In re J.B.

Filed 10/27/08 In re J.B. CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 Riverside County. Bradley O. Snell, Temporary Judge. (Pursuant to Cal. Const., art. VI, 21.) Affirmed.

Robert McLaughlin, under appointment by the Court of Appeal, for Defendant and Appellant JA.B.

Roni Keller, under appointment by the Court of Appeal, for Defendant and Appellant D.E.

Joe S. Rank, County Counsel, and Anna M. Deckert, Deputy County Counsel, for Plaintiff and Respondent.

Leslie A. Barry, under appointment by the Court of Appeal, for Minor.

Father appeals from a juvenile court order terminating parental rights pursuant to Welfare and Institutions Code section 366.26.^[1] Father contends the juvenile courts denial of reunification services was not supported by substantial evidence and denial of a continuance of the section 366.26 hearing (.26 hearing) was an abuse of discretion.

D.E., an alleged father of J.B., also appeals. D.E. requests this court independently review the record for error pursuant to In re Sade C. (1996) 13 Cal.4th 952, and asserts that the juvenile court should have found him to be a presumed father of JB. D.E. also requests this court grant him leave to file a supplemental brief.

We conclude there was sufficient evidence supporting termination of fathers reunification services and no abuse of discretion in denying his request for a continuance of the .26 hearing. We also reject D.E.s contentions and affirm the judgment.

1. Factual and Procedural Background

J.B. was born in April 2003. In January 2006, J.B. was taken into protective custody because mother was not adequately caring for him. Mother had a history of drug abuse and was homeless. Fathers whereabouts were unknown. Later it was determined that father was in prison in Arizona, serving a 12-year sentence for armed robbery.

The Department of Public Social Services (DPSS) filed a juvenile dependency petition pursuant to section 300, subdivisions (b) and (g). On January 10, 2006, the court ordered J.B. detained.

On May 15, 2006, at the jurisdictional and dispositional hearing the court declared J.B. a dependent of the court under section 300, subdivisions (b) and (g). The juvenile court denied reunification services to mother, father and D.E., and the matter was set for a .26 hearing. The .26 hearing was continued numerous times over a 22-month period.

In the .26 hearing report filed on August 28, 2006, the DPSS reported the DPSS was looking for a prospective adoptive home for J.B. Neither father or D.E. had had any contact with J.B. since the inception of the juvenile dependency proceedings. In the DPSSs review report filed on February 22, 2007, the DPSS reported that J.B. did not have a relationship with his parents or maternal grandmother.

On May 25, 2007, J.B. was placed with a prospective adoptive family and reportedly was happy in his new home.

In the .26 hearing addendum report filed on November 16, 2007, the DPSS reported that J.B. wanted to be adopted by his prospective adoptive parents.

On March 13, 2008, the juvenile court conducted a .26 hearing. Father was not present. His attorney requested a continuance, which the court denied. D.E., through his attorney, also requested a continuance of the hearing so that paternity testing could be completed. The court denied his request.

At the hearing, father provided stipulated testimony in which he stated he had visited with J.B. regularly in prison between May 2003 and November 2005. Fathers attorney requested the court to find that the sibling and benefit exceptions to adoption applied. The court found that father had not had any contact with J.B. since he was two years of age.

The juvenile court found that none of the exceptions to adoption applied and terminated mothers, fathers and D.E.s parental rights.

2. Denial of Reunification Services

Father contends the juvenile court erred in denying him reunification services. Although father did not file a writ petition raising this objection, he asserts that he may raise the issue for the first time on appeal because the juvenile court failed to advise him of the writ petition requirement. ( 366.26, subd. (l)(3)(A); Cal. Rules of Court, rules 5.585(e), 5.600(b).^[2])

At the contested jurisdictional and dispositional hearing on May 15, 2006, the juvenile court denied reunification services to father under section 361.5, subdivision (e)(1) on the grounds father was serving a 12-year prison sentence and it would be detrimental to J.B. to offer father reunification services. Father was not present at the hearing.

The juvenile court denied reunification services as to mother under section 361.5, subdivision (b)(1). Her whereabouts were unknown. Services were also denied as to D.E. under section 361.5, subdivision (a), since he was merely an alleged father and thus not entitled to reunification services. The juvenile court set the matter for a contested .26 hearing and ordered the clerk to mail notice to the parents of their right to file a writ petition under rule 8.452. The record on appeal does not contain any evidence such notice was provided.

A. Forfeiture of Objection

The DPSS argues that father cannot challenge in this appeal the jurisdictional and dispositional findings, including denial of reunification services, because he did not previously raise the matter in a writ petition and his attorney did not object when the juvenile court ordered reunifications services were denied as to father.

