Opinion
E068912
04-27-2018
In re S.L., a Person Coming Under the Juvenile Court Law. RIVERSIDE COUNTY DEPARTMENT OF PUBLIC SOCIAL SERVICES, Plaintiff and Respondent, v. M.M., Defendant and Appellant.
Emily Uhre, under appointment by the Court of Appeal, for Defendant and Appellant. Gregory P. Priamos, County Counsel, and James E. Brown, Guy B. Pittman, Carole Nunes Fong, and Prabhath Shettigar, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super.Ct.No. SWJ1200007) OPINION APPEAL from the Superior Court of Riverside County. Judith C. Clark, Judge. Dismissed. Emily Uhre, under appointment by the Court of Appeal, for Defendant and Appellant. Gregory P. Priamos, County Counsel, and James E. Brown, Guy B. Pittman, Carole Nunes Fong, and Prabhath Shettigar, Deputy County Counsel, for Plaintiff and Respondent.
On August 8, 2017, the juvenile court terminated defendant and appellant, M.M.'s (Father), parental rights as to S.L. (Minor), born in November 2015. On appeal, Father contends the juvenile court violated his right to due process by terminating his parental rights as a Kelsey S. father without ever rendering a finding that a custody placement of Minor with Father was detrimental to Minor by the clear and convincing evidence standard of proof. In the alternative, Father argues counsel below rendered constitutionally ineffective assistance of counsel by failing to request the court declare Father a Kelsey S. father. We dismiss the appeal.
Adoption of Kelsey S. (1992) 1 Cal.4th 816 (Kelsey S.).
Father also filed a petition for writ of habeas corpus, case No. E069554, which we ordered considered with this appeal. We shall rule on the petition by separate order.
I. FACTUAL AND PROCEDURAL HISTORY
Personnel from plaintiff and respondent, Riverside County Department of Public Social Services (the Department), received a referral on November 11, 2015, alleging that R.L. (Mother) tested positive for methamphetamine and marijuana after giving birth to Minor; Minor tested positive for methamphetamine as well. Mother admitted to smoking marijuana laced with methamphetamine three times daily to cope with anxiety and depression; she alleged she did not know she was pregnant until she went into labor. Mother said she had been prescribed medication for anxiety and depression, but only took them for a couple of months because they did not alleviate her symptoms.
The date of the referral would appear to be inaccurate as the social worker filed the initial petition on November 6, 2015, and an amended petition and detention report on November 10, 2015.
Mother is not a party to the appeal.
The social worker's investigation of Mother's home indicated the residence appeared to be vacant. Mother reported that Minor's father was not her current boyfriend; she provided the social worker with Father's name and said he was not aware she had given birth to his child. Mother provided Father's purported city of residence, but no address. She said she could provide contact information once she could access Facebook. Mother had an extensive history with the Department, which reflected that her parental rights as to five previous children had been terminated.
On November 10, 2015, the social worker filed a first amended juvenile dependency petition alleging Mother abused controlled substances (b-1), suffered from unresolved mental health issues (b-2), and had an extensive history with the Department (b-3). With respect to Father, the social worker alleged his whereabouts were unknown and he was either unable or unwilling to support Minor (g-1). Neither parent appeared at the detention hearing on November 12, 2015. The court appointed counsel for Father, authorized the Department to conduct a paternity test should Father appear, and detained Minor.
In the jurisdictional and dispositional report filed on December 2, 2015, the social worker recommended that the court strike the g-1 allegation. As of November 19, 2015, the social worker had been unable to locate Father due to the paucity of information provided by Mother; however, on November 30, 2015, Father called the social worker after receiving a Facebook message from Mother informing him of Minor's birth and telling him to call the social worker. Father reported that he met Mother online in September 2014, met her in person in October 2014, and dated her for about three months. Father was currently unemployed, but was looking for vocational training and a job.
The social worker noted that most of the information relayed via the phone conversation with Father was done through the paternal grandmother (PGM) who attempted to answer the questions for Father because Father suffered from anxiety and panic attacks; it was apparently difficult to communicate with him without the PGM's support. Father "indicated that he was not sure [i]f he was [Minor's] father but he [was] willing to submit to . . . paternity testing in order to confirm his paternity as to the child." Father wanted Minor placed with him.
