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O.V. v. Superior Court (Fresno County Dept. of Children & Family Services)

California Court of Appeals, Fifth District
Apr 20, 2009
No. F056532 (Cal. Ct. App. Apr. 20, 2009)

Opinion

NOT TO BE PUBLISHED

ORIGINAL PROCEEDINGS; petition for extraordinary writ review, Super. Ct. No. 08CEJ300060-1, 2. Jane Cardoza, Judge.

Kenneth K. Taniguchi, Public Defender, and Alex R. Merriam, Defense Attorney, for Petitioner.

No appearance for Respondent.

Kevin Briggs, Interim County Counsel, and William G. Smith, Deputy County Counsel, for Real Party in Interest.


OPINION

THE COURT

Petitioner seeks an extraordinary writ (Cal. Rules of Court, rule 8.452) to vacate the order of the juvenile court setting a Welfare and Institutions Code section 366.26 hearing. We will grant the petition.

All further statutory references are to the Welfare and Institutions Code unless otherwise indicated.

STATEMENT OF THE CASE AND FACTS

In February 2008, the department of social services (department) took then three-year-old I. and 17-month-old J. into protective custody after their mother, M.D., left them with their maternal aunt without making provisions for their care. At the time, petitioner was serving a three-year sentence at Avenal State Prison (Avenal) for first-degree residential burglary and vehicle theft. He was also on an “INS hold.” He was expected to be released from custody in January 2009.

M.D. did not file a writ petition.

M.D. identified petitioner as the father of both children, even though at one time, she believed another man was J.’s father. She and petitioner are not married and, according to M.D., petitioner had not maintained any significant involvement in the children’s lives. In addition, he is not named on the children’s birth certificates and did not sign a declaration of paternity for either child.

On March 3, 2009, the juvenile court ordered I. and J. detained pursuant to a dependency petition, which identified petitioner as their alleged father. The court ordered a paternity inquiry as to J. The court set the jurisdictional hearing for March 19, 2008, and issued an order to authorities at Avenal to have petitioner transported for the hearing. The department placed the children together in foster care.

On March 19, 2008, petitioner appeared in custody at the jurisdictional hearing represented by counsel. M.D. did not appear. The day before, the “Parentage Inquiry-Juvenile” (form JV-500) as to J. was filed, indicating there was not a judgment of paternity. The juvenile court continued the hearing and ordered genetic testing to determine petitioner’s paternity with respect to I. and J. The court also ordered the department to assess the children’s paternal grandparents for placement and continued the hearing to April 23, 2008. The court also issued an order to Wasco State Prison (Wasco) to have petitioner transported to the April 23rd hearing.

On April 23, petitioner and M.D. appeared at the continued jurisdictional hearing. The court continued the hearing until May and several times thereafter. On June 10, the court ordered the department to follow up on the paternity testing and relative placement. On June 18, the court adjudged the children dependents of the court and set the dispositional hearing for July 2. Petitioner appeared through counsel at the hearings in May and June.

In July 2008, the department filed its dispositional report, explaining it had not been able to schedule paternity testing for petitioner because of his transfers from prison to county jail for hearings and from Avenal to Wasco and back again. The department recommended the court order reunification services for M.D. but deny them to petitioner because, as the children’s alleged father, he was not entitled to them pursuant to section 361.5, subdivision (a). The department also reported petitioner’s mother was not eligible to have the children placed with her until petitioner elevated his paternity status. In addition, according to the department, petitioner’s mother stated she was no longer interested in having the children placed with her.

On July 2, 2008, the juvenile court conducted the dispositional hearing. Petitioner appeared through counsel. The juvenile court ordered reunification services for M.D. and denied services for petitioner. The court set the six-month review hearing for October 15, 2008.

Meanwhile, paternity testing conducted in August and September 2008 confirmed petitioner’s biological paternity as to I. and J. On September 23, an order was issued to transport petitioner from Avenal to the six-month review hearing.

On October 15, 2008, the juvenile court convened the six-month review hearing. Petitioner was not transported for the hearing and his attorney informed the court he believed petitioner was transferred to Valley State Prison. Petitioner’s attorney also advised the court paternity testing established petitioner’s biological paternity and stated petitioner could elevate his paternity to presumed father if he were transported to communicate with counsel. The court stated that was not the purpose of transportation and that counsel could correspond with petitioner. Petitioner’s attorney agreed but stated he assumed petitioner would be at the hearing given the significant nature of the department’s recommendation. At the conclusion of the hearing, the court deemed petitioner I. and J.’s biological father and, at M.D.’s request, set a contested six-month review hearing for November 12. The court issued an order to Valley State Prison for petitioner’s appearance.

