In re Shayne F.

Filed 4/18/07 In re Shayne F. 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. Robert W. Nagby, Temporary Judge. (Pursuant to Cal. Const., art. VI, 21.) Affirmed.

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

Joe S. Rank, County Counsel, and Carole A. Nunes Fong, Deputy County Counsel, for Plaintiff and Respondent.

Konrad S. Lee, under appointment by the Court of Appeal, for Minor.

Eduardo C., the alleged father of Shayne F., contends that he was prejudiced by the juvenile courts failure to grant his request to continue a hearing pursuant to Welfare and Institutions Code section 366.26. He asserts that he had a statutory right to be present and that the courts failure to continue the hearing improperly denied him the opportunity to establish his paternity, in violation of his constitutional right to due process. We find no abuse of discretion and no prejudicial violation of defendants constitutional or statutory rights.

FACTUAL AND PROCEDURAL HISTORY

Shayne F. was born in August 2005. Her mother had arranged for her adoption, but changed her mind when Shayne was born. The hospital called the Department of Public Social Services (DPSS) when the mother left the baby at the hospital without having made any arrangements for her care. The mother told DPSS that Eduardo C. (Eduardo) was the father. She was not married to Eduardo. When the hospital called Eduardo, he questioned the childs paternity and declined to take custody. The mother told DPSS that she could not care for Shayne as she was already finding it challenging to care for her three older children. The mother signed a form giving parental rights to her sister. Shayne has lived with her aunt since her release from the hospital on August 27, 2005. Her aunt is her prospective adoptive mother.

The mother identified Eduardo to DPSS as Shaynes father, but did not provide an address where DPSS could contact him. She did state that he lived in San Jacinto and provided a telephone number. She also stated that when Shayne was four days old, she took her to his house and told him that he was the father. Eduardo claimed the child, but did not agree to be listed on the birth certificate and had neither provided support nor taken any other action to claim the child as his own.

At the detention hearing, the court found that Eduardo was Shaynes alleged father. Notice of the detention hearing was not served on Eduardo, nor was notice of the jurisdiction and disposition hearing. DPSS conducted a search for him and submitted a parent locator, but was unable to locate him. Eduardo, however, knew where the child was living.

At the jurisdiction and disposition hearing on December 6, 2005, the court ordered no services to be provided to either parent and set a termination of parental rights and permanency planning hearing, pursuant to Welfare and Institutions Code section 366.26 (hereafter section 366.26).

Notice of the permanency planning hearing was served on Eduardo on February 12, 2006. The notice included the name and telephone number of the social worker. Eduardo did not contact DPSS to request visitation.

Eduardo appeared at the section 366.26 hearing, held on April 5, 2006. An attorney was appointed to represent him. The attorney informed the court that Eduardo had been given paternity inquiry forms, but that the attorney wanted to reserve submitting them until he could confer with Eduardo. He requested a continuance, which was granted, and then asked the court to order paternity testing. The court granted the request and ordered DPSS to pay for the test. Counsel inquired if there was an order for visitation. The court stated that it would deal with visitation once Eduardo asserted his paternity.

The paternity test was scheduled for May 10 and 11. However, Eduardos parole agent informed DPSS on April 13 that Eduardo had failed to report and that his parole had been suspended. On May 4, 2006, the date set for the continued section 366.26 hearing, Eduardos attorney informed the court that he had just learned that Eduardo was in custody. He requested an additional continuance in order to complete the paternity test. The court granted the continuance, but informed counsel that he needed to be prepared to proceed at the next hearing.

At the hearing, which took place on June 5, 2006, counsel informed the court that Eduardo was still in custody. He asked for a continuance until July 13, 2006, when Eduardo expected to be out of custody. He explained that Eduardo did not waive his presence, and that he wished to present evidence that the mother had thwarted his efforts to develop a relationship with the child and had concealed the dependency proceedings from him. He also wanted time to take the paternity test. The court denied the continuance, saying that Eduardo knew all along, i.e., from Shaynes birth, that she might be his child but that he had not taken any action to assert paternity, such as signing a declaration of paternity or filing an action in the family law court to establish paternity. Nor had he offered or provided any support. The court stated, Basically, the father demands a continuance so in the future he can take some step to perfect his paternity status but has done nothing to this date. It denied the continuance and terminated both parents parental rights. It adopted the findings and orders found on the section 366.26 order form.

Eduardo filed a timely notice of appeal.

THE COURT DID NOT PREJUDICIALLY VIOLATE EDUARDOS STATUTORY RIGHT TO BE PRESENT AT THE SECTION 366.26 HEARING

Eduardo contends that the court violated his statutory right, pursuant to Penal Code section 2625, to be present at the section 366.26 hearing.

