Opinion
F052362
5-3-2007
WILLIAM W., Petitioner, v. THE SUPERIOR COURT OF STANISLAUS COUNTY, Respondent, STANISLAUS COUNTY COMMUNITY SERVICES AGENCY, Real Party In Interest.
Hana B. Balfour, for Petitioner. No appearance for Respondent. Michael H. Krausnick, County Counsel, and Linda S. Macy, Deputy County Counsel, for Real Party in Interest.
NOT TO BE PUBLISHED
OPINION
THE COURT
Before Levy, Acting P.J., Cornell, J., and Kane, J.
Petitioner seeks an extraordinary writ (Cal. Rules of Court, rules 8.450-8.452) to vacate the juvenile courts dispositional orders as well as its order setting a Welfare and Institutions Code section 366.26 hearing as to his daughter L. We will deny the petition.
All further statutory references are to the Welfare and Institutions Code unless otherwise indicated.
STATEMENT OF THE CASE AND FACTS
Dependency proceedings were initiated in June 2006 after L.s mother, K., was arrested for possession of methamphetamine, violation of probation and child endangerment. The Stanislaus County Community Services Agency (agency) removed L. from K.s care and placed L. in protective custody.
K. told the social worker L. was conceived during a brief relationship she had with petitioner during her marriage to a man named Timothy. She and petitioner never married or lived together but she believed he submitted to paternity testing and that a family support order was entered by the Stanislaus County Superior Court. Further, K. did not know where petitioner was but believed he was incarcerated. She stated she was still married to Timothy but was long estranged from him and did not know his whereabouts.
Timothy was not located and never appeared during these proceedings. Nevertheless, because L. was born during Timothys marriage to K., the court deemed Timothy L.s presumed father. (Fam. Code, § 7611, subd. (a).)
The agency filed a dependency petition on L.s behalf, alleging K.s drug abuse placed L. at risk of harm and petitioner and Timothy failed to provide support. (§ 300, subds. (b) & (g).) The petition identified petitioner as L.s alleged father and reported his whereabouts as unknown.
The juvenile court found prima facie evidence, based on the petition, to order L. detained and set the matter for further proceedings. Shortly after L.s detention, the agency located petitioner in state prison and the Stanislaus County Department of Child Support Services provided the court with a copy of a judgment entered in June 2005 obligating petitioner to pay monthly child support.
In its report, the agency recommended the court sustain the petition and exercise its dependency jurisdiction. The agency also recommended the court provide K. six months of reunification services but deny them to petitioner since, as an alleged father, he was not entitled to them under section 361.5, subdivision (a).
On July 13, the court convened a combined jurisdictional/dispositional hearing but, on its own motion, continued the hearing to August 3 and directed the agency to coordinate with the sheriffs department to have petitioner transported to the hearing. On July 27, the county sheriffs transportation division provided the following typewritten statement on its fax coversheet to the supervising social worker: "[Petitioner] does not want to go to his court hearing. I will fax you a waiver as soon as I get it." The appellate record does not contain a statement signed by petitioners waiving his presence at the hearing.
In an addendum report, the agency reiterated its recommendation the court deny petitioner reunification services. It also added a second statutory basis for denial, section 361.5, subdivision (e), based on petitioners extensive and violent criminal history and his unavailability to participate in services until his April 2007 release from custody.
In a hand-written letter addressed to the "Juvenile Div[ision]" and date stamped July 11, 2006, petitioner stated he received notice of L.s detention and expected to be released from custody in January 2007. He asked the court to place L. with his sister until his release. He did not mention attending the upcoming hearing.
On August 3, the court convened the continued jurisdictional/dispositional hearing, found petitioner was provided proper notice of the hearing and accepted the faxed statement as a waiver of his appearance. The court also accepted K.s waiver of her trial rights, adjudged L. a dependent of the court, ordered her removed from K.s custody and ordered the agency to provide her six months of reunification services. In addition, the court denied petitioner reunification services under section 361.5, subdivisions (a) and (e). Petitioner did not appeal from the courts dispositional orders and findings.
Over the next six months, K. failed to comply with her court-ordered services. Consequently, in its six-month status report, the agency recommended the court terminate her services and proceed to adoption planning for L. Meanwhile, in early January 2007, petitioner was released from custody and began participating in scheduled visits with L. and K.
On January 9, 2007, at the six-month review hearing, petitioner appeared for the first time and the court appointed him counsel. Petitioner told the court he was L.s biological father based on paternity testing completed in early 2005. The court continued the hearing pending receipt of documentary evidence of petitioners biological paternity.
On January 30, the agency submitted the results of genetic testing conducted in March 2005 which established petitioners biological paternity by a 99.99 percent probability. That same day, petitioner filed a motion asking the court to conduct a new jurisdictional/dispositional hearing, claiming the court denied him due process by waiving his personal appearance without a valid waiver and not appointing him counsel. He also claimed the court denied him due process by not notifying him of his right to elevate his paternity status beyond that of alleged father by providing him the Judicial Council form "Statement Regarding Parentage" (JV-505) as required by section 316.2, subdivision (b).
