In re Natasha D

Filed 3/9/06 In re Natasha D. CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

APPEAL from an order of the Superior Court of San Diego County, William Lehnhardt, Judge. Affirmed.

Luis D. appeals an order of the superior court terminating its jurisdiction in this dependency proceeding relating to his daughter, Natasha D. Luis contends that the juvenile court erred in terminating jurisdiction because (1) he was not provided with notice of the special hearing set to determine whether the court should terminate its jurisdiction over the matter, thus violating his due process rights; (2) the court's failure to grant his counsel's request for a continuance of the hearing deprived him of the opportunity to be heard; and (3) the other parties to the proceedings were judicially estopped to argue that he was only an alleged father and thus not entitled to a visitation order at the time the court terminated its jurisdiction. We conclude that Luis has not shown prejudice resulting from the court's termination of jurisdiction or its denial of a continuance and affirm the order.

FACTUAL AND PROCEDURAL BACKGROUND

Natasha was born in San Diego to Alicia B. and Luis D. in June 2000. Alicia and Luis were not married and Luis's primary residence was in Tijuana, Mexico. In January 2003, after Alicia was incarcerated in the California Institute for Women at Chino on various charges, Natasha began living with her maternal aunt, Graciela, although Natasha frequently visited with Luis in Tijuana on weekends. In August 2003, Natasha was crying and moody after returning from a visit with Luis and Graciela noticed that Natasha had blood in her urine. When asked about whether anything had happened, Natasha told Graciela that Luis had been putting his fingers inside her during her visits with him and that it was very painful.

The San Diego County Health and Human Services Agency (the Agency) filed a dependency petition on Natasha's behalf, alleging sexual molestation by Luis and identifying Luis as her alleged father. At the detention hearing on the petition on August 26, Luis submitted a paternity questionnaire and requested that counsel be appointed for him. The court granted Luis's request for counsel, but deferred making a finding on paternity. It placed Natasha with Graciela and precluded Luis from having visitation.

At the jurisdictional and dispositional hearing, Luis requested that the matter be set for trial, which the court scheduled for October 30. The court also set a special hearing to address paternity for October 10. Although Alicia was expected to be released from custody in October, she did not appear for the special hearing on October 10, so the matter was continued to October 16. Luis filled out another paternity questionnaire for the continued hearing. At that hearing, the court received Luis's second paternity questionnaire but deferred ruling on his request to be recognized as the presumed father and again continued the hearing and the contested disposition hearing at the request of Alicia's counsel.

At the same hearing, Luis pleaded no contest to the allegations of the amended petition and Alicia submitted on the basis of the social worker's report and other documentation. The court made jurisdictional findings and continued Natasha's placement with Graciela. It ordered reunification services for both parents and authorized the social worker to allow unsupervised visits with either parent. The court did not, however, make any findings relating to paternity.

Thereafter, Luis had supervised visitation with Natasha, but in January 2004, Natasha's counsel requested that the court terminate the visitation sessions. Luis originally requested a contested hearing on the issue and the court set a hearing and suspended Luis's visitation pending the hearing. Luis later withdrew his request for trial on the issue and the court found that it would be detrimental to Natasha to have contacts with Luis and issued a no contact order, although it gave the social worker the authority to initiate contacts in a therapeutic setting.

In August 2004, the court ordered that Alicia's visitation with Natasha had to be supervised based on evidence that Alicia allowed Luis to have contact with Natasha during a visit, although several months later, the court again granted Alicia unsupervised visitation. After Luis participated in a Safe Paths program addressing molestation issues, participated in individual therapy and underwent a psychological evaluation, he requested that the court reinstate his visitation with Natasha. At a special hearing, the court ordered that Luis undergo therapy with Natasha's therapist and, if he made progress in that therapy, the social worker could initiate supervised visitation, with the consent of Natasha's counsel.

At the 18-month review hearing in March 2005, the court followed the social worker's recommendation to return Natasha to Alicia's care based on Alicia's successful utilization of the services provided to her. It also indicated that returning Natasha to Alicia's home was the permanent plan, which was likely to be finalized in early March 2005. Because Luis had failed to set a session with Natasha's therapist, the court confirmed that the no-contact order remained in effect.