Mother failed to return any of the numerous calls placed to her by the social worker. Neither parent visited with Minor during the reporting period. The social worker recommended that the court deny Mother reunification services under several bypass provisions. At a hearing on December 7, 2015, Father appeared with the PGM. The court denied visitation for Father until paternity was established; Father filled out a form indicating he did not know if he was the Minor's father, but consented to a blood or DNA test to make the determination.
In fact, Mother never had any further contact with the social worker or Minor during the remaining juvenile dependency proceedings. Nor did Mother ever appear in court for any of the hearings.
The reporter's transcript inaccurately reflects the hearing occurred on December 15, 2015.
An addendum report filed on January 21, 2016, reflected the results of Father's paternity test, indicating Father was Minor's biological father. The social worker recommended that the court authorize visitation between Father and Minor. Father appeared to be excited to become a father. During a phone call with Father, Father asked the social worker if she was going to give "it" to him; he said he did not know what "its" name was, but asked if she were going to give "it" to him; when the social worker did not understand, Father became frustrated and started using profanity. For this reason, the social worker requested psychological testing.
At a hearing on January 21, 2016, the court noted: "[I]t would be this court's intention to—based on the paternity information contained within the addendum—to enter a judgment of biological and legal parentage as to father. [¶] Is that agreeable with you?" Father's counsel responded: "Certainly father would like the status of presumed; however, at this time I have no evidence to present to show the child has lived with father, through no fault of his own. [¶] With that, we would simply submit the matter to the court." The court declared Father the biological father of Minor.
At oral argument, Father's counsel conceded that "legal parentage" is not a term of art in the juvenile dependency context and confers no specific rights as would other parentage terms such as "biological," "alleged," "Kelsey S.," and "presumed."
The court found the b allegations true, found the g-1 allegation not true, sustained the petition, declared Minor a dependent of the court, and removed Minor from the parents' custody. The court found "there is clear and convincing evidence of the circumstances stated in Welfare and Institutions Code section 361 with regards to mother but not as to father." The court granted Father reunification services; the court denied reunification services to Mother pursuant to Welfare and Institutions Code section 361.5, subdivision (b)(1) (whereabouts of Mother unknown), (b)(10) (Mother's reunification services as to previous minors had been terminated), and (b)(11) (Mother's parental rights as to previous minors had been terminated). The court ordered Father to undergo psychological testing.
The attorney for the Department now indicated a preference for the court to find the allegation not true rather than to strike the allegation.
The social worker recommended the juvenile court find clear and convincing evidence of detriment as to both parents in order to remove Minor from their custody.
All further statutory references are to the Welfare and Institutions Code.
In the six-month status review report filed on July 6, 2016, the social worker recommended that the court terminate Father's reunification services and set the section 366.26 hearing. Father continued to reside with the PGM without paying for rent or utilities; he was reluctant to move out because the PGM prepared all his meals and he did not know how to microwave food. Father completed a 10-week parenting education course, but stated he did not feel he benefitted from it. Father reported he was working two to three days weekly, but was unable to provide an address or phone number for the employer. Father had been diagnosed with generalized anxiety disorder.
On June 10, 2016, the PGM reported Father had moved into his own residence; on June 23, 2016, she reported he had moved back in with her; Father had been taken to the emergency room after sustaining a panic attack; he was not comfortable living on his own. Father enrolled in and completed an individual counseling program; his counselor reported Father was more lethargic and closed off recently because he did not appear to want to say the wrong thing, such that she did not know if continued therapy would be beneficial. Father later appeared to be more stable and in a better frame of mind. However, he refused to continue therapy as he did not feel it was working for him and he could not walk to his appointments due to severe anxiety. The therapist reported that Father was looking into an inpatient detox program to wean him off his prescription medication because he was feeling sick from withdrawal symptoms.
