In re Serenity J.

Filed 7/30/07 In re Serenity J. CA5

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIFTH APPELLATE DISTRICT

THE COURT^*

APPEAL from a judgment of the Superior Court of Fresno County. Jane A. Cardoza, Judge.

Catherine Campbell, under appointment by the Court of Appeal, for Defendant and Appellant.

Dennis A. Marshall, County Counsel, and William G. Smith, Deputy County Counsel, for Plaintiff and Respondent.

-ooOoo-

Alleged father Thomas J. appeals from an order terminating parental rights (Welf. & Inst. Code,  366.26) to Serenity J.^[1] He contends a lack of notice prevented him from evaluating his paternity status and participating in the underlying dependency proceedings. On review, we will affirm.

PROCEDURAL AND FACTUAL HISTORY

Serenity J.s in utero exposure to drugs led to a hospital hold and the initiation of the underlying dependency proceedings upon her birth in November 2005. In its detention report to the superior court, respondent Fresno County Department of Children and Family Services (the department) advised that the mother alleged appellant was the newborns father. The mother stated she and the father broke up two months ago. Nonetheless, she believed he was willing to support her and the baby and be involved with the baby. Appellant, on the other hand, questioned the newborns paternity. His name was not listed on the birth certificate and he did not sign a declaration of paternity for Serenity. He did admit to using narcotics and expressed a willingness to participate in substance abuse treatment.

Detention

Appellant and the mother attended a November 18, 2005 detention hearing, at which the court appointed each of them counsel. The court continued its detention hearing to November 22, 2005, so that the attorneys could be present. In the meantime, the court ordered reasonable supervised visits for both appellant and the mother.

When the court called the case on the continued detention hearing date, appellant and the mother were initially absent. Appellants trial counsel asked that Serenity be placed with appellant because there were no jurisdictional allegations against him. The court officer responded that appellant was an alleged father and, according to what the department had learned, he had substance abuse issues. The court concurred, adding until he elevates himself to presumed, I would think it would be difficult to have the children placed with him. Appellants attorney in turn inquired if appellant appeared, would the court prefer to just do that by his testimony if I were to call him as a witness. The court replied: I would have him speak to the social worker. Counsel agreed.

Once the matter was submitted, the court made the requisite findings to detain Serenity. As the court made its detention orders, appellant and the mother entered the courtroom. After a brief delay, appellants trial counsel advised:

Your Honor, [appellant] is present now. Its his position he is the presumed, so I dont know how you want to solve that. Maybe paternity test. That might solve it, but he is willing to provide evidence that he is the presumed father.

The court responded that appellant was to meet with the social worker. Returning to its orders, the court directed appellant and the mother to report immediately after the hearing to the departments scheduling unit to arrange for visitation and obtain referrals for services. The court also ordered,

Parents shall designate for the court a permanent mailing address which will be used by the court and the department for purposes of notice unless and until the parents notify the court or the department in writing of a new permanent mailing address.

So Mr. Woodward and Mr. Meux, if you could each have your clients fill out a [section] 316.1 form, and Ill wait for you to prepare that now so it can be filed with the court.

Because the court earlier ordered the department to offer the mother services, appellants counsel asked if those services could also be offered to appellant. Counsel was particularly concerned about appellants alleged drug issue. The court agreed and ordered the department to offer appellant services as well.

The court also inquired of counsel whether either appellant or the mother had any Indian heritage. Appellants mother, who was also present in the courtroom, volunteered that appellant had Indian heritage. Before it set a jurisdictional hearing, the court remarked that it had received first, appellants and then, the mothers notification of mailing address forms. Appellants form listed an Illinois Street address in Fresno.

Finally, the court set a jurisdictional hearing for December 20, 2005. According to the courts detention hearing minute order, appellant was also directed to meet with the social worker regarding paternity testing.

Sussex Way Address

After the detention hearing, appellant and the mother met with a department office assistant, who provided each of them with a letter outlining services to which they were referred. Appellants letter listed a Sussex Way address in Fresno as his address followed by the words (mailing address only). Appellant wrote his initials next to each of the services listed in the letter. The Sussex Way address was his mothers home address.