In July 2005, the United States Immigration Court issued an order for Alicia's deportation to Mexico. Although Alicia had appealed the order, the juvenile court granted the Agency's request to set a special hearing on whether to terminate its jurisdiction based on her pending deportation. The social worker's report recommended that the court give full custody of Natasha to Alicia in light of Alicia's participation in services and compliance with her case plan and the success of Natasha's placement with her and that it terminate jurisdiction. At the special hearing, Alicia's counsel inquired about Luis's paternity status and Luis's counsel informed the court that his client had not received notice of the hearing. Luis's counsel requested a continuance to permit proper notice and to address Luis's paternity status, but the court denied his request. The court found that the circumstances that brought Natasha under the jurisdiction of the court no longer existed and were not likely to recur. It placed Natasha with Alicia, terminated its jurisdiction and ordered the Agency to proceed with a Department of Child Support Services referral. Luis appeals from this order.

DISCUSSION

Luis contends that although the juvenile court made a finding that notice of the special hearing was provided to all parties and counsel, there is no evidence that he received actual notice or that the Agency made a legally adequate attempt to provide him with notice. The Agency concedes that Luis did not receive timely notice of the hearing, but contends that this error was harmless under a clear and convincing evidence standard. (See Denny H. v. Superior Court (2005) 131 Cal.App.4th 1501, 1515.) Specifically, the Agency argues that the only issue Luis could have requested be heard at the special hearing was a determination of whether he was entitled to presumed father status and that because the evidence failed to establish that Natasha ever lived with him, he would not have been able to make the requisite showing that he was a presumed father.

We disagree with the Agency's argument. Because Luis did not receive notice of the special hearing, he did not have the opportunity to appear and present evidence that might have established that he was a presumed father. In this regard, the evidence in the record, which is uncontroverted, establishes that Luis was Natasha's biological father, that Natasha lived with him for intermittent periods up until the time that the dependency petition was filed, that he held Natasha out to be his own child and that he supported Natasha by paying all her expenses. If given the opportunity, Luis might have also produced additional evidence that would support a reasonable trier of fact in finding that Luis was Natasha's presumed father. (Fam. Code, § 7611, subd. (d) [conferring presumed father status on a man who "receives the child into his home and openly holds out the child as his natural child"].)

The Agency also contends that the juvenile court would not likely have found Luis to be a presumed father under the analysis of this court's opinion in In re T.R. (2005) 132 Cal.App.4th 1202. However, although Luis's prior abuse of Natasha might make it unlikely that the juvenile court would accord him presumed father status, it is not conclusive on this point. (See id. at p. 1210, fn. 5 [specifically declining to hold that someone whose sexual or physical abuse of a child led to the filing of dependency proceedings is disqualified, as a matter of law, from being a presumed father]; see also In re DeJohn B. (2000) 84 Cal.App.4th 100, 102.) Neither of these arguments establishes that the failure to provide Luis with notice of the special hearing in which the court was determining whether to terminate jurisdiction over Natasha was harmless.

Finally, the Agency posits that Luis is not prejudiced by the court's termination of jurisdiction without making findings on whether he was a presumed father because he still has the opportunity to bring an action to establish that he is Natasha's biological father in the family court. (Fam. Code, §§ 7630, subd. (b), 7571, subd. (d).) Luis does not provide any contrary explanation, although he appears to contend that the juvenile court was required to make a finding on his paternal status before terminating jurisdiction.

Luis is correct that the juvenile court was required to determine whether he was Natasha's biological father. (See Cal. Rules of Court, rule 1413(h) [if a man appears at a dependency hearing and submits the Judicial Council form requesting a finding of paternity, "the court must determine whether he is the biological father of the child"].) However, although Luis is understandably dismayed by the juvenile court's repeated refusals to rule on his request, this does not establish that he was prejudiced by the court's failure to make a finding on the issue before terminating its jurisdiction. (Compare In re Paul H. (2003) 111 Cal.App.4th 753 [alleged father was prejudiced where the juvenile court terminated his parental rights without making a requested paternity finding].) Because the juvenile court did not make any adverse findings regarding Luis's legal status relating to Natasha, we agree with the Agency's contention that he has failed to establish prejudice as a result of the court's termination of jurisdiction, or its denial of his request for a continuance, without ruling on his request for presumed father status. (See In re T.R., supra, 132 Cal.App.4th at p. 1208, fn. 3 [recognizing that a juvenile court's termination of jurisdiction over a child would normally render its prior denial of presumed father status moot].) Having concluded that there was no prejudice, we need not reach Luis's argument that the court should have declined to consider the parties' opposition to the issuance of exit orders based on principles of judicial estoppel.

DISPOSITION

The order terminating the juvenile court's jurisdiction is affirmed.

McINTYRE, J.

WE CONCUR:

HUFFMAN, Acting P.J.

McDONALD, J.

Publication courtesy of San Ysidro, Immigration Attorney (http://www.mcmillanlaw.us/) And Dehesa Dehesa Lawyers Directory (http://www.fearnotlaw.com/ )