In re L.S.

Filed 5/28/08 In re L.S. CA1/4

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIRST APPELLATE DISTRICT

DIVISION FOUR

Hector S. (Hector) appeals after the trial court terminated his parental rights to L. S. He contends he did not receive proper notice of the disposition hearing, the juvenile court abused its discretion in denying his motion for a continuance of the selection and implementation hearing pending the results of a paternity test, and the court did not comply with the requirements of the Indian Child Welfare Act of 1978 (25 U.S.C.  1901 et seq.) (ICWA). We affirm.

I. BACKGROUND

L. S. was born in March 2007. Three days later, Contra Costa County Children & Family Services (the Bureau) filed a petition pursuant to Welfare and Institutions Code[1] section 300 alleging that L. S. had tested positive for cocaine and methadone metabolite at birth and that her mother (Mother) had tested positive for cocaine and opiates at the same time. A jurisdiction/disposition report in May 2007 indicated that the identity of L. S.s father was unknown, that Mother had not provided information about him to the emergency response social worker, that the Bureau had not yet received L. S.s birth certificate, and that Mother had not been in contact with the Bureau since late March. At the time L. S. was born, one of Mothers other children, Hector S., Jr. (Hectors son), was a dependent child, and no reunification services had been ordered for Mother.

At a disposition hearing on May 10, 2007, the juvenile court set a hearing pursuant to section 366.26 (the .26 hearing) for August 21, 2007, and ordered no reunification services. Notice of the .26 hearing was given by publication.

A report prepared for the .26 hearing indicated that the Bureau had originally been told by the hospital that L. S. had been given the last name  Salazar,  which was the name of neither Mother nor Hector. The Bureau requested the certificate at the end of March, but it was not issued until July. When a social worker received the birth certificate at the end of July, she saw that L. S. had been given Hectors last name and that, although the birth certificate did not contain the fathers name, it contained a date of birth for the father that was close to Hectors. The Bureau was familiar with Hector through the dependency of Hector, Jr., concluded he might be an alleged father, and served him with notice of the .26 hearing.

The report noted that Hector had not complied with his court-ordered service plan in Hector, Jr.s case, and that the Bureau was recommending that services in Hectors case be terminated. It also stated that Hector had been aware of L. S.s birth and had reportedly told Bureau staff that he might be the father since he was living with [Mother] around the time the baby was conceived. Hector had been incarcerated in local custody for more than a year and would be unable to care for L. S. He was facing a possible prison sentence. A previous social worker had discussed the possibility of placing L. S. with Hectors relatives in late March and early April 2007 in the event that paternity was established, but none of Hectors relatives were able to care for her.

Hector filled out form JV-505, a statement regarding parentage, indicating he believed he was L. S.s parent and asking the court to enter a judgment of parentage and to find him a presumed parent. He appeared at the August 21, 2007, hearing, which was continued to August 28 and then to September 18. Hector submitted a request pursuant to section 388 for a change in the courts order, asking the court to vacate the .26 hearing date, make a paternity finding as to Hector, provide six months of services, and order evaluation of relative homes for possible placement. At the September 18 hearing, the court ordered a paternity test. The test was ordered as a motherless draw to avoid the delays involved in trying to find Mother, whose whereabouts were unknown. The .26 hearing was continued to October 2, 2007, but the court refused to delay the hearing further to await the results of the paternity test.

At the October 2, 2007, hearing, Hector moved for a continuance pending the results of the paternity test. In order to decide whether to proceed with the .26 hearing immediately, the juvenile court decided to hear testimony concerning the failure to give notice to Hector of the disposition hearing.

Social worker Carole Rutherford testified that when L. S. was detained, Mother did not give the emergency response social worker any information about the father. The Bureau requested L. S.s birth certificate shortly after the petition was filed, and received it at the end of July. Until she received the birth certificate, Rutherford believed L. S. had been given the last name Salazar, and was hoping the certificate would help her find out the source of the name. When she received the birth certificate, she saw that L. S.s last name was not Salazar, but was instead the same as Hectors, and realized that Hector might be the father. Shortly afterward, she asked the county counsels office to send notice to Hector.