At a hearing in which a .26 hearing is set, the juvenile court is required to advise parties who are present of the requirement to file a writ petition to challenge any orders made at the hearing. ( 366.26, subd. (l)(3)(A); rules [5.585](e), [5.600](d).) If the parties are not present at the hearing, the court is required to mail notice of the writ petition requirement to the parties within 24 hours. (Rules [5.585](e), [5.600](d).) Failure to give notice of the writ petition requirement relieves a party of the requirement. (In re Merrick V. (2004) 122 Cal.App.4th 235, 248.)

Here, father did not file a writ petition objecting to the order denying reunification services on May 15, 2006. However, there is nothing in the record indicating the clerk sent father notice of the May 15, 2006 ruling or of the need to file a writ petition if he wished to challenge termination of reunification services. We thus find good cause for fathers failure to file a notice of intent and a writ petition pursuant to section 366.26, subdivision (l), and rule 8.450. We therefore shall address fathers appeal. (In re Cathina W. (1998) 68 Cal.App.4th 716, 722-723; In re Athena P. (2002) 103 Cal.App.4th 617, 624-626.)

B. Adequacy of Notice of Appeal

The DPSS also asserts that fathers notice of appeal is deficient because it does not identify the particular order being appealed. The notice states father is appealing the March 13, 2008 order terminating parental rights. The DPSS argues that since father did not mention in his notice of appeal that he is appealing the May 15, 2006 order denying father reunification services, father cannot object to the order on appeal. We disagree.

We construe the notice of appeal liberally and therefore if the notice identifies the particular judgment being appealed, the notice is sufficient. (Rule 8.400 (c)(2).) The form notice of appeal father filed with this court mentions three types of orders that can be appealed and states that one of the three orders must be selected. In the instant case, father properly challenged the ruling denying reunification services by appealing the order terminating parental rights, as explained above. (In re Athena P., supra, 103 Cal.App.4th at pp. 625-626.) Father thus appropriately checked the box indicating the judgment terminating parental rights. Although it would have been helpful to also indicate that father was challenging the May 13, 2006 order denying reunification services, fathers failure to do so is not fatal to his appeal.

C. Sufficiency of Evidence Supporting Denial of Reunification Services

Father contends he is entitled to reunification services under section 361.5, subdivision (e)(1). The provision states in relevant part: If the parent . . . is incarcerated or institutionalized, the court shall order reasonable services unless the court determines, by clear and convincing evidence, those services would be detrimental to the child. In determining detriment, the court shall consider the age of the child, the degree of parent-child bonding, the length of the sentence, the nature of the treatment, the nature of the crime or illness, the degree of detriment to the child if services are not offered . . . .

Father complains that the juvenile court denied him services merely because he was incarcerated. But while the court noted father was serving a 12-year prison sentence, the court also stated services would be detrimental to J.B. The court did not state fathers incarceration was the sole reason for denying father services. There were other valid reasons why the court may have concluded services would be detrimental and therefore denied them.

As father acknowledges, this court must view the evidence in the light most favorable to the DPSS and indulge in all legitimate and reasonable inferences to uphold the order. (In re Monica C. (1995) 31 Cal.App.4th 296, 306.) In doing so, it can be inferred the court found detriment based, not only on fathers incarceration, but also based on additional factors, including fathers lack of a parental relationship with J.B.

When the DPSS initiated the instant proceedings, father was in prison in Arizona for armed robbery. Father was admitted to prison in December 2002, before J.B.s birth. Fathers early release date is in November 2015. Father had been incarcerated during J.B.s entire life. A month after J.B.s birth, mother started taking J.B. to visit father in the prison three times a month. When the DPSS initiated the instant proceedings, J.B. was 20 months old.

Under these circumstances, the juvenile court properly denied father reunification services. J.B. was young, fathers crime was serious, father was serving a lengthy sentence, father had never lived with or supported J.B., and the evidence indicated there was not a close bond between father and J.B.

3. Denial of Continuance of .26 Hearing

Father contends the juvenile court abused its discretion in denying his request to continue the .26 hearing on March 13, 2008.

At the .26 hearing, fathers attorney requested the court continue the hearing because he had just contacted Arizona state prison and was told that father had recently been moved to a new prison location. As a consequence, defense counsel was unable to make arrangements for him to appear telephonically for the hearing on March 13. Father had previously appeared telephonically at the February hearing and was authorized to appear telephonically at the March 13 hearing. Due to logistical problems preventing father from appearing telephonically at the March 13 hearing, counsel requested the court to trail the matter briefly so that arrangements could be made for father to appear by phone at the .26 hearing.

The juvenile court denied fathers request for a continuance on the grounds the hearing originally had been set over a year before, with numerous continuances. Father argues denial of the continuance was an abuse of discretion because there was good cause to continue the hearing briefly and father was not responsible for the previous continuances. He claims that one more brief continuance would not have been detrimental to J.B.

