In re R.V.

Filed 6/18/08 In re R.V. 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

THE COURT^*

APPEAL from a judgment of the Superior Court of Madera County. Thomas L. Bender, Judge, and Nancy C. Staggs, Commissioner.

Kathleen Murphy Mallinger, under appointment by the Court of Appeal, for Defendant and Appellant.

David P. Prentice, County Counsel, and Miranda P. Neal, Deputy Attorney General, for Plaintiff and Respondent.

-ooOoo-

Martin P. is the biological father of infant R.V. Appellant made his first appearance in the underlying dependency proceedings during the permanency planning phase. On appeal from a subsequent order terminating parental rights (Welf. & Inst. Code,  366.26), he complains the superior court failed to conduct any paternity inquiry of the infants mother, thereby preventing him (appellant) from receiving timely notice of the underlying dependency proceedings and obtaining services.^[1] He also joins in arguments made by R.V.s mother and his siblings father in their respective appeals, In re N.V. et al. (F054261) and In re N.V. (F054277). Those parents challenged the denial of their petitions ( 388) to regain custody.

On review, we agree the court erred by failing to question the mother about the infants paternity. We conclude, however, the error neither violated appellants due process rights nor prejudiced him. The record establishes the court afforded him rights as a biological father, including the means by which to elevate his paternity status to presumed father, a necessary status for securing reunification services. Appellant nonetheless did not seize the opportunity. In the other parents appeals, we concluded the court did not abuse its discretion because the parents failed to satisfy their burdens of proof.

PROCEDURAL AND FACTUAL HISTORY

Respondent Madera County Department of Social Services (department) detained R.V. shortly after his birth in April 2007 and initiated dependency proceedings ( 300, subds. (b) & (j)). His mother abused drugs, specifically methamphetamine, during her pregnancy and failed to obtain pre-natal care, so as to place R.V. at substantial risk of suffering serious physical harm. The mother similarly neglected another child, N.V., to whom she gave birth one year earlier. N.V. had been adjudged a dependent of the Madera County Superior Court in 2006 and removed from the mothers custody.

On the same day the department detained the newborn, the mother informed a department social worker that R.S., N.V.s presumed father, was the father of R.V.^[2]The department considered R.S. to be the newborn R.V.s alleged father apparently because he did not sign a declaration of paternity. The department included this information in its detention report to the Madera County Superior Court.

May 2, 2007 Detention Hearing

The superior court held a detention hearing on May 2, 2007, which the mother, but not R.S., attended. After appearances were stated, a deputy county counsel on behalf of the department represented he was providing R.S.s attorney with a Judicial Council form (JV-505) for his client to complete. The JV-505, entitled Paternity-Waiver of Rights, provides a man with the opportunity to declare his belief as to whether he is a childs father and if so to request paternity testing.

The court thereafter conducted its detention hearing, but without making any inquiry of the mother regarding the identity and addresses of R.V.s possible fathers. Having ordered R.V. formally detained, the court set a jurisdictional hearing for May 16, 2007.

May 16, 2007 Jurisdictional Hearing

On May 16, 2007, R.S. as well as the mother were present in court. When R.S.s attorney advised the court he was submitting on the departments earlier detention report as evidence for the jurisdictional hearing, the court asked if there had been a resolution as to his clients paternity status. The attorney had no information to report. The court in turn inquired if the man signed the birth certificate. The mother replied he had not. County counsel referred to the JV-505 form and questioned whether it had been completed. It had not been so far as R.S.s attorney knew. The attorney also volunteered R.S. would probably need an interpreter to go over the form with him. He was Spanish-speaking.

After exercising its dependency jurisdiction over R.V. pursuant to section 300, subdivisions (b) (failure to protect) and (j) (neglect of a sibling), the court ordered the man to complete the JV-505 form. This led the deputy county counsel to inquire whether R.S. could tell them today whether he wanted a genetic test, was inclined to sign a declaration or paternity or whether he even wished to pursue parental rights to R.V.

