Opinion
NOT TO BE PUBLISHED
ORIGINAL PROCEEDINGS; petition for extraordinary writ review Super. Ct. No. 89042. Jamileh Schwartzbart, Temporary Judge. (Pursuant to Cal. Const., art. VI, § 21).
Katherine M. Fogarty for Petitioner.
No appearance for Respondent.
Janelle E. Kelley, Interim County Counsel, and William G. Smith, Deputy County Counsel, for Real Party in Interest.
OPINION
Before Wiseman, A.P.J., Levy, J., and Gomes, J.
By extraordinary writ petition (Cal. Rules of Court, rule 8.452), petitioner asks this court to vacate the juvenile court’s order setting a Welfare and Institutions Code section 366.26 hearing as well as its jurisdictional and dispositional findings and orders as to his son R. and to direct the juvenile court to conduct a new jurisdictional hearing. We will deny the petition.
All further statutory references are to the Welfare and Institutions Code unless otherwise indicated.
STATEMENT OF THE CASE AND FACTS
In December 2007, newborn R. was placed on protective hold by the social services department (department) after his mother C., a longtime substance abuser, tested positive for marijuana and methamphetamine.
C. identified petitioner as R.’s father and told the social worker he was incarcerated in San Jose County Jail. The department filed a dependency petition alleging C.’s continuing substance abuse placed R. at risk of harm and named petitioner as R.’s alleged father. Petitioner’s whereabouts were listed as unknown on the petition.
The juvenile court ordered R. detained in foster care and, at the jurisdictional hearing, adjudged him a dependent of the court. The court found notice had been provided to all necessary parties. The court also ordered the department to determine whether petitioner was in custody in San Jose and appointed him an attorney. Petitioner’s attorney did not object to the court’s finding petitioner had been provided proper notice.
At a subsequent hearing, county counsel advised the court that the social worker sent letters to the San Jose Police Department, the Santa Clara County Probation Department and the Santa Clara County Sheriff’s Department. However, because the social worker had not telephoned any of the San Jose area jail facilities to see if petitioner was there, the court trailed the matter for the afternoon so the social worker could do so. Later that afternoon, the social worker reported that she telephoned three jail facilities in San Jose and that petitioner was not incarcerated in any of them. Petitioner’s attorney expressed concern that petitioner had not been served notice at any of his last known addresses but conceded the department contacted the appropriate agencies. Petitioner’s attorney stated she did not know what further efforts the department could have made to locate petitioner and asked the court to relieve her. The juvenile court granted counsel’s request to be relieved and found the department exercised due diligence in attempting to locate petitioner. The court also set a contested dispositional hearing on the department’s recommendation to deny C. reunification services.
In early March 2008, on the date set for the contested dispositional hearing, C. withdrew her challenge and submitted on the department’s recommendation to deny her services. Petitioner’s mother was present during the hearing and stated she received a letter from petitioner the day before and that he was incarcerated under an alias, which bore no resemblance to the name provided by C. The court verified that petitioner’s correct name was the one given by C. and appointed him an attorney who requested a continuance arguing petitioner had not been provided proper notice under section 291. The parties agreed and the court continued the dispositional hearing so the department could notify petitioner of the proceedings and so that he could be transported.
The court also questioned C. concerning petitioner’s paternity. C. confirmed petitioner’s biological paternity but did not know if he was so listed on R.’s birth certificate. She stated she and petitioner were not married but were living together when she was pregnant with R. and that petitioner gave her money. However, petitioner was not living with her when R. was born.
The dispositional hearing was continued two more times before petitioner appeared before the juvenile court in May 2008. Petitioner told the court that, to his knowledge, he was R.’s biological father and that his name was listed on R.’s birth certificate. He asked the court to elevate his status to presumed father because he acknowledged R. as his child and, prior to R.’s birth, provided diapers, clothing, and other items for R. County counsel explained to the court that if petitioner were R.’s presumed father, the department would recommend offering him reunification services. The court continued the hearing so county counsel could evaluate the evidence with respect to petitioner’s presumed paternity status and, at petitioner’s request, ordered paternity testing to determine his biological paternity.
