In re Anthony P.

Filed 6/15/07 In re Anthony P. CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE

Appeal from an order of the Superior Court of Orange County, Maureen Aplin, Temporary Judge. (Pursuant to Cal. Const., art. VI,  21.) Affirmed.

Diana W. Prince, under appointment by the Court of Appeal, for Defendant and Appellant.

Benjamin P. de Mayo, County Counsel, Karen L. Christensen and Paula A. Whaley, Deputy County Counsel, for Plaintiff and Respondent.

* * *

Troy P. appeals from an order of the juvenile court declaring another man to be the presumed father of Troys biological son, Anthony P. He argues the court violated his right to due process when it granted a Welfare and Institutions Code section 388 modification petition without notice to the parties and without a hearing. For the reasons stated below, we affirm.

I

Factual And Procedural Background

In November 2004, the Orange County Social Services Agency (SSA) filed a dependency petition alleging three-year-old Anthony came within the jurisdiction of the juvenile court (Welf. & Inst. Code,  300, subds. (b) & (g); all citations to this code unless noted) based on his mother Tammys chronic substance abuse and associated neglect. At the time SSA removed Anthony, a domestic violence restraining order barred Troy, Anthonys biological father, from the home, and Troy had been incarcerated on domestic violence charges. SSA placed Anthonys older half siblings with their father, Jim R. It initially placed Anthony with an unrelated caretaker, but in December moved him into Jims home.

In advance of the jurisdictional hearing, Tammy informed SSA she had divorced Jim in 2000 and began a relationship with Troy shortly thereafter. At the jurisdictional hearing held in February 2005, the court found the allegations of the petition to be true and declared Anthony a dependent of the juvenile court. It did not make a finding of paternity, but did order both biological parents to receive reunification services.

Troy declined prison visits with Anthony, but participated in parenting classes and narcotics anonymous meetings. After his release from prison in July 2005, he tested positive for alcohol, and the residential treatment center he was residing at terminated him for stalking Tammy. Troy was then arrested and sent back to jail for assaulting Jim.

At the 12-month review in January 2006, the court addressed the issue of paternity. Troy, who was in custody and represented by counsel, offered to prove that he was at the hospital when Anthony was born, had signed a voluntary declaration of paternity, held Anthony out as his son, and had lived with Anthony until he was incarcerated. Based on these representations, the court found Troy was Anthonys presumed father.

SSA placed Anthony with his mother on a 60-day trial basis, which failed. At the 18-month review in April 2006, the court adopted SSAs recommendations, terminating reunification efforts and scheduling a section 366.26 hearing (.26 hearing) for August 2006.

On August 9, the date scheduled for the .26 hearing, the court granted SSAs section 388 modification petition (Judicial Council form JV-180, Request to Change Court Order) to change the courts paternity order. SSA had served the petition on Troys lawyer a week earlier. SSA alleged new information revealed Jim and Tammy had been legally married at the time of Anthonys birth. Anthonys birth certificate showed a birthdate in August 2001. The couples divorce certificate reflected they had been married until September 23, 2001. Consequently, SSA requested that the court vacate its earlier order naming Troy the presumed father and declare Jim the presumed father of Anthony. SSA also alleged the change would serve Anthonys best interests.

A minute order from the August 9 hearing reflects that no court reporter was present, and we have not been supplied with a reporters transcript for that day. The minute order reflects Troy was present in custody and represented by counsel. The order also reflects the juvenile court found that Jim was Anthonys presumed father. A signed order accompanying SSAs 388 petition provided that [a]ll parties and attorneys agree to the request. An August 9 proposed stipulation and request for findings reflects that Troys counsel submit[ted] on reports.

The court also appointed counsel to represent Jim, who was not present, and continued the matter for a further contested hearing on August 15 at SSAs request.

On August 15, 2006, SSA requested a finding pursuant to Family Code section 7612, subdivision (b), that Troys presumption of paternity had been rebutted, and therefore the court must terminate the dependency and award Jim primary custody. Troys counsel reported his client objected to the granting [of] the section 388 motion and opposed any finding that Jim was Anthonys presumed father. He also believed his relatives had not been adequately considered for placement. Troys counsel did not present any evidence and stated he was going to submit.

A different temporary judge noted the court had previously found Jim was a presumed father. Balancing the competing presumptions of fatherhood, the court concluded Jim had a long-term relationship with the child. He has supported the child. He has cared for the child and nurtured the child. Hes provided education and care for the child. The relationship of [Jim] with the child is weighed more heavily in this courts view than the relationship of [Troy] with the child. The court found it was in Anthonys best interests to retain Jim as Anthonys sole presumed father and designate Troy as a biological father. The court vacated the .26 hearing date, terminated dependent child proceedings, awarded Jim primary custody, and directed the filing of custody orders with the family law court.