Penal Code section 2625 provides, in pertinent part, that an incarcerated parent has the right to be present at a section 366.26 hearing. (Pen. Code, 2625, subds. (b), (d); In re Jesusa V. (2004) 32 Cal.4th 588, 621-624.) It is error for the juvenile court to proceed in the absence of an incarcerated parent, unless the parent has validly waived his or her right to be present. Representation by counsel at the hearing does not suffice. (In re Jesusa V., supra, at pp. 623-624; Pen. Code, 2625, subd. (d).) However, if the court conducts the hearing in the parents absence, without a valid waiver, the error is assessed under a Watson standard, i.e., whether there is a reasonable probability that a more favorable outcome would have resulted if the parent had been present. (People v. Watson (1956) 46 Cal.2d 818, 836; In re Jesusa V., supra, at pp. 624-625.)

Here, Eduardos attorney informed the court that Eduardo did not waive his right to be present. Nevertheless, the court denied the requested continuance and proceeded with the hearing, terminating Eduardos parental rights.

Eduardo contends that he was prejudiced by the denial of the continuance because, if he had been able to take the paternity test and establish his biological paternity, he could have assumed presumed father status [and] . . . become eligible to receive reunification services and eventually have an opportunity to have custody of Shayne. He mistakenly conflates biological paternity with presumed father status. The two are not synonymous. A presumed father is a man, not necessarily the childs biological father, who has demonstrated a sufficient commitment to his parental responsibilities to be accorded rights which are not accorded to a biological father merely on the strength of his genetic tie to the child. (In re Jerry P. (2002) 95 Cal.App.4th 793, 801-803, 804.) To be a presumed father, a man who was not married to the childs mother at the time of the childs birth must receive the child into his home and openly hold the child out to be his natural child. (Fam. Code, 7611, subds. (a), (d).) Alternatively, a man not married to the childs mother may be a presumed father if, from the earliest possible point after learning of the mothers pregnancy or the birth of the child, he promptly comes forward and demonstrates a full commitment to his parental responsibilities emotional, financial, and otherwise . . . . (Adoption of Kelsey S. (1992) 1 Cal.4th 816, 825, 849.) He may attain presumed father status even if the mother thwarts his efforts, if he at least initiates prompt legal action to seek custody of the child. (Ibid.;see also In re Zacharia D. (1993) 6 Cal.4th 435, 450, fn. 19.)

Here, although Eduardo claims that he did assert paternity before he was incarcerated, the record belies this. The record shows that although Eduardo was aware of Shaynes birth and knew that he might be the father, he refused to sign the birth certificate or a declaration of paternity and made no effort in the months between Shaynes birth in August and his first appearance in the dependency proceedings the following April to determine whether he was her father. He did not provide support for Shayne. At most, according to his attorneys representations, he visited the child a few times, or attempted to do so, and once attempted to give unspecified gifts. He received notice in February of the scheduled hearing on termination of his parental rights, but apparently made no effort before the hearing date to contact DPSS to seek visitation or to seek advice as to how to assert his paternity. When he first appeared at the hearing in April, he did not assert his paternity, but merely sought paternity testing. This remained his position as of the hearings on May 4 and June 5, 2006: he wanted to determine his biological paternity before making any commitment to the child. Eduardos failure to demonstrate a full commitment to his parental responsibilities emotional, financial, and otherwise (Adoption of Kelsey S., supra, 1 Cal.4th at p. 849), precluded presumed father status as of the date of the hearings, and a determination of his biological paternity would not have sufficed to elevate him to that status.

Eduardo also contends that the courts violation of his right to be present deprived him of the opportunity to present evidence to prove that Shaynes mother and aunt had conspired to deny him access to the child and to prevent him from participating in the dependency proceedings until it was too late. However, Eduardo knew of the childs existence and the possibility of his paternity at least from the date of her birth, but he did nothing to attempt to determine his paternity or to assert his paternity for over six months. He received notice of the dependency proceedings on February 12, 2006, nearly two months before the first section 366.26 hearing. Again, he took no action. He did not even request paternity testing or visitation until April 5, 2006, and even then declined to submit a declaration of paternity. Because the record shows that Eduardo had ample notice and opportunity to assert his paternity, despite any efforts by the mother to thwart him, there is no reasonable probability that the court would not have terminated his parental rights even if Eduardo had been present at the final hearing. Thus, the violation of Eduardos statutory right to be present was harmless. (In re Jesusa V., supra, 32 Cal.4th at p. 625.)

