In re Baby Jane Doe

Filed 3/14/07 In re Baby Jane Doe CA42

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

APPEAL from the Superior Court of San Bernardino County. Deborah A. Daniel, Temporary Judge. (Pursuant to Cal. Const., art. VI, 21.) Affirmed.

ORIGINAL PROCEEDING; petition for writ of habeas corpus. Petition denied.

William D. Caldwell, under appointment by the Court of Appeal, for Defendant and Appellant.

Ruth E. Stringer, Acting County Counsel, and Dawn M. Messer, Deputy County Counsel, for Respondent.

Julie E. Braden, under appointment by the Court of Appeal, for Minor.

By appeal and by petition for writ of habeas corpus,^[1]Kenneth W. (appellant) challenges the juvenile courts order terminating parental rights as to Baby Jane Doe (the child). In his appeal, appellant contends that there was insufficient evidence to support the juvenile courts finding that the child was a safely surrendered baby under Health and Safety Code section 1255.7, and that the court failed to advise him of his right to seek writ review of its order setting a Welfare and Institutions Code^[2]section 366.26 hearing. In the appeal and the habeas corpus petition, appellant contends that the court should not have proceeded with a section 366.26 hearing in his absence, after he called the court to inform it that he was having car trouble. Appellant makes various other claims in the habeas corpus petition. We affirm the juvenile courts termination order and deny appellants petition for writ of habeas corpus.

FACTUAL AND PROCEDURAL BACKGROUND

On December 7, 2005, the San Bernardino County Department of Childrens Services (DCS) filed a section 300 petition on behalf of the child, alleging that she came within the provisions of section 300, subdivision (g) (no provision for support). In December 2005, an unidentified female (the birth mother) delivered the child at a hospital.^[3] The child tested positive for methamphetamine and marijuana. The birth mother told the hospital social worker that she had three young children at home and could not take care of this child. The birth mother left the hospital without the child about four hours after the child was born. The birth mother refused to take the childs identifying bracelet or a copy of the childs band number.

A detention hearing was held on December 8, 2005. The court found that the child was a safely surrendered baby, placed the child in the temporary custody of DCS, and detained her in confidential foster care. The court set a jurisdiction/disposition hearing for December 29, 2005. DCS requested a court order authorizing the publication of notice for the hearing to the parents of the child. The court ordered that notice be published. A notice of the hearing was published in the San Bernardino Sun newspaper on December 22, 2005.

At the December 29, 2005 hearing, counsel for DCS informed the court that the social worker had received a phone call from appellant, who claimed to be the childs father. The court thus continued the hearing to January 19, 2006, in order to properly notice him.

Appellant was personally served with notice of the January 19, 2006, hearing date on January 11, 2006. He did not appear at the hearing. The court found that the child came within section 300, subdivision (g), and again stated that the child was a safely surrendered baby. The court ordered that no reunification services be provided to the parents. The court also found appellant to be the childs alleged father and set a section 366.26 hearing for May 19, 2006.

On February 3, 2006, appellant was noticed by first class mail of the section 366.26 hearing. Appellant was then personally served with notice of the section 366.26 hearing on February 15, 2006. At a notice review hearing on March 21, 2006, the court confirmed that appellant had been served with notice. Then, DCS mailed notice again to appellant on March 22, 2006.

On the day of the section 366.26 hearing, the clerks office received a telephone message from appellant stating that he was having car trouble on his way to court. The hearing was set for 8:30 a.m. The court called the case at 10:28 a.m., and noted that appellant had had notice of all the proceedings and chose not to participate until now. Thus, the court found that appellants failure to arrive was not good cause to continue the hearing, mentioning that, even if appellant was present, his presence would not change the outcome of the proceedings absent some compelling information that would show he [was] a presumed father. Counsel for DCS informed the court that the childs birth certificate did not name a father. The court noted that the proposed section 366.26 order identified the birth mother, who had the same last name as appellant. Counsel for DCS responded that the name was erroneously inserted in the order, since the child was an anonymous safely surrendered baby. The court removed the birth mothers name from the order. The court found that appellant was adequately noticed, terminated all parental rights, and ordered adoption as the permanent plan for the child.