In early December, the department mailed appellant copies of its Indian Child Welfare Act (ICWA) notice and notice of the jurisdictional hearing. Each notice listed the Sussex Way address and was mailed to appellant at the same address. On December 7, 2005, appellant signed a certified mail receipt for the ICWA notice.

Jurisdiction

Neither appellant nor the mother attended the December 20, 2005, jurisdictional hearing. The court found notice had been provided as required by law. In particular, the court noted appellant was served, according to a proof of service by certified registered mail receipt, at the Sussex Way address. Despite the courts inquiry into whether anyone wished to be heard on the notice issue, counsel, on behalf of appellant, did not lodge any objection. Thereafter, the court exercised its jurisdiction over Serenity pursuant to section 300, subdivision (b), based on the mothers drug abuse. It set a dispositional hearing for January 24, 2006.

Disposition

The department mailed appellants copy of the dispositional hearing notice to the Sussex Address on January 4, 2006, by certified mail. In advance of the hearing date, the department prepared a dispositional report which included the following information regarding appellant. Appellant missed a December 27th scheduled appointment for paternity testing. He contacted the department the following day, to say he missed the appointment due to his work schedule. The test was rescheduled for January 10th, an appointment which he also failed to attend. Further, appellant had not provided the Department with a definitive statement about whether or not he wants to reunify with Serenity and has not elevated his status to that of a presumed father.

Also, according to the dispositional report, appellant failed to attend scheduled substance abuse and domestic violence evaluations. He did attend one session of a parenting course but was dropped from the course after failing to attend the next three sessions. He also tested positive for methamphetamine on three dates in the first half of December 2005. Appellant and the mother had four supervised visits with Serenity between the November 22 detention hearing and December 13th. However, they appeared for at least two of the visits after using drugs. Comprehensive Youth Services terminated the therapeutic supervised visits in mid-December due to appellants and the mothers continued substance abuse and lack of participation during the visits. Although the supervising therapist told appellant and the mother to contact their social worker to arrange visits, as of January 20th, they had not contacted anyone. The department requested that visits be suspended until appellant and the mother contacted the department.

Under these circumstances, the department recommended that the court not place Serenity with appellant as a noncustodial parent. It also recommended the court deny appellant reunification services pursuant to section 361.5, subdivision (a) which authorizes no services for an alleged father unless it would be in the childs best interests.

Finally, attached to the dispositional report was a family assessment. The assessment notably contained the following statement [f]ather lives with paternal grandma.

Appellant attended the January 24th hearing. His mother was also present. County counsel sought a continuance for ICWA notice purposes and because the mothers whereabouts were then unknown. County counsel also mentioned appellants two missed paternity tests and appellants lack of contact with the social worker. Appellants counsel acknowledged his clients need to finalize [the] paternity test issue. The court directed appellant to report to the social worker immediately after the hearing. The court continued the dispositional hearing to February 7, 2006, and asked if we have a current address for [appellant]? The court officer replied yes. Neither appellant nor his attorney made any comment.

After the January 24th hearing, appellant apparently met with the social worker to whom he was referred and participated on the same date in substance abuse and domestic violence assessments. He apparently did not believe he needed the services which the assessments would recommend. Notably, according to the January 24th substance abuse assessment for appellant, he reported he had lived at the Sussex Way address for the past month.

On the continued dispositional hearing date of February 7, neither appellant nor the mother was present. County counsel represented to the court that after the last hearing, the social worker attempted to make a paternity test appointment for appellant which he refused. The social worker also offered to help appellant do a declaration of paternity, and father wasnt interested. The court again continued the hearing to straighten out the ICWA to March 7, 2006.

