Theodore L. v. Superior Court

Filed 3/5/07 Theodore L. v. Superior Court CA1/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIRST APPELLATE DISTRICT

DIVISION ONE

Theodore L. (Father) challenges orders of the Contra Costa County Superior Court, Juvenile Division, which set a hearing under Welfare and Institutions Code section 366.26[1] to select permanent plans for his six minor children. We deny Fathers petition on the merits.[2]

Background

On March 9, 2006, the Contra Costa County Bureau of Children and Family Services (Bureau) filed six petitions pursuant to section 300 to establish dependency jurisdiction over the six minors, who at that time ranged in age from Joyce L., at 14 years, to baby Theodore L., less than a month old. Of the six minors, two were under three years of age. The principal allegations of the six petitions were that baby Theodore had tested positive for cocaine at birth, and that M.P. (Mother) had a history of substance abuse that placed all the children at risk. ( 300, subd. (b).) The petitions named Father as an alleged father, and included an allegation that he was currently incarcerated and had left the minors with an inappropriate caregiverMotherwhose drug use put the children at risk. ( 300, subd. (g).)

The juvenile court detained the minors following a hearing on March 10, 2006. On that date a court clerk mailed a notice to Father, care of the Santa Rita jail in Alameda County, apprising him of the jurisdictional hearing set for March 14, 2006. Father responded by sending a letter to the Bureau, dated March 15, 2006, in which he said he had that day received notice of the hearing scheduled for the preceding day. He referred to the three younger minors as his children, stated he was willing to do whatever [he] need[ed] to do to get custody of them, and indicated that he expected to be released from jail on April 11, 2006.

Meanwhile, at the March 14 hearing, the court sustained the allegations against Mother under section 300, subdivision (b), and reserved adjudication of the allegations against Father under section 300, subdivision (g). At that time the court set a continued jurisdictional hearing and dispositional hearing for April 11, 2006.

Two days later, on March 16, 2006, the case worker assigned to the minors cases sent Father a letter, at his Alameda County jail address, informing him he was alleged to be the father of the six minors, that he had a right to participate in the current dependency proceedings involving these children, and that he had a right to counsel and could contact the public defenders office for appointment of such counsel. The letter also informed Father that the next hearing was April 11.[3] On March 20, 2006, the court issued a prisoner removal order, arranging for Fathers appearance at the jurisdictional/dispositional hearing scheduled for April 11.

On March 23, 2006, Father signed the portion of the removal order that indicated his waiver of his right to appear at this hearing. In a letter dated the following day, addressed to the case worker who had sent him the letter dated March 16, Father said he wasnt able to make the last hearing because [he] was very ill. He stated he was willing to do whatever possible to get back in [his childrens] lives. He asked for a response to let [him] know [their] current status. He further asked that the hearing scheduled for April 11 be postponed for one day, since April 11 was his release date.

In its report prepared for the April 11 hearing, signed April 6, 2006, the assigned case worker recommended, as to Father, that the court dismiss the jurisdictional allegations against him and that it not offer him reunification services based on his status as alleged father. The report stated that, while Mother had claimed that she and Father were married and had lived together for over 17 years, she had not been able to give the date of their marriage or provide other evidence of the marriage. The case worker noted Father had not been mentioned in the many previous referrals, which dated back to 1990, and it was unclear to her when or how often they [had] lived together.

At the jurisdictional/dispositional hearing on April 11, when counsel for the Bureau noted that Father had not appeared, the court explained that he had executed a waiver of his appearance. The Bureau then stated it had received a letter from Father indicating that he expected to be released from jail that week. The Bureau requested that any visitation between Father and the children be conditioned on Fathers appearance to raise his status from alleged father.[4] At the conclusion of the jurisdictional/dispositional hearing, the court adopted the Bureaus recommendations as to Father. The court also expressly admonished Mother that, if she were unable to resume custody of her children within six months, the court at that point might set the matter to determine permanent plans for all the children that could include the termination of her parental rights. (See  361.5, subd. (a)(3), 366.21, subd. (e).)

Father was not released in April, as he had anticipated. Instead he was transferred to a Contra Costa County jail based on a holding order for a parole violation. It appears Father did not attempt to provide notice of his new address. On August 10, 2006, the court clerk mailed Father a notice of the six-month status review hearing, initially set for September 8, 2006, addressing it to Fathers former address at the Alameda County jail.

In its report prepared for the six-month status review hearing, the Bureau recommended that the court terminate Mothers reunification services as to four of the minors, and to set their cases for hearing to select permanent plans under section 366.26. The report continued to describe Fathers status as alleged father. Father sent a letter to the case worker, dated September 3, 2006, in which he indicated he had received this report. He stated that he expected to be released on September 26, 2006, and again said he was ready to do whatever necessary to get custody, particularly of the youngest minor, his only son. He requested that the case worker arrange an interview with him before his release.

Father was released from the Contra Costa County jail on September 26, 2006. He made his first court appearance in these proceedings at the six-month status review hearing on October 12, 2006. The court appointed counsel for Father, who called him to testify in order to raise his status. Following this testimony, the court raised Fathers status from alleged to presumed father. In view of that development, the court continued the status review hearing until later that month.

Also on October 12, 2006, the Bureau submitted a supplemental status report, in which it recommended that Mothers services be terminated as to all six children, and that the court set all six of their cases for selection of permanent plans under section 366.26.

Mother did not appear at the six-month status review hearing to contest the Bureaus recommendation. Consequently it was primarily Fathers contest, as his counsel sought to show that the Bureau had improperly relegated him to alleged father status, and that it then failed to give him adequate notice and opportunity to raise that status so that he could obtain reunification services.