Following a discussion off the record, the attorney for R.S. reported his client would like more time to discuss whether he wanted to sign any declaration of paternity. The court asked if he would prefer to submit to genetic testing. His attorney assented, resulting in an order for the mother and R.S. to immediately submit to genetic testing. Once again, the court did not inquire of the mother regarding the identity and addresses of R.V.s possible fathers. It did set a dispositional hearing in R.V.s case for June 13, 2007.

June 13, 2007 Dispositional Hearing

In its dispositional report, the department recommended the court issue orders removing R.V. from parental custody and providing family reunification services for the mother. The department reported in part that R.S. and the mother had yet to follow the courts genetic testing order.

At the start of the June 13th hearing in R.V.s case, the deputy county counsel asked the court to consider continuing its disposition as to R.V. until after a status review hearing in the siblings case as well as taking judicial notice of documents in the siblings case.^[3] The department intended to seek an order terminating services in the siblings case. The deputy county counsel argued the department in turn could use that termination order as grounds for denying any services in R.V.s case.

As the court attempted to sort out this procedural dilemma, it noted R.S. still had not cooperated with genetic testing. According to the mans attorney, his client would be going for testing that day. The court replied: [t]hats nice but they were supposed to go on June the 6th . . . and they didnt show up.

The hearing concluded with the court granting the departments requests for judicial notice of the records in the siblings case and continuance of R.V.s dispositional hearing to June 19, 2007, the same date as the hearing in the siblings case. It also told the mother and the alleged father:

If both of you have an appointment to have genetic testing done today, you better be there today. [][] . . . Because at this point the father would not be provided any services no matter what because of his status as alleged and not biological at this point, or presumed, excuse me.

Once again, the court made no paternity inquiry of the mother.

June 19, 2007 Dispositional Hearing

By the next hearing date, the department prepared a new dispositional report in R.V.s case, recommending the court deny the mother services based on her noncompliance with her case plan in the siblings case. The deputy county counsel reiterated this at the start of the June 19, 2007, hearing in R.V.s case. The attorney also noted services had been terminated that day in the siblings case.

The court in turn heard argument from the other attorneys, during which the court asked R.S.s counsel to address the issue of paternity. This led to the mans statement we did go for genetic testing on June 13th. The court once again noted R.S. was simply the alleged father in [R.V.s] case but did not inquire of the mother.

Following argument, the court adjudged R.V. a dependent child, removed him from the mothers custody, and denied her services. The court thereafter set a section 366.26 hearing to select and implement a permanent plan for R.V.

Genetic Test Results for R.S.

In July 2007, the countys child support services unit filed the genetic testing results with the superior court. According to the lab report, there was a zero percent probability that R.S. was R.V.s father. Unfortunately, the child support services unit filed the results under the wrong case number.

September 19, 2007 Hearing

The court received a copy of the results the morning of a September 19, 2007, hearing set for a modification request ( 388) brought by the mother in each childs case. Appellant made his first appearance that day and the court appointed counsel to represent him in R.V.s case.^[4] It was then the court explained it just received the paternity test results excluding R.S. as the infants father. Having found R.S. was not the natural parent of R.V., the court directed its attention to appellant and his attorney, asking whether he thought he might be R.V.s father. The attorney replied:

Yes, Your Honor. Mr. P[.] has now been made aware that he could be the father of R[.]

The court ordered appellant to go to the family support division after the hearing and arrange for genetic testing. The court continued the hearing on the mothers modification petition for one month in the hopes that results from the new genetic testing would be available.

October 18, 2007 Hearing

By the start of the next hearing, the new paternity testing for R.V. established more than a 99 percent probability that appellant was the childs father. County counsel offered to stipulate appellant was R.V.s biological father but would not agree that he was a presumed father. Appellants counsel at first would not join in the stipulation because she wanted the court to elevate him to presumed father. The court replied Based on what? and reminded counsel genetic test results would not suffice and she would have to put on evidence to show he was entitled to presumed father status.

Appellants counsel responded she understood that and had been unable to prepare a modification petition for appellant. The court offered its opinion that it would be best for appellant to accept the biological father stipulation. The court explained to both the parties and counsel:

if he is, the Court has discretion to order services. If hes an alleged father, hes not entitled to anything. If you meet with your client and you interview him and you go over the law and determine that those statutes apply, we could set a hearing and I could hear evidence and then determine that hes a presumed father, but I cant do that yet.

