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In re L.N.

COURT OF APPEAL OF THE STATE OF CALIFORNIA FOURTH APPELLATE DISTRICT DIVISION TWO
Oct 12, 2018
No. E069409 (Cal. Ct. App. Oct. 12, 2018)

Opinion

E069409

10-12-2018

In re L.N., a Person Coming Under the Juvenile Court Law. SAN BERNARDINO COUNTY CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent, v. J.M., Defendant and Appellant.

Donna B. Kaiser, by appointment of the Court of Appeal, for Defendant and Appellant. Michelle D. Blakemore, County Counsel, and Dawn M. Martin, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. J264882) OPINION APPEAL from the Superior Court of San Bernardino County. Annemarie G. Pace, Judge. Affirmed. Donna B. Kaiser, by appointment of the Court of Appeal, for Defendant and Appellant. Michelle D. Blakemore, County Counsel, and Dawn M. Martin, Deputy County Counsel, for Plaintiff and Respondent.

When it detained L.N. (sometimes child), the San Bernardino Department of Children and Family Services (CFS) could not determine the identity of her father. Later, however, the social worker reported that J.M. (sometimes father) had stepped forward and taken a paternity test, which proved that he was, in fact, the biological father. The social worker also reported that the father did not want reunification services, and — at a nonappearance hearing, of which he was not given notice — the trial court ordered that they not be provided to him.

Thereafter, the father appeared at all hearings and visited the child regularly. He denied telling the social worker that he did not want reunification services. He filed two successive "changed circumstances" petitions under Welfare and Institutions Code section 388 (section 388), seeking custody and/or reunification services; the trial court denied them both. At a hearing pursuant to Welfare and Institutions Code section 366.26 (section 366.26), the trial court found that he was not a Kelsey S. father. It then terminated parental rights.

Adoption of Kelsey S. (1992) 1 Cal.4th 816, discussed further below.

The father appeals, contending:

The father has also filed a related petition for writ of habeas corpus (case No. E070222). We ordered the writ petition considered with (but not consolidated with) this appeal for the purpose of determining whether an order to show cause should issue. We will rule on the petition by separate order.

1. The trial court erred by terminating the father's parental rights because he was a Kelsey S. father who had never been found unfit.

2. The trial court failed to make an adequate paternity inquiry, as required by Welfare and Institutions Code section 316.2.

3. The trial court erred by denying the father's two section 388 petitions without a hearing.

4. The father did not receive notice of any of the hearings prior to his first appearance.

5. The father's counsel rendered ineffective assistance of counsel by waiting six months after the father's first appearance to file a section 388 petition.

6. The father's counsel rendered ineffective assistance of counsel by failing to file an appeal from the denial of the first section 388 petition.

We find no reversible error. Hence, we will affirm.

I

FACTUAL AND PROCEDURAL BACKGROUND

A. Petition and Jurisdictional/Dispositional Hearing.

The child was born in late March 2016. Almost immediately, CFS received a report stating that, although the mother and the child tested negative for drugs at the birth, the mother had a history of abusing methamphetamine.

Investigation revealed that the mother had enrolled in a substance abuse program a few months before the birth but had stopped attending. She had tested positive for drugs twice during her pregnancy, then stopped drug testing. Her living arrangements were "unstable." Three of the mother's older children were the subject of an open dependency; she was not in compliance with her reunification services plan.

As a result, CFS detained the child and filed a dependency petition concerning her. She was placed with a foster parent who, in less than a month, already wanted to adopt her.

Initially, the mother identified one man (not J.M.) as the father and added that another man (also not J.M.) was claiming to be the father. At the detention hearing, however, she denied that either of them was the father; she thought the father might be one "George."

In May 2016, at the jurisdictional/dispositional hearing, the mother submitted on the social worker's reports. The trial court sustained jurisdiction based on failure to protect (Welf. & Inst. Code, § 300, subd. (b)) and abuse of a sibling (id., subd. (j)), formally removed the child from the mother's custody, and ordered that the mother be provided with reunification services.

B. Nonappearance Review Hearing.

In August 2016, the trial court held a nonappearance review hearing. Notice of the hearing was given, by email, to counsel for CFS, counsel for the mother, and counsel for the child; no notice was given to the father.

The social worker reported that J.M. had contacted her and claimed to be the father of the child. A paternity test had confirmed this claim. The social worker also stated: "The father does not want family reunification services." The trial court ordered, "[J.M.] is the biological father of the child . . . and not enti[t]led to services." However, it granted him supervised visitation once a week for two hours.

The father's sample was taken on May 10, 2016, showing that he came forward less than a month and a half after the child's birth.
The child's sample was taken on June 1, 2016. Surely CFS had to be involved in this. Thus, it must have known not later than then that the father was claiming possible paternity.
The test results were certified on June 8, 2016. The father asserts that on that date, CFS "should have known" that he was the biological father. However, there is no evidence that CFS received the test results on June 8, 2016. The copy of the test results that CFS submitted to the trial court had a fax header dated August 25, 2016.

C. The Father's First Appearance.

In November 2016, at the six-month review hearing, counsel was appointed for the father. His counsel pointed out that he had not received notice of any previous hearings. Counsel for CFS responded that he had not come forward until after those hearings.