ANALYSIS

I. The Court Properly Found That the Child Was a Safely Surrendered Baby

Appellant argues that there was insufficient evidence to support the courts finding that the child was a safely surrendered baby since the birth mother never voluntarily surrendered physical custody of the child. He asserts that the Safe Arms Act (Health & Saf. Code, 1255.7) was meant to protect a newborn from a mother who does not want the child or who might otherwise harm or abandon the child, and that the child needed no protection from her mother. We disagree that the Safe Arms Act is limited to that purpose.

Under Health and Safety Code section 1255.7, a hospital may accept custody of a baby who is younger than 72 hours old from a parent who voluntarily surrenders physical custody of the baby. (Health & Saf. Code, 1255.7, subds. (a)(4) & (b).)

The record here shows that the birth mother gave birth to the child, and checked herself out of the hospital without the child, approximately four hours later. Before leaving, the birth mother told the hospital social worker that she had three young children at home and could not take care of the child. The birth mother refused to take the childs identifying bracelet or a copy of the childs band number when she left the hospital.

Appellant suggests that the birth mother could not have taken the child with her, even if she wanted to, because the child needed to stay at the hospital for further medical treatment. The record does show that the child needed to stay in the hospital for a few days due to poor feeding and drug withdrawal symptoms. Nonetheless, the birth mothers statement to the social worker, along with her refusal to take the childs identifying bracelet, clearly show that she had no intention of returning to pick up the child. The record shows that the birth mother never contacted DCS to inquire about the child after leaving the hospital that day. Thus, the birth mother clearly surrendered physical custody of the child voluntarily.

Appellant further contends that counsel for DCS ignored DCSs obligation under Health and Safety Code section 1255.7, subdivision (e), to investigate the circumstances of the case, when it sought the juvenile courts authorization to notice the parents of the jurisdiction/disposition hearing by publication instead of by personal notice. Appellant further argues that the Safe Arms Act required DCS to attempt to identify and locate the nonsurrendering parent and report that information to the court.

The statute does not specify the means by which DCS must investigate the case, or specifically require notification to the parents by personal notice, as suggested by appellant. Regardless, the record shows that appellant was aware of the dependency proceedings and called the social worker, claiming to be the childs father. Thereafter, appellant was personally served notice of the jurisdiction/disposition and section 366.26 hearings. Thus, he was advised of the proceedings concerning the child and had every opportunity to participate.

II. The Court Was Not Required to Advise Appellant of His Writ Rights

Appellant challenges the courts denial of reunification services and the setting of a section 366.26 hearing. He acknowledges that appellate review of a setting order is not available to a parent unless all the conditions of section 366.26, subdivision (l), are met -- namely that he file a petition for extraordinary writ review. He contends that he is not precluded from challenging the denial of reunification services, despite his failure to file a writ petition, because the court erred in failing to advise him of his right to seek writ review. We find no error.

California Rules of Court, rule 5.720(c), provides: When the court orders a hearing under section 366.26, the court must advise orally all parties that to preserve any right to review on appeal of the order setting the hearing, the party is required to seek an extraordinary writ by filing: [] (A) A notice of the partys intent to file writ petition and request for the record, which may be submitted on Notice of Intent to File Writ Petition and Request for Record (California Rules of Court, Rule 8.450) (form JV-820); and [] (B) A petition for an extraordinary writ, which may be submitted on Petition for Extraordinary Writ (California Rules of Court, Rules 8.452, 8.456) (form JV-825). [] (14) Within 24 hours of the review hearing, the clerk of the court must provide notice by first-class mail to the last known address of any party who is not present when the court orders the hearing under section 366.26. (Cal. Rules of Court, rule 5.720(c)(13) & (14).)^[4]

A party of record is a person named as a party to the proceedings or one who takes appropriate steps to become a party of record in the proceedings. [Citation.] A person does not become a party of record merely because his or her name and interest appear in documents filed with the court or are referenced in the judgment. [Citation.] (In re Joseph G. (2000) 83 Cal.App.4th 712, 715.) An alleged biological father in dependency proceedings is a man who may be the father of a child, but whose biological paternity has not been established. [Citation.] (Ibid.) An alleged father in dependency or permanency proceedings does not have a known current interest because his paternity has not yet been established. (In re Emily R. (2000) 80 Cal.App.4th 1344, 1352.)