On March 6, 2006, the department filed an Addenda Report. In it, the social worker described his January 24 contact with appellant. Appellant stated he did not know if the child was his or not. He refused to sign any declaration of paternity and hedged on a paternity test. The social worker reported he explained all of the aspects of paternity to [appellant] and he still would not commit to testing. The social worker rescheduled paternity testing for March 21st and notified the parents by certified mail. The department still considered appellant to be Serenitys alleged father.

At the March 7th hearing, neither appellant nor the mother was present. Appellants attorney reported having had no contact with him. The court adjudged Serenity a dependent child and removed her from parental custody. It also found that ICWA did not apply to Serenity. Although the court granted the mother services, it denied reunification to appellant under section 361.5, subdivision (a) as an alleged father. It ordered appellant and the mother to contact the department for visits. As the record would later reveal, appellant never did so.

Postdisposition

The department served notice of the six-month review upon appellant by mailing it to the Sussex Way address. Once again, appellant was absent when the court called the case for the six-month review. Because the mother had failed to participate in services and in light of Serenitys young age, the court terminated services for the mother and set a section 366.26 hearing. It also ordered writ notice to appellant and the mother. A court clerk mailed the writ notice to appellant at the Sussex Way address.

The department mailed notice of the section 366.26 hearing and its recommendation to terminate rights to appellant at the Sussex Way address.

It also attempted personal service of the notice on appellant but instead completed substituted service on appellants mother.

Section 366.26 Hearing

Neither appellant nor the mother attended the section 366.26 hearing which the court conducted in October 2006. Appellants counsel was present. She volunteered she tried to contact him by letter and phone but received no response. The court found notice was perfected on both appellant and the mother. Having determined that Serenity was adoptable, the court terminated parental rights.

DISCUSSION

I. Paternity

Once the mother identified appellant as Serenitys father, he was entitled to 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. ( 316.2, subd. (b).)

An implementing rule of court places the duty to provide such notice on the court clerk. (Cal. Rules of Court, former rule 1413(g) then in effect.)^[2]

The Judicial Council form JV-505 currently advises:

As the childs parent, you will not get services to help you get your child back. You will not automatically get the child to live with you or your relatives. If the judge finds that you are the childs parent, the judge may order services to help you get the child back, but does not have to order services for you. If you say that you are not the childs parent and will not take a test to find out if you are the parent, and do not want services to help you get the child back, you can fill out this form and not be a part of this case. You can have a trial and ask the judge to decide if you are the childs parent. You can pay a lawyer to be at the trial. If you cannot afford a lawyer, the judge may appoint one for you for free. At a trial, you can ask witnesses questions and give evidence to the judge. If you want the court to decide if you are the childs parent, fill out this form.

In this way, the form notifies an alleged father of his legal options, in particular his right to compel a court to determine his paternity and his right to be represented by court-appointed counsel, if need be. There is no evidence in the record that the clerk of the superior court ever served appellant with the JV-505 form according to section 316.2, subdivision (b). While appellant claims this lapse violated his due process rights as an alleged father so as to require reversal of the termination order, we disagree.

An alleged father is [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. (In re Zacharia D. (1993) 6 Cal.4th 435, 449, fn. 15.) Due process requires only that he be given notice and an opportunity to appear and assert a position as well as attempt to change his paternity status. He is not entitled to appointed counsel or to reunification services. (In re Kobe A. (2007) 146 Cal.App.4th 1113, 1120, citing  316.2, subd. (b) & In re Paul H. (2003) 111 Cal.App.4th 753, 760.)

Here, despite the clerks failure to serve the JV-505 form upon appellant, the evidence reveals he had notice of the dependency proceedings as well as the opportunity to appear, state a position and attempt to change his paternity status. He made his first appearance at the original detention hearing. The court even appointed counsel to represent appellant at that phase and, by its visitation order, gave him the opportunity to build a case in favor of presumed father status. At the continued detention hearing, his trial counsel asserted his position that appellant was a presumed father, inquired about paternity testing, and expressed a willingness to provide evidence. The court directed appellant to meet with the social worker, who over time scheduled not one, but three paternity tests, all of which appellant failed to attend. The court also ordered the department to offer appellant services. The department complied with the courts direction and offered appellant a variety of services. Although appellant was aware of the referrals, he failed to take advantage of most of them. Appellant was also present in court on the originally scheduled dispositional hearing where he acknowledged through his attorney the need to finalize the paternity test issue. After that particular hearing, appellant met with his social worker who explained all of the aspects of paternity to [him] and he still would not commit to testing. Appellant also refused to sign any declaration of paternity.