Rutherford also testified that Meghan Schulze, the social worker in Hector, Jr.s case, had asked Hectors relatives if they would be interested in caring for L. S. if Hector turned out to be the father. Rutherford spoke with Schulze, who told her that sometime between late March and early June 2007, Hector had said he wondered if he might be L. S.s father, but that Hector had not raised the issue at any court hearings.

Hector testified that he lost touch with Mother about seven months before L. S. was born, although he had known she was pregnant. He first learned of L. S.s dependency proceeding around March 27. Schulze asked him if he thought he might be L. S.s father, and he said he thought he was. Schulze told him the Bureau was looking into the birth certificate. Hector asked if there was anything he could do, and according to Hector, Schulze replied, [T]heres nothing you can do until the mother comes forward to put your name on the birth certificate or until we clear this up between their conversation with the hospital. He testified that his counsel in Hector, Jr.s case told him the same thing, and that he raised the matter a month later, apparently when in court for a hearing in Hector, Jr.s case, and they said there was nothing he could do. However, although he went to several hearings in Hector, Jr.s case between March and August 2007, he never told a judge he wanted to appear in L. S.s case, and he did not ask the social worker for visitation or services in connection with L. S. At the time of the hearing, he had been in custody about 13 months, had not yet had his preliminary examination in his criminal case, and did not know how long he would be in custody.

The juvenile court found that Hector had been aware of L. S.s birth right away and had done nothing to establish himself as her father, and stated that it did not believe Hectors testimony that the social worker had told him there was nothing he could do. The court found that Hector had not been entitled to notice of the dispositional hearing, and that Hector had not [come] forward earnestly and to assert his rights as a father.

The juvenile court proceeded with the .26 hearing. It found by clear and convincing evidence that L. S. would be adopted, that it was in her best interests to terminate parental rights, and that it would be detrimental to return her to the custody of her parents. Accordingly, the court terminated the parental rights of Mother, Hector, and anyone else claiming to be the father.

II. DISCUSSION

A. Failure to Provide Notice of Disposition Hearing

Hector contends he was deprived of due process because he did not receive notice of the disposition hearing, and that due to this error the courts order is reversible per se.

Fathers in dependency proceedings may be treated as presumed fathers, biological fathers, or alleged fathers. A biological or natural father is one whose biological paternity has been established, but who has not achieved presumed father status . . . . [Citations.] A man who may be the father of a child, but whose biological paternity has not been established, or, in the alternative, has not achieved presumed father status, is an alleged father. (In re Zacharia D. (1993) 6 Cal.4th 435, 449, fn. 15.) The distinction is critical: Alleged fathers have fewer rights than presumed fathers and are not entitled to custody, reunification services, or visitation. [Citations.] Contrarily, a presumed father is entitled to services and a biological father may get services if doing so is in the childs best interests. (In re O. S. (2002) 102 Cal.App.4th 1402, 1410.) An alleged father in dependency proceedings is entitled to notice of hearings. (Id. at p. 1408; see also  290.1, subd. (a)(2), 290.2, subd. (a)(2), 291, subd. (a)(2), 294, subd. (a)(2), 316.2, subd. (b).) This notice gives him the opportunity to appear, assert a position, and attempt to change his paternal status. (In re O. S., at p. 1408.)

The rule for review of the failure to provide a parent with notice has been expressed as follows: Unless there is no attempt to serve notice on a parent, in which case the error has been held to be reversible per se [citations], errors in notice do not automatically require reversal but are subject to the harmless beyond a reasonable doubt standard of prejudice. [Citations.] (In re J.H. (2007) 158 Cal.App.4th 174, 183.)

