In re Anthony S.

Filed 6/18/07 In re Anthony S. CA2/7

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION SEVEN

APPEAL from an order of the Superior Court of Los Angeles County, Marilyn K. Martinez, Commissioner. Appeal dismissed.

Aida Aslanian, under appointment by the Court of Appeal, for Objector and Appellant.

Raymond G. Fortner, Jr., County Counsel, Larry Cory, Assistant County Counsel, and William D. Thetford, Senior Deputy County Counsel, for Plaintiff and Respondent.

________________________________

Phillip S., the alleged father of Anthony S., appeals from the juvenile courts order, made at the six-month review hearing pursuant to Welfare and Institutions Code section 366.21, subdivision (e),[1]limiting his visitation with Anthony. We dismiss Phillips appeal because he lacks standing.

FACTUAL AND PROCEDURAL BACKGROUND

1. The November 2005 Dependency Petition and Related Hearings

Anthony (now 14 years old) and his two siblings were detained by the Los Angeles County Department of Children and Family Services (Department) after a third sibling, then five years old, died of injuries sustained in a car accident. According to the childrens mother, Cassandra S.,[2]her deceased daughter had been riding in her lap while her boyfriend was driving. Cassandra has a history of referrals to the Department dating back to 1999, including numerous referrals for her physical and emotional abuse of the children and for substance abuse. Anthony and his two siblings had previously been declared dependent children of the juvenile court, but jurisdiction in that proceeding was terminated on November 5, 2003.

The Department filed a dependency petition on November 18, 2005 pursuant to section 300, subdivisions (a) (nonaccidental infliction of serious physical harm), (b) (failure or inability to protect), (f) (parent caused another childs death through abuse or neglect) and (j) (abuse of sibling). The petition, which identified Phillip as Anthonys alleged father,[3]alleged Cassandras failure to secure her daughter in a safety seat or restraint system was negligent behavior that placed the other children at risk. Cassandra and the three children were present at the detention hearing on November 18, 2005. None of the childrens fathers was present. Cassandra did not waive time, and a contested jurisdiction hearing was set for December 13, 2005.

On the date scheduled for the contested adjudication, the Department filed a first amended petition, which alleged, based upon interviews with Anthony and one of his siblings, that Cassandra, not her boyfriend, was driving the car when it crashed into the car ahead of it and Cassandra had told the children to falsely report she was a passenger. In its jurisdiction/disposition report, filed for the December 13, 2005 hearing, the Department stated Phillip had a long criminal history, including felony convictions for possession of cocaine and receiving stolen property and misdemeanor convictions for inflicting corporal punishment and disobeying a court order, and was serving a seven-year sentence for felony possession of a controlled substance. The Department also reported Anthony had described Phillip as not very good, stating Phillip was a hustler, sold drugs and was abusive. As told to the Department by Cassandra, Phillip, having been in prison for many years, had only limited and sporadic contact with Anthony; had inconsistently sent Anthony some letters; did not remember Anthonys birthday; and had not provided any support.

Phillip was transported to juvenile court for the jurisdiction hearing on December 13, 2005 and received a court-appointed attorney. After noting Phillip had been found to be Anthonys alleged father on April 8, 2002 in the prior dependency proceeding, the court denied Phillips request his status be changed to a presumed father. Upon questioning by the court, Phillip stated he was not at the hospital when Anthony was born, had not signed Anthonys birth certificate and Anthony had never lived with him, although Anthony had visited him on weekends and when he was not in school prior to Phillips incarceration three years earlier.

After the filing of the amended petition, Cassandra withdrew her demand for an immediate adjudication. As a result, the court set the matter for a pretrial resolution conference (PRC) and mediation of the jurisdictional issues on January 17, 2006. The court also advised the parties that both jurisdiction and disposition orders may be made on that date.

Anthonys birth certificate identifying Phillip as his father and giving him Phillips surname was submitted to the court as an attachment to the Departments supplemental report filed January 17, 2006. Phillip attended the PRC on that date, waived his rights and submitted the petition on the basis of the Departments reports. No mention was made at the hearing of Anthonys birth certificate or Phillips previous request to be designated a presumed father. Based on Phillips waiver and submission, the juvenile court found the allegations of the amended petition to be true with respect to Phillip; continued the matter to February 8, 2006 for resolution of jurisdictional issues as to Cassandra; and also set the disposition hearing for February 8, 2006.

