Opinion
A148095 A149104
01-20-2017
In re F.R, a Person Coming Under the Juvenile Court Law. SAN FRANCISCO HUMAN SERVICES AGENCY, Plaintiff and Respondent, v. FELIPE P., Defendant and Appellant. In re F.R., on Habeas Corpus.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (City & County of San Francisco Super. Ct. No. JD153287)
Felipe P. appeals from an order denying his motion to be declared a presumed father and provided reunification services in dependency proceedings involving his biological son, F.R. He contends the trial court erred in concluding that granting the motion, just one week prior to the permanency planning hearing under Welfare and Institutions Code section 366.26, would not be in the child's best interest. We find no prejudicial error and thus shall affirm.
All statutory references are to the Welfare and Institutions Code unless otherwise stated.
Background
On September 28, 2015, the San Francisco Human Services Agency (the agency) filed a petition on behalf of newborn F.R., alleging that he came within the provisions of section 300, subdivisions (b) (failure to protect), (g) (no provision for support), and (j) (abuse of sibling). The petition alleged that the mother suffered from substance abuse, tested positive for amphetamines when she gave birth, and had an extensive child welfare history for her three older children. The petition named Felipe as the alleged father and alleged that he too had problems with substance abuse and a history of domestic violence.
In the detention report, the agency reported that mother was homeless and Felipe's whereabouts were unknown. The report also indicated that the parents had another child together over whom their parental rights had been terminated in January 2015. Mother stated that she initially told Felipe that she was pregnant, but soon thereafter she told him she had miscarried. She was able to hide the pregnancy from him because he was in jail between June and September 2015.
The child was detained following a hearing on September 29, 2015.
At a due diligence hearing on October 13, the agency reported that it had sent notice of the proceedings to Felipe's last known address in San Francisco and attempted to deliver notice through his probation officer. Felipe first appeared and was appointed counsel at the jurisdictional hearing held on October 27, 2015.
At the jurisdictional hearing, Felipe requested a continuance and a paternity test. The continuance was denied but the paternity test was ordered. The juvenile court found all of the allegations in the petition to be true and that the child came within the meaning of section 300. The court bypassed reunification services for mother pursuant to section 361.5, subdivision (b)(10), and did not offer reunification services to Felipe. A section 366.26 hearing was set for March 2, 2016.
The denial of a continuance was upheld by this court in a prior opinion. (In re F.P. (Feb. 16, 2016, A146685) [nonpub. opn.].)
Section 361.5, subdivision (a) provides in part, "Upon a finding and declaration of paternity by the juvenile court . . . the juvenile court may order services for the child and the biological father, if the court determines that the services will benefit the child."
On January 26, 2016, Felipe filed a motion for presumed father status under Adoption of Kelsey S. (1992) 1 Cal.4th 816. Felipe requested that he be found the presumed father and offered reunification services. In his declaration, Felipe stated that he and mother were not married but were in a romantic relationship when she became pregnant. When she told him that she was pregnant, he posted the news on his Facebook page. He encouraged her to enter a drug treatment program and offered to enter a program with her for emotional support. The couple contacted multiple treatment programs, Felipe attended Alcoholics Anonymous meetings with her, and he attended one doctor's appointment with her. Approximately three weeks after discovering she was pregnant, mother told Felipe that she had miscarried. Felipe's probation officer never informed him about the baby or the dependency proceedings; he did not learn about the existence of his son until he discovered a letter from the agency just a few days before the October 27 hearing. He immediately contacted mother to obtain information about the baby and she provided him pictures of the baby. He immediately shared the news and pictures on Facebook. He also attended the October 27 hearing and requested a paternity test, paternity inquiry, and custody. Felipe had not been able to visit with his son because the child was in the custody of the agency. Felipe attached the paternity results to his motion, showing that he is the child's biological father.
