John M. v. Sup. Ct

Filed 3/21/06 John M. v. Sup. Ct. CA5

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

THE COURT^*

ORIGINAL PROCEEDINGS; petition for extraordinary writ review. Jamileh Schwartzbart, Temporary Judge. (Pursuant to Cal. Const., art. VI, § 21.)

John M., in pro. per., for Petitioner.

No appearance for Respondent.

Dennis A. Marshall, County Counsel, and Howard K. Watkins, Deputy County Counsel, for Real Party In Interest.

-ooOoo-

Petitioner, in pro. per., seeks an extraordinary writ (Cal. Rules of Court, rule 38) to vacate the orders of the juvenile court denying him reunification services and setting a Welfare and Institutions Code section 366.26 hearing.^[1] We will deny the petition.

STATEMENT OF THE CASE AND FACTS

In March 2005, then seven-year-old M. and her half-sister, four-year-old S., were removed from the custody of their mother incident to her arrest for possession and sales of a controlled substance. At the time, petitioner was an inmate in state prison serving a nine-year sentence for possession/transportation and sales of a controlled substance. He began serving his sentence in March 2001.

The Fresno County Department of Children and Family Services (department) filed a dependency petition on the children's behalf alleging their mother's drug use placed them at risk of harm. (§ 300, subd. (b).) The petition identified petitioner as S.'s presumed father and as M.'s de facto father, a designation granted petitioner in August 2000 during prior dependency proceedings, which resulted in the dismissal of the case in September 2002 and the children's return to their mother's custody.

In June 2005, the court adjudged the children dependents of the court and denied petitioner's request for de facto parent status as to M. The department placed the children in foster care.

The dispositional hearing was continued multiple times and conducted as a contested hearing in December 2005 on the department's recommendation to deny both parents reunification services. As to petitioner, the department cited his scheduled release date of March 2010, the unlikelihood he would be released earlier, the unavailability of parenting and substance abuse services in his penal facility and his lack of a parent/child bond with S. as a basis for denying him reunification services pursuant to section 361.5, subdivision (e)(1).

At the contested dispositional hearing, petitioner argued the court should offer him reunification services, disputing the department's contention he would be released no earlier than March 2010. He offered a letter from the state prison stating he could be released as early as July 2006.^[2] Petitioner also disputed the department's contention that S. was not bonded to him, arguing that he maintained contact with her during his incarceration.

At the conclusion of the hearing, the court denied both parents reunification services and set the matter for permanency planning. This petition ensued.

DISCUSSION

I. The juvenile court properly denied petitioner de facto parent status as to M.

Petitioner argues the juvenile court erred in failing to recognize him as the children's de facto father and accord him the procedural rights commensurate with that designation. He argues that he fulfilled the role of de facto father for a substantial period of time and that he and the children shared a sufficiently strong psychological bond to warrant designating him as their de facto father. We disagree.

A de facto parent is a person who assumed the role of a parent on a day-to-day basis, fulfilling the child's physical and psychological needs for affection and care. (In re B.G. (1974) 11 Cal.3d 679, 692, fn. 18.) The doctrine of de facto parenthood should be "liberally applied to ensure that all legitimate views, evidence, and interests are considered in dispositional proceedings involving a dependent minor." (In re Kieshia E. (1993) 6 Cal.4th 68, 76.) De facto parent status does not give the applicant a right to reunification or visitation with the child. (Clifford S. v. Superior Court (1995) 38 Cal.App.4th 747, 752.) Rather, a de facto parent is merely entitled to be present at hearings, with counsel, and to introduce relevant evidence that may aid in the trial court's decision-making process with respect to the child's best interests. (Cal. Rules of Court, rule 1412(e); In re Joshua S. (1988) 205 Cal.App.3d 119, 125.) De facto parent status terminates when the dependency itself is terminated. (In re Patricia L. (1992) 9 Cal.App.4th 61, 67.)

On a motion to establish de facto parent status, the juvenile court must consider certain factors including whether the child is psychologically bonded to the adult and whether the adult has assumed the role of a parent on a day-to-day basis for a substantial period of time.^[3] (In re Ashley P. (1998) 62 Cal.App.4th 23, 27.) We review the juvenile court's decision to grant or deny a de facto parent's motion for abuse of discretion. (In re Michael R. (1998) 67 Cal.App.4th 150, 156.) Generally, the juvenile court does not abuse its discretion if substantial evidence supports its determination to grant or deny de facto parent status. (Ibid.)

In this case, petitioner's claim to de facto status is relevant to M. only since petitioner is not now and never has been S.'s de facto father. Rather, he is S.'s presumed father, a paternity designation which confers superior parental rights in dependency proceedings (i.e., custody absent a finding of detriment and a reunification plan (§§ 361.2, subd. (a); 361.5, subd. (a)). Therefore, we will confine our discussion with respect to de facto father status to M. only.