Hector contends the Bureau made no effort to give him notice of the disposition hearing and that this error is reversible per se, relying on In re Jasmine G. (2005) 127 Cal.App.4th 1109, 1116 (Jasmine G.), and In re DeJohn B. (2000) 84 Cal.App.4th 100, 109-110 (DeJohn B.). Jasmine G. stated: We now make explicit what is implicit in DeJohn B[.]the failure to attempt to give a parent statutorily required notice of a selection and implementation hearing is a structural defect that requires automatic reversal. It denies the parent the opportunity to confer with her attorney, prepare her case, or defend against the loss of parental rights. Without this, we cannot say the loss of parental rightsor the hearingis fundamentally fair. The absence of any reasonable attempt to give notice goes well beyond trial error. . . . It goes to the basic fairness of the structural scheme. Since this was structural error, we do not consider whether it was also harmless. (Jasmine G., supra, 127 Cal.App.4th at p. 1116.)[2]

This case is easily distinguishable from Jasmine G. and DeJohn B. In each of those cases, the identity of the mother was known, but the agency failed to take appropriate steps to locate her. The mother in Jasmine G. had appeared at the jurisdiction/disposition hearing and again at a six-month review hearing, but failed to appear at the continued hearing. The juvenile court set a selection and implementation hearing, and ordered the social services agency to attempt to notify the mother. Although the agencys report prepared for the selection and implementation hearing indicated that a social worker had spoken with the mother eight times in the meantime and had met with her once, no one had told the mother of the upcoming hearing. The report included a new address for the mother, but did not indicate that anyone had tried to serve notice at her new address. At the hearing, her parental rights were terminated and the child was placed for adoption. (Jasmine G., supra, 127 Cal.App.4th at pp. 1112-1114.)

In DeJohn B., the court explained that two children had been detained after no one had picked them up from daycare. Their father had been caring for them, and the mothers whereabouts were unknown. (DeJohn B., supra, 84 Cal.App.4th at p. 103.) A report indicated that the father had told the social worker that the mother had abandoned the children and that the father thought she might be  on the streets.  There was no indication the social worker asked the father for information about the mothers relatives, friends, or others who might know where she was, or that any effort was made to notify her of the jurisdictional/dispositional hearing or the six-month review hearing. At the six-month review hearing, the juvenile court referred the matter for a permanency hearing. A month later, the agency found the childrens maternal grandmother and through her sent the mother notice of the permanency hearing. There was no indication of why the grandmother could not have been identified earlier. (Id. at pp. 103-104.) Although the evidence indicated the father had taken the children without the mothers knowledge and had kept their location a secret from her, the court terminated parental rights and freed the children for adoption. (Id. at pp. 104-106.)

Here, on the other hand, the identity of L. S.s biological father was not known when the dependency began. The Bureau took immediate steps to get the birth certificate so it could identify the father. Mother had said she did not know who the father was, and the information the Bureau had received suggested that the father was someone of the name Salazar. When the Bureau saw the birth certificate and realized that L. S. had been given Hectors last name, it acted promptly to find him and serve him with notice of the .26 hearing. In the circumstances, we do not regard this as a case in which the Bureau made no attempt to give notice. Assuming Jasmine G.s rule of per se reversal applies to hearings other than selection and implementation hearings, we conclude that the Bureaus failure to provide Hector with notice of the disposition hearing is subject to a harmless error analysis.

In reaching this conclusion, we do not ignore the evidence that the Bureau knew Hector had wondered if he might be L. S.s father, and that the Bureau had offered to Hectors relations the possibility of taking in L. S. if Hectors paternity were established. However, Hectors failure to take steps to establish his parentage could reasonably be taken as an indication that he did not believe himself to be L. S.s father. The juvenile court found Hectors testimonythat a social worker told him there was nothing he could do to establish himself as L. S.s fathernot to be credible, particularly given Hectors prior experience in the dependency system. In the circumstances, we do not view Hectors remarks as transforming the Bureaus efforts to find L. S.s father into an absence of any reasonable attempt to give notice. (Jasmine G., supra, 127 Cal.App.4th at p. 1116.)