Appellant was, and according to the record on appeal still is, only an alleged father. He was not a party to the proceedings until he appeared and asserted a position. Until that time, he was simply an interested person entitled to notice of the proceedings. (In re Emily R., supra, 80 Cal.App.4th at p. 1356.) Appellant had not taken any steps to become a party of record in the proceedings. He had not made any appearances at any of the hearings, despite being given notice. Therefore, the court was not required to advise him of any right to file a writ to challenge the order setting the section 366.26 hearing or denying reunification services. We further note that, as an alleged father, appellant was not entitled to reunification services. (In re O.S. (2002) 102 Cal.App.4th 1402, 1410.)

III. The Court Properly Proceeded with the Section 366.26 Hearing

Appellant argues that the court erred in finding that there was no good cause to continue the section 366.26 hearing. We disagree.

At the outset, we note that an alleged biological father who is not a party of record in the dependency court has no standing to appeal an order terminating parental rights. (In re Joseph G., supra, 83 Cal.App.4th at p. 716.) Since appellant is not a party of record, as discussed above (see ante, II), he has no standing to appeal the courts order terminating parental rights.

In any case, the court properly proceeded with the section 366.26 hearing in appellants absence. Section 352 provides that a continuance shall be granted only on a showing of good cause and shall not be granted if it is contrary to the minors best interests. [T]he court shall give substantial weight to a minors need for prompt resolution of his or her custody status, the need to provide children with stable environments, and the damage to a minor of prolonged temporary placements. [Citation.] Continuances are discouraged [citation] and we reverse an order denying a continuance only on a showing of an abuse of discretion. [Citation.] (In re Ninfa S. (1998) 62 Cal.App.4th 808, 810-811 (Ninfa S.).)

Since the child was born, appellant has had no contact with her and has made no apparent effort to prove presumed father status. Appellant was given notice of both the jurisdiction/disposition hearing and the section 366.26 hearing, and failed to appear at either hearing. He apparently attempted to attend the section 366.26 hearing, but had car trouble. However, he could have found some other mode of transportation (e.g., a taxi or the bus). The court waited two hours for appellant to arrive at court before calling the case. The court could not wait indefinitely for him to arrive.

Appellant claims that if the court had waited for him to arrive at the section 366.26 hearing, he could have easily proven that he was the childs presumed father. Assuming arguendo that he could have proven he was the childs presumed father, appellant fails to explain how his presumed father status would have been relevant to any issue decided at the 366.26 hearing. (See Ninfa S., supra, 62 Cal.App.4th at p. 811.) The crucial decisions which terminate efforts to reunite parent with child are made at hearings which precede the selection and implementation hearing. Absent a change of circumstances and a motion to reconsider parental status (as could be brought under  388)[,] the court at the section 366.26 hearing is no longer seeking to reunify parent with child. Issues resolved at the section 366.21 or 366.22 review hearing may not be revisited at the section 366.26 hearing. The selection and implementation hearing proceeds upon the premise that efforts to reunify are over, and the objective is to select the long-term plan for care and custody which will most benefit the child. [Citations.] (In re Jennifer J. (1992) 8 Cal.App.4th 1080, 1089-1090, italics added.) Thus, at that point in the proceedings, appellants presumed father status was irrelevant to either the likelihood of the childs adoption or any of the four enumerated exceptions which might make termination of parental rights detrimental to the child. (Ninfa S., supra, 62 Cal.App.4th at p. 811.)