The father's counsel requested that the father be found to be a presumed father and be given reunification services. Counsel for CFS responded that he would have to file a section 388 petition. The trial court agreed: "I think he does need to file a 388."

That same day, the father filed a "Notification of Mailing Address" listing the Pebble Beach Drive address. In February 2017, however, he filed a "Notification of Mailing Address" listing an address on Borego Road.

In the report for the 12-month review hearing, the social worker noted that the father so far had not filed a section 388 petition. He also noted that, according to the previous social worker, the father had refused services. However, he acknowledged that the father denied this and claimed that the previous social worker had "'misrepresented his desire to reunify with his daughter . . . ." He reported that the father had been visiting regularly. He added, "Overall, [J.M.] indicated he was not well informed of the process he needed to go through to have custody of his daughter."

The social worker also stated that the father had "never completed services." This was inaccurate; actually, the trial court had denied him services. The context, however — including the discussion of whether the father had or had not refused services — clarified it somewhat.

D. First Section 388 Petition.

In May 2017, the father's counsel filed a section 388 petition. It asked the trial court to rescind all prior findings and orders based on lack of notice, to find that he was a presumed father, and to give him custody and dismiss the dependency or, alternatively, to give him reunification services.

According to his counsel, he first learned that he might be the father of the child one month after the child was born. He "immediately" contacted the Department of Child Support Services (CSS), volunteered to take a paternity test, and offered to pay child support. When the paternity test was positive, CSS told him to contact CFS. Once again, he denied telling the previous social worker that he did not want services.

His counsel also stated that he had filed a paternity petition. At that point, the trial court had exclusive jurisdiction to adjudicate paternity. (Welf. & Inst. Code, § 316.2, subd. (e); In re Alexander P. (2016) 4 Cal.App.5th 475, 480.) The record does not indicate where the father's petition was filed or what happened to it.

His counsel added that he had been visiting his daughter regularly for two hours once a week. He had a "loving relationship" with her and she "appear[ed] to be bonded" to him. He had a suitable home for the child and relatives who could help him care for her; he had a full-time job and could support the child financially.

The trial court denied the petition without a hearing, explaining: "The minor has never lived w/ father and is 1 year old. He has been involved in the case since November 2016 and is just now asking to change orders and is raising issues regarding the violation of rights."

The order denying the petition was sent to the father's former Pebble Beach Drive address, not his current Borego Road address.

Later in May 2017, at the 12-month review hearing, the attorney for the father of the mother's older children made a special appearance for the father. He said he had spoken to the father briefly before the case was called and added: "I think in my brief conversation with [J.M.] today, he is very much interested in having a relationship with his child. In the short time we spoke, that much was clear. . . . I'm sure he would ask this Court to provide him with some services or some path to having his child back." The trial court nevertheless terminated reunification services and set a section 366.26 hearing.

E. Second Section 388 Petition and Section 366 .26 Hearing.

In October 2017, the father's counsel filed a second section 388 petition. Once again, it asked the trial court to find that he was a presumed father and to give him custody and dismiss the dependency or, alternatively, to give him reunification services.

His counsel stated, again, that he had been visiting his daughter regularly for two hours once a week. He had a "loving relationship" with her and she "appear[ed] to be bonded" to him. He had a suitable home for the child and relatives who could help him care for her; he had a full-time job and could support the child financially. He had also completed a 10-week parenting class.

The trial court (through a judge not normally assigned to the case) set a hearing on the petition.

CFS filed a response, in which the social worker recommended granting the father presumed father status. He explained: "Overall, [J.M.] has exhibited motivation and the desire to raise his daughter. He has completed parenting classes and a drug test on his own, is gainfully employed, and has substantial housing in order to raise his daughter."

In October 2017, the trial court held a hearing, first on the section 388 issues, and then on the section 366.26 issues.

Regarding the section 388 petition, counsel for CFS stated that the social worker had changed his recommendation to denial. After "struggl[ing]" with the recommendation, he had decided that granting the petition was not in the child's best interest "because the child has consistently lived with the caregiver for . . . 17 or 18 months at this point, maybe even longer. And . . . is extremely bonded with the caregiver."

The trial court denied the petition, without an evidentiary hearing, as not in the child's best interest. It explained: "The minor was removed at six days old, she has never lived with either of the parents. Neither parent has occupied a parental role in her life. She's in a concurrent planning home and is extremely bonded with the caretaker."

At the section 366.26 hearing, both parents testified. The father admitted that he had known the mother was pregnant. When asked if he was "involved with the mother's pregnancy," he answered, "At times I was, but mostly no." He found out through a mutual friend, when the child was one month old, that the mother had given birth. He then contacted CSS and requested a paternity test. Once he got the test results, in June 2016, he offered to pay child support. Only then did CSS inform him of the dependency proceeding.

Since the child was about five months old, he had been visiting her once a week for two hours at a time. He fed her, diapered her, read to her, sang to her, and played with her. He kissed her and hugged her "a lot." She reached out for him and called him "Dada."

The father's counsel asked the court to find that the beneficial relationship exception to termination applied. The trial court noted that counsel was actually making "a sort of Kelsey S.-type argument . . . ." (Italics added.) It found, however, that the father did not qualify as a Kelsey S. father: "[T]he father was aware of the mother's pregnancy, which means he was on notice that he could be the father to the child."