We further conclude beyond a reasonable doubt that Hector was not prejudiced by the lack of notice of the disposition hearing. Hector acknowledges that it is unlikely he could have attained the status of presumed father: He was not married to Mother, there is no evidence they attempted to marry, and he never received L. S. into his home nor openly held her out as his natural child. (Fam. Code, 7611, subds. (a)-(d); In re Kobe A. (2007) 146 Cal.App.4th 1113, 1123.) He argues, however, that if he had attained the status of a biological father, he could have received reunification services if the juvenile court had determined it would benefit L. S. (Welf. & Inst. Code,  361.5, subd. (a).)

It is inconceivable that the juvenile court would have made such a determination here. Hector lost touch with Mother seven months before L. S. was born, although he knew she was pregnant. He did not comply with his case plan in Hector, Jr.s case, and the Bureau was recommending that services be terminated. He had been incarcerated since before L. S.s birth, had not yet had his preliminary examination in the criminal case, and was facing a possible prison sentence. He had never seen L. S. and had not contacted the Bureau to ask about L. S.s welfare or request visitation. The juvenile court found not only that terminating parental rights was in L. S.s best interests, but that Hector had been disastrous as a parent. L. S. was doing well in the home of her prospective adoptive family, where she had lived since she was released from the hospital six weeks after her birth. In the circumstances, we see no possibility that Hector would have received services as a biological father or that he was prejudiced by the lack of notice of the dispositional hearing.

B. Denial of Continuance

We likewise reject Hectors contention that the juvenile court abused its discretion in denying his request for a continuance of the .26 hearing pending the results of his paternity test. (See  352, subd. (a); In re Angela R. (1989) 212 Cal.App.3d 257, 265‑266; In re Ninfa S. (1998) 62 Cal.App.4th 808, 810-811.) The juvenile court stated that in carrying out the .26 hearing, it was proceeding on the assumption that Hector could be the biological father. As we have discussed, there was no likelihood that the court would have ordered services for Hector even if the paternity test had shown him to be L. S.s biological father. Moreover, the court ordered the paternity test to proceed even after the .26 hearing so that L. S. would be aware of her parentage. The juvenile court did not abuse its discretion in holding the .26 hearing before the paternity test results were available.

Hector relies on In re Paul H. (2003) 111 Cal.App.4th 753, 760-762, which reversed an order terminating the parental rights of an alleged father after the juvenile court failed to follow the procedures to allow him to establish his biological paternity. Because there was only minimal evidence before the juvenile court of the alleged fathers circumstances and background, the Court of Appeal stated that it could not assume he would not have received reunification services if he had established his paternity and, therefore, that he had suffered prejudice. (Id. at pp. 761-762.) The Court of Appeal likewise ordered the juvenile court to provide a paternity test for the alleged father in In re Baby Boy V. (2006) 140 Cal.App.4th 1108, 1119. The alleged father there was a nonoffending, stable, employed, and financially responsible adult who came forward at the earliest possible moment after learning of the existence of the baby, and offered to support and provide a home for the child. (Id. at pp. 1111-1112, 1117-1118.) Here, of course, we have concluded that the evidence shows that Hector would not have received services. He was in no position to offer a home to L. S., and he acknowledges that he was unlikely to attain presumed father status. Nothing in the cases Hector cites changes our conclusion that the trial court did not abuse its discretion in denying Hectors request for a continuance.

C. ICWA Compliance

Hectors final contention is that the juvenile court failed to comply with the notice requirements of the ICWA.

The jurisdiction/disposition report indicated that during Hector, Jr.s dependency proceeding, Mother had told the social worker that Hector, Jr., might have maternal Indian ancestry and that she might be eligible for enrollment in two Indian tribes. Using that information, the Bureau sent ICWA notices in L. S.s case. The notices did not name Hector as a possible father. In June 2007, the juvenile court found that L. S. was not an Indian child. The record does not indicate that Hector was asked about any possible Indian heritage.