Petitioner's claim to de facto status as to M. arises from a prior dependency proceeding initiated in June 2000 when S. and M. were removed from the custody of their mother and petitioner. Petitioner was granted de facto parent status as to M. and offered reunification services. His services were terminated in January 2001 and two months later, he began serving his prison sentence. The children's mother successfully reunified with them and, in September 2002, the court dismissed dependency jurisdiction. To the extent, petitioner claims his de facto parent status carried over to the instant dependency proceedings, he is incorrect. Rather, his de facto parent status as to M. was terminated as a matter of law upon the termination of dependency jurisdiction in 2002.

Further, there were no grounds to warrant designating petitioner M.'s de facto parent in the instant dependency proceedings because for the four years prior to these proceedings, petitioner was a prison inmate. Consequently, he was not acting as M.'s parent on a day-to-day basis. Moreover, there is no evidence that M. was psychologically bonded to petitioner or that he even maintained regular contact with her. Therefore, we find no abuse in the court's order denying him de facto parent status.

II. The court properly denied petitioner reunification services as to S.

Petitioner argues he should have been transferred to a prison that offered the reunification services he needed. To the extent he is arguing that the juvenile court erred in denying him reunification services, we find no error.

Under section 361.5, subdivision (e)(1), the juvenile court may deny reunification services to an incarcerated parent if the court finds by clear and convincing evidence that providing services would be detrimental to the child. (§ 361.5, subd. (e)(1).) In making this determination, the court must consider certain enumerated factors, including the age of the child, the degree of parent/child bonding, the length of the sentence and the nature of the crime. (Ibid.)^[4]

In denying petitioner reunification services, the court considered evidence contained in an addendum report filed by the department on September 28, 2005, that S. was not bonded to petitioner and that petitioner was repeatedly in violation of prison rules and regulations and unlikely to be released from prison prior to March 2010. Such evidence supports the juvenile court's order denying petitioner reunification services pursuant to section 361.5, subdivision (e)(1).

Petitioner's argument that he should have been transferred to another facility to receive services would be relevant to the reasonableness of the department's efforts to provide him services under a scenario where the court ordered services. Since the juvenile court denied petitioner services, the availability of services where he was housed is irrelevant. More fundamentally, even if relevant, his claim would fail since neither the juvenile court nor the department has control over the Department of Corrections and where it houses inmates.

III. Petitioner waived his right to challenge the court's visitation order.

Petitioner claims the court erroneously denied him visitation. We conclude petitioner waived any challenge to the court's visitation order by failing to object.

The juvenile court's visitation order throughout these proceedings was a denial of visitation between petitioner and M. and visitation with S. only after deemed appropriate by the minors' therapist. Despite petitioner's repeated requests for visitation, the department inexplicably delayed in obtaining the therapist's opinion until the contested dispositional hearing. At the court's request, the department contacted the therapist by telephone and obtained a verbal opinion that visitation would not be in S.'s best interest. Upon receiving the therapist's opinion, petitioner's attorney advised the court that she did not dispute the opinion and that petitioner understood. Petitioner's attorney asked, however, to reserve the option of raising the appropriateness of visitation again after providing the therapist additional background information pertaining to petitioner's involvement with the children. The court advised petitioner that visitation would remain suspended but the court would consider a section 388 petition to modify the visitation order. Petitioner's acceptance of the court's visitation order forfeited any right to object on appeal. (In re Dakota S. (2000) 85 Cal.App.4th 494, 501.)

IV. Petitioner was not denied procedural due process by

his absence at the October 5 and 6, 2005 hearings.

Petitioner claims the court erred in conducting hearings on October 5 and 6, 2005, in his absence. The record reflects that the hearings conducted on those dates were two in a series of continued contested dispositional hearings. The record further reflects that petitioner's counsel waived his appearance for the October 5 hearing and that the October 6 hearing was continued because petitioner had not been transported. Further, petitioner was represented by counsel at both hearings and the juvenile court did not make any substantive orders affecting him. More importantly, petitioner was present at the contested dispositional hearing on December 7 when the critical substantive rulings in this case were made.

V. Petitioner received effective assistance of counsel.

Without elaborating, petitioner claims trial counsel was ineffective. A petitioner asserting ineffectiveness of counsel must prove trial counsel's performance was deficient, resulting in prejudicial error. (In re Kristin H. (1996) 46 Cal.App.4th 1635, 1667-1668.) We need not evaluate counsel's performance if petitioner fails to prove prejudicial error; i.e., absent counsel's errors, there is a reasonable probability of a more favorable outcome. (In re Nada R. (2001) 89 Cal.App.4th 1166, 1180.) Therefore, to prevail on a claim of ineffective assistance of counsel, petitioner would have to show that but for counsel's performance, the juvenile court would have granted him reunification services for S.

We fail to see how petitioner could have received a more favorable outcome in this case when the juvenile court properly exercised its discretion in denying petitioner visitation with S. and where substantial evidence supports the juvenile court's order denying him reunification services. As petitioner has failed to establish that he was prejudiced by counsel's performance, his claim of ineffective assistance of counsel fails. We find no error on this record.

DISPOSITION

The petition for extraordinary writ is denied. This opinion is final forthwith as to this court.

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

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

^[2] Although counsel for petitioner referenced this letter at the contested dispositional hearing and apparently it was entered into evidence, the letter is not contained in the appellate record.

^[3] Other factors the juvenile court must consider in determining whether a person falls within the definition of â€