It then found that the child was adoptable and that there was no applicable exception to termination. It therefore terminated parental rights.

II

THE TRIAL COURT'S KELSEY S. FINDING

The father contends that the trial court erred by terminating his parental rights, because he was a Kelsey S. father who had never been found unfit.

If we were to address the father's contentions chronologically, this one would come last. We discuss it first, instead, because the concept of a Kelsey S. father — and the trial court's finding that the father was not one — are crucial to our discussion of most of the father's other contentions.

"'California dependency law distinguishes between a presumed father, a biological father[,] and a biological father who came forward early in the dependency case and displayed a full commitment to the child (Kelsey S. father). [Citations.]' [Citation.]" (In re T.G. (2013) 215 Cal.App.4th 1, 5.)

"A presumed father is a man who meets one or more specified criteria in [Family Code] section 7611." (In re P.A. (2011) 198 Cal.App.4th 974, 979.) One such criterion is if he was married to the mother and the child was born during the marriage. (Fam. Code, § 7611, subd. (a).) Another is if he "receives the child into his . . . home and openly holds out the child as his . . . natural child." (Fam. Code, § 7611, subd. (d).)

"A biological father has established his paternity, but he has not established that he is the child's presumed father . . . . [Citation.]" (In re H.R. (2016) 245 Cal.App.4th 1277, 1283, fn. omitted.)

"'Presumed father status ranks highest.' [Citation.]" (In re B.C. (2012) 205 Cal.App.4th 1306, 1312, fn. 3.) "[O]nly a presumed father is entitled to custody and reunification services. [Citations.]" (In re E.T. (2013) 217 Cal.App.4th 426, 437.) In addition, "'[p]rinciples of due process require that the trial court not terminate a presumed father's parental rights without first finding, by clear and convincing evidence, that the father is unfit.' [Citation.]" (In re D.H. (2017) 14 Cal.App.5th 719, 722.)

A mere biological father is not entitled to custody. (In re Zacharia D. (1993) 6 Cal.4th 435, 454.) Likewise, he is not absolutely entitled to reunification services (ibid.), although the trial court has discretion to grant them if it finds "that the services will benefit the child." (Welf. & Inst. Code, § 361.5, subd. (a); In re J.H. (2011) 198 Cal.App.4th 635, 644.) "'[A] biological father's rights are limited to establishing his right to presumed father status, and the court does not err by terminating a biological father's parental rights when he has had the opportunity to show presumed father status and has not done so. [Citations.]' [Citation.]" (In re T.G., supra, 215 Cal.App.4th at p. 5.)

This brings us to Kelsey S. In it, the Supreme Court held that, as a matter of equal protection, when "an unwed father [has] promptly come[] forward and demonstrate[d] a full commitment to his parental responsibilities" (Adoption of Kelsey S., supra, 1 Cal.4th at p. 849), but he has been prevented by the mother from receiving the child into his home and thus from becoming a presumed father, he must be accorded the same statutory rights as a presumed father. (Id. at pp. 844-850.)

"Although Kelsey S. was not a dependency case, courts have extended its holding to dependency proceedings[,] granting Kelsey S. fathers constitutional protections in those proceedings. [Citations.]" (In re Hunter W. (2011) 200 Cal.App.4th 1454, 1462.)

In evaluating a Kelsey S. claim, "the trial court must consider whether [the father] has done all that he could reasonably do under the circumstances." (Adoption of Kelsey S., supra, 1 Cal.4th at p. 850.) "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. . . . 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." (Id. at p. 849, fn. omitted.)

"The burden is on the biological parent 'to establish the factual predicate' for Kelsey S. rights. [Citation.]" (Adoption of Myah M. (2011) 201 Cal.App.4th 1518, 1539.) "When deciding whether a parent meets the requirements under Kelsey S., appellate courts have reviewed the ruling for substantial evidence. [Citations.] . . . To the extent that the issue is a mixed question of law and fact, we exercise our independent judgment in measuring the facts against the applicable legal standard. [Citation.]" (Ibid.)

However, "[i]n the case where the trier of fact has expressly or implicitly concluded that the party with the burden of proof did not carry the burden and that party appeals, it is misleading to characterize the failure-of-proof issue as whether substantial evidence supports the judgment." (In re I.W. (2009) 180 Cal.App.4th 1517, 1528.) Rather, "where the issue on appeal turns on a failure of proof at trial, the question for a reviewing court becomes whether the evidence compels a finding in favor of the appellant as a matter of law. [Citations.]" (Id. at p. 1528.)

We accept that the father was prevented from receiving the child into his home — though not for the reason the father claims. He argues that the mother "concealed father's possible paternity from the authorities." This is true but beside the point. She did not conceal his possible paternity from him. Despite her failure to name him as a possible father, he was able to contact CSS and to request a paternity test.

Actually, what prevented the father from receiving the child into his home was that the mother used drugs during her pregnancy and, as a result, CFS detained the child and then took custody of her. This satisfies the Kelsey S. requirement. (In re Jerry P. (2002) 95 Cal.App.4th 793, 811 & fn. 60 [father qualified as Kelsey S. father where "through no fault of his own, he cannot physically bring the child into his home . . . because the mother, the DCFS, the hospital or a combination of all three have made it impossible for him to do so"].)

