannot be said about Tito. F. No Procedural Errors Occurred in June 2010
Tito next argues reversal is required because the juvenile court and SSA failed to provide him an attorney in June 2010, which deprived him of an opportunity to establish paternity. Had he received counsel in June 2010, Tito argues "she would have explained to him the procedure for establishing paternity, and insured that [he] received the [parentage statement] form. Likewise, if [he] had been able to establish . . . paternity, he would have become a presumed father and thus entitled to counsel. (§ 317.)"
We disagree with Tito that SSA "fail[ed] to send the [parentage] form." As recounted above, the evidence supports the inference Tito received two copies of the form and elected not to return either one. We also disagree the juvenile court erred by failing to appoint counsel in June 2010. Section 317, subdivision (b), requires the juvenile court to appoint counsel for a "parent" who cannot afford an attorney when the minor is placed in out-of-home care. However, an alleged father "is not a 'parent' within the meaning of section 317." (In re O.S. (2002) 102 Cal.App.4th 1402, 1406.) An alleged father is entitled only to notice, which "provides him an opportunity to appear and assert a position and attempt to change his paternity status. [Citations.]" (Id. at p. 1408.) As long as Tito's status remained that of an alleged father, he did not have a statutory right to counsel. The social worker advised him to return the forms immediately and attend the hearing. He could not have been misled that his dual failures to heed the worker's advice would result in the appointment of counsel and representation in the proceedings. Tito was not deprived of the opportunity to obtain counsel and establish presumed father status. G. Tito Did Not Appeal from January 2011 Order Denying Him Presumed Father Status; Juvenile Court Did Not Err When It Denied Tito Presumed Father Status in January 2011
Based on comments by the parties in the juvenile court, it may be that the juvenile court occasionally appoints counsel for alleged or biological fathers as a matter of discretion. But no abuse of discretion appears here. Father was advised to return the parentage forms and to attend the hearings to obtain counsel. He indicated he would do so, but failed to appear or contact the social worker, and did not return the forms. He never explained why he did not attend the hearings or return the forms. He apparently did not reenter custody until September 2010.
Tito also argues the juvenile court erred in January 2011 when it denied him presumed father status, which was an appealable order issued after the dispositional judgment. (§ 395, subd. (a)(1) ["A judgment in a proceeding under Section 300 may be appealed in the same manner as any final judgment, and any subsequent order may be appealed as an order after judgment."].) Tito failed to appeal from the January 2011 order. Accordingly, his claims are foreclosed. Tito also failed to request the court to reconsider the January order in his section 388 petition. Rather, he requested a new order granting him presumed father status based on submission of the Nevada declaration of paternity.
In any event, a challenge to the January 2011 order would fail. We apply the substantial evidence standard of review. (In re Angelia P. (1981) 28 Cal.3d 908, 924.) Under California Family Code section 7611, subdivision (d), presumed father status is given to a man who "receives the child into his home and openly holds out the child as his natural child." The court found Tito had not received the child into his home because he had lived rent-free with mother and A.J. at the maternal grandmother's home for a few months after A.J.'s birth. The court also found no evidence showed father held A.J. out as his daughter to the public, as opposed to his friends. Substantial evidence supports the court's findings.
In In re Spencer (1996) 48 Cal.App.4th 1647, 1653-1654, original italics, the court affirmed the lower court's denial of presumed father status because the father's actions as a whole "were not sufficient to satisfy the requirement that Leonard 'openly and publicly admit paternity.'" There, the evidence showed father had claimed paternity to friends and family, but not where it might have resulted in some cost to him. (Id. at p. 1654.) The father "failed to take formal steps to place his name on the birth certificate, to establish paternity by legal action, or to assume the financial obligations for child support," and also failed to assert his parental rights when denied access to the child. (Ibid.) The court noted that father's "years in prison were marked by an indifference toward establishing or maintaining a parental relationship with [the child]." (Ibid.)
This case is nearly identical to In re Spencer. Here, father failed to take formal steps to establish paternity on the birth certificate, failed to take any subsequent legal action to establish paternity, and failed to contribute financially to the upbringing of A.J.. Tito never sent any financial support to mother, despite mother telling him she filed for child support. Furthermore, Tito admits he lost contact with A.J. and did not know how to locate her after he went to prison.