Under ICWA, [w]hen a court knows or has reason to know that an Indian child is involved in a juvenile dependency proceeding, the court must give the childs tribe notice of the pending proceedings and its right to intervene. (25 U.S.C.  1912(a) [citation].) (In re H.B. (2008) 161 Cal.App.4th 115, 120.) At the times relevant to these proceedings, the California Rules of Court imposed on the court and the county welfare department an affirmative and continuing duty to inquire whether a dependent child is or may be an Indian child, and required the social worker to ask the childs parents whether the child may be an Indian child or have Indian ancestors. (Cal. Rules of Court, former rule 5.664(d), (d)(2); see id., current rule 5.481.)

Several recent cases have rejected claims on appeal of inadequate ICWA notice where the parent has not shown prejudice; that is, where the parent has made no claim that ifasked, he or she would have disclosed possible Indian ancestry. As explained in In re N.E. (2008) 160 Cal.App.4th 766, 769, even if the court and the welfare department failed in their inquiry responsibilities, we cannot disturb the courts order absent a showing of prejudice. The court in In re N.E. found any failure to inquire as to a childs Indian heritage harmless, stating, where there is absolutely no suggestion by [the father] that he in fact has any Indian heritage, he has failed to demonstrate the requisite prejudice. (Ibid.) The court relied on In re Rebecca R. (2006) 143 Cal.App.4th 1426, 1431, in which the court stated: Father complains that he was not asked below whether the child had any Indian heritage. Fair enough. But, there can be no prejudice unless, if he had been asked, father would have indicated that the child did (or may) have such ancestry. [] Father is here, now, before this court. There is nothing whatever which prevented him, in his briefing or otherwise, from removing any doubt or speculation. He should have made an offer of proof or other affirmative representation that, had he been asked, he would have been able to proffer some Indian connection sufficient to invoke the ICWA. He did not. [] In the absence of such a representation, the matter amounts to nothing more than trifling with the courts. [Citation.] The knowledge of any Indian connection is a matter wholly within the appealing parents knowledge and disclosure is a matter entirely within the parents present control. The ICWA is not a get out of jail free card dealt to parents of non-Indian children . . . . (See In re N.E., supra, 160 Cal.App.4th at p. 770; see also In re H.B., supra, 161 Cal.App.4th at p. 122 [no prejudice where mother had never asserted she might have Indian ancestry and had made statement denying such ancestry to social worker].)[3]

Here, as in In re N.E. and In reRebecca R., Hector has not suggested, either below or on appeal, that he has or might have Indian ancestry. In the circumstances, he has failed to demonstrate prejudice.

III. DISPOSITION

The orders appealed from are affirmed.

________________________

RIVERA, J.

We concur:

___________________________

RUVOLO, P.J.

___________________________

REARDON, J.

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[1] All undesignated statutory references are to the Welfare and Institutions Code.

[2] We note that Jasmine G. limited the rule of per se reversal to failure to attempt to notify a parent of a selection and implementation hearing. (Jasmine G., supra, 127 Cal.App.4th at p. 1116.) The hearing in question here is the disposition hearing.

[3] We find the reasoning of these cases persuasive, and reject Hectors reliance on In re J.N. (2006) 138 Cal.App.4th 450, 461, in which the Court of Appeal refused to speculate about what a mothers response to an inquiry about her Indian ancestry would be and, therefore, rejected the contention that the lack of inquiry was harmless error. (See In re N.E., supra, 160 Cal.App.4th at p. 770 [rejecting reasoning of In re J.N. in favor of In re Rebecca R.].) We also find In re Mary G. (2007) 151 Cal.App.4th 184, 208-212, upon which Hector relies, unhelpful, because unlike Hector, the parents there had disclosed Indian ancestry.