In Adoption of Kelsey S., supra, 1 Cal.4th 816, the court held that an unwed father may, under narrow circumstances, assert constitutionally protected paternity rights, even though he does not qualify under a Family Code section 7611 statutory presumption. Such a quasi-presumed, or "Kelsey S." father as they are most commonly known, is an unwed biological father who comes forward at the first opportunity to assert his paternal rights after learning of his child's existence, but has been prevented from becoming a statutorily presumed father under section 7611 by the unilateral conduct of the child's mother or a third party's interference. (In re Elijah V. (2005) 127 Cal.App.4th 576.)
On February 18, the court denied Felipe's motion. The court explained that because a section 366.26 hearing was already scheduled, Felipe's motion must be made under section 388, which requires a finding that the change in paternity status is in the minor's best interests. The court explained that the motion "should have been made long ago. There was an opportunity. It wasn't seized upon. There is a very short window of time when you're talking about an infant who is adoptable." Considering Felipe's motion as made under section 388, the court found that Felipe had not established a prima facie showing that the change in paternity status was in the minor's best interest. The court also observed that "if there was a hearing today, I would deny him as a Kelsey S. father" and found that the provision of reunification services to Filipe as a biological father would not be in the child's best interests.
At the section 366.26 hearing on March 2, 2016, the juvenile court found that there was clear and convincing evidence that the child likely would be adopted and terminated the parents' parental rights. At the time of the hearing, the four-month-old child was residing in the care of foster parents with whom he had been placed at birth and who are committed to his adoption. The child's 18-year-old half-brother also resides in the proposed adoptive home and the family has contact with the child's maternal relatives, including grandparents and other half-siblings.
Felipe filed a notice of appeal on April 19, 2016.
Discussion
1. The appeal is timely.
Felipe's notice purports to appeal the denial of his motion for presumed father status and the termination of his parental rights. The notice of appeal is undoubtedly timely with respect to the order terminating parental rights but, as the agency notes, untimely with respect to the motion denying Felipe presumed father status. Felipe's motion for presumed father status was denied in open court, with father and his attorney present, on February 18, 2016. The notice of appeal was filed on April 19, one day late under California Rules of Court, rule 8.406.
California Rules of Court, rule 8.406(a)(1), requires that "a notice of appeal must be filed within 60 days after the rendition of the judgment or the making of the order being appealed." Under rule 8.406, "an oral pronouncement in open court marks the beginning of the time to file a notice of appeal." (Adoption of Reed H. (2016) 3 Cal.App.5th 76, 81.)
Felipe's argument to the contrary is not persuasive. Felipe contends the notice is timely because the notice of entry of order mailed by the court clerk on February 22 advised the recipient that the notice of appeal "shall be filed within 60 days after the date of mailing or personal service of this order." While the language quoted by Felipe can be found on the notice of entry, the corresponding check-box is unchecked.
Ordinarily, a parent may not attack the validity of a prior appealable order after the time for filing an appeal from that order has passed. (Dwayne P. v. Superior Court (2002) 103 Cal.App.4th 247, 259.) In some circumstances, however, an unappealed order may be attacked on appeal from a subsequent appealable order by means of a claim of ineffective assistance counsel. (In re S.D. (2002) 99 Cal.App.4th 1068, 1079.)
Felipe argues that "if this court finds that the notice of appeal was late, it should excuse the lateness due to ineffective assistance of his trial counsel and deem the notice of appeal to be timely." In an abundance of caution, Felipe has also filed a petition for writ of habeas corpus alleging ineffective assistance of counsel based on his trial counsel's failure to timely file the notice of appeal. This petition has been consolidated with the present appeal.
In order to establish ineffective assistance of counsel, a parent must show (1) counsel's representation fell below an objective standard of reasonableness under prevailing professional norms, and (2) the deficient representation was prejudicial; prejudice means a reasonable probability that, but for counsel's failings, the result of the proceeding would have been more favorable to the parent. (Strickland v. Washington (1984) 466 U.S. 668, 687; In re Jackson W. (2010) 184 Cal.App.4th 247, 261.) In the absence of any indication that Felipe indicated to his attorney that he did not wish to pursue an appeal, counsel's failure to file a timely challenge to the denial of Felipe's motion for presumed father status was deficient and the failure was prejudicial. (Roe v. Flores-Ortega (2000) 528 U.S. 470, 477, 483 [Where a counsel's deficient performance results in forfeiture of an appeal, "which a defendant wanted at the time and to which he had a right," prejudice is established.]) Accordingly, we will resolve the appeal on the merits.