However, there was insufficient evidence that the father promptly attempted to assume his parental responsibilities. Once again, he admitted that he was largely not involved with the pregnancy. He knew the mother was pregnant, and he knew he was one possible father, but evidently he did not keep track of the mother and the child either before or after the birth. He did not learn the child had been born until she was one month old; however, basic mathematics would have told him roughly when the birth would occur. Moreover, there is no evidence that the mother actively prevented him from learning about the birth. It appears that he simply did not keep in touch with her.

Even after he learned that the child had been born, he did not make contact with the mother or the child. Admittedly, he did contact CSS, request a paternity test, and offer to pay child support if it was positive. Commendable though this was, it was not an effort take the child into his home. Rather, it pointed toward an intent to leave the child with the mother.

CFS argues that the father did not really want custody because he requested placement with various relatives of his. It seems clear, however, that he wanted the child placed with these relatives only if he could not get placement or custody himself.

In the father's first section 388 petition, his counsel, on his behalf, asserted that he had filed a paternity petition. However, no evidence of this was introduced at the section 366.26 hearing. In any event, evidently he did not file any such petition in the juvenile court, as he would have had to do. (See fn. 5, ante, p. 7.) Absent proof of such a petition, and absent any evidence about what he did to prosecute it, the trial court was not required to find that he took prompt legal action to seek custody.

It could be argued (though the father does not do so) that he could not be sure of his paternity, and therefore it was reasonable for him to postpone seeking to assume parental responsibilities until after paternity was established. It has been said that there is "no authority for the proposition that a Kelsey S. father must unconditionally assert his parental rights even before knowing whether the minor is his biological child . . . ." (In re D.A. (2012) 204 Cal.App.4th 811, 825.) We agree that the doubt surrounding the paternity of the child is one circumstance that must be taken into account in evaluating the father's efforts. But even the possibility that he might be the father suggests that he should at least keep in contact with the mother, make sure that she was well-cared for, and count down to the birth. Instead, he did none of these things.

In Adoption of Michael H. (1995) 10 Cal.4th 1043, the Supreme Court added a significant gloss to Kelsey S. It required that a Kelsey S. father must "'promptly' demonstrate[] a 'full commitment' to parenthood during pregnancy and within a short time after he discovered or reasonably should have discovered that the biological mother was pregnant with his child, and that he cannot compensate for his failure to do so by attempting to assume his parental responsibilities many months after learning of the pregnancy." (Id. at p. 1054, italics in original.) Presumably this requirement does not apply when the father did not know the mother was pregnant or did not yet know that the child was his. Here, however, the father did know the mother was pregnant, and he knew it was at least possible that the child was his. Thus, under Michael H., he should have begun showing a commitment to parenthood — at least to the extent consistent with his doubts about his paternity — during the pregnancy.

The father cites In re Julia U. (1998) 64 Cal.App.4th 532. The father there, however, was told and believed that the biological father was another man (id. at p. 538) — the man named on the birth certificate. (Id. at p. 535.) He did not learn that he was the actually the biological father until the other man was ruled out, the mother named him as an another possible father, and the social services agency sought a paternity test. (Id. at pp. 536-537.) "[H]e publicly expressed his desire to establish a relationship with [the child] if the paternity test showed he was her biological father." (Id. at pp. 541-542.) The appellate court held that he was a Kelsey S. father. (Id. at pp. 540-544.) Here, by contrast, the father was subjectively aware at all times that L.N. might be his child, as shown by the fact that he requested a paternity test.

The father also relies on In re Andrew L. (2004) 122 Cal.App.4th 178. There, the father did not learn that he might be the father until after the dispositional hearing; once he did, he requested paternity testing plus reunification services or custody. (Id. at pp. 181-185, 190.) The trial court held that he was a Kelsey S. father (id. at p. 189), and the appellate court upheld this finding. (Id. at pp. 192-193.) Here, we repeat, the father already knew that he might be the father when the mother was pregnant.

The father does not claim that he did not have a full and fair opportunity to prove his Kelsey S. status at the section 366.26 hearing. Quite the contrary — he claims that the evidence he introduced at that hearing absolutely compelled a finding that he was a Kelsey S. father. The trial court recognized that he was trying to prove his Kelsey S. status; it simply found against him on this issue.

We therefore conclude that the trial court properly found that the father was not a Kelsey S. father.

III

PATERNITY INQUIRY

The father contends that the trial court erred by failing to make an adequate paternity inquiry.

Preliminarily, he forfeited this contention by failing to raise it below. "[A] reviewing court ordinarily will not consider a challenge to a ruling if an objection could have been but was not made in the trial court. [Citation.] The purpose of this rule is to encourage parties to bring errors to the attention of the trial court, so that they may be corrected. [Citation.] [¶] Dependency matters are not exempt from this rule. [Citations.]" (In re S.B. (2004) 32 Cal.4th 1287, 1293, fn. omitted.)"

Separately and alternatively, he has not shown error.