The court reconvened the dispositional hearing in late May 2008. The court was provided R.’s original birth certificate on which the space provided for the father’s name was left blank. Petitioner’s attorney acknowledged petitioner was incarcerated when R. was born and had not taken R. into his own home, a fact which petitioner’s attorney conceded should preclude him from attaining presumed father status. Nevertheless, petitioner’s attorney requested the court declare petitioner to be R.’s presumed father. Petitioner’s attorney also asked the court to continue the hearing pending the results of the paternity testing which had not been received. Following further discussion, the juvenile court denied petitioner’s request to be elevated to presumed father status, denied his request to continue the dispositional hearing, and denied him reunification services because he was an alleged father. The court also denied C. reunification services, granted the department discretion to place R. with a relative and set a section 366.26 hearing. This petition ensued.
DISCUSSION
A. Notice of Jurisdictional Hearing
Petitioner argues the juvenile court should not have proceeded with the jurisdictional hearing because he was not provided proper notice as required by section 291. Even assuming petitioner did not waive his right to claim defective notice of the jurisdictional hearing by failing to raise it when he appeared at the dispositional hearing, we would nevertheless find no merit to his claim. (In re Wilford J. (2005) 131 Cal.App.4th 742, 754.)
Section 291 requires the clerk of the juvenile court to notify an alleged father who was not at the detention hearing of the jurisdictional hearing by personal service or certified mail. (§ 291, subd. (a)(2) & (e)(1).) The problem arises when, as in this case, the alleged father’s whereabouts are unknown. The question then becomes whether due diligence was used to locate him. (In re Emily R. (2000) 80 Cal.App.4th 1344, 1352 (Emily R.).)
Due diligence connotes “notice reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections.…” (Emily R., supra, 80 Cal.App.4th at p. 1351; citing Mullane v. Central Hanover Tr. Co. (1950) 339 U.S. 306, 314.) On appeal, petitioner bears the burden of showing the juvenile court’s due diligence finding is not supported by substantial evidence. (Winograd v. American Broadcasting Co. (1998) 68 Cal.App.4th 624, 632.)
In this case, petitioner was incarcerated under an alias distinctly different from his legal name. This fact was not discovered until the dispositional hearing in March 2008 when petitioner’s mother revealed it to the court. Consequently, it was petitioner’s use of an alias, not the department’s lack of effort, which precluded his appearance at the jurisdictional hearing. Consequently, we find no error in the juvenile court’s finding the department exercised due diligence to locate him.
Further, any defect in notice, if it existed, would be harmless beyond a reasonable doubt. (In re Angela C. (2002) 99 Cal.App.4th 389, 394-395 (Angela C.).) A juvenile court’s dependency jurisdiction is based on its personal jurisdiction over the child, not the parent. (In re Joshua G. (2005) 129 Cal.App.4th 189, 202.) Consequently, a juvenile court is statutorily empowered to assume dependency jurisdiction over a child if it determines the actions of either parent bring the child within one of the statutory definitions in section 300. (Ibid.)
Here, the juvenile court exercised dependency jurisdiction based on allegations of C.’s neglect, which she admitted. Consequently, the juvenile court had sufficient evidence to support its jurisdictional finding. Further, there were no allegations lodged against petitioner. Consequently, his absence at the hearing was not adverse to him and his appearance would not have made a difference in the juvenile court’s jurisdictional finding.
B. Paternity Inquiry
Petitioner argues the juvenile court erred in not conducting a paternity inquiry prior to the dispositional hearing. Its failure to do so, he argues, deprived him the opportunity to establish biological paternity or presumed father status at an earlier stage of the proceedings. Further, the court’s delay had the prejudicial effect of foreclosing any possibility of reunification with his son.
In dependency proceedings, only presumed fathers enjoy the full array of parental rights. A presumed father is entitled to custody of his child or court-ordered services to reunify with the child. (In re Zacharia D. (1993) 6 Cal.4th 435, 448-449 (Zacharia D.); § 361.5, subd. (a).)A biological father has no parental rights but may be offered reunification services if the court finds it would benefit the child. (Ibid.) An alleged father, such as petitioner, has no legal interest in the child because he has not established his paternity. (In re O.S. (2002) 102 Cal.App.4th 1402, 1406 (O.S.).) Therefore, he is not a parent and is not entitled to reunification services. (Id.; § 361.5, subd. (a).)
A man may attain presumed father status by satisfying any of the conditions set forth in Family Code section 7611. While he 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. This provision states that the inquiry “shall include at least all of” the enumerated factors relevant to paternity, including whether the man qualifies as a presumed father under Family Code section 7611. Family Code section 7611, subdivision (d) provides: “A man is presumed to be the natural father of a child if he ... receives the child into his home and openly holds out the child as his natural child.”