THE COURT DID NOT ABUSE ITS DISCRETION BY DENYING EDUARDOS REQUEST TO CONTINUE THE SECTION 366.26 HEARING

The courts failure to grant the continuance was also not an abuse of discretion, as Eduardo contends.

A court abuses its discretion only when a decision is arbitrary, capricious or patently absurd and results in a manifest miscarriage of justice. (In re Karla C. (2003) 113 Cal.App.4th 166, 180.) In dependency proceedings, continuances are discouraged. A continuance is to be granted only upon a showing of good cause, and must be denied if it is contrary to the childs best interests. The court is required to give substantial weight to the childs need for prompt resolution of his or her custody status, the need to provide the child with a stable environment, and the damage to a child which may result from a prolonged temporary placement. (In re Ninfa S. (1998) 62 Cal.App.4th 808, 811.)

Here, the court had granted two continuances of the section 366.26 hearing in order to afford Eduardo the opportunity for a paternity test, even though it did not believe that determination of Eduardos biological paternity would have affected the outcome of the hearing. The only reason the test did not take place after the first continuance was that Eduardo violated his parole by failing to report to his parole agent before the test could be conducted. Even so, the court granted a second continuance. Eduardo requested a third continuance until after his expected release date in mid-July. At that point, he proposed to undergo the paternity test, and if the test proved that he was the childs biological father, obtain reunification services and challenge the termination of his parental rights.^[1] He did not explain why he could not provide a tissue sample while he was incarcerated so that the test could be completed more expeditiously.

Eduardo contends that the requested six-week continuance would not have adversely affected the childs interest in securing a prompt and permanent placement. However, the six-week continuance to mid-July would necessarily have had to be followed by a further continuance for another month or so to obtain the results of the paternity test, and then for an additional six months or more in order to afford Eduardo a reasonable opportunity to engage in reunification services and attempt to establish a relationship with Shayne, assuming that the result was positive and Eduardo finally chose to assert his paternity. By the time all of Eduardos objectives had been achieved, the child would have been in the dependency system for well over a year. We can see no abuse of discretion in the courts refusal to accede to this request.

THE COURT DID NOT VIOLATE EDUARDOS DUE PROCESS OR STATUTORY RIGHT TO ESTABLISH PATERNITY

Eduardo contends that the court also violated his statutory and due process rights because it terminated his parental rights without affording him an adequate opportunity to establish his paternity.

Eduardo first complains that he was not given adequate notice because he was not served with Judicial Council form JV-505 even after he was adjudicated the childs alleged father. When Eduardo made his first appearance in the dependency proceedings, however, he did not object to any lack of prior notice of his right to obtain paternity testing, which is one of the functions of Judicial Council form JV-505. (In re Paul H. (2003) 111 Cal.App.4th 753, 761, 763-764.) Generally speaking, a partys failure to make an objection or raise an issue in the dependency court precludes him from raising the issue on appeal. (See, e.g., In re Lorenzo C. (1997) 54 Cal.App.4th 1330, 1338-1339.) Thus, any contention that he was not given prior notice of his right to seek adjudication of his paternity is forfeited.

Similarly, because he did not object to the proceedings on the ground that DPSS failed to exercise due diligence to locate him earlier in the dependency proceedings, he has forfeited any claim based on that ground. (He does not explicitly make this claim, but alludes to it more than once in his opening brief.) Any objection to lack of notice in dependency proceedings is waived if the party appears and opposes or resists the proceeding on its merits. (In re Gilberto M. (1992) 6 Cal.App.4th 1194, 1199-1200.) By seeking paternity testing so that he could decide whether to seek custody of the child, Eduardo resisted the proceeding on its merits, without objection to anything that had previously transpired.

Eduardos claim that his due process rights were violated is based primarily on the premise that if he had been allowed to complete a paternity test and the test established that he was the childs biological father, he could have been deemed a presumed father pursuant to Family Code section 7611, subdivision (d). When an unwed, biological father demonstrates a full commitment to his parental responsibilities, he says, his federal constitutional right to due process prohibits the termination of his parental relationship absent a showing of his unfitness as a parent. [Citation.] However, as we have discussed above, Eduardo would not have qualified as a presumed father merely upon a positive paternity test result. He had never demonstrated a full commitment to the child but rather had consistently declined to make any commitment to her without proof of his biological parentage.

DISPOSITION

The order terminating parental rights and freeing Shayne for adoption is affirmed.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

/s/ McKinster

J.

We concur:

/s/ Ramirez

P.J.

/s/ Richli

J.

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^[1]If the continuance had been granted, of course, Eduardos parental rights would not have been terminated.