Welfare and Institutions Code section 316.2, subdivision (a) provides: "At the detention hearing, or as soon thereafter as practicable, the court shall inquire of the mother and any other appropriate person as to the identity and address of all presumed or alleged fathers." If an alleged father is identified as a result of the inquiry, he must be given notice of the proceedings. (Welf. & Inst. Code, § 316.2, subd. (b).)

Here, the trial court did conduct the necessary inquiry. At the detention hearing, it asked the mother who might be the father. However, she could not or would not provide any useful information.

The father argues that, once the social worker reported that he was the biological father, in August 2016, the trial court should have made a paternity inquiry of him. Moreover, it should have set a hearing for this purpose immediately, in September 2016. A paternity inquiry must include, among other things, "[w]hether the mother has received support payments or promises of support with respect to the child or in connection with her pregnancy." (Welf. & Inst. Code, § 316.2, subd. (a)(4).) According to the father, if only the trial court had made such an inquiry, it would have learned that he had offered to pay child support and that he wanted reunification services.

The point of the required inquiry, however, is to determine "the identity and address of all presumed or alleged fathers" and to make sure that they are given notice of the proceedings. Once the social worker reported that the father was the biological father, and once he was given notice, this purpose had been served. After that, it was up to the father — with the assistance of his appointed counsel — to assert his rights.

The crux of the father's argument is that he was prejudiced because the first hearing at which he appeared and was appointed counsel was not in September 2016 but rather in November 2016. He notes, "the court ruled against father on his section 388 petitions based on the amount of time that had passed in the case." We see no such prejudice. Once the father's counsel finally filed a section 388 petition, in May 2017, the trial court denied it, citing the delay in filing since November 2016. This indicates that its concern was the delay after he first appeared and thus could have filed.

IV

SECTION 388 PETITIONS

The father contends that the trial court erred by denying his two section 388 petitions without a hearing.

A. First Section 388 Petition.

The trial court's order denying the first section 388 petition was an appealable order. (In re K.C. (2011) 52 Cal.4th 231, 236; In re Aaron R. (2005) 130 Cal.App.4th 697, 702-703.) But the father did not file a timely notice of appeal from this order. (Cal. Rules of Court, rule 8.406(a)(1) ["a notice of appeal must be filed within 60 days after . . . the making of the order being appealed."].)

"An appeal from the most recent order in a dependency case may not challenge prior orders for which the statutory time for filing an appeal has passed. [Citation.]" (In re A.S. (2009) 174 Cal.App.4th 1511, 1514, fn. 3.) "If an order is appealable . . . and no timely appeal is taken therefrom, the issues determined by the order are res judicata. [Citation.]" (In re Matthew C. (1993) 6 Cal.4th 386, 393.)

The father points out that notice that the order had been denied was not sent to his correct address. Nevertheless, we lack the power to grant relief from the failure to file a timely notice of appeal. (Cal. Rules of Court, rule 8.60(d).) "In the absence of statutory authorization, neither the trial nor appellate courts may extend or shorten the time for appeal [citation], even to relieve against mistake, inadvertence, accident, or misfortune. [Citations.]" (Estate of Hanley (1943) 23 Cal.2d 120, 123.) "It may be assumed that the appellant has presented grounds for relief which would be sufficient if relief could be granted. But the requirement as to the time for taking an appeal is mandatory, and the court is without jurisdiction to consider one which has been taken subsequent to the expiration of the statutory period. [Citations.]" (Id. at pp. 122-123.)

The father relies on Castro v. Superior Court (1974) 40 Cal.App.3d 614. That case held that a criminal defendant is entitled to file a belated appeal when he or she was ignorant of the right to appeal and when the trial court failed to advise him or her of the right to appeal, as required by California Rules of Court, former rule 250 (see now Cal. Rules of Court, rule 4.305). (Castro v. Superior Court, supra, at pp. 618-623.) Castro does not apply here, for two reasons.

First, the father does not claim and, on this record, cannot show that he was, in fact, ignorant of the denial. While notice of the trial court's order was sent to an incorrect address for him, it was sent to the correct address for his counsel. Plus, inferably he knew the petition had been filed; as time passed and he did not hear that it had been granted, the logical conclusion would be that it had been denied.

Second, there was no applicable rule, analogous to California Rules of Court, former rule 250, requiring the trial court to advise the father of his right to appeal. (See Cal. Rules of Court, rules 5.590(a) [requiring advisal after contested jurisdictional or disposition order], 5.725(h) [requiring advisal after selection of permanent plan].)

We therefore conclude that we cannot review the denial of the first section 388 petition. In part VI.D, post, we will discuss the father's contention that his counsel's failure to file an appeal from the denial constituted ineffective assistance of counsel.

B. The Second Section 388 Petition.

1. Applicable legal principles.

Section 388, subdivision (a)(1) states: "Any parent . . . may, upon grounds of change of circumstance or new evidence, petition the court . . . for a hearing to change, modify, or set aside any order of court previously made . . . ."

"To obtain an evidentiary hearing on a section 388 petition, a parent must make a prima facie showing that circumstances have changed since the prior court order, and that the proposed change will be in the best interests of the child. [Citations.]" (In re Alayah J. (2017) 9 Cal.App.5th 469, 478.) "The prima facie showing is not met unless the facts alleged, if supported by evidence given credit at the hearing, would sustain a favorable decision on the petition. [Citation.] In determining whether the petition makes the necessary showing, the court may consider the entire factual and procedural history of the case. [Citation.]" (In re J.P. (2014) 229 Cal.App.4th 108, 127.) "We review a juvenile court's decision to deny a section 388 petition without an evidentiary hearing for abuse of discretion. [Citation.]" (In re K.L. (2016) 248 Cal.App.4th 52, 62.)

