Fernando U. v. Super. Ct.

Filed 1/19/07  Fernando U. v. Super. Ct. CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b).  This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

THE COURT^*

            ORIGINAL PROCEEDINGS; petition for extraordinary writ.  Frank Dougherty, Judge.

            Jeffrey A. Tenenbaum, for Petitioner.

            No appearance for Respondent.

            Ruben E. Castillo, County Counsel, and James B. Tarhalla, Deputy County Counsel, for Real Party in Interest.

-ooOoo-

            Petitioner seeks an extraordinary writ (Cal. Rules of Court, rule 8.450-8.452 [formerly rule 38-38.1]) to vacate the orders of the juvenile court denying him reunification services and setting a Welfare and Institutions Code section 366.26 hearing^[1] as to his infant son F.  He argues, as F.'s presumed father, he was entitled to reunification services.  We concur and will grant the petition.

STATEMENT OF THE CASE AND FACTS

            In December 2005, then 13-month-old F. and his newborn half-brother R. were removed from their mother Amanda^[2] by the Merced County Human Services Agency (agency) because of Amanda's drug use.  A dependency petition filed on their behalf under section 300, subdivision (b) (failure to protect) identified petitioner as F.'s alleged father and indicated he lived at an address in the same city.  Amanda told the social worker that petitioner was physically abusive to her and had been arrested several times for domestic violence.  She also stated that petitioner had non court-ordered visitation with F. every weekend. 

            On January 3, 2006, the court conducted the detention hearing.  Neither petitioner nor Amanda personally appeared.  However, petitioner's mother appeared and told the court that petitioner was unable to appear because of a restraining order.  The court appointed counsel for petitioner, ordered the children detained and set the jurisdictional hearing for January 25 and the dispositional hearing for February 8.

            On January 11, petitioner met with the caseworker and stated he wanted custody of F.  He admitted using marijuana and knowing of Amanda's drug use.  He said he was willing to drug test but claimed not to have proper identification or transportation to the drug testing center. 

            On January 25, 2006, petitioner and Amanda appeared at the jurisdictional hearing, which the court continued to February 8.  After the hearing, the caseworker asked to meet with petitioner at the agency office to discuss visitation.  Petitioner agreed to meet but then did not make the appointment.  

            Neither petitioner nor Amanda personally appeared at the continued jurisdictional hearing on February 8.  The court adjudged the children dependents of the court as alleged in the original petition and set the dispositional hearing for February 27, 2006.

            The dispositional hearing was continued and conducted on March 6, 2006.  Petitioner did not attend the hearing and his attorney told the court he had not had any contact with petitioner and did not know where petitioner was.  The court adopted the agency's recommendation to provide reunification services to Amanda but deny services to petitioner based on his alleged father status.  The court set the six-month review hearing for August 29, 2006.

            After the dispositional hearing concluded and the courtroom was cleared, petitioner entered the court building.  A social worker who was in the courtroom gave petitioner a copy of the dispositional report and advised him that the next hearing would be conducted on August 29, 2006.

            In April, petitioner contacted his caseworker and asked for reunification services.  She arranged to meet with him in May.  At that meeting, the caseworker told petitioner a service plan had not been ordered for him because he was an alleged father.  She also told him to contact his attorney and to attempt to raise his status to presumed father status.  During the meeting, the caseworker contacted petitioner's attorney and asked if she could give petitioner the attorney's cellular (cell) phone number.  Petitioner's attorney consented and the caseworker wrote the cell phone number on her business card and gave it to petitioner. 

            Petitioner contacted the caseworker again on August 29, 2006, and requested services.  She again advised him to contact his attorney and gave him his attorney's cell phone number. 

            In its six-month status review, the agency reported that petitioner wanted the court to know that he wanted custody of F. who, along with his half-brother, had been living with his maternal great-aunt since May.  The agency also reported that Amanda had not sufficiently progressed in her case plan to warrant returning F. to her custody or to continue her services.  Consequently, the agency recommended the court terminate reunification efforts and set a section 366.26 hearing.

            On September 12, 2006, the court conducted the continued six-month review hearing.  Petitioner appeared in custody having violated probation for not updating his address.  The children's maternal great-aunt and uncle appeared and were granted de facto parent status.  The court issued a tentative ruling to terminate Amanda's services and set a section 366.26 hearing.  Counsel for petitioner requested a brief conference in chambers after which the court had Amanda sworn in and questioned her about petitioner's paternity.  Amanda testified she believed petitioner was F.'s father.  She testified that she and petitioner were living together during her pregnancy with F., that petitioner was at the hospital when F. was born, that petitioner's name is on F.'s birth certificate, that she and petitioner lived together with F. for about four months after F.'s birth and that petitioner told people F. was his child.  She stated that she and petitioner separated because he was arrested for spousal abuse for which he served six months in jail.  Upon his release, he arranged for his mother to pick F. up at Amanda's home every other weekend so that he could visit with him.^[3] 

            The court also called petitioner to the stand and asked him the same questions after which the court stated it appeared petitioner was eligible for presumed father status.  Counsel for petitioner asked the court to deem him F.'s presumed father.  However, the court deferred ruling on the matter to allow counsel time to research whether petitioner was statutorily entitled to services at this point in the proceedings.  The court continued the hearing until September 18, 2006.

            On September 18, the court continued the matter again until September 26 because petitioner had not been transported.  However, before adjourning, minor's counsel stated that he objected to continuation of services on behalf of the children because the de facto parents wanted to adopt them.

            On September 26, 2006, petitioner appeared in custody and was called to testify by county counsel.  Petitioner testified that he was in custody because he was on probation on the spousal abuse case and violated his probation by failing to report his change of address.  He planned to permanently reside with his mother upon his release in 30 days.

            He stated that he did not appear for the dispositional hearing on March 6 because he had just been released from custody and was not aware of the hearing.  He stated he asked to visit F. in May 2006 but the social worker told him he was not entitled to visitation because he was a â€