On November 12, 2008, petitioner appeared in custody with his attorney who filed a “Request to Change Court Order” (JV-180) pursuant to section 388 (section 388 petition) in open court. In the section 388 petition, petitioner asked the court to elevate him to I. and J.’s presumed father and offer him reunification services. The court continued the hearing to November 17.

In his section 388 petition, petitioner stated he held I. out as his son to his family and the community and, prior to his incarceration, spent weekends with I. and provided support for him. Petitioner also stated he wanted to reunify with I. and begin a relationship with J. upon his release in January 2009. Petitioner believed it would be in his sons’ best interest to be placed with him or a relative since no one willing to adopt them had been identified.

On November 17, 2008, the juvenile court conducted a combined hearing on the section 388 petition and the six-month review of services. Petitioner appeared in custody represented by counsel who provided the court and counsel a “Statement Regarding Parentage (Juvenile)” (JV-505) for I. in which petitioner claimed I. lived with him from November 10, 2005 through April 26, 2006 and from September 20, 2006 through January 8, 2007. He also named five individuals he told that I. was his child and listed holidays, birthdays, and special family events he participated in with I. He also stated he bought I. clothes as well as toys for Christmas of 2005.

County counsel recommended the court deny petitioner’s section 388 petition, arguing petitioner never established legal paternity or tried to take custody of I. In addition, petitioner did not indicate into whose home he took I. As to J., county counsel argued petitioner could not be J.’s presumed father because he never stepped forward and voluntarily tried to assert his paternity status or take custody of him.

Petitioner’s attorney argued the department’s delay in arranging paternity testing prevented petitioner from elevating his paternity status sooner. Further, because petitioner was an alleged father at the time of disposition, his attorney stated he could not set the matter for trial. Petitioner’s attorney also stated this was the first time he met with petitioner and the first opportunity to elevate his paternity status.

As to whether petitioner should be deemed I.’s presumed father, his attorney argued petitioner held I. out as his son and received him into his mother’s home where he was living at the time. Petitioner’s attorney conceded petitioner did not hold J. out as his son until he received the results of the paternity testing but explained it was because he believed another man was J.’s father.

At one point, the court focused the argument stating it needed to rule on whether petitioner was an alleged or presumed father of the children. County counsel responded by stating that the court first had to find whether providing reunification services would serve the children’s best interests. For that proposition, county counsel cited In re Eric E. (2006) 137 Cal.App.4th 252 (Eric E.), which the court reviewed during a short recess. County counsel argued that because petitioner did not establish himself as the children’s presumed father prior to the termination of services and because he was subject to deportation, it would not be in the children’s best interest to deem him a presumed father and provide him reunification services. Mother’s counsel pointed out the court had not made a ruling on reunification services to which the court responded it did so as to petitioner when it denied him reunification services. With respect to the INS hold, petitioner’s attorney explained petitioner came to the United States (U.S.) when he was two years old. However, his parents are both (U.S.) citizens and were fighting his deportation with the assistance of an attorney. County counsel informed the court the paternal grandparents were separated and the paternal grandmother no longer had housing. However, county counsel stated the social worker would meet with the paternal grandparents to assess placement.

Following argument, the juvenile court denied the section 388 petition, finding it would not be in the children’s best interest to change its order based on Eric E. The court also terminated M.D.’s reunification services, denied petitioner visitation, and set a section 366.26 hearing.

In an extraordinary writ petition filed on January 2, 2009, petitioner contends the department’s delay in arranging paternity testing violated his right to due process. He also contends the juvenile court erred in applying the “best interest” standard in denying his request for presumed father status.

On March 16, 2009, this court issued a stay of the section 366.26 hearing scheduled for March 18, 2009. This court also asked the parties to file supplemental briefing, addressing whether the juvenile court violated petitioner’s due process right to elevate himself to presumed father status and, if so, whether he was prejudiced. Having reviewed the appellate record as summarized above and all filings, we conclude petitioner was prejudicially denied his due process right to elevate his paternity status as to I. Consequently, we will grant the petition for reasons set forth in the ensuing discussion.