A minimal paternity inquiry under section 316.2, subdivision (a) requires the juvenile court to inquire whether a judgment of paternity exists, whether the mother was married or believed she was married at the time of conception of the child or at any time thereafter, whether the mother was cohabiting with a man at the time of conception or birth of the child, whether the mother received support payments or promises of support with respect to the child or in connection with her pregnancy, whether any man has formally or informally acknowledged or declared his possible paternity of the child, including by signing a voluntary declaration of paternity, whether paternity tests have been administered and the results and whether any man otherwise qualifies as a presumed father pursuant to Family Code section 7611, or any other subdivision of the Family Code.
Petitioner correctly asserts that the juvenile court did not conduct the paternity inquiry until the dispositional hearing in early March 2008. However, he does not establish how he was prejudiced by any delay in conducting the inquiry. (Angela C., supra, 99 Cal.App.4th at p. 394.) The court gave petitioner an opportunity to elevate his paternity status by conducting a hearing on the issue and did so prior to making its dispositional order denying him reunification services. Further, petitioner’s attorney essentially conceded that he does not qualify as a presumed father under the statute because, even though he held R. out as his own child, he was unable to receive R. into his home by virtue of his incarceration.
Further, petitioner does not claim in his writ petition that he meets the statutory definition of presumed father. Rather, for the first time, he claims that he qualifies as a presumed father under Adoption of Kelsey S. (1992) 1 Cal.4th 816 (Kelsey S.). In Kelsey S., the California Supreme Court held that Family Code section 7611 and the related dependency statutes violate an unwed biological father’s federal constitutional guarantees of equal protection and due process to the extent they allow a mother or third person unilaterally to preclude the father from attaining presumed father status after he, upon learning of his paternity, promptly came forward and demonstrated a full commitment to his parental responsibilities. (Kelsey S., supra, 1 Cal.4th at p. 849.)
Kelsey S. addressed Civil Code section 7004, subdivision (a), which was repealed and replaced with Family Code sections 7611 and 7612 without substantive change. (See Kelsey S., supra, 1 Cal.4th at pp. 825.) Former Civil Code section 7004, subdivision (a)(4) provides presumed father status when a man receives a child into his home and openly holds out the child as his natural child.
In determining whether a biological father is a Kelsey S. father, the juvenile court considers his conduct before and after the child’s birth, including whether he publicly acknowledged paternity, paid pregnancy and birth expenses according to his ability to do so, and promptly took legal action to obtain custody of the child. (Kelsey S., supra, 1 Cal.4th at p. 849.) The court also considers his willingness to assume full custody of the child. (Ibid.) If an unwed father fails to demonstrate a full commitment to his parental responsibilities, the statutes are constitutionally sufficient as applied to him. (Id. at pp. 849-850.) Although Kelsey S. involved a private adoption, the Kelsey S. analysis has been extended to juvenile dependency proceedings. (In re Jerry P. (2002) 95 Cal.App.4th 793, 810-812.)
Even assuming, petitioner did not waive his right to argue he qualifies as R.’s presumed father under Kelsey S. by failing to raise the issue before the juvenile court, he nevertheless fails to satisfy the threshold requirements for such a designation. (In re Lorenzo C. (1997) 54 Cal.App.4th 1330, 1338-1339.) First, Kelsey S. pertains to a biological father. Since the results of petitioner’s paternity test had not been received as of the setting hearing, he had not established biological paternity. Even if he were R.’s biological father, he fails to demonstrate that he promptly came forward and demonstrated a full commitment to his parental responsibilities. Acknowledging R. as his child and providing necessities such as diapers and clothing do not alone constitute the kind of full commitment to parental responsibility envisioned by Kelsey S. Consequently, the juvenile court properly denied petitioner’s request to be declared R.’s presumed father and any delay in conducting the paternity inquiry required by section 316.2, subdivision (a) is harmless.
Further, any delay in requesting paternity testing to establish petitioner’s biological paternity is harmless. Given petitioner’s incarcerated status and lack of any relationship with R., it is unlikely the juvenile court would have found providing petitioner reunification services would benefit R.
Finally, in the event paternity testing establishes petitioner’s biological paternity, he may seek modification of the juvenile court’s order denying him reunification services provided he can demonstrate circumstances have changed such that a modification would serve R.’s best interest. (§ 388.) Petitioner apparently finds that remedy overly burdensome from an evidentiary standpoint. Nevertheless, his circumstances leave him little choice - circumstances he created by not elevating his paternity status sooner and by making himself difficult to be found. We find no error on this record.
DISPOSITION
The petition for extraordinary writ is denied. This opinion is final forthwith as to this court.