Counsel agreed and the court found appellant was R.V.s biological father. The court also advised appellant to get in and talk to your attorney, explaining she would need his help to prepare his case.

The court thereafter conducted an evidentiary hearing on the mothers modification to regain custody or pursue more reunification efforts with the children as well as a similar petition brought by R.S. regarding R.V.s sibling. As the hearing concluded, appellants attorney advised she would be filing a section 388 application on his behalf. The court took the other parents modification requests under submission and reset the childrens permanency planning hearings to follow the courts ruling on those requests.

November 13, 2007 Hearing

On the continued hearing date, the court commenced by denying the mothers and R.S.s modification petitions. It also sought to confirm appellant didnt file anything at all.

Appellants attorney confirmed he had not.

No, Your Honor. I asked him to file a declaration of paternity after the last hearing in order to raise his status and I havent received any paperwork stating that he did so.

The court proceeded with its permanency planning hearing for each child. The parties submitted on the evidence contained in a section 366.26 report prepared for each child by the California Department of Social Services. The court ruled first in the siblings case, finding her adoptable and terminating parental rights.

With regard to R.V., the court began with the issue of reunification services, observing appellant was not the childs presumed father, but only his biological father, thereby making services for him discretionary. County counsel in turn asked the court to find services for appellant would not be in the childs best interests.

Asked for any comment, appellants trial counsel disagreed and asked the court to allow appellant the opportunity to try to reunite with his child. The judge asked in response [w]ell, when did he come forward?

Appellants trial counsel replied just a few months ago and right after he found out that [R.S.] was not the biological father. She added:

[R.S.] and [the mother] were living together at the time the child was conceived, so [appellant] was not aware that he was the father of the child, Your Honor. He thought that [R.S.] was the father of the child.

Next, the judge asked whether appellant had any contact with R.V. Appellant personally replied:

No. Because theres no permission that I go and see him. Why contact him?

The judge returned to the question of appellants knowledge.

Well, [appellant] would have known of the possibility [that he was R.V.s father] if he had an intimate relationship with her. Any time you have an intimate relationship leads to the possibility that youre the father. Even if she was living with somebody else, he would have -- I mean, I dont know how you could not know that.

County counsel added:

Also I dont have any information that he ever came forward asking for visits or asking for anything prior to his sudden appearance toward the end of the case.

Services -- I mean, the child, [R.V.], went into protective custody April 24th of 2007, and we had the disposition in June of 2007. Uhmm, you know, when mother received no services. At that point in time, you know, we had -- it would have been a little bit more helpful if he would have come forward early enough where he could have had services. Now, the child being under three years of age -- six months is the normal time for provision of services to a child, and there is some case law that applies that if a person doesnt come -- a biological father doesnt come forward within the time period for reunification, that services could have been denied simply on that ground. And so due to the fact that theres a sibling relationship with these two children, theyre in a stable placement. I think that its definitely not in the best interest of the child to provide him with any services nor can he even receive any kind of dispensation for the termination of parental rights unless hes a presumed father, which hes not. Hes failed to make himself a presumed father. The children are ready to be adopted. Theyre in a prospective adoptive home.

Appellants trial counsel had nothing further to add on the subject and submitted the matter. The court reiterated appellant was not R.Vs presumed father and found services would not be in the childs best interests. Having also found the child adoptable, the court terminated parental rights in his case as well.

DISCUSSION

The court did not conduct a paternity inquiry of R.V.s mother, despite numerous opportunities and circumstances essentially begging for such a query. The courts omission violated section 316.2 which requires a trial court at the detention hearing or as soon thereafter as practicable to:

inquire of the mother and any other appropriate person as to the identity and address of all presumed or alleged fathers. The presence at the hearing of a man claiming to be the father shall not relieve the court of its duty of inquiry. ( 316.2, subd. (a).)^[5]

We cannot say on the limited record before us whether a proper inquiry of the mother would have elicited appellants name. However, assuming for the sake of his argument that she would have identified him as an alleged father of R.V., appellant would have been entitled to notice of the proceedings at an earlier point in R.V.s case. ( 316.2, subd. (b).)^[6]

In any event, appellant did receive actual notice of these proceedings, given his September 2007 appearance in court. At that point, the court appointed him counsel, ordered further paternity testing, and afforded him the opportunity to be heard throughout the balance of the case. A month later, the court invited the parties stipulation that appellant was R.V.s biological father as well as deferred its permanency planning for R.V., in part to give appellant the opportunity to prepare his case.