DISCUSSION

I. Parentage

A .Presumed, Biological, and Alleged Fathers

There are three paternity designations recognized in dependency proceedings: presumed, biological, and alleged. A presumed father is one who satisfies one of the rebuttable presumptions set forth in Family Code 7611, generally by marrying or attempting to marry the child’s mother or by publicly acknowledging paternity and receiving the child into his home. (Fam. Code, § 7611, subd. (d).) An unwed biological father may also attain presumed father status if he can demonstrate that his constitutional rights to equal protection and due process were violated in his attempts to attain presumed father status. (Adoption of Kelsey S. (1992) 1 Cal.4th 816, 849.) A biological father is one whose biological paternity has been established, but who has not achieved presumed father status. (In re Zacharia D. (1993) 6 Cal.4th 435, 449, fn. 15. (Zacharia D.).) An alleged father is a man who may be the father of the child, but has not established biological paternity or presumed father status. (Ibid.)

A man’s paternity status is important because it determines his rights vis-à-vis his child. Only presumed fathers enjoy the full array of parental rights. A presumed father is entitled to custody of his child under section 361.2 and reunification services under section 361.5, subdivision (a). (Zacharia D., supra, 6 Cal.4th at p. 451.) A biological father has no parental rights but may be offered reunification services if the court finds it would benefit the child. (§ 361.5, subd. (a).) An alleged father has no legal interest in the child until he establishes paternity. (In re O.S. (2002) 102 Cal.App.4th 1402, 1406 (O.S.).)

B. Establishing Parentage

While a man bears the burden of establishing the foundational facts to support a finding of presumed father status (O.S., supra, 102 Cal.App.4th at p. 1410), section 316.2, subdivision (a) requires the juvenile court to inquire of the mother at the detention hearing, or as soon as practicable thereafter, as to the identity and address of all possible presumed fathers. As part of its inquiry, the juvenile court must determine whether parentage has been established through court order or a voluntary declaration under the Family Code. (Cal. Rules of Court, rule 5.635 (d)(2) (rule).) If there are no prior determinations of parentage, the juvenile court must take appropriate steps to make such a determination. (Rule 5.635 (e).) The court may order the child and the alleged father to submit to paternity testing and proceed under Family Code section 7550 et seq. (Rule 5.635 (e)(2).) The court may make its determination of parentage based on testimony, declarations, or statements of the alleged parents. (Rule 5.635 (e)(3).)

If after inquiry, an alleged father is identified, the court clerk must provide him a copy of the dependency petition, notice of the next scheduled hearing, and “Statement Regarding Parentage (Juvenile)” (form JV-505) at his last known address by certified mail return receipt requested unless the petition was dismissed, dependency was terminated, the parent denied parentage and waived further notice or relinquished custody of the child. (Rule 5.635 (g).)

Form JV-505 has check boxes next to pre-printed statements through which an alleged father can indicate his position with regard to his paternity: he can deny he is the father of the child, he can indicate he does not know if he is the father and can either consent to or request paternity testing, he can indicate he believes he is the child’s father and request that the court enter a judgment of paternity, or he can indicate he has already established paternity by either a voluntary declaration or a judgment of paternity. He can also indicate he believes himself to be the child’s presumed father and ask the court to make that finding.

If a person appears at a dependency hearing and requests a judgment of parentage on form JV-505, the court must determine whether that person is the presumed parent of the child, if that finding is requested. (Rule 5.635 (h)(2).)

C. Section 388 Petition as a Means of Requesting Presumed Father Status and Reunification Services

Whether a section 388 petition is the appropriate vehicle for evaluating a request for presumed father status and reunification services depends on whether the juvenile court has terminated reunification services and set the section 366.26 hearing. This delineation in time reflects an intentional shift in focus from the parent’s fundamental interest in the care and custody of his or her child to the child’s interest in stability and permanency. The court in Zacharia D. explained:

“In developing parameters on the reunification process, ‘the Legislature balanced numerous competing fundamental interests, including the child’s compelling interest in “a placement that is stable, permanent, and which allows the caretaker to make a full emotional commitment to the child,” the parents’ compelling “interest in the companionship, care, custody and management” of their child [citation], and the “preservation of the family whenever possible.…” [citation.]’ ” (Id. at p. 446.)