Father engaged in two-hour visitation weekly with Minor, but missed several visits and was late to others; visits went well, but Father often became "flustered." During a visit on June 23, 2016, Father appeared lethargic and clumsy; it appeared to the social worker that Father had exceeded the dosage of his prescribed medication. The social worker was concerned that Father's prescription medication may be interfering with his ability to parent. Father requested to be referred to a program to titrate him off his medication; however, the social worker reported that she could not refer him to a detox program because there were no allegations in the petition against him with respect to substance abuse.
The PGM cancelled a visit on June 27, 2016, reporting that Father had been having panic attacks all week. On June 29, 2016, Father reported that he had been rushed to the emergency room twice in the last two weeks due to stress and anxiety.
Father completed a psychological evaluation, which he attended with the PGM, on March 14, 2016. Dr. Kenneth Garett opined Father would not be a good candidate for primary custody of Minor because he "demonstrated learning difficulties, anxiety problems, lacked insight into himself, and appeared to be dependent upon his mother." The PGM reported that Father would be unable to care for Minor on his own. The social worker opined that it would be detrimental to Minor to place Minor in Father's custody.
On July 20, 2016, the court indicated it had concerns with the Department's failure to offer Father detox services for his attempts to get off his prescription medications and offer continued individual counseling. The Department filed amended recommendations that Father receive an additional six months of services. The court ordered the Department to refer Father to a more experienced therapist.
The court was later apparently informed off the record that Father was already in a detox program.
Father's previous therapist was apparently an intern.
In the 12-month status review report filed on December 23, 2016, the social worker recommended that the court terminate Father's reunification services. Father was not working. Father reported living in a three bedroom, one bath home with his sister-in-law (SIL) and two nephews, none of whom paid rent since the home was owned by the PGM. Father could not provide the address of the home. On September 29, 2016, the social worker placed Minor with the PGM with the understanding that Father could not reside at the home or have unsupervised visitation with Minor. On November 29, 2016, the social worker received a referral reporting that Father was always at the PGM's home. The PGM stated she did not understand why Father could not be there. The referral also contained a report that Father had a history of alcoholism and abuse toward the PGM.
On December 7, 2016, the social worker conducted an unannounced visit to Father's purported home; no one was home; the social worker left her business card. Later, Father's SIL called and asked if the social worker was looking for her; the social worker said she was looking for Father; the SIL said she was surprised because Father had never lived in the home while she was a tenant. On December 7, 2016, the social worker visited the PGM's home and encountered Father, who appeared to have just woken. The PGM and Minor were not home. The social worker noticed an empty box of beer in the home which Father said belonged to the PGM.
On December 8, 2016, the social worker spoke with the PGM, who denied Father lived in her home. On December 9, 2016, the social worker received text messages from the SIL who reported, with screenshots, that the PGM had threatened to move Father into the home the previous night. The social worker opined that the PGM and Father were attempting to conceal that Father was living in the PGM's home. On December 12, 2016, the social worker removed Minor from the PGM's custody.
Father had completed an inpatient detox program at Loma Linda University Behavioral Medicine Center on August 2, 2016. Father was on new prescription medications for which his psychiatrist advised against the use of alcohol; Father admitted to drinking while on the medications. He had been visiting with Minor twice weekly for two-hour visits; according to the PGM there were no concerns. The social worker reduced visitation to two hours weekly once she discovered that Father was living with the PGM. The social worker referred Father to a therapist in July 2016; however, Father did not schedule an appointment until sometime around December 21, 2016; his first appointment was not scheduled to occur until December 27, 2016.
On January 6, 2017, the court continued the matter for a contested hearing. On February 10, 2017, the social worker filed an addendum report in which she reported that Father did not begin his individual therapy sessions with the new therapist until January 4, 2017; he had participated in five sessions; the therapist reported it was too early to opine whether Father would be able to care for Minor. Father visited Minor twice weekly for a total of seven visits; he missed two visits due to illness. Father was attentive and met Minor's needs. The psychiatrist had prescribed new medication for Father on January 25, 2017, to deal with his anxiety and mood swings. The social worker was unable to assess whether Father was in compliance with his medication regimen because he refused to make in-person contact with the social worker. Rather, he used the PGM as the primary means to communicate with the social worker.