Appellant nevertheless contends the courts earlier error deprived him of a fair and timely opportunity to be heard on the issue of reunification services and thus violated his due process rights. Having reviewed the record and the relevant law, we disagree. As a matter of procedural due process, an alleged father, as well as a biological father, is entitled to notice and the means by which to assert a position and attempt to elevate his paternity status. (In re O.S. (2002) 102 Cal.App.4th 1402, 1408.) Those rights were satisfied in appellants case.

The fact of the matter, however, is appellant made no effort to elevate his paternity status from R.V.s biological to presumed father. This was appellants undoing, not the courts failure to conduct a timely paternity inquiry. As the court repeatedly remarked in appellants presence, only a presumed father, not an alleged or even a biological father, is entitled to reunification services, much less placement of a dependent child. ( 361.5, subd. (a); In re Zacharia D. (1993) 6 Cal.4th 435, 439.)

Paternity presumptions are driven by the states interests in the welfare of the child and the integrity of the family, not by biological paternity. (In re Nicholas H. (2002) 28 Cal.4th 56, 65.) A presumed father can be a biological father, but is not necessarily one, and vice versa. (In re Jerry P. (2002) 95 Cal.App.4th 793, 801.) A presumed father is one who promptly comes forward and demonstrates a full commitment to his parental responsibilitiesemotional, financial, and otherwise. (Adoption of Kelsey S. (1992) 1 Cal.4th 816, 849.) A presumed fathers rights are derived from his relationship (or attempted relationship) to the mother and/or child and not merely from his status as the biological father. (In re Sarah C. (1992) 8 Cal.App.4th 964, 972.) Key to this consideration is the presumed fathers commitment to the child. (Ibid.)

The record reveals appellants attorney advised him to sign a voluntary declaration of paternity (Fam. Code,  7570 et seq.; see also Fam. Code,  7644) towards that goal, but for whatever reasons appellant had not acted. On appeal, he ignores this fact. Appellant also overlooks the lack of any evidence that he could qualify for presumed father status (Fam. Code,  7611) on grounds of marriage or attempted marriage to the childs mother, much less that he received R.V. into his home and held out the infant as his own.

Appellant nonetheless claims that had he received notice at an earlier stage, the court would have granted him services. We conclude his contention is meritless.

One, the court did not deny appellant services because his request was untimely. The court denied appellant services because, as the childs biological father, he was not entitled to them as a matter of law and he could not show services would be in R.V.s best interests. ( 361.5, subd. (a).)

Two, as we have noted above, a mans entitlement to reunification services depends first on securing presumed father status. Notice or more precisely a mans appearance at an earlier stage of the dependency proceedings does not confer presumed father status. To be declared a presumed father, a natural father must ask the trier of fact to make such a determination and establish the existence of the foundational fact by a preponderance of the evidence. (In re Spencer W. (1996) 48 Cal.App.4th 1647, 1652-1653.) Again, appellant never pursued the matter with the trial court.

Three, the record is devoid of any evidence that appellant qualified as a Kelsey S. father, that is an unwed biological father who promptly came forward and demonstrated a full commitment to his parental responsibilities emotional, financial, and otherwise, but whose attempt to achieve statutory presumed father status was thwarted by a third party (Adoption of Kelsey S., supra, 1 Cal.4th at p. 849). Although appellant claims he acted in a reasonable and timely manner to assume his parental responsibilities, he loses sight of the factors a court would have to consider to make such a determination as well as the silent record in this regard.