On February 13, 2007, the court denied petitioners motion, finding petitioner was aware of the proceedings and did not ask for counsel to appear at the hearing. In support of its findings, the court cited the contents of petitioners letter and the faxed statement from the sheriffs office. The court also noted that, by denying petitioner reunification services under section 361.5, subdivision (e), the court in effect considered him more than an alleged father.
Following its ruling on petitioners motion, the court conducted its six-month review of dependency to K. and terminated her reunification services. The court also set a section 366.26 hearing for May 14, 2007, from which only petitioner seeks extraordinary writ relief.
DISCUSSION
Petitioner revives the claims he raised before the juvenile court on his motion; i.e., he was denied due process because he was not provided notice and an opportunity to appear and assert or attempt to change his paternity status. Of significance is that he does not now nor did he ever claim to be more than L.s biological father. Nor does he establish how the courts errors, assuming they occurred, prejudiced him.
The juvenile courts rulings must be examined in the context of petitioners paternity status at the time of the jurisdictional/dispositional hearing (hearing). Dependency statutes recognize three types of fathers: alleged, biological and presumed. (In re T.R. (2005) 132 Cal.App.4th 1202, 1208.) An "alleged" father is a man who may be the father of a child, but who has not established biological paternity or presumed father status. (In re Zacharia D. (1993) 6 Cal.4th 435, 449, fn. 15 (Zacharia D.).) A "biological" father is one whose genetic paternity has been established but who has not achieved presumed father status. (Ibid.) A "presumed" father is a man described in any one of several categories enumerated in Family Code section 7611.
A mans paternity status is important in dependency proceedings because it determines his rights with respect to custody, reunification services and visitation. Only the presumed father is considered a "parent" within the meaning of the dependency statutes. (Id. at p. 451.) As a parent, he is entitled to custody (absent a finding of detriment), appointed counsel and reunification services. (§§ 361.2, subd. (a); 317, subd. (a) & 361.5, subd. (a).)
Alleged and biological fathers, though not afforded parental rights under dependency statutes, have a due process right to receive notice of the dependency proceedings and a meaningful opportunity to qualify as a presumed father. (In re Joseph G. (2000) 83 Cal.App.4th 712, 715; Adoption of Kelsey S. (1992) 1 Cal.4th 816, 843.) Section 316.2, subdivision (b) requires that notice include a copy of the form JV-505, which informs the alleged father of his rights to request appointment of counsel and to compel the court to determine his paternity.
On our own motion, we take judicial notice of the form JV-505. (Evid. Code, § 452, subd. (h).)
In this case, no one disputed petitioners biological paternity or the court clerks failure to serve petitioner a form JV-505. Therefore, petitioner did not know he had a right to ask the court to enter a judgment of his biological paternity and to attempt to elevate himself to presumed father status. In addition, he did not know he had a right to appointment of counsel to assist him in that process.
In addition, the court waived petitioners physical presence at the hearing based on the typewritten statement by someone at the sheriffs department rather than "a knowing waiver ... signed by [petitioner] or an affidavit signed by the [appropriate official or his or her designee] stating that [petitioner] ..., by express statement or action, indicated an intent not to appear at the proceeding" as required by Penal Code, section 2625, subdivision (d). Even if we presume the sheriffs department performed its official duty and subsequently forwarded a signed waiver (Evid. Code, § 664), that does not negate the fact that petitioner waived his appearance without knowing that he had a right to appear and, with the assistance of counsel, assert his paternity. Consequently, we conclude the court erred in failing to comply with the notice requirements under section 316.2, subdivision (b).
That said, however, we conclude petitioner was not prejudiced by the defective notice. (In re Jesusa V. (2004) 32 Cal.4th 588, 624.) The best petitioner could hope for was to be declared L.s presumed father and receive the statutory rights and benefits of that status. However, even if petitioner had received a form JV-505, appeared at the hearing and been appointed counsel, the juvenile court would not have declared him L.s presumed father under Family Code section 7611. He did not marry or attempt to marry K., he did not receive L. into his home and openly hold her out as his natural child, or, along with K. execute a voluntary declaration of paternity. (Fam. Code, §§ 7611, subds. (a)-(d).) Consequently, petitioner would not have been entitled to reunification services. (§ 361.5, subd. (a).)
Further, even if petitioner had appeared and been appointed counsel, there is no reason to believe the court would have exercised its discretion under section 361.5, subdivision (a) and ordered services for petitioner based on the theory services would benefit L. According to the record, petitioner did not have a prior relationship with L. or provide her support.
Finally, we conclude any error was cured when petitioner appeared at the six-month review hearing represented by counsel and argued his motion. At that time, petitioner could have attempted to establish himself as L.s presumed father and requested services or argued services would benefit L. However, he chose a different tact and simply argued the court erred. The juvenile court found no prejudice and neither do we. Accordingly, we will deny relief.
DISPOSITION
The petition for extraordinary writ is denied. This opinion is final forthwith as to this court.