On February 16, 2017, the juvenile court again continued the hearing. On March 17, 2017, the social worker filed another addendum report in which she noted that on March 3, 2017, she visited the PGM's home to address the PGM's concerns regarding Minor's removal from her home. The social worker found Father present playing video games; Father said that he was living elsewhere, but was temporarily staying with the PGM as his home's heating was not working. Several items of mail the social worker sent to Father's purported address were returned as undeliverable.
The psychiatrist again recommended against Father consuming alcohol due to the medication he was prescribed. Father admitted drinking on social occasions; the social worker found four empty beer cans in the trash and one beer can along the side of the door near the window when she visited the PGM's home; Father's breath smelled strongly of alcohol. Father tested positive for alcohol.
Father had participated in one additional session with the therapist. The therapist opined that Father had not demonstrated behaviors which would lead him to be concerned with Father's care of Minor; the therapist believed Father should continue to make progress toward his treatment goals. Father refused to have any direct contact with the social worker.
Father failed to appear for the hearing scheduled on March 22, 2017, due to illness. The court continued the matter. On April 3, 2017, the social worker filed an addendum report in which she noted Father had missed four consecutive sessions of individual therapy due to a reported illness; the therapist reported that he would discharge Father if his absences continued; Father then missed a fifth appointment, again due to a purported illness; the therapist put Father's sessions on hold.
The psychiatrist recommended to Father that he enroll in an outpatient substance abuse program; he would no longer treat him if he continued to consume alcohol. Father declined referrals for those services. Father failed to appear for three on-demand drug tests. On February 23, 2017, Father inadvertently texted the social worker: "Could you get me a beer while you are out please." On March 23, 2017, the intern supervising a visit on March 14, 2017, reported she smelled alcohol on Father's breath.
At the hearing on April 6, 2017, the parties stipulated that Father, if called to testify, would testify he attended an individual therapy session the day before the hearing and that his psychiatrist never instructed him to participate in a substance abuse counseling program. The court expressed concern about Father's apparent malingering as an excuse for him not to participate in counseling or appear for drug testing. The court found by a preponderance of the evidence that return of Minor to Father would create a substantial risk of detriment. The court terminated Father's reunification services and scheduled the section 366.26 hearing.
In the section 366.26 report filed on July 20, 2017, the social worker recommended that the juvenile court find adoption as the permanent plan for Minor and terminate the parents' parental rights. On April 11, 2017, Minor was placed in a licensed prospective adoptive home, the same home in which Minor had resided during the first 10 months of her life until she was removed and placed with the PGM pursuant to the relative placement preference. Minor was bonded with the prospective adoptive parents: "The prospective adoptive parents love [Minor] and are ready to become her forever family. They are ready to advocate for whatever services she needs or may need in the future. They are not discouraged by the behavioral challenges that are present. It reinforces their belief that [Minor] is in need of a stable and loving family that will ensure all her needs are met."
Father visited Minor once in May. Father missed his visit in June due to a purported illness for which the PGM said he had been taken to the emergency room. On August 8, 2017, the court found Minor adoptable. The court noted: "[T]here has been the ongoing issue with regards to father's failure to comply with the directives of the Department throughout the course of this case, and that really involves efforts to undermine the safe and appropriate placement of this child with the relative." The court then terminated Father's parental rights. Father appealed the order terminating his parental rights.
II. DISCUSSION
Father contends the juvenile court's termination of his parental rights without rendering a finding of detriment by clear and convincing evidence violated his due process rights as a Kelsey S. father; however, Father admits that the court neither found him a Kelsey S. father nor did Father ever request that the court declare him one. Thus, in Father's second argument, he maintains counsel below rendered constitutionally ineffective assistance of counsel by failing to expressly request the court declare Father a Kelsey S. father. The Department responds that Father did not meet the criteria to qualify as a Kelsey S. father even if Father's counsel had so requested.