As the Kelsey S. court explained, a court must consider the fathers conduct both before and after the childs birth. Once the father knows or reasonably should know of the pregnancy, he must promptly attempt to assume his parental responsibilities as fully as the mother will allow and his circumstances permit. A court also should consider the fathers public acknowledgement of paternity, payment of pregnancy and birth expenses commensurate with his ability to do so, and prompt legal action to seek custody of the child. (Adoption of Kelsey S., supra, 1 Cal.4th at p. 849.)

Here, all appellant can offer is his opinion that it was not unreasonable for him to come forward only after the other man was genetically excluded as R.V.s biological father. This is hardly evidence of his full commitment to his parental responsibilities to R.V.

Four, to the extent appellant claims county counsel conceded in the trial court he could have had reunification services if he had come forward earlier, we seriously question appellants reading of the record. When county counsel remarked it would have been a little bit more helpful if he would have come forward early enough where he could have had services, she was in the process of arguing against offering appellant services. Appellants trial counsel had suggested he came forward at the first opportunity, that is once he learned the other man was not R.V.s father. Appellants trial counsel also volunteered appellant chose to believe the other man fathered R.V. because that man and the mother were living together at the time of conception. Given the context, county counsel may well have been arguing that appellant was not a Kelsey S. father. In any event, it was not a concession of error or prejudice.

Finally, as the California Supreme Court explained in In re Zacharia D., supra, 6 Cal.4th at page 452:

While under normal circumstances a father may wait months or years before inquiring into the existence of any children that may have resulted from his sexual encounters with a woman, a child in the dependency system requires a more time-critical response. Once a child is placed in that system, the fathers failure to ascertain the childs existence and develop a parental relationship with that child must necessarily occur at the risk of ultimately losing any opportunity to develop that biological connection into a full and enduring relationship. (Adoption of Kelsey S., supra, 1 Cal.4th at p. 838.)

Accordingly, we conclude the courts earlier error neither violated appellants due process rights nor prejudiced the outcome for appellant.

DISPOSITION

The order terminating parental rights is affirmed.

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^* Before Cornell, Acting P.J., Gomes, J. and Kane, J.

Judge Bender presided over the case at the permanency planning phrase. Commissioner Staggs conducted the prior proceedings.

^[1] All statutory references are to the Welfare and Institutions Code unless otherwise indicated.

^[2] In later portions of the record, a different last name is attributed to this alleged father. For the sake of clarity, we will refer to him by the initials R.S. rather than the other name.

^[3] The department filed a written request for judicial notice of the petition and dispositional report and case plan in the sibling N.V.s case.

^[4] The court appointed as appellants attorney the same lawyer appointed to represent R.S. At oral argument before this court, appellant claimed that attorney had a conflict of interest because R.S. sought to be declared R.V.s father. Contrary to appellants claim and as summarized above, R.S. never pursued paternity rights as to R.V. Although we question the wisdom of a court appointing one attorney to represent more than one party in the same proceeding, the record does not disclose any conflict of interest between appellant and R.S.

^[5] Section 316.2, subdivision (a) also describes the mandated inquiry as follows.

The inquiry shall include at least all of the following, as the court deems appropriate:

(1) Whether a judgment of paternity already exists.

(2) Whether the mother was married or believed she was married at the time of conception of the child or at any time thereafter.

(3) Whether the mother was cohabiting with a man at the time of conception or birth of the child.

(4) Whether the mother has received support payments or promises of support with respect to the child or in connection with her pregnancy.

(5) Whether any man has formally or informally acknowledged or declared his possible paternity of the child, including by signing a voluntary declaration of paternity.

(6) Whether paternity tests have been administered and the results, if any.

(7) Whether any man otherwise qualifies as a presumed father pursuant to Section 7611, or any other provision, of the Family Code.

^[6] This subdivision provides in relevant part:

If, after the court inquiry, one or more men are identified as an alleged father, each alleged father shall be provided notice at his last and usual place of abode by certified mail return receipt requested alleging that he is or could be the father of the child. The notice shall state that the child is the subject of proceedings under Section 300 and that the proceedings Could result in the termination of parental rights and adoption of the child. Judicial Council form Paternity-Waiver of Rights (JV-505) shall be included with the notice.