A section 388 petition can also be used to assert a lack of notice that violates due process. (Ansley v. Superior Court (1986) 185 Cal.App.3d 477, 481, 484-488.) In that event, the petition can be granted even without a showing that it is in the best interest of the child. (Id. at pp. 490-491.)

2. Lack of notice.

The father's second section 388 petition did not raise any issues regarding lack of notice. The father claims, however, that his counsel raised lack of notice at the hearing and thus the trial court should have held an evidentiary hearing on this issue.

At the hearing on the petition, the minor's counsel argued that "his 388 from before, in May, was denied for the same reasons that he lists in today's 388." The father's counsel responded:

"[T]here's a big difference between my first petition and this one.

"First of all, Father was not informed that he as the bio father, and has never been informed of the original detention or JD hearing. I brought that up in my first petition which the Court denied.

"Second, what my client did after that denial, . . . he proceeded to visit and has visited religiously with the child."

This was not sufficient to raise lack of notice as an issue. The father's counsel was contrasting the first petition, which was based on lack of notice, with the second petition, which was assertedly based on what the father had done since the denial of the first petition. In essence, she conceded that the second petition was not based on lack of notice.

Separately and alternatively, even assuming the second petition was based, at least in part, on lack of notice, the trial court could properly reject that ground, for two reasons.

First, it had already denied the claim of lack of notice in the first petition. The father was asking it to change that order. Thus, under section 388 itself, he had to show a "change of circumstance or new evidence . . . ." (Welf. & Inst. Code, § 388, subd. (a).) However, he did not claim there were any new facts or changed circumstances regarding lack of notice.

Second, the father's counsel's claim of lack of notice was limited to (1) the detention hearing and (2) the jurisdictional/dispositional hearing. He did not claim that he lacked notice of the nonappearance review hearing. This particular claim had no merit.

"'The child welfare agency must act with diligence to locate a missing parent. [Citation.] Reasonable diligence denotes a thorough, systematic investigation and an inquiry conducted in good faith. [Citation.] [¶] However, there is no due process violation when there has been a good faith attempt to provide notice to a parent who is transient and whose whereabouts are unknown for the majority of the proceedings. [Citations.]' [Citation.] Thus, where a parent cannot be located notwithstanding a reasonable search effort, the failure to give actual notice will not render the proceedings invalid. [Citation.]" (In re J.H. (2007) 158 Cal.App.4th 174, 182.)

Here, the father was not entitled to notice of either the detention hearing or the jurisdictional/dispositional hearing because, at the time, his identity was unknown; CFS, using all the due diligence in the world, could not have discovered it.

3. Kelsey S.

The father also argues that the trial court erred by denying him an evidentiary hearing at which he could have established that he was a Kelsey S. father.

The threshold question, then, is whether his petition alleged a prima facie case that he was, in fact, a Kelsey S. father. It did not. It alleged that he had been visiting the child regularly and had established a "loving relationship" with her. It also alleged that he was employed full-time, had a place to live that was appropriate for the child, and had a "family support system." All of this was arguably relevant to whether he should be given reunification services. (But see part IV.B.4, post.) It was insufficient, however, to show that he had Kelsey S. status. The petition did not state when he learned that the mother was pregnant. It did not address whether he was involved with the pregnancy. It did not discuss whether he publicly held himself out as the father of the child. Being a biological father who has loving visitation does not make you a Kelsey S. father.

The father argues that "[i]f [he] had been given a hearing, he could have presented additional evidence that he should be found to be a Kelsey S. father." He lists that additional evidence as: (1) "evidence . . . that [the] mother concealed from the authorities the fact that [he] was a possible father"; (2) "evidence regarding his involvement with [the] mother during her pregnancy and her behavior during that time and whether that prevented him from taking a more active role and supportive role up through the time of the child's birth and beyond"; and (3) "evidence regarding: [(a)] how he learned of the child's birth and foster care status; [(b)] his communications with child support and his child support payments; [(c)] how he immediately upon learning of the DNA test contacted [CFS] to request information and get visitation with his child; and, [(d)] how he was able and willing to assume custody . . . from the very beginning." This list, however, only highlights the inadequacy of the petition. He had to allege such facts in the petition to be entitled to a hearing. He did not do so.

In any event, the father did eventually enjoy a hearing on his Kelsey S. status — in connection with the section 366.26 hearing. At that time, he had an opportunity to introduce all of the evidence he lists, and he did in fact introduce most, if not all of it. Nevertheless, the trial court found that he was not a Kelsey S. father. In part II, ante, we uphold that finding. Hence, any denial of an earlier hearing was harmless.

In addition, the second petition did not show any meaningful changed circumstances since the denial of the first petition. Indeed — aside from omitting the allegations regarding lack of notice — the second petition repeated the first petition almost word for word. The only new allegation was that the father had completed a 10-week parenting class. However, this did not tend to show that he was a Kelsey S. father any more than when the first petition was denied.