Because we consider Felipe's contentions on the merits, we shall dismiss the petition for a writ of habeas corpus as moot.
2. The court did not err in denying Felipe's motion for presumed father status.
By his motion, Felipe sought to be declared the child's presumed father and provided reunification services. On appeal, Felipe argues that the court erred requiring that he establish the change in status was in this child's best interest under section 388. Alternatively, he argues that if section 388 is applicable, the court abused its discretion in finding that modification of the disposition order to provide reunification services to him as a presumed father was not in the child's best interests.
Under section 388, the party petitioning for a modification of a prior court order has the burden of showing, by a preponderance of the evidence, that there is a change of circumstances or new evidence such that a change in the courts previous order would serve the child's best interests. (§ 388, subds. (a), (d).) Whether a section 388 petition is the appropriate vehicle to evaluate a request for presumed father status and the failure to provide reunification services depends on whether the juvenile court has terminated reunification services and set the section 366.26 hearing. The setting of a section 366.26 hearing marks an intentional shift in focus from the parent's fundamental interest in the care and custody of his or her child to the child's interest in stability and permanency. In In re Zacharia D. (1993) 6 Cal.4th 435, 446, our Supreme Court explained, "In developing parameters on the reunification process, 'the Legislature balanced numerous competing fundamental interests, including the child's compelling interest in "a placement that is stable, permanent, and which allows the caretaker to make a full emotional commitment to the child," the parents' compelling "interest in the companionship, care, custody and management" of their child [citation], and the "preservation of the family whenever possible . . ." [Citation.]' " Based on this balancing of interests, the court concluded that " '[u]p until the time the section 366.26 hearing is set, the parent's interest in reunification is given precedence over a child's need for stability and permanency.' [Citation.] 'Once reunification services are ordered terminated, the focus shifts to the needs of the child for permanency and stability.' [Citation.] 'The burden thereafter is on the parent to prove changed circumstances pursuant to section 388 to revive the reunification issue.' " (Zacharia D., p. 447.) As a result, the court held, "if a man fails to achieve presumed father status prior to the expiration of any reunification period in a dependency case, . . . he is not entitled to such services under section 361.5. . . . [The] only remedy . . . [is] to file a motion to modify under section 388." (Zacharia D., p. 453.)
Section 388, subdivision (a)(1) reads in relevant part, "Any parent or other person having an interest in a child who is a dependent child of the juvenile court . . . may, upon grounds of change of circumstance or new evidence, petition the court . . . to change, modify, or set aside any order of court previously made or to terminate the jurisdiction of the court." Under Section 388, subdivision (d) "If it appears that the best interests of the child or the nonminor dependent may be promoted by the proposed change of order, modification of reunification services, custody, or visitation orders concerning a child for whom reunification services were not ordered pursuant to paragraphs (4), (5), and (6) of subdivision (b) of Section 361.5, . . . the court shall order that a hearing be held . . . ." --------
Here, because reunification services were bypassed for mother, the case went directly to permanency planning following the disposition hearing. Felipe contends that a section 388 petition should not be required where a "father has not had a chance to reunify with the child" because there was no reunification period. The court in Zacharia D., expressly stated, however, that a section 388 motion is required following the "expiration of any reunification period in a dependency case." (In re Zacharia D., supra, 6 Cal.4th at p. 453, italics added.) We interpret this to mean that a section 388 petition is necessary if reunification has been eliminated for any reason—because the period has expired or because the reunification period has been bypassed—and a section 366.26 hearing set.
The authority cited by Felipe does not support a contrary interpretation. In In re Mary G. (2007) 151 Cal.App.4th 184, the appellate court reversed a denial of the alleged father's section 388 motion for presumed father status. The court concluded that the juvenile court erred in rejecting father's out-of-state, voluntary declaration of paternity in support of his status as a presumed father. Because father should have been declared a presumed father and given reunification services when he first requested them, which was long before the section 366.26 hearing was set, the court should not have required a showing of the minor's best interests under section 388 before ordering reunification services. (Mary G., pp. 193-195, 205.) The unique procedural aspects of Mary G. render it distinguishable from the present case. Felipe did not present evidence supporting his claim to presumed father status until well after the section 366.26 hearing had been scheduled.