Section 352, subdivision (a) provides that a juvenile court may continue any hearing at the request of a party, provided that no continuance shall be granted that is contrary to the interest of the minor. In considering the minors interests, the 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. ( 352, subd. (a).) Accordingly, [c]ontinuances 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.)

Here there was no abuse of discretion in denying fathers request for a continuance. Father failed to file a timely written motion requesting a continuance and did not establish good cause for failing to do so. Fathers attorney did not state when father relocated or whether any attempts had been made prior to March 13, to arrange for a telephonic appearance. Fathers attorney made a last minute oral request for a continuance at the beginning of the .26 hearing. Oral requests for continuances made at the .26 hearing are not favored. (Jeff M. v. Superior Court (1997) 56 Cal.App.4th 1238, 1242-1243.)

Even assuming there was good cause for father not filing a timely continuance motion, there was no abuse of discretion in denying the motion since delaying the hearing was not in the best interest of J.B., due to the hearing having been originally set 18 months earlier, with numerous continuances, and it was highly unlikely that fathers participation at the hearing by telephone would have made any difference in the outcome. Fathers attorney attended the hearing, submitted fathers stipulated testimony, and argued that father objected to termination of his parental rights. Even if there was error, it was harmless.

4. D.E.s Appeal

As an alleged father of J.B., D.E. requests this court independently review the record for error pursuant to In re Sade C., supra, 13 Cal.4th 952, and asserts that the juvenile court should have found him to be a presumed father of J.. D.E. also requests this court to grant him leave to file a supplemental brief.

We conclude there was insufficient evidence to support a finding that D.E. was a presumed father. In February 2006, mother told a DPSS social worker that father was J.B.s father and that she and father were married. She said she became pregnant a few months before father went to prison. Father is named as J.B.s father on J.B.s birth certificate. Mother said she then met D.E. while she was pregnant and lived with him for a few months. Mother left D.E. because he was crazy.

In February 2006, the juvenile court found father to be a presumed father of J.B.

In March 2006, D.E. filed a paternity inquiry form stating that he had had sexual relations with mother from June 2002 to July 2004, and lived with J.B. off and on since J.B.s birth in April 2003. D.E. further stated that mother told D.E. he was J.B.s father. D.E. claimed he provided support for J.B. by purchasing clothing for D.E. and providing housing for him and mother. In addition, D.E. filed a statement regarding paternity declaring that he believed he was J.B.s father and requested the court enter a judgment of paternity.

At the jurisdictional and dispositional hearing on May 15, 2006, the court denied reunification services to D.E. pursuant to section 361.5, subdivision (a).

In November 2006, D.E. was incarcerated in Arizona, with an expected release date of December 2009.

According to a .26 hearing addendum report filed on November 16, 2007, mother told a social worker she had not seen D.E. since she was two months pregnant with J.B. D.E. reportedly never contacted the DPSS concerning J.B. and waited almost two years before requesting paternity testing for J.B., whom D.E. had never seen or spoken to.

Pursuant to California juvenile court order, paternity testing was attempted but did not take place as of December 2007, because a paternity testing order from an Arizona court was required. A DPSS social worker told D.E. that he could apply for the Arizona court order through the legal center at the prison. D.E. said he would do so but as of February 2008, D.E. had not filed for the order.

The DPSS recommended in its November .26 hearing addendum report that, even though paternity testing had not taken place, the juvenile court should proceed with adoption proceedings since J.B. had never seen D.E. and J.B. had bonded with his foster family, who wished to adopt him.

At the contested .26 hearing on March 13, 2008, D.E.s attorney requested a continuance so that paternity testing could be completed. The juvenile court denied his request. D.E., who was not present at the hearing, provided stipulated testimony stating he believed J.B. was his biological child and that mother had told him this. D.E. claimed he had enjoyed contact with J.B. and had presented J.B. to friends and relatives as his child. The trial court rejected D.E.s request that J.B. be placed with D.E.s mother and terminated parental rights.

Under these circumstances, D.E. is not entitled to an independent review under In re Sade C., supra, 13 Cal.4th 952, since he is merely an alleged father. Furthermore, there was insufficient evidence to support a finding of presumed father status as to D.E. since there was substantial evidence that D.E. had little if any contact with J.B. and did not provide J.B. with any support or care. There is also overwhelming evidence that J.B. is not D.E.s biological child and D.E. was not diligent in obtaining paternity testing.

This court has reviewed the record and has determined that the record does not reveal any issues that would, if resolved favorably to D.E., result in reversal or modification of the orders appealed from. There is thus no basis for granting D.E. leave to file a supplemental brief or for reversing or modifying the judgment.

5. Disposition

The judgment is affirmed.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

s/Gaut

J.

We concur:

s/McKinster

Acting P. J.

s/King

J.

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^[1] Unless otherwise noted, all statutory references are to the Welfare and Institutions Code.

^[2] Unless otherwise noted, all references to rules are to the California Rules of Court.