And finally, the second section 388 petition did not adequately allege that giving him Kelsey S. status would be in the best interest of the child. (See In re Vincent M. (2008) 161 Cal.App.4th 943, 956 [section 388 petition by Kelsey S. father seeking reunification services after reunification period has ended must show that change is in child's best interests].) It merely stated: "This change would be in [the child's] best interests because [the father] can provide a loving and stable home, she would get to know her extended family, and be integrated into [the father's] home." The child, however, already had a loving and stable home with the prospective adoptive mother. The trial court concluded that the benefits of being with the father and getting to know her extended family did not outweigh the detriment of removing her from the only family she had known during her first year and a half of life. The father does not even attempt to explain why this was an abuse of discretion.

4. Reunification services.

The second section 388 petition appeared to be based exclusively on the father's Kelsey S. claim. However, it did request either custody or, in the alternative, reunification services. Thus, arguably, it was also implicitly based on a claim that, even though the father was a mere biological father, he should be granted reunification services because they would benefit the child. The father contends that the trial court erred by denying him an evidentiary hearing on this latter issue.

Once again (see part IV.B.3, ante), the second petition did not show any meaningful changed circumstances since the denial of the first petition. The mere fact that the father had taken a parenting class did not tend to show that reunification services were any more likely to benefit the child than when the first petition was denied.

In addition, the trial court could and did conclude that granting the father reunification services would not be in the child's best interests. The child had lived with the prospective mother from birth to the age of a year and a half. The prospective adoptive mother was "responsible for every aspect of [L.N.'s] care." As a result, she had been granted de facto parent status. The social worker opined, based on his observations, that the child was bonded with the prospective adoptive mother. We accept that the father, even though he visited for only two hours a week, had also developed a bond with the child. Nevertheless, he was, at best, a secondary caregiver; he did not play the central parental role in her life. Granting the father reunification services at such a late stage would run counter to the child's interest in permanency and stability.

V

LACK OF NOTICE

The father contends that he was not given notice of the August 2016 nonappearance review hearing.

"In order to preserve an issue for appeal, a party ordinarily must raise the objection in the trial court. [Citation.]" (In re S.C. (2006) 138 Cal.App.4th 396, 406.) Here, the father raised lack of notice of the August 2016 nonappearance review hearing in his first section 388 petition. However, as we held in part IV.A, ante, even assuming the trial court erred by denying the first petition, we have no jurisdiction to reverse on that ground.

The father now claims that he also raised lack of notice in his second petition. As we held in part IV.B, ante, we disagree, and in any event, he raised it at most with respect to lack of notice of (1) the detention hearing and (2) the jurisdictional/dispositional hearing, and there was no error in failing to give him notice of those two hearings.

We must therefore decline to decide whether the failure to give the father notice of the August 2016 nonappearance review hearing was error.

VI

INEFFECTIVE ASSISTANCE OF COUNSEL

The father contends that his counsel rendered ineffective assistance in three respects.

A. General Legal Principles.

"To succeed on a claim of ineffective assistance of counsel, the appellant must show (1) counsel's representation fell below an objective standard of reasonableness; and (2) the deficiency resulted in demonstrable prejudice. [Citations.]" (In re Kristen B. (2008) 163 Cal.App.4th 1535, 1540-1541.)

"'"[T]here is a 'strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance.'"' [Citation.]" (People v. Nguyen (2015) 61 Cal.4th 1015, 1051.) Hence, "[w]hen a claim of ineffectiveness of counsel is raised on appeal, we examine the record to determine if there is any explanation for the challenged aspects of representation. If the record sheds no light on why counsel failed to act in the manner challenged, the case is affirmed 'unless counsel was asked for an explanation and failed to provide one, or unless there simply could be no satisfactory explanation . . . .' [Citations.] [¶] 'We cannot assume that the decision was the result of negligence, when it could well have been based upon some practical or tactical decision governed by client guidance.' [Citation.]" (In re Merrick V. (2004) 122 Cal.App.4th 235, 255.)

B. Delay in Filing the First Section 388 Petition.

First, the father contends that his counsel rendered ineffective assistance by waiting about six months before filing his first section 388 petition.

We assume, without deciding, that the father can still raise this issue, despite his failure to appeal from the denial of the first section 388 petition.

The father's counsel could have had sound tactical reasons for waiting to file the first section 388 petition. To the extent that the father was seeking reunification services, he was going to have to show that services would benefit the child. (Welf. & Inst. Code, § 361.5, subd. (a).) By May 2017, when the father's counsel finally filed the first section 388 petition, she could allege that he had been having visitation with the child and that the child "appears to be bonded with" him. She could also allege that he had a permanent place to live, on Borego Road, which was suitable for the child, and that he was employed full-time and financially able to support the child. By contrast, back in November 2016, when counsel was first appointed, the father had been having supervised visitation once a week for about two months; the record does not establish how much he had been able to bond with the child in that limited time. It also does not reflect whether he had a suitable place to live (although we do know that he was not yet living on Borego Road) or whether he was financially able to support the child. The father's counsel could have reasoned that there was no point in filing a section 388 petition until the father could show that he was a viable potential placement.