Father cites In re Reyna (1976) 55 Cal.App.3d 288, 298, for the proposition "[t]he presence of grandparents in the home does not defeat the presumed father designation." There, the father brought the child into his home at his parent's place, where he presumably had lived his entire life. (Id. at p. 292.) In contrast, Tito moved into the maternal grandmother's home, rent-free and for only a handful of months. There is no indication he considered this his home. And, while mother and Tito did live together after conception but prior to living with the maternal grandmother, Tito admits they had some difficulties and did not live together consistently. It is unclear how long this period lasted, but father failed to show he considered this his home.
Father also contends the lower court erred in placing emphasis on the short duration he lived with mother after A.J. was born. He cites In re Richard M. (1975) 14 Cal.3d 783, 794, for the proposition there is no durational requirement for "receipt" of the child. But in Richard M., the father accepted the child into his home for two to four weeks after birth, and every other weekend after that. Here, the lower court denied father's request for presumed status after considering the short duration and the fact father never opened his own home to A.J. This finding was supported by substantial evidence.
In any event, even if Tito had obtained presumed status at the January 14 hearing, it was six months after the reunification period ended. For the reasons discussed below, presumed status at this point in time would have made no difference regarding father's request for reunification services or visitation. H. The Juvenile Court Did Not Err When It Denied Tito's April 2011 Request for Reunification Services
Finally, father contends the juvenile court erred when it denied his request for reunification services in April 2011. He asserts he did not receive services "due to external factors beyond his control" and "constitutional error compels deviation from the statutory provisions."
Only presumed fathers are entitled to reunification services. (In re Paul H. (2003) 111 Cal.App.4th 753, 760.) Section 361.5 subdivision (a)(3), provides "court-ordered services may be extended up to a maximum time period not to exceed 18 months after the date the child was originally removed from physical custody of his or her parent or guardian . . . ." The Supreme Court has noted "in order to prevent children from spending their lives in the uncertainty of foster care, there must be a limitation on the length of time a child has to wait for a parent to become adequate. [Citations.] . . . [¶] . . . Once reunification services are ordered terminated, the focus shifts to the needs of the child for permanency and stability." (In re Marilyn H. (1993) 5 Cal.4th 295, 308-309.) After reunification services are terminated, "[t]he burden thereafter is on the parent to prove changed circumstances pursuant to section 388 to revive the reunification issue." (Id. at 309.)
Tito argues "[t]hese principles . . . do not apply where the parent never received reunification services due to governmental error." (Original italics; see, e.g., In re Elizabeth R. (1995) 35 Cal.App.4th 1774.) He asserts "multiple errors in this case amounted to an external factor that prevented [him] from participating in the case plan." The errors include "the denial of notice" and "the delay in obtaining counsel and presumed father status." He asserts had he "received notice in time for the initial proceedings . . . , he could have obtained custody" as "a nonoffending, noncustodial parent . . . entitled to custody upon request." He asserts, without reference to evidence in the record, he would have sought custody even though he had expressed no willingness in the past because "the past involved different circumstances. [Tito] was understandably reluctant to move with his new family . . . to California, where he would have to deal with Stepfather, and never have more than a share of custody."
As explained above, Tito's claims concerning notice and counsel fail. He eschewed the social worker's advice to return parentage forms and to attend the proceedings in June 2010, where he could have established his paternity, obtained counsel, and requested custody. The 18-month reunification period expired in early July 2010. It was father's burden to demonstrate changed circumstances justifying reunification services after he received presumed father status in April 2011. He has not shown the court's refusal to extend the reunification period constituted an abuse of discretion. Tito was a stranger in A.J.'s life. At the time of the hearing on the section 388 petition, A.J. had lived for over a year and a half with her siblings in a stable foster home. The foster mother expressed an intent to adopt the children. Father was incarcerated with no release date in sight. The juvenile court did not err or abuse its discretion by denying Tito's request for reunification services.
III
DISPOSITION
The order denying the section 388 petition is affirmed.
ARONSON, J. WE CONCUR: BEDSWORTH, ACTING P. J. IKOLA, J.