The result of this balancing test was a determination that “ ‘[u]p until the time the section 366.26 hearing is set, the parent’s interest in reunification is given precedence over a child’s need for stability and permanency.’ [Citation.] ‘Once reunification services are ordered terminated, the focus shifts to the needs of the child for permanency and stability.’ [Citation.] ‘The burden thereafter is on the parent to prove changed circumstances pursuant to section 388 to revive the reunification issue.’” (Id. at p. 447.) As a result, the court held, “if a man fails to achieve presumed father status prior to the expiration of any reunification period in a dependency case, … he is not entitled to such services under section 361.5 …. [The] only remedy … [is] to file a motion to modify under section 388.” (Id. at p. 453.)

Under section 388, a party may petition the court to change, modify, or set aside a previous court order. The petitioning party has the burden of showing, by a preponderance of the evidence, that there is a change of circumstances or new evidence such that a change in the court’s previous order would serve the child’s best interests. (§ 388, subds. (a) & (d).)

II. Petitioner Was Denied Due Process

Petitioner contends his right to due process was violated by the department’s delay in arranging for paternity testing. His rationale is as follows. Had the department been more diligent in arranging for paternity testing, petitioner would have achieved biological paternity by the dispositional hearing. As a biological father, he could have compelled a determination of his presumed father status and litigated the department’s recommendation to deny him services based on his alleged father status. We disagree with petitioner’s reasoning and his conclusion.

Petitioner did not have to achieve biological paternity before asking the court to declare him I. and J.’s presumed father. All he had to do was what he did at the six-month review hearing; that is, file a JV-505 asking the court to make that determination. Nothing, including petitioner’s alleged father status, precluded him from attempting to elevate his status to presumed at the dispositional hearing. Consequently, it was not the delay in arranging paternity testing that violated petitioner’s right to due process. Rather, as we shall explain, petitioner’s right to due process was violated because the juvenile court effectively denied him the right to litigate his paternity. It did so when it failed to conduct a paternity hearing on the JV-505 and when it erroneously evaluated his paternity under the “best interest” standard of section 388.

Petitioner filed a JV-505 asking the court to deem him I.’s presumed father. Under rule 5.635 (h)(2), the court was required to make the determination. Real party in interest argues the reunification period available for I. and J. as a sibling group expired at the six-month review hearing. (§§ 361.5, subd. (a)(1)(C), 366.21, subd. (e).) Consequently, real party contends, even if the juvenile court declared petitioner the children’s presumed father, it would not have ordered reunification services. Real party draws support for this argument from Zacharia D. where the court stated: “In sum, 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 as in this case, he is not entitled to such services under section 361.5.” (Zacharia D., supra, 6 Cal.4th at p. 453.) We find Zacharia D. distinguishable on its facts.

In Zacharia D., an alleged father waited until the 18-month review hearing to request paternity testing even though he had suspected for over four months that the male child could be his biological son. (Zacharia D., supra, 6 Cal.4th at pp. 440-441.) During that time, he made no effort to establish a relationship with the child or support him. (Id. at p. 440.) At the 18-month review hearing, the juvenile court ordered paternity testing, appointed the father counsel, and continued the hearing. (Id. at p. 441.) At the continued hearing, the court asked the father what compelled him to suddenly come forward to which the father responded, “[The mother] was losing her baby, why wouldn’t I come forward?” (Ibid.) At that same hearing, the court terminated the mother’s reunification services and set a section 366.26 permanency planning hearing. (Id.) Several months later, at the 18-month review hearing for the father, the juvenile court declared him the child’s biological father based on the paternity test results and found it had no obligation to provide the father services until it declared him a parent, which it had just done. (Id. at p. 443.) The juvenile court set a section 366.36 hearing at which the father’s parental rights were terminated. (Id. at pp. 443-444.) The father appealed and the appellate court reversed, concluding he was entitled to reunification services and custody of his child. (Id. at p. 444.) In Zacharia D., the California Supreme Court granted review to determine, in part, whether a biological but not presumed father is entitled to reunification services under section 361.5, and whether such services may be requested for the first time after the 18-month review hearing. (Id. at p. 445.)

Unlike the father in Zacharia D., petitioner had a relationship with I. before initiation of the dependency proceedings. I. lived with petitioner for extended periods of time and petitioner celebrated important occasions with him and included him in family events. Granted, petitioner did not make any effort to establish a relationship with J. prior to these proceedings but, once he learned of his potential paternity, he requested paternity testing. Consequently, unlike the father in Zacharia D., petitioner did not wait until the expiration of reunification to establish his biological paternity nor did he pursue elevated paternity status for the sole purpose of assisting his children’s mother. On the contrary, it appears from the record petitioner’s efforts to attain presumed father status were genuine.