Because further delay of the hearing would have interfered with the childs need for prompt resolution of her custody status, and the sole reason asserted for continuing the hearing was to adduce information irrelevant to the pending proceeding, the court did not abuse its discretion by declining to continue the hearing further. (Ninfa S., supra, 62 Cal.App.4th at p. 811.)

IV. Appellant Has Improperly Raised an Additional Claim in His Reply Brief

In his reply brief, appellant, for the first time, claims that DCS failed to give him proper notice of the hearings, in that it failed to provide him with Judicial Council form JV-505 (Statement Regarding Paternity). Withholding a point until the reply brief deprives the respondent of the opportunity to answer it, however. Hence, a point raised for the first time therein is deemed waived and will not be considered, unless good reason is shown for failure to present it before. [Citations.] (People v. Baniqued (2000) 85 Cal.App.4th 13, 29, fn omitted.) No good cause is shown here.

V. Appellant Cannot Use a Writ of Habeas Corpus to Challenge the Order Terminating Parental Rights

Appellant collaterally attacks the termination order by means of a petition for writ of habeas corpus, which is supported by declarations by him and his mother. The declarations state that: 1) he has been married to the childs mother for four years, but she moved out of the home shortly before the child was born; 2) a social worker interviewed appellants mother on December 6, 2005; she told the social worker that appellant was married to the childs mother and was the childs father, and that he wanted to reunify with the child; 3) one week after the childs birth, the social worker called appellant, and he told her the child was his daughter and that he wanted custody of her; and 4) he is a descendant of Cherokee and Black Foot (sic) Indians. In the habeas petition, appellant claims that the social worker failed to report any of this information to the court. He additionally claims that DCS and the juvenile court did not comply with the Indian Child Welfare Act (ICWA) because they failed to ask him if he had any Indian heritage and failed to investigate information indicating the child may be an Indian child. We conclude that appellant cannot use a writ of habeas corpus to challenge the termination order.

At the outset, we note that [a]n appeal reviews the correctness of a judgment as of the time of its rendition, upon a record of matters which were before the trial court for its consideration. [Citation.] (In re Heather B. (2002) 98 Cal.App.4th 11, 13.) In this case, the record before the juvenile court supported its decision to terminate parental rights. The birth mother safely surrendered the child, and the alleged father, despite being noticed of the jurisdiction/disposition and section 366. 26 hearings, never appeared in court or made any attempts to change his status. Now, appellant would have this court act as trier of fact based on new evidence that he includes in his habeas corpus petition.

We will not issue an order to show cause on appellants habeas corpus petition. As stated by the court in In re Meranda P. (1997) 56 Cal.App.4th 1143, 1161 (Meranda P.), the Legislature has expressly prohibited the collateral dispute of a termination order. Section 366.26, subdivision (i)(1), provides: Any order of the court permanently terminating parental rights under this section shall be conclusive and binding upon the child, upon the parent or parents and upon all other persons who have been served with citation by publication or otherwise as provided in this chapter. After making the order, the juvenile court shall have no power to set aside, change, or modify it, . . . but nothing in this section shall be construed to limit the right to appeal the order. This statute forbids alteration or revocation of an order terminating parental rights except by means of a direct appeal from the order. (Meranda P., supra, 56 Cal.App.4th at p. 1161; see also In re Heather B., supra, 98 Cal.App.4th at p. 15 and In re Jessica K. (2000) 79 Cal.App.4th 1313, 1316.)

Furthermore, there is the rule of law, reaffirmed by the Supreme Court less than a decade ago, that habeas corpus may not be used to collaterally attack a final nonmodifiable judgment in an adoption-related action where the trial court had jurisdiction to render the final judgment. [Citation.] (Meranda P., supra, 56 Cal.App.4th at p. 1161.) The termination order here is a final, statutorily ( 366.26, subd. (i)) nonmodifiable order, issued by a court with subject matter jurisdiction over the cause finding [the child] adoptable, terminating [parental] rights and freeing the child for adoption by a third person. (Meranda P., supra, 56 Cal.App.4th at p. 1162.) The order, and the section 366.26 hearing from which it came, were adoption-related. (Ibid.)