Phillip was present at juvenile court on February 8, 2006. However, he was returned to prison prior to commencement of the hearing, and his attorney waived his appearance. Because Cassandra and the Department failed to reach an agreement in mediation, the court set the matter for a contested jurisdictional hearing on March 9, 2006. Phillips counsel waived Phillips appearance for the contested hearing notwithstanding the courts statement that dispositional issues would likely be addressed as well.

On March 9, 2006 the court sustained the petition as to Cassandra as amended by interlineation and ordered reunification services for her, including unmonitored daytime visits provided she was in compliance with court orders and her drug tests were negative. Phillip, through his counsel, had submitted on the Departments recommendation he not receive family reunification services. The court ordered no reunification services for Phillip because he was an alleged father only and providing reunification services would not benefit Anthony. The court made no visitation order for Phillip. The six-month review hearing was set for July 20, 2006.

2. Phillips Efforts to Obtain Visitation with Anthony; the Visitation Order

The Department filed an ex parte application with the juvenile court on July 7, 2006 seeking to clarify whether Phillip had any right to visit Anthony. The application stated Phillip, who had been released from prison, had contacted the Department to arrange visits with Anthony. Anthony had advised the Departments social worker, but not Phillip, he did not want to visit Phillip because he was afraid of him. Phillip insisted Anthony wanted to visit him and the Department was not allowing it. The court indicated it would address the issue at the upcoming six-month review hearing on July 20, 2006 and ordered no visitation pending that hearing.

The Departments status review report prepared for the six-month review hearing again stated Anthony did not want to visit Phillip because he was afraid of him and also stated Anthony was afraid to tell Phillip this. Phillip continued to insist Anthony wanted to visit him and it was the Department that was not allowing him to visit; Phillip had also begun calling Anthonys caregiver to speak to Anthony. The Department reported Anthony had been diagnosed with bipolar mood disorder and attention deficit hyperactivity disorder. Anthony, who was aggressive and violent at times, had shown an increase in severe behavioral problems, including hitting his caregiver, acting as if he wanted to jump out of a moving vehicle and acting out-of-control during a visit at a Department office. A letter from Anthonys treating therapist stated, Chronic conflict with sibling and concern about being forced to communicate with either parent appear to be agitating Anthony on a daily basis. Anthony was transferred to a non-public school to provide a more sheltered therapeutic environment.

At the six-month review hearing on July 20, 2006 Phillip requested he be allowed visitation with Anthony in a conjoint, therapeutic setting. Anthonys attorney informed the court Anthony was not comfortable with his father at this time . . . . He had not had much contact with him for the last several years at all during the course of the fathers incarceration. In addition, prior to his incarceration, I dont believe he had very frequent contact. Anthony needs a lot of time to stabilize and work with his therapist, and I dont believe its in his interest to have visitation with his father at this time. He was very adamant about that. He has some fearful feelings, and I dont believe it would be in his welfare for him to have those visits. The court ordered, Anthony shall have no contact at this time with his father unless it occurs in a therapeutic setting and upon recommendation of Anthonys therapist.[4]

At the hearing the court returned Anthonys two siblings to Cassandra with a home-of-parent-mother order, ordered family maintenance services for Cassandra and those children, continued Anthonys suitable placement and family reunification services for Cassandra, including monitored visitation, and set a 12-month review hearing

( 366.21, subd (f)) for Anthony for January 18, 2007. On September 12, 2006 Phillip filed a notice of appeal of the juvenile courts July 20, 2006 order restricting contact with son unless in a theraputic [sic] setting.