We hold that whether Father should have been declared a Kelsey S. father is irrelevant because the juvenile court is not required to make a finding of detriment at the section 366.26 hearing. Thus, because Father neither appealed nor petitioned for a writ from any previous hearing at which the court was required to render detriment findings, this court has no jurisdiction to consider the issue on an appeal from an order terminating Father's parental rights. Thus, the appeal must be and is dismissed.
"[E]ven a biological father's 'desire to establish a personal relationship with a child, without more, is not a fundamental liberty interest protected by the due process clause.' [Citation] '"Parental rights do not spring full-blown from the biological connection between parent and child. They require relationships more enduring." [Citation.]' [Citation.]" (In re Christopher M. (2003) 113 Cal.App.4th 155, 160.) A Kelsey S. father, in contradistinction to a mere biological father, may not have his parental rights terminated without a court's determination that he is an unfit parent. (Kesley S., supra, 1 Cal.4th at p. 850.) "With respect to Kelsey S. fathers and presumed fathers, however, the juvenile court cannot terminate parental rights without finding, by clear and convincing evidence, that placement with the father would be detrimental. [Citations.]" (In re T.G. (2013) 215 Cal.App.4th 1, 5.)
"If an unwed father promptly comes forward and demonstrates a full commitment to his parental responsibilities—emotional, financial, and otherwise—his federal constitutional right to due process prohibits the termination of his parental relationship absent a showing of his unfitness as a parent. Absent such a showing, the child's well-being is presumptively best served by continuation of the father's parental relationship. Similarly, when the father has come forward to grasp his parental responsibilities, his parental rights are entitled to equal protection as those of the mother." (Kelsey S., supra, 1 Cal.4th at p. 849, fn. omitted.)
"A court should consider all factors relevant to that determination. The father's conduct both before and after the child's birth must be considered. Once the father knows or reasonably should know of the pregnancy, he must promptly attempt to assume his parental responsibilities as fully as the mother will allow and his circumstances permit. In particular, the father must demonstrate 'a willingness himself to assume full custody of the child—not merely to block adoption by others.' [Citations.] A court should also consider the father's public acknowledgement of paternity, payment of pregnancy and birth expenses commensurate with his ability to do so, and prompt legal action to seek custody of the child." (Kelsey S., supra, 1 Cal.4th at p. 849, fn. omitted; accord, V.S. v. M.L. (2013) 222 Cal.App.4th 730, 739 [order dismissing petition seeking to be declared the father of the minor reversed and remanded for petitioner to carry the burden of proving he was entitled to the rights of a presumed or Kelsey S. father where petitioner unsuccessfully sought access to the minor after his birth, was prohibited access to the minor by the mother, and filed a request to compel genetic testing and establish a quasi-presumed or Kelsey S. father status within eight months of the minor's birth].) "'To satisfy the Kelsey S. criteria, a child's biological father must show he promptly stepped forward to assume full parental responsibilities for his child's well-being, the child's mother or some third party thwarted his efforts to assume his parental responsibilities, and that he demonstrated a willingness to assume full custody of the child.' [Citation.]" (V.S. v. M.L., supra, at p. 739.)
"[I]n order to terminate parental rights, the court need only make two findings: (1) that there is clear and convincing evidence that the minor will be adopted; and (2) that there has been a previous determination that reunification services shall be terminated." (Cynthia D. v. Superior Court (1993) 5 Cal.4th 242, 249-250.) The detriment determinations made at the six-month review hearing need not be made again once the court has terminated a parent's reunification services and found the minor adoptable. (Id. at p. 250.) "[T]he purpose of the section 366.26 hearing is not to accumulate further evidence of parental unfitness and danger to the child, but to begin the task of finding the child a permanent alternative family placement. By the time dependency proceedings have reached the stage of a section 366.26 hearing, there have been multiple specific findings of parental unfitness." (Id. at p. 253, fn. omitted.) "Only if, over this entire period of time, the state continually has established that a return of custody to the parent would be detrimental to the child is the section 366.26 stage even reached." (Ibid.) "It is not the purpose of the section 366.26 hearing to show parental inadequacy, which had to have been previously established, and there is no burden on the petitioning agency to show at the section 366.26 hearing that the parents are 'at fault.'" (Id. at p. 254.)