In addition, by the time a termination order is entered, the interests of the parent and child collide and the childs interest in finality prevails. (Meranda P., supra, 56 Cal.App.4th at p. 1163.) Here, the child has been in the same placement since February 27, 2006 -- nearly her entire life. She is bonded with her foster parents, and they strongly desire to provide a stable, loving, and permanent home for the child.

Appellant primarily relies upon In re Darlice C. (2003) 105 Cal.App.4th 459 (Darlice C.), which rejected Meranda P.s analysis, to support his contention that habeas corpus may be used to collaterally attack an order terminating parental rights. Darlice C. is distinguishable. The mother in Darlice C. claimed that she was not afforded competent assistance of counsel. (Darlice C., supra, 105 Cal.App.4th at p. 462.) The court held that a parent has the right to seek review of claims of ineffective assistance of counsel by writ of habeas corpus, where the juvenile court has ordered parental rights terminated. (Id. at p. 463.) The court began its discussion by stating that an indigent parent has a statutory right to appointed counsel in dependency proceedings and is entitled to competent counsel. (Ibid.; see also 317, 317.5.) The court further stated that this right has been interpreted in substantially the same manner as the constitutional right to the effective assistance of counsel. [Citation.] [Citation.] (Darlice C., supra, 105 Cal.App.4th at p. 463.) The court then explained that since action taken or not taken by trial counsel was typically motivated by considerations not reflected in the record, the establishment of ineffective assistance of counsel most commonly required a presentation that went beyond the record of the trial. (Ibid.) Thus, the issue had to be adjudicated by means of petition for writ of habeas corpus. (Ibid.)

In the instant case, appellant is not claiming ineffective assistance of counsel. His claims are not based on any similar constitutional right, and they are not supported by any evidence that is commonly beyond the record of the trial. In fact, the evidence that appellant uses to support his claims should have and could have been placed before the juvenile court. There is abundant evidence that appellant had notice of the proceedings. In his petition, he claims that, although he was personally served notice of the jurisdiction/disposition hearing, he was unable to appear because he was in jail on the day of the hearing. However, part of the notice of the jurisdiction/disposition hearing advised appellant that he was entitled to have an attorney present at any hearing, and that he could contact the court clerk if he could not be present at the jurisdiction/disposition hearing and desired to be represented by an attorney. Thus, he had the opportunity to bring his claims of presumed father status and Indian heritage before the court through an attorney. However, there is nothing in the record showing that he made any contact with the court or sought to have counsel appointed to him.

Moreover, the section 366.26 hearing was held four months after the jurisdiction/disposition hearing, at which the court declared appellant an alleged father. As noted by respondent, appellant could have filed a section 388 petition for a hearing to seek a change in his parental status before the section 366.26 hearing. Instead, he chose to remain silent throughout the juvenile court proceedings. Ultimately, it was appellants obligation to communicate with DCS and participate in the proceedings. (In re Raymond R. (1994) 26 Cal.App.4th 436, 441.) He simply failed to do so. He cannot now make his claims by means of a habeas corpus petition.

DISPOSITION

We affirm the juvenile courts termination order and deny appellants petition for writ of habeas corpus.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

HOLLENHORST

Acting P.J.

We concur:

McKINSTER

J.

RICHLI

J.

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^[1] Appellant contemporaneously filed the appeal and the habeas corpus petition on September 27, 2006. By order filed on October 12, 2006, this court indicated that the habeas corpus petition would be considered with the appeal.

^[2] All further statutory references will be to the Welfare and Institutions Code unless otherwise noted.

^[3] We note a discrepancy in the record. The detention report states that the child was born in a hospital, and the section 366.26 report states that the child was born in the ambulance, on the way to the hospital.

^[4] California Rules of Court, rule 1462(c)(10), was in effect at the time of the dependency proceedings in this case. Effective January 1, 2007, California Rules of Court, rule 1462(c)(10) has been renumbered as rule 5.720(c)(13) & (14). For the sake of clarity, we will refer to the rule under the current rule number.