In re Julia U. (1998) 64 Cal.App.4th 532, the appellate court also reversed the denial of an alleged father's section 388 motion for presumed father status. The Court of Appeal held that the facts established that the father met the Kelsey S. requirements and that any delay in pursuing paternity was the fault of the social service agency. (Julia U., pp. 542-543.) The court also noted that the father "was not incarcerated or otherwise unavailable to learn parenting skills" (id. at p. 543) nor had he previously acted "in an incompatible fashion with parenthood" (id. at p. 544). Under those circumstances, the appellate court held that "[t]he trial court's refusal to allow appellant the opportunity to prove his presumed father status and his fitness as a parent contravenes the statutory dependency scheme" and violated his "fundamental due process right to notice and an opportunity to be heard on the custody and care of his child." (Ibid.) The court implicitly held in that case that the biological father's interest in establishing his right to parenthood overrode the child's interest in stability and permanence. The court did not state the child's best interests are not to be considered or that the child's best interests could never override the father's interests. When, as in this case, services to the father may be bypassed under section 361.5, subdivision (b)(10), the child's interest in stability may well override a father's interest in establishing his paternity. (See In re Eric E. (2006) 137 Cal.App.4th 252, 258 ["The primary purpose of achieving presumed father status in the dependency context is for the presumed father to have the right to reunification services and to custody."].)
Assuming Felipe could establish he was a presumed father under Kelsey S., the record does not support his claim for reunification services. This is not a case where reunification services were mandatory upon a finding that the father qualified for presumed father status. Section 361.5, subdivision (b)(10) authorizes the court to bypass reunification services for a presumed father where the court finds by clear and convincing evidence that "the court ordered termination of reunification services for any siblings or half siblings of the child because the parent or guardian failed to reunify with the sibling or half sibling after the sibling or half sibling had been removed from that parent or guardian pursuant to Section 361 and that parent or guardian is the same parent or guardian described in subdivision (a) and that, according to the findings of the court, this parent or guardian has not subsequently made a reasonable effort to treat the problems that led to removal of the sibling or half sibling of that child from that parent or guardian." (§ 361.5, subd. (b)(10).) The juvenile court has broad discretion to determine whether offering reunification services to a parent who falls within subdivision (b)(10) would be in the child's best interests. (§ 361.5, subd. (c); In re Angelique C. (2003) 113 Cal.App.4th 509, 523.)
Here, the record establishes that Felipe has a history of violence, substance abuse and a prior unsuccessful dependency case. Just as with mother, Felipe's parental rights to another child were terminated in January 2015, despite the provision of reunification services. At that time, a restraining order was issued against Felipe protecting the minor and her caretakers (her maternal grandparents) because Felipe had broken into and damaged their home. Following an incident on April 27, 2015, father was charged with making terrorist threats, use of a deadly weapon, battery and possession of methamphetamine and pled no contest to the drug charge. Following a subsequent unrelated incident on May 13, 2015, Felipe was charged with robbery, use of a deadly weapon, and dissuading a witness. Felipe pled guilty to grand theft and was placed on probation with a 220-day county jail term. In denying Felipe's motion, the juvenile court expressly found that the provision of reunification services to Felipe would not be in the child's best interest. Given father's very recent criminal and dependency history, the court certainly did not abuse its discretion in making that finding. Accordingly, even on the assumption that Felipe would have satisfied the criteria to be deemed a Kelsey S. father, there was no error in denying his motion under section 388 in light of the fact that he would not in any event have been entitled to reunification services.
Disposition
The orders denying Felipe's motion for presumed father status and terminating parental rights are affirmed.
/s/_________
Pollak, J. We concur: /s/_________
McGuiness, P.J. /s/_________
Jenkins, J.