Admittedly, the first section 388 petition was also based on lack of notice. In that event, section 388 itself does not require a showing that the petition is in the best interest of the child. (Ansley v. Superior Court, supra, 185 Cal.App.3d at pp. 490-491.) But even if the trial court granted the petition on this ground, and even if it vacated the August 2016 order denying the father reunification services, he still would not be entitled to reunification services under Welfare and Institutions Code section 361.5 unless he could show that they would benefit the child. Thus, it still made sense to wait.

And finally, the first section 388 petition was also based on the father's Kelsey S. claim. If he could establish that, he would be absolutely entitled to reunification services, without regard to the best interest of the child. He would also be entitled to custody, unless the trial court found that custody would be detrimental. (Welf. & Inst. Code, § 361.2, subd. (a).) Ultimately, however, as discussed in part II, ante, he was not able to establish that he was a Kelsey S. father. The father's counsel could reason that his Kelsey S. claim was weak, at best, so that he was better off taking time to develop a bond with the child and to make other changes in his life that would bolster his alternative claim that, even if he was only a biological father, reunification services would benefit the child.

C. Misstatement Regarding Notice of the Nonappearance Review Hearing.

Next, the father contends that his counsel rendered ineffective assistance by appearing to concede that he did receive notice of the nonappearance review hearing.

In the first section 388 petition, the father's counsel stated that the father did not receive notice of any of the proceedings, including the nonappearance review hearing, "until August 31, 2016." (Bolding omitted.) This was the date of the nonappearance review hearing. Thus, counsel's statement could be understood to concede that the father did receive same-day notice of that hearing. The father contends that this misstatement constituted ineffective assistance of counsel.

The trial court, however, did not rely in any way on the misstatement. It denied the petition because the father "has been involved in the case since November 2016 and is just now asking to change orders." (Italics added.) In other words, it focused solely on his delay after November 2016, which was when he first appeared at a hearing. Accordingly, the father cannot show that he was prejudiced.

D. Failure to Appeal from the Denial of the First Section 388 Petition.

Finally, the father contends that his counsel rendered ineffective assistance by failing to file an appeal from the denial of the first section 388 petition.

The trial court denied the first section 388 petition based on delay. The father does not dispute that a section 388 petition may be denied on this ground. As he asserts himself, "In dependency proceedings, time is of the essence." (See In re Daniel S. (2004) 115 Cal.App.4th 903, 913.) He even describes the petition as "inexcusably late."

The father's only argument that the trial court erred is that the August 2016 order denying him reunification services was "void" due to lack of notice and therefore "subject to collateral attack at any time." Not so. Under these circumstances, the order was voidable, at most, not void.

"It is well-established that a lack of notice can be forfeited by failure to object, even when it is claimed that it violated due process. [Citation.]" (People v. Nguyen (2017) 18 Cal.App.5th 260, 271.) "To preserve a claim to defective notice of a . . . hearing, the objection must be raised at the earliest opportunity . . . . [Citations.]" (In re Marriage of Obrecht (2016) 245 Cal.App.4th 1, 13.)

In November 2016, when the father first appeared, his counsel did state that he had not received notice of previous hearings. However, she did not request any particular relief. Moreover, when counsel for CFS responded that, at the time of the previous hearings, his whereabouts were unknown, she did not speak up and point out that that was not true with respect to the nonappearance review hearing. In February 2017, the father and his counsel appeared at an appearance review hearing, without objecting to lack of notice; the father's counsel asked that the social worker be authorized to increase visitation. In April 2017, the father and his counsel appeared at a "receipt of report" hearing. At that hearing, the father's counsel objected (unsuccessfully) to the prospective adoptive mother's de facto parent application. She also asked the trial court to set the 12-month review hearing as contested. She did mention that she was going to file a section 388 petition, but she did not specifically object to lack of notice. This was sufficient participation in the proceeding to forfeit any claim of lack of notice.

We cannot say that this forfeiture constituted ineffective assistance of counsel. As already mentioned, even if the trial court were to vacate the August 2016 order based on lack of notice, the father still would not be entitled to reunification services unless he could show either that they would benefit the child or that he was a Kelsey S. father. Thus, the father's counsel could reasonably sacrifice the lack of notice issue in the hope of making a stronger showing in the future on the reunification and Kelsey S. issues.

It follows that the trial court properly denied the first section 388 petition. The father's counsel's failure to file an appeal from the denial was not ineffective assistance, and even if it was, it was not prejudicial, as the appeal would have failed.

VII

DISPOSITION

The order appealed from is affirmed.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

RAMIREZ

P. J. We concur: McKINSTER

J. FIELDS

J.


Summaries of

In re L.N.

COURT OF APPEAL OF THE STATE OF CALIFORNIA FOURTH APPELLATE DISTRICT DIVISION TWO
Oct 12, 2018
No. E069409 (Cal. Ct. App. Oct. 12, 2018)
Case details for

In re L.N.

Case Details

Full title:In re L.N., a Person Coming Under the Juvenile Court Law. SAN BERNARDINO…

Court:COURT OF APPEAL OF THE STATE OF CALIFORNIA FOURTH APPELLATE DISTRICT DIVISION TWO

Date published: Oct 12, 2018

Citations

No. E069409 (Cal. Ct. App. Oct. 12, 2018)