DISCUSSION

The Department argues Phillip, as an alleged father only, has no right to any visitation with Anthony and, as a consequence, has no standing to appeal from the juvenile courts order at the six-month review hearing conditioning the commencement of his visitation upon the determination by Anthonys therapist that visits with Phillip would not be detrimental to Anthony. We agree.[5]

In a dependency proceeding the right to appeal first accrues when the court enters its disposition order. ( 395; In re Rebekah R. (1994) 27 Cal.App.4th 1638, 1646 [In dependency proceedings, the right to appeal does not accrue until the court orders a disposition]; In re Megan B. (1991) 235 Cal.App.3d 942, 950 [same].) Subsequent orders, for example, an order entered at the six-month review hearing ( 366.21, subd. (e)), are similarly appealable. ( 395; In re Cicely L. (1994) 28 Cal.App.4th 1697, 1705 [orders made at six-month review hearings are immediately appealable]; Melinda K. v.Superior Court (2004) 116 Cal.App.4th 1147, 1153.)[6]However, even if the order itself is appealable, only an aggrieved party is entitled to seek appellate review. (Code Civ. Proc., 902 [Any party aggrieved may appeal]; County of Alameda v. Carleson (1971) 5 Cal.3d 730, 736-737 [It is generally held . . . that only parties of record may appeal].)

An alleged father in a dependency proceeding becomes a party when he appears and asserts a position. (In re Baby Boy V. (2006) 140 Cal.App.4th 1108, 1117 [alleged father had standing to appeal order denying request for paternity test and terminating parental rights because he appeared at the earliest practical point, and attempted to join the proceedings as a party]; In re Paul H. (2003) 111 Cal.App.4th 753, 759 [alleged father took immediate steps to become a party once he was notified of the dependency proceedings by contacting social worker, appearing at next court hearing, communicating to court he might be childs father and attempting to complete paternity testing]; see In re Emily R. (2000) 80 Cal.App.4th 1344, 1356 [As an alleged father in a dependency proceeding . . . appellant was not a party to the proceedings until he appeared and asserted a position].) By virtue of Phillips early appearance in the action, the courts appointment of counsel for him and his ongoing participation in the proceedings, including his efforts to have his status changed to a presumed father and to obtain visitation, Phillip has become a party to the proceedings.

To be aggrieved, a party must have a legally cognizable interest that is injuriously affected by the courts decision. (In re H. G. (2006) 146 Cal.App.4th 1, 9; see Cesar V. v. Superior Court (2001) 91 Cal.App.4th 1023, 1034 [[W]hether one has standing in a particular case generally revolves around the question whether that person has rights that may suffer some injury, actual or threatened].) The injury must be immediate and substantial, and not nominal or remote. (In re Joshua S. (1986) 186 Cal.App.3d 147, 150.) Phillip contends he was aggrieved by the courts visitation order because the proceeding was in reunification mode, where the relationship could be remedied, and which could also present him with a basis for advancing his parental status and because failure to modify the visitation order prevents him from qualifying for the parent-child relationship exception to termination of parental rights contained in section 366.26, subdivision (c)(1)(A), which is available only to a parent who has maintained regular visitation and contact with the child.

Although the proceeding may have been in reunification mode at the six-month review hearing, it was in that posture only with respect to Cassandra, not Phillip. The juvenile court had previously found Phillip was merely Anthonys alleged father, not his statutorily presumed father, and therefore not entitled to reunification services, including visitation. ( 361.5, subd. (a) [whenever a child is removed from a parents or guardians custody, the juvenile court shall order the social worker to provide child welfare services to the child and the childs mother and statutorily presumed father or guardians], 362.1, subd. (a) [unless the safety of the child will be jeopardized, any order placing the child in foster care, and ordering reunification services, shall include visitation between the parent or guardian and the child].) To be sure, the juvenile court may order reunification services for a child and his or her biological father if the court determines the services will benefit the child ( 361.5, subd. (a)); and an order denying services could be appealed by the biological father. However, the court may order those services only [u]pon a finding and declaration of paternity by the juvenile court or proof of a prior declaration of paternity by any court of competent jurisdiction . . . . No such finding of paternity was made in these proceedings.[7] Lacking any right to receive reunification services or visitation, Phillip does not have a legally cognizable interest injuriously affected by the visitation order.[8]

We recognize the juvenile court may have failed to satisfy completely its obligation under former rule 1413(d) and (e) (now rule 5.635(d) & (e)) of the California Rules of Court to address the issue of parentage.[9] Had it done so, it is possible Phillip would have been recognized as Anthonys biological father and might have been permitted some visitation without the same limits ordered at the six-month review hearing. However, this appeal is not a proper vehicle to review the juvenile courts disposition orders, including its denial of reunification services and visitation to Phillip. (See In re Elizabeth M. (1991) 232 Cal.App.3d 553, 563 [appeal from the most recent order entered in a dependency matter may not challenge prior orders, for which the statutory time for filing an appeal has passed]; In re Cicely L., supra, 28 Cal.App.4th at pp. 1705-1706.)