Further, the appellate record reflects petitioner was not advised of his right to elevate himself to presumed father status prior to the six-month review hearing. Neither the court clerk nor his attorney provided him a JV-505 form and his attorney waited until the six-month review hearing before discussing his paternity rights with him despite petitioner’s personal appearance at jurisdictional hearings in March and April 2008. Consequently, we disagree with real party that petitioner sat on his right to elevate himself to a presumed father. Rather, we conclude the juvenile court erred in not initially providing petitioner a JV-505 form and then not conducting a separate hearing on his request to be declared the children’s presumed father. As an aside, we also question why petitioner’s attorney did not take a more active role in advising him of his paternity rights and helping him obtain and file the proper documentation.

In addition, we disagree that petitioner’s request for presumed father status was appropriately adjudicated under the “best interest” standard of section 388. When the juvenile court adjudicated petitioner’s section 388 petition, the court had not terminated reunification services or set the section 366.26 hearing. Consequently, under Zacharia D., petitioner did not have to file a section 388 petition to establish presumed father status. Further, the case that the court relied on, Eric E. does not support what the court did. In Eric E., an alleged father was granted reunification services. (Id. at p. 256.) After his reunification services were terminated and a section 366.26 hearing set, the alleged father requested a hearing to determine whether he qualified as a presumed father. (Id. at pp. 256, 260.) The appellate court stated that “Because [the father] waited until after the reunification period was terminated and a section 366.26 hearing had been set he was required to raise the issue of his request for presumed father status in the context of a section 388 petition.” (Id. at p. 260.) Quoting Zacharia D., the court further stated, “[The father’s] claim that it is improper to consider the best interest of the child in deciding presumed father status does not apply here because “ ‘ “[u]p until the time the section 366.26 hearing is set, the parent’s interest in reunification is given precedence over a child’s need for stability and permanency.” [Citation.] “Once reunification services are ordered terminated, the focus shifts to the needs of the child for permanency and stability.” ’ [Citation.]” (Eric E. at p. 262.)

Finally, we cannot say, based on petitioner’s assertions in the JV-505 that the court’s failure to comply with rule 5.635 (h)(2) was harmless. (In re Kobe A. (2007) 146 Cal.App.4th 1113, 1122.) Petitioner stated he held I. out as his son and received him into his mother’s home for approximately five months from November 2005 through April 2006 and approximately four months from September through January 2007. There is case authority that extended visitation constitutes receiving the child into the home. (In re Richard M. (1975) 14 Cal.3d 783, 793-795.) On the other hand, we are unaware of case authority, as real party argues, that excludes the “home” of a relative if that is where the father resides or that precludes a man from being a child’s presumed father if he only holds the child out as his own to relatives.

We conclude, based on the foregoing, that the juvenile court, by not conducting a paternity hearing on the JV-505 and deciding petitioner’s paternity based on the best interests of the children, denied petitioner his right to due process by denying him a hearing on his paternity.

DISPOSITION

The stay issued in this court on March 16, 2009, is lifted. Let an extraordinary writ issue vacating the juvenile court’s orders issued on November 17, 2008, denying petitioner’s section 388 petition and setting the section 366.26 hearing. Respondent court is ordered to conduct a paternity hearing to determine whether petitioner is the presumed father of I. and J. If the court determines petitioner is the presumed father of either child, the court shall order that he receive reunification services as to that child unless the court determines that petitioner should be denied services under section 361.5, subdivision (b). If the court determines that petitioner is not the presumed father of either I. or J., the juvenile court may set a new section 366.26 hearing and advise petitioner of his right to file an extraordinary writ. This opinion is final forthwith as to this court.


Summaries of

O.V. v. Superior Court (Fresno County Dept. of Children & Family Services)

California Court of Appeals, Fifth District
Apr 20, 2009
No. F056532 (Cal. Ct. App. Apr. 20, 2009)
Case details for

O.V. v. Superior Court (Fresno County Dept. of Children & Family Services)

Case Details

Full title:O.V., Petitioner, v. THE SUPERIOR COURT OF FRESNO COUNTY, Respondent…

Court:California Court of Appeals, Fifth District

Date published: Apr 20, 2009

Citations

No. F056532 (Cal. Ct. App. Apr. 20, 2009)