"A parent whose conduct has already and on numerous occasions been found to grievously endanger his or her child is no longer in the same position as a parent whose neglect or abuse has not so clearly been established. At this point the interests of the parent and child have diverged, and the child's interest must be given more weight. Because section 366.26 contemplates termination of parental rights only when there is clear and convincing evidence that the child is likely to be adopted, the child's fundamental interest in the opportunity to experience a stable parent-child relationship is very much at stake at the section 366.26 hearing. In this setting, a burden of proof standard that tilted the evidentiary scales in favor of the parent (as a clear and convincing evidence standard would do) would have the inevitable effect of placing a greater risk on the child than on the parent." (Cynthia D. v. Superior Court, supra, 5 Cal.4th at p. 254.) "[O]ur scheme requires: (1) a court finding that 'there is a substantial risk of serious future injury' to the minor in order to establish dependency [citation]; (2) a finding by clear and convincing evidence that there is 'substantial danger to the physical health of the minor' in order to remove the child from parental custody [citation]; and (3) repeated findings by a preponderance of the evidence that return 'would create a substantial risk of detriment to the physical or emotional well-being of the minor' [citations]." (Id. at pp. 254-255.)
"By the time termination is possible under our dependency statutes the danger to the child from parental unfitness is so well established that there is no longer 'reason to believe that positive, nurturing parent-child relationships exist' [citation], and the parens patriae interest of the state favoring preservation rather than severance of natural familial bonds has been extinguished. At this point, . . . it has become clear 'that the natural parent cannot or will not provide a normal home for the child' [citation], and the state's interest in finding the child a permanent alternate home is fully realized. In light of the earlier judicial determinations that reunification cannot be effectuated, it becomes inimical to the interests of the minor to heavily burden efforts to place the child in a permanent alternative home. By the time of the section 366.26 hearing, no state interest requires further evidence of the consequences to the child of parental unfitness, let alone evidence that meets an elevated standard of proof." (Cynthia D. v. Superior Court, supra, 5 Cal.4th at p. 256.) "At this late stage in the process the evidence of detriment is already so clear and convincing that more cannot be required without prejudice to the interests of the adoptable child, with which the state must now align itself." (Ibid.; accord, Guardianship of Ann S. (2009) 45 Cal.4th 1110, 1134 ["For our purposes here, the relevant teaching of the dependency cases is that a finding of parental unfitness is not necessarily required at the point when parental rights are terminated. In a dependency proceeding, due process is satisfied if unfitness is established at an earlier stage, and parental rights terminated later based on the child's best interest."].)
"One of the most fundamental rules of appellate review is that the time for filing a notice of appeal is jurisdictional. '[O]nce the deadline expires, the appellate court has no power to entertain the appeal.' [Citation.]" (In re A.O. (2015) 242 Cal.App.4th 145, 148.) A notice of appeal from an appealable juvenile court order must be filed within 60 days of the rendition of judgment. (Cal. Rules of Court, rule 8.406(a)(1).) "A judgment in a proceeding under Section 300 may be appealed in the same manner as any final judgment . . . ." (§ 395, subd. (a)(1).) "'"A consequence of section 395 is that an unappealed disposition or postdisposition order is final and binding and may not be attacked on an appeal from a later appealable order." [Citation.]' [Citations.]" (In re S.B. (2009) 46 Cal.4th 529, 532; accord, In re Z.S. (2015) 235 Cal.App.4th 754, 769.)
"'"If an order is appealable . . . and no timely appeal is taken therefrom, the issues determined by the order are res judicata." [Citation.] [¶] "An appeal from the most recent order entered in a dependency matter may not challenge prior orders, for which the statutory time for filing an appeal has passed." [Citations.]' [Citations.]" (Melinda K. v. Superior Court (2004) 116 Cal.App.4th 1147, 1156.) "This '. . . rule' holds 'that an appellate court in a dependency proceeding may not inquire into the merits of a prior final appealable order,' even when the issues raised involve important constitutional and statutory rights. [Citation]" (In re Z.S., supra, 235 Cal.App.4th at pp. 769-770.) "'The first appealable order in a dependency case is the dispositional order. . . .'" (In re A.O., supra, 242 Cal.App.4th at p. 148.)
