Opinion
F056730.
3-2-2009
R.C., Petitioner, v. THE SUPERIOR COURT OF MERCED COUNTY, Respondent; MERCED CO HUMAN SERVICES AGENCY, Real Party in Interest.
Linda P. Groth, for Petitioner. No appearance for Respondent. James N. Fincher, County Counsel, and James B. Tarhalla, Deputy County Counsel, for Real Party in Interest.
Not to be Published in Official Reports
OPINION
THE COURT
Before Vartabedian, A.P.J., Hill, J., and Kane, J.
Petitioner seeks an extraordinary writ (Cal. Rules of Court, rule 8.452) to vacate the orders of the juvenile court denying him reunification services and setting a Welfare and Institutions Code section 366.26 hearing as to his son E. 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 early October 2008, newborn E. was taken into protective custody at the hospital after he and his mother R. tested positive for methamphetamine. R. has a long history of drug use which, prior to E.s birth, resulted in the severance of her parental rights to her five other children. She admitted using methamphetamine the morning she went into labor with E.
R. did not file a writ petition.
Petitioner told a social worker from the social services agency (agency) he was not sure he was E.s father and requested paternity testing. He stated he was not married to R. but began living with her in January 2008. The following February, he discovered R. was pregnant with E. They lived together until R. left petitioner around the fourth or fifth month of her pregnancy. They were not living together when E. was born. Petitioner denied knowing R. was using drugs while he lived with her. He admitted being an active gang member but denied using drugs.
The agency filed a dependency petition alleging petitioner and R. placed E. at risk of harm because R. exposed E. to drugs in utero and petitioner took no action to prevent it. (§ 300, subd. (b)). The juvenile court ordered E. detained pursuant to the petition and the agency placed him in foster care. The court also ordered petitioner to provide urine and hair follicle samples, which yielded the presence of methamphetamine. Petitioner told the social worker he was not interested in visiting E. until he knew if E. was his child.
In late October 2008, R. appeared for the first time at what was scheduled to be the jurisdictional/dispositional hearing. The court conducted a paternity inquiry, during which R. identified petitioner as E.s father. She confirmed information petitioner previously provided and further stated petitioner did not sign a declaration of paternity or provide any support for E. She also said petitioner was listed as E.s father on E.s birth certificate but she did not have a copy of it. Following its inquiry, the court set a November jurisdictional/dispositional hearing. In mid-November, petitioner and R. began weekly visitation.
In its report for the hearing, the agency recommended the court deny R. reunification services because of her ongoing drug use and failure to reunify with her children and petitioner because, as E.s alleged father, he was not entitled to them. The agency reported petitioner was not listed on E.s birth certificate and there was no paternity declaration on record. The agency also reported petitioner was convicted of receiving stolen property in 2001, felony possession of a controlled substance in 2003, and felony possession of a controlled substance for sale and/or felony participation in a criminal street gang in 2005. He was sentenced to two years in prison on the last conviction and, in 2008, he was convicted of felony possession of a controlled substance with a prior prison sentence and sentenced to 36 months of probation.
In December 2008, the juvenile court conducted the jurisdictional/dispositional hearing. Petitioner and R. appeared represented by counsel, denied the allegations, and requested reunification services. Petitioners attorney informed the court paternity testing established petitioner as E.s biological father but provided no documentary evidence. Petitioners attorney argued petitioner and E.s grandparents had been visiting E., that petitioner had a place for E., and he and his family wanted to care for E. His attorney also pointed out that petitioner requested the paternity testing. The court asked whether petitioner made any arrangements to provide E. financial support. Petitioner stated he had not because he was waiting for the results of the paternity testing. Having received the results, he intended to make support arrangements.
At the conclusion of the hearing, the court exercised dependency jurisdiction and denied both parents reunification services as recommended. The court also set a section 366.26 hearing to implement a permanent plan. This petition ensued.
DISCUSSION
Petitioner argues the juvenile court erred in denying him reunification services after paternity testing proved his biological paternity and he requested reunification services. Consequently, he asks this court to remand the case, directing the juvenile court to vacate the section 366.26 hearing and enter orders for reunification services and visitation.
A mans entitlement to reunification services depends on his paternity status of which there are three: presumed, biological, and alleged. Section 361.5 governs the provision of reunification services and provides in relevant part:
"[W]henever a child is removed from a parents ... custody, the juvenile court shall order the social worker to provide child welfare services to the child and the childs ... statutorily presumed father .... 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 statute).)
Of the three paternity designations, that of presumed father confers the greatest rights under the statute. Only the presumed father is entitled to reunification services. Petitioner does not claim to be E.s presumed father nor does the appellate record support such a designation.
A biological father may receive reunification services under the statute if the juvenile court or a court of competent jurisdiction declares his paternity and the juvenile court determines services will benefit the child. No provision for services is made for the alleged father.
In this case, there was no declaration of petitioners paternity on record and the juvenile court did not declare him E.s biological father. Consequently, under the statute, petitioner is an alleged father and not entitled to reunification services. However, because it appears the court and the parties argued petitioners request for services as if he were E.s biological father, we will assume for purposes of our review that he is.
The juvenile court is not statute-bound to order reunification services for a biological father. Rather, the statute grants the court discretion to order services if doing so would benefit the child. To the extent petitioner argues the juvenile court abused its discretion by not ordering him services, we disagree. Petitioner had no interest in being E.s father until paternity testing proved it. Consequently, aside from approximately three to four visits, he had no contact with E. much less a parent/child attachment. Further, petitioner has a criminal history involving drugs and there was evidence of ongoing drug use and gang affiliation. Under the circumstances, we fail to see how providing petitioner services would benefit E.
Further, to the extent petitioner argues for more time to demonstrate his ability to parent E. by completing services on his own, the statute does not provide for deferring the section 366.26 hearing concurrent with an order denying services. (§ 361.5.) Rather, such a course would be contrary to providing dependent children an expeditious resolution, long recognized as "a core concern of the entire dependency scheme." (Tonya M. v. Superior Court (2007) 42 Cal.4th 836, 847, fn. 4.)
Finally, as to petitioners request for visitation, the appellate record reflects the juvenile court ordered monthly visitation at the setting hearing. To the extent petitioner argues for increased visitation, he must petition the juvenile court for a modification of its visitation order. (§ 388.) We find no error on this record.
DISPOSITION
The petition for extraordinary writ is denied. This opinion is final forthwith as to this court.