Terry S. v. Superior Court

Filed 3/20/06 Terry S. v. Superior Court CA1/4

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.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

FIRST APPELLATE DISTRICT

DIVISION FOUR

Terry S. (father), the presumed father of Naomi W., age 5, petitions this court to set aside the juvenile court's order setting a selection and implementation hearing pursuant to Welfare and Institutions Code section 366.26.[1] He contends that the Contra Costa County Children & Family Services Bureau (Bureau) failed to provide reasonable reunification services, that the juvenile court abused its discretion in finding that his progress on his case plan was minimal and declining to extend reunification services, and that his due process rights were violated when the juvenile court precluded him from calling an expert witness. We disagree and deny the petition.

I. Factual and Procedural Background

On July 11, 2003, the Bureau filed a section 300 petition alleging that the minor and her mother, Malena B. (mother), were living in a home that was condemned as uninhabitable by the city in which it was located.[2] The petition further alleged that there was trash all over the entire house as well as outside of the house, that hazardous canisters were within the minor's reach, that there was inadequate bedding for the minor, and that drug paraphernalia was found. Mark W., who is listed on the minor's birth certificate, was listed on the petition as the minor's alleged father; his address was unknown. The juvenile court ordered that the minor be detained. The minor was first placed in a foster home but was later placed with a family member.

Over the next year and a half, the juvenile court held proceedings in the case without the involvement of petitioner because he had not yet been identified as a potential father, and he apparently was unaware of the fact that he had a young daughter. The juvenile court sustained the petition after a contested jurisdictional hearing on October 3, 2003. The dispositional hearing was held on February 4, 2004, and the juvenile court adjudged the minor a dependent child. Following a contested 12-month review hearing on October 8, 2004, the juvenile court terminated reunification services to mother and set the matter for a section 366.26 hearing. This court denied mother's petition for writ relief in a nonpublished opinion dated January 14, 2005. Father was not a party to the petition, as he had not yet been notified of the proceedings. (Malena B. v. Superior Court of Contra Costa County (Jan. 14, 2005, A108234).)

The minor's attorney reported at a February 1, 2005 hearing that the minor had alleged that her caregiver hit her with a belt. After an investigation, the minor's caregiver admitted that she had used a belt to physically punish the minor once or twice; she explained she was not aware she was not permitted to use physical discipline with the children and that she used discipline methods that were accepted in her household when she was growing up. The social worker recommended that the Bureau assist the caregiver in learning alternate methods of discipline; the caregiver and the minor also were referred to a therapist. As of May 3, 2005, the minor had seen a therapist about three times.

The Bureau had difficulty locating Mark W., as mother had not provided any information as to his whereabouts. The Bureau eventually located Mark W. at the San Quentin State Prison receiving center, awaiting placement at his assigned prison facility. Mark W. told a Bureau social worker that he was not the minor's father, which was confirmed in December 2004 through a paternity test. Mother later informed the Bureau that petitioner was possibly the minor's father.

The Bureau apparently first made contact with father when a social worker mailed him a letter on March 4, 2005. Father called the Bureau on March 7, when he was informed that he was the minor's alleged father. Father claimed he was not told before then that the minor was his daughter, and that he would always have been willing to accept her into his home. In March 2005, the Bureau also mailed to father a notice of the permanent plan hearing then scheduled for May 3, 2005.

On April 20, 2005, father submitted to the juvenile court a statement regarding paternity, stating he believed he was the minor's father. Father was declared to be the minor's biological father on April 20, 2005, following a paternity test showing the probability of paternity was 99.97 percent.

On April 27, 2005, father filed a modification petition pursuant to section 388, requesting that he be elevated to presumed father status, that the minor be placed with him as reasonable and appropriate, and that the juvenile court order family reunification or family maintenance services.

Rosa Baumgartner completed a home visit with father on May 2, 2005, and found father's home to be clean, orderly, and appropriately furnished for children. She reported that father had legal joint custody of his six-year-old daughter, who apparently had a positive relationship with father. Based on her investigation, Baumgartner supported father's request to change his status from alleged father to presumed father and recommended that the Bureau offer father reunification services.

The juvenile court granted father presumed father status on May 3, 2005. Father also was granted six months of family reunification services, with one hour of visitation twice per month. Father's case plan called for him to complete a parenting course, to submit to random drug testing, and to â€