DISPOSITION

The appeal is dismissed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

PERLUSS, P. J.

We concur:

JOHNSON, J.

ZELON, J.

Publication Courtesy of San Diego County Legal Resource Directory.

Analysis and review provided by El Cajon Property line attorney.

[1] Statutory references are to the Welfare and Institutions Code unless otherwise indicated.

[2] Neither Cassandra nor either of Anthonys siblings is a party to this appeal.

[3] Phillip has no relationship ‑‑ presumed or alleged ‑‑ to Cassandras other children.

[4] During the hearing the court stated, I can order conjoint counseling for Anthony and his father upon the recommendation of Anthonys therapist. So when Anthony is ready and his therapist can say Anthony is ready to meet with his father in conjoint counseling, the therapist and the social worker will then arrange for [Phillip] to meet with his son in conjoint therapy. Its premature at this time for that occur.

[5] After Phillip filed his opening brief on appeal, the Department moved to dismiss the appeal on the ground Phillip lacks standing. Phillip filed an opposition to the motion. We advised the parties we would defer deciding the motion until completion of briefing on the merits of Phillips appeal.

[6] An order setting a hearing pursuant to section 366.26 must be challenged by a petition for an extraordinary writ, rather than by appeal. ( 366.26, subd. (l); see Cal. Rules of Court, rules 8.450 & 8.452.)

[7] Phillip contends his biological ties to Anthony were never questioned: Cassandra presented Phillip as the father; Anthony knew Phillip to be his father; and Anthonys birth certificate identified Phillip as Anthonys father. Phillip asserts there was no reason for him to ask the juvenile court to confirm something no one, including the court, had ever questioned. However, in denying reunification services the court repeatedly identified Phillip as an alleged father only and, while explaining that did not necessarily mean he was not Anthonys biological father, pointedly declined to make any finding of parentage. On this record we cannot conclude Phillips status as Anthonys biological father was undisputed.

[8] Were we to conclude Phillip does have standing and reach the question whether the challenged order impermissibly delegated authority to Anthonys therapist to determine if visitation would occur, we would be hard pressed to find that it does. In In re S. H. (2003) 111 Cal.App.4th 310, 317-318, this court summarized the general principles governing the juvenile courts authority to make orders that incorporate the views of third parties in limiting a parents visitation: It is the juvenile courts responsibility to ensure regular parent-child visitation occurs while at the same time providing for flexibility in response to the changing needs of the child and to dynamic family circumstances. (Id. at p. 317.) To that end, the social worker may be given responsibility to administer the details of visits; and the childs input and the possible adverse consequences if a visit is forced against the childs will are factors to be considered in administering visitation. (Ibid.; see In re Chantal S. (1996) 13 Cal.4th 196, 203-204 [childs therapist may be allowed the limited discretion to determine when court-ordered visitation should begin].) The visitation order in the case at bar provides Anthonys therapist with the discretion to determine when conjoint therapy involving Anthony and Phillip should begin, that it is, when Anthony is emotionally stable and visits with Phillip in a therapeutic setting will not be detrimental to his mental health. This limited discretion is not equivalent to the de facto veto power to insure no visitation will occur that we prohibited in In re S. H., at pages 318 to 319.

[9] In denying Phillips request to be designated Anthonys statutorily presumed father and continuing his status as an alleged father only, the juvenile court reviewed and took judicial notice of material from the earlier dependency proceeding involving Cassandra, Phillip and Anthony. That material is not contained in the record on appeal; it thus remains unclear whether any determination of parentage was made in that proceeding. It is Phillips responsibility as appellant, of course, to provide a record that is adequate for appellate review of his claims. (See Ballard v. Uribe (1986) 41 Cal.3d 564, 574 [appellant bears burden of showing reversible error by an adequate record]; In re L. B. (2003) 110 Cal.App.4th 1420, 1424.)