"[R]esort to claims of ineffective assistance as an avenue down which to parade ordinary claims of reversible error is also not enough and that it is never enough, alone, to argue that counsel rendered ineffective assistance by not raising potentially reversible error on" a previously appealable order. (In re Janee J. (1999) 74 Cal.App.4th 198, 209.) "[L]ate consideration of ineffective assistance claims defeats a carefully balanced legislative scheme by allowing a back-door review of matters which must be brought for appellate review . . . by earlier appeals, that is, before the point is reached where reunification efforts have ceased and the child's need for permanence and stability become paramount to the parent's interest in the child's care, custody and companionship [citation]." (Id. at p. 208.)
Here, the juvenile court issued its jurisdictional and dispositional orders on January 21, 2016. Father did not attempt to file either a timely or even late appeal from the dispositional order. Indeed, the notice of appeal filed by Father in the current case on August 9, 2017, more than a year and a half after the court issued its dispositional order and four months after the order terminating his reunification services and setting the section 366.26 hearing, indicates an intention to challenge only the order terminating his parental rights. Nowhere does the notice of appeal indicate an intention to challenge the juvenile court's detriment findings. Even if it did indicate such an intention, the time for filing an appeal from the findings rendered at the dispositional hearing has long since passed. This court lacks jurisdiction to consider Father's challenge to the court's detriment findings.
Father arguably had cause to file an appeal from the dispositional order because the juvenile court removed custody of Minor from Father, a nonoffending parent, without finding true any allegations against him and without rendering a finding of detriment by clear and convincing evidence. Indeed, no allegations against Father remained at the time of the dispositional order.
Father likewise arguably had cause to file a notice of intent to file a petition for an extraordinary writ because the juvenile court terminated Father's reunification services, found return of Minor to Father's custody detrimental only by the preponderance of the evidence standard, and set the section 366.26 hearing when termination of Father's parental rights would be considered. Again, this occurred as to a nonoffending parent without any true findings on allegations against Father. Here, the juvenile court expressly advised Father of his right to and manner in which to file a notice of intent to file a writ petition.
It would have been the better course for the Department to have simply argued for a true finding on the g-1 allegation or to have filed a supplemental petition alleging at least one or more b allegations against Father based on his inability to care for Minor, his mental issues, and/or his apparent abuse and addiction to prescription medications and alcohol. In this manner, Father could properly have been treated as an offending parent.
To the extent that In re T.G. holds otherwise, we find it distinguishable. In In re T.G., the juvenile court precluded the father, who appeared in court, from challenging the jurisdictional allegations, including an allegation that he was unable to care for the minor because his whereabouts were unknown, because father had no standing to do so as merely an alleged father. (In re T.G., supra, 215 Cal.App.4th at p. 7.) The court also apparently denied the father reunification services, without input from the father, at the dispositional hearing that same day. (Ibid.) The court never rendered a detriment finding as to father prior to terminating his parental rights. (Id. at p. 13.)
Here, unlike in In re T.G., Father was not precluded from participating in the jurisdictional and dispositional hearings. Father participated in both six-month hearings. Father received a total of 14 months of reunification services. The juvenile court rendered a detriment finding as to Father at the 12-month hearing by a preponderance of the evidence, the only standard to which a biological father is entitled. Father could have challenged that finding by writ, but chose not to do so. Thus, this court has no jurisdiction to hear Father's appeal and the appeal must be dismissed.
III. DISPOSITION
The appeal is dismissed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
McKINSTER
Acting P. J. We concur: MILLER
J. SLOUGH
J.
Slough, J., Concurring.
I agree with the majority's conclusion we don't have jurisdiction to hear father's appeal. I write separately to explain how I reached that conclusion.