II

Discussion

A. No Due Process Violation

Troy argues the court violated his right to due process when it granted SSAs section 388 petition on August 9 without notice to the parties and without a hearing, and that Troy was denied an opportunity to examine the evidence and cross-examine witnesses. He also complains the juvenile court was without a reporter present [so] there is no record of the basis for the courts decision.

The record reflects Troys counsel was served with SSAs modification petition on July 31 and given notice of the hearing scheduled for August 9. The August 9 minute order reflects Troy and his lawyer appeared in court for the hearing. The proposed stipulation and findings reflect Troy submit[ted] the issue for decision on SSAs reports, without additional evidence or testimony. The record thus reflects Troy did have notice concerning SSAs request to modify the courts order and name Jim the presumed father. The record also reflects Troy had an opportunity to be heard, but he evidently chose not to present evidence or argue against the petition.

Troy insists he clearly meant to object to the finding that Jim was a presumed father. He relies on his lawyers comments at the August 15 hearing: Your Honor, does the courts minute order reflect that the 388 motion was granted on the 9th and simply trailed today just for the .26 and then answering his own question, Yeah, I see filed on this date, and [Jim] found to be the presumed father. All right. It is what it is. Trial counsel evidently did not have a problem with the August 9 order because he did not object to it. Further, there is no indication that Troy possessed or desired to present evidence that rebutted the presumption of Jims paternity.

It is unclear why the August 9 hearing before the temporary judge was not reported. Section 347 provides that at any juvenile court hearing conducted by a juvenile court judge, which implicitly includes a temporary judge hearing the matter by stipulation of the parties, an official court reporter shall take down all the testimony and all of the statements and remarks of the judge and persons appearing at the hearing. But nothing in the clerks transcript or the reporters transcript from the later hearing reveals that Troy suffered any prejudice by not having a reporters transcript of the August 9 hearing. The documentary evidence clearly established Jim as a presumed father.

Troy asserts he has grounds on which to rebut the presumption that Jim is Anthonys presumed father but cannot meaningfully rebut the presumption when the reasons for the courts decision were not made as the result of a hearing and were not made on the record. The August 9 minute order shows the court conducted a hearing on the modification petition, however. Substantial evidence in the form of the date of Jim and Tammys divorce certificate supports the conclusion Jim qualified as a presumed father. (Fam. Code,  7611, subd. (a) [child is born during marriage].) Troy has not cited authority requiring the juvenile court to provide an on-the-record statement of reasons supporting the finding as to the presumed father. Nor does Troy explain what grounds he has to rebut the presumption in favor of Jims paternity. Troy also does not explain why he failed to obtain a settled statement that would furnish him with the requisite information he seeks to challenge the courts finding.

Finally, Troy argues the juvenile courts August 9 order accompanying the section 388 petition that [a]ll parties and attorneys agree to the request demonstrates the court mistakenly believed that all the parties had agreed to the request. He also cites the courts notation purportedly set[ting] the matter for a hearing that day, and SSAs notation on the petition that it did not know whether Troy agreed with its request. SSA asserts that even if Troy did not agree to the finding, the juvenile court could reasonably interpret Troys submission on the reports as an agreement for the court to rule without an evidentiary hearing.

Case law supports SSAs position. When a party submit[s] on a particular record in dependency proceedings, he or she acquiesces as to the state of the evidence yet preserves the right to challenge it as insufficient to support a particular legal conclusion. (In re Richard K. (1994) 25 Cal.App.4th 580, 589.) By submitting on SSAs reports without cross-examining the preparer of those reports or introducing contrary evidence to cast doubt on Jims paternity or bolster his own, Troy consented to the procedure he now attacks, i.e., that the trial court would decide SSAs modification petition on the record presented, without additional evidence or testimony. He who consents to an act is not wronged by it. (Id. at p. 590.) In short, given Troys submission, we discern no due process violation in the manner the court conducted the August 9 hearing.

B. Declaration of Paternity/Res Judicata

In a supplemental brief, Troy asserts that he filed a declaration of paternity (see Fam. Code,  7573, 7611, 7612) two years before the juvenile court proceedings in this case, and the issue of his paternity is res judicata and thus the juvenile court did not have the authority to find Jim . . . to be Anthonys presumed father.

The record does not contain a completed voluntary declaration of paternity, nor does it reflect that the court made a finding Troy had executed a voluntary declaration of paternity under Family Code section 7573. Troys offer of proof referred to other factors supporting his request for presumed father status, such as holding out the child as his and being present for the birth of the child. The court made no findings that the statutory requirements for declaration of paternity had been satisfied. In any event, Troy did not make a res judicata argument in the juvenile court. By failing to raise his res judicata claim below, Troy did not preserve the issue for review. (In re Aaron B. (1996) 46 Cal.App.4th 843, 846.)

III

Disposition

Judgment affirmed.

ARONSON, J.

WE CONCUR:

BEDSWORTH, ACTING P. J.

FYBEL, J.

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