Further, had appellant received the Judicial Council form, he would not have been able to meet the statutory elements to be declared a presumed father under the Family Code (Fam. Code,  7611). He and the mother were not married nor did they attempt to marry. Although a man also can be declared a presumed father if he receives the child into his home and openly holds out the child as his natural child (Fam. Code, 7611, subd. (d)), appellant had obviously not received Serenity into his home and repeatedly expressed doubt that he was the childs father. He showed so little interest in her that before at least two of the four times he joined the mother to visit with Serenity, appellant was admittedly under the influence of drugs. When told he would need to contact his social worker for future visits, appellant did not take the initiative.

Even were we to apply a heightened standard of prejudice (cf. In re Kobe A., supra, 146 Cal.App.4th at p. 1123), we would conclude the error in this case was harmless beyond a reasonable doubt.

II. Notice of Hearings

Relying on the notification of mailing address form he completed at the November 22, 2005, detention hearing, appellant claims he was denied proper notice of some of the hearings thereafter as well as notice of his writ remedy, once the court set the section 366.26 hearing, because notice was mailed to him at the Sussex Way address. He focuses on the departments notice of his third paternity test, the lack of notice when the court continued the dispositional hearing a second time, the writ notice sent once the court set its section 366.26 hearing, and the notice of the section 366.26 hearing. Having reviewed the record as summarized above, we disagree.

The notification of mailing address form appellant completed is derived from section 316.1 which states:

(a) Upon his or her appearance before the court, each parent or guardian shall designate for the court his or her permanent mailing address. The court shall advise each parent or guardian that the designated mailing address will be used by the court and the social services agency for notice purposes unless and until the parent or guardian notifies the court or the social services agency of a new mailing address in writing.

(b) The Judicial Council may develop a form for the designation of a permanent mailing address by parents and guardians for use by the courts and social services agencies.

As we have described above, although the court advised appellant in compliance with the code and he completed the form by designating an Illinois Street address, the department and the court served all of its notices on appellant at the Sussex Way address. Appellant conveniently ignores the evidence that on the same day he designated the Illinois Street address, he met with a department office assistant and initialed off on a letter outlining the services the department would provide him. On the face of the letter was appellants name and address. Immediately following his street address was the notation (mailing address only). Thus, he arguably designated in writing a new mailing address that very same day.

We also note the record was undisputed that: appellant reported having moved in with his mother and was living at the Sussex Way address up through the dispositional phase of the proceedings. In addition, appellant signed a certified mail receipt in January 2006 delivered to the Sussex Way address. He was also present in court at the January 24, 2006 dispositional hearing and remained silent when there was talk of his current address. On this record, we have no doubt that had the department and the court instead sent notices to the Illinois Street address, appellant would have complained because statutory notice requirements focus on service to a parents last known address ( 366.26, subd. (l)(3)(A) [notice of setting order]), last known mailing address and usual placement of resident ( 294, subd. (f)(1) & (2) [notice of  366.26 hearing]).

Finally, we remind appellant that he had the benefit of trial counsel, who never once complained, in the trial court or by way of appeal or writ, about the address the department and the court used to notify appellant. Counsel never stated appellant was not receiving proper notice of the proceedings or was unaware of what was transpiring.

Under these circumstances, we conclude any error was harmless.

DISPOSITION

The order terminating parental rights is affirmed.

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^*Before Wiseman, Acting P.J., Levy, J., and Dawson, J.

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

^[2] The implementing rule of court, as well as all rules of court, have been renumbered effective January 2007. It is now California Rules of Court, rule 5.635(g).