At the jurisdiction/disposition hearing, the juvenile court ruled father was S.L.'s "biological and legal parent[]." The question is whether the court meant father is merely S.L.'s biological father or whether it meant to recognize some greater parental status by designating him in addition as S.L.'s "legal parent." The difference is important in the juvenile dependency context because mere biological fathers do not have the full panoply of constitutional rights presumed fathers and Kelsey S. fathers possess.
I begin with the court's statement that father was both the biological and the legal father. I don't believe the juvenile court was simply repeating itself. Nor do I agree with the majority's suggestion a court's use of the term "legal parent" in the dependency context never confers the specific rights conferred by determining someone is a Kelsey S. or presumed father. (See Maj opn., ante, at p. 5, fn. 7.) Instead, I believe the juvenile court used the two terms to indicate it was making two separate determinations affecting father's rights and responsibilities as a parent. First, the court determined father was S.L.'s biological father under the juvenile dependency laws. Second—since biological parents have financial responsibilities to their biological children—the court also concluded father was S.L.'s legal father for potential child support purposes.
I find support for this interpretation in California Rule of Court, rule 5.635, which requires the juvenile courts "to attempt to determine the parentage of each child who is the subject of a petition filed under section 300." (Cal. Rule of Court, rule 5.635(a).) If parentage has not previously been determined, the court "may make its determination of parentage." (Cal. Rule of Court, rule 5.635(e)(3).) If the court establishes parentage, "the court must sign Parentage—Finding and Judgment (Juvenile) (form JV-501) and direct the clerk to transmit the signed form to the local child support agency." (Cal. Rule of Court, rule 5.635(f).) Form JV-501 provides spaces for the juvenile court to declare a parent the child's "legal parent" or the child's "presumed parent." Here, the juvenile court found father to be S.L.'s legal parent, but not her presumed parent, and transmitted the form to the local child support agency.
The terms "legal parent" and "legal father" may mean different things in different legal contexts. Though a finding a person is a "biological parent" entails that he is a "legal parent" for child support purposes, it would be wrong to conclude the terms are always synonymous. In some settings, "legal parent" may mean something akin to "presumed parent," in other contexts it may mean "natural parent" or "biological parent." Black's Law Dictionary makes this ambiguity clear. It defines "biological father" as "[t]he man whose sperm impregnated the child's biological mother." (Black's Law Dict. (8th ed. 2004) p. 640, col. 2.) By contrast, it defines "legal father" as "[t]he man recognized by law as the male parent of a child. A man is the legal father of a child if he was married to the child's natural mother when the child was born, if he has recognized or acknowledged the child, or if he has been declared the child's natural father in a paternity action. If a man consents to the artificial insemination of his wife, he is the legal father of the child that is born as a result of the artificial insemination even though he may not be the genetic father of the child." (Ibid.)
As a result, I believe it would be wrong to interpret the term "legal father" to mean simply "biological father" in all cases. There are situations in which the term means something more akin to "presumed father." (E.g., Kevin Q. v. Lauren W. (2009) 175 Cal.App.4th 1119, 1135-1136, 1142 [using "legal father" to mean "presumed father" (Fam. Code, § 7611) as well as fatherhood established by a voluntary declaration of paternity (Fam. Code, § 7573)].) In that connection, I note the social worker in this case began referring to father as S.L.'s presumed father in parts of the reports submitted to the court after the parentage judgment that he was the "legal father." Juvenile courts can avoid such confusion by limiting themselves to the recognized terms of art in juvenile proceedings, and making clear when they are using related concepts from other areas of the law.
In any event, I read the juvenile court's parentage judgment in this case to mean, for dependency purposes, it had determined father was the child's biological father, full stop. Its determination that father was the child's legal father had relevance only for child support purposes. As a biological but not a presumed or Kelsey S. father, he was not entitled to a detriment finding by clear and convincing evidence prior to termination of his parental rights. Instead, it was sufficient for the juvenile court to make a detriment finding by the preponderance of the evidence. The juvenile court made that finding when it terminated services, and, at minimum, father was required to challenge that finding by writ to preserve his appellate rights. Because he did not do so, I agree we must dismiss his appeal.
SLOUGH
J.