Filed 6/1/17 In re H.W. CA5



NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

In re H.W. et al., Persons Coming Under the Juvenile Court Law.

KERN COUNTY DEPARTMENT OF HUMAN SERVICES,

Plaintiff and Respondent,

v.

ALFRED W.,

Defendant and Appellant.

F074792

(Super. Ct. Nos. JD133063, JD133064)


OPINION

THE COURT*
APPEAL from an order of the Superior Court of Kern County. Raymonda B. Marquez, Judge.
Michelle L. Jarvis, under appointment by the Court of Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
-ooOoo-
Alfred W. (father) appealed from the juvenile court’s order terminating his parental rights (Welf. & Inst. Code, § 366.26) as to his now five-year-old son H.W., and three-year-old daughter R.W. After reviewing the juvenile court record, father’s court-appointed counsel informed this court she could find no arguable issues to raise on father’s behalf. This court granted father leave to personally file a letter setting forth a good cause showing that an arguable issue of reversible error exists. (In re Phoenix H. (2009) 47 Cal.4th 835, 844 (Phoenix H.).)
Father submitted a letter which we conclude failed to address the termination findings, or orders, or set forth a good cause showing that any arguable issue of reversible error arose from the section 366.26 hearing. (Phoenix H., supra, 47 Cal.4th at p. 844.) Consequently, we dismiss the appeal.
PROCEDURAL AND FACTUAL SUMMARY
In July 2014, the Kern County Department of Social Services (department) took then two-year-old H.W. and five-month-old R.W. into protective custody because their home was a health and safety hazard and their mother, Destiny E., was being arrested for willful cruelty to a child. In addition, Destiny was involved in a violent relationship with her boyfriend, Kevin B., who punched her in the face two days before.
Destiny and father also had a history of domestic violence. In March 2014, father pulled Destiny’s hair, held her by the neck, and pushed her into the toilet and bathtub. He was convicted of corporal injury on a spouse/cohabitant for that incident. In
August 2012, he was convicted for battery for hitting her in the face.
On July 31, 2014, the department filed dependency petitions on behalf of the children pursuant to section 300, subdivisions (b) and (g). The petitions alleged that the children had suffered, or there was a substantial risk the children would suffer, serious physical harm or illness as a result of Destiny’s willful neglect or negligent failure to adequately protect the children from domestic violence and to provide them adequate food, clothing, shelter or medical treatment. The petition further alleged that Destiny was incarcerated and could not arrange for the children’s care. The petition listed father as the children’s “alleged” father.
The juvenile court ordered the children detained pursuant to the petitions and found that father’s whereabouts were unknown. The department placed the children together in foster care.
In September 2014, the department conducted a search of the Criminal Justice Information System (CJIS) in an attempt to locate father and discovered an address for him. Paralegal Andrea Burkhart went to the address and spoke to a woman named Michelle who said father stayed at the residence and she saw him every day. Michelle offered to look for father. Father later called Burkhart from Michelle’s cell phone. Burkhart met him and served him notice of the jurisdictional hearing. Father said he did not have a mailing address and suggested the department give any messages for him to Destiny.
In October 2014, the juvenile court exercised its dependency jurisdiction over the children and returned them to Destiny’s custody with family maintenance services. The court denied father reunification services because, as the children’s alleged father, he was not entitled to them. Father did not appear at this hearing.
In January 2015, the department took the children into protective custody and filed supplemental petitions under section 387 alleging family maintenance had proven ineffective after Destiny allowed Kevin, her boyfriend, contact with the children against the juvenile court’s orders. The juvenile court sustained the allegations in the supplemental petitions.
In March 2015, Burkhart searched the CJIS and found an address for father in Taft. Burkhart located father near a bike path/walking trail. He said he did not have an address. She gave him the specifics of the upcoming hearing and gave him a copy of the notice of hearing. She also gave him the court worker and social worker’s contact information. Father said he wanted an attorney appointed for him.
In May 2015, at the dispositional hearing on the section 387 petition, the juvenile court ordered family reunification services for Destiny but no services for father based on his alleged father status. Father was represented by court-appointed counsel but did not personally appear. The court continued reunification services for Destiny until the 12-month review hearing in March 2016. At that time, the court terminated her services and set a section 366.26 hearing. Father did not appear at any of the review hearings.
The department recommended the juvenile court terminate parental rights at the section 366.26 hearing. It reported Destiny had visited only sporadically and father had not visited at all. In addition, the children were strongly bonded to the prospective adoptive mother who wanted to adopt them.
The juvenile court conducted the section 366.26 hearing in October 2016. Father appeared for the first time and asked for a continuance. His attorney explained father did not believe he needed to get involved in the proceedings because he thought the children were with Destiny and doing fine. The court denied the request for a continuance and father’s attorney stated he “would object and submit.” The court found by clear and convincing evidence the children were likely to be adopted and terminated parental rights.
DISCUSSION
Father wrote his letter in March 2017 while incarcerated in the Carson City jail in Carson City, Nevada, where he was serving a 169-day sentence. He expected to be released later that month. He asserts that he was unaware of how serious the children’s situation was and thought the children were safe with Destiny. He asks for paternity testing to establish his biological paternity and an opportunity to assume custody of them. Alternatively, he asks that the children be placed with their paternal grandmother. In addition, father points out that it was Destiny’s conduct, not his, that caused the juvenile court to assume dependency jurisdiction. Nevertheless, he asserts he attended as many counseling classes as possible while incarcerated in order to better himself and prepare for his release from custody. He acknowledges his failure to participate in the proceedings but attributes his absence to a deep depression he experienced following the death of his father. As a result of the depression, he became homeless, sleeping outside exposed to the elements and eating from trash cans. He claims to have overcome his circumstances.
The sole purpose of a section 366.26 hearing is the selection of a permanent plan for the child. (In re Christopher M. (2003) 113 Cal.App.4th 155, 160.) Section 366.26, subdivision (c)(1), provides that if the court determines by clear and convincing evidence that it is likely that the child will be adopted, “the court shall terminate parental rights and order the child placed for adoption” unless one of the exceptions of section 366.26, subdivision (c)(1)(B) applies.
We have reviewed the transcript for the October 6, 2016, permanency planning hearing, which reflects that father did not dispute the children’s adoptability. Nor did he argue that any of the statutory exceptions to adoption applies. Consequently, the pertinent record is devoid of any arguable issue that would result in reversal of the termination order. Further, on appeal, father does not claim the juvenile court erred. He merely seeks to reopen reunification, which is not an option. He has thus failed to raise any arguable issue on appeal from the order terminating parental rights pursuant to section 366.26.
DISPOSITION
This appeal is dismissed.