With respect to this issue, the currently assigned case worker testified that she took over the minors cases in May 2006, following their dispositional hearing. She said she had received Fathers letter dated September 3, 2006, on September 25, 2006. Because the letter stated that Father expected to be released the following day, the case worker had figured it was too late to comply with his request to be interviewed before his release. She testified that this letter was her first notice that Father was even interested in getting the kids. Thus, when she prepared the initial report for the six-month status review hearing, she had not been aware of Fathers earlier letters. She said the letters Father wrote in March 2006 had gone to the previously assigned case worker. The case worker testified finally that none of the minors had mentioned Father during her monthly visits with them.

Father testified that he had signed the waiver of his appearance on March 23, 2006, under the mistaken belief that the removal order was for a hearing scheduled that same daywhen he felt too ill to travel. He said he had not understood that the removal order was for the hearing scheduled for April 11, 2006. Father admitted he had written no letters between those he sent in March 2006 and the one he sent in September 2006, but claimed he had made a number of efforts to reach both the former and currently assigned case workers by telephone. He said that, because they were collect calls from the jail, and because he had always reached recordings, he had been unable to leave any messages. He said he had similarly been unable to reach the public defenders office by telephone.

At the courts request, Father read that portion of the removal order which specified that it pertained to the April 11 hearing. Father indicated he had not noticed that portion of the order at the time he signed the waiver of his appearance. The court also questioned Father concerning his criminal and drug history, and previous prison terms, and Father admitted to several periods of incarceration for petty theft or second degree burglary. During cross examination, Father stated he was currently unemployed and was staying with an aunt and cousin. He admitted he had made no effort to call or contact his older children since his incarceration in December 2005. He also admitted family members had kept him notified of the dependency proceedings during his incarceration.

At the conclusion of this testimony, Fathers counsel sought, in effect, orders continuing the minors cases to the 12-month permanency hearing, in order to give Father an opportunity to participate in reunification services and gain their custody. He argued the Bureau had unfairly categorized Father as an alleged rather than a presumed father, given the information available to the Bureau during the initial stages of the proceedings. He also argued the Bureau had withheld from the court, at the dispositional hearing on April 11, the content of the letters Father had written in March 2006, that is, his claim of paternity and his interest in doing whatever was needed to obtain custody of the minors. He contended the court was partially to blame, because it had evidently failed to conduct any inquiry into paternity at the detention hearing. (See  316.2, subd. (a).) He urged that Father, on the other hand, had acted diligently under the circumstances of his incarceration to assert paternity and request custody.

The juvenile court essentially rejected these arguments, noting in particular that Fathers testimony concerning his efforts to contact the Bureau by telephone lacked credibility. The court further concluded that, from the evidence presented, it [could not] conclude there was a substantial probability that the minors could be safely returned to Fathers custody if their cases were continued to the 12-month permanency hearing. It thus adopted the Bureaus recommendations and set all six cases for hearing under section 366.26. This petition followed. ( 366.26, subd. (l); rule 8.450.)

Discussion

Fathers several interrelated contentions essentially reiterate the argument he presented below. That is, he claims the Bureau unreasonably classified him as an alleged father at the early stages of the proceedings, particularly in that it required Mother to produce a marriage certificate. He argues that, at the dispositional hearing on April 11, 2006, the Bureau conceal[ed] from the court the assertion of paternity and interest in custody that he had expressed in the two letters he wrote in March 2006, and it unreasonably sought to restrict his visitation. He urges that, through such deliberate act[s], the Bureau deprived him of the services and rights to which he would otherwise have been entitled as presumed father. In addition, Father argues that the juvenile court erred because at the detention hearing it failed to conduct the paternity inquiry required by section 316.2, subdivision (a). The result of these errors, in Fathers view, deprived him unfairly of reunification services that he was entitled to receive prior to the six-month status review hearing. Consequently, he contends it was error for the court to find that the Bureau had offered or provided him with reasonable services.

At the six-month status review hearing, a juvenile court must return a minor to the custody of his or her parent unless it findsas the court in these cases foundthat doing so at that time would create a present, substantial risk of detriment to the minors safety, protection, or well-being. ( 366.21, subd. (e).) In the event that the court does not return a minor to his or her parent at the six-month status review hearing, and in the event that the minor waseither under the age of three years on the date of initial removal or is a member of a sibling group described in section 361.5, subdivision (a)(3), the juvenile court may set the matter for a hearing under section 366.26, if it finds by clear and convincing evidence that the parent failed to participate regularly and make substantive progress in a court-ordered treatment plan. ( 366.21, subd. (e).) If, however, the court finds there is a substantial probability that [such a minor] . . . may be returned to his or her parent . . . within six months or that reasonable services have not been provided, the court shall continue the case to the 12-month permanency hearing. ( 366.21, subd. (e), italics added.)

Here, the juvenile court found by clear and convincing evidence that Mother had failed to participate regularly and make substantive progress in her court-ordered treatment plan. It also found that the five older minors were members of a sibling group as described in section 361.5, subdivision (a)(3). While it made no similar finding as to Theodore, the record clearly shows he was under three years of age at the time of his initial removal. Thus the court made the findings requisite to set the six minors cases for a hearing under section 366.26.

As discussed below, we conclude that Fathers objections to that ruling have no merit. The gist of these objections is essentially that the juvenile court erred in failing to find either of the above-quoted exceptions set out in section 366.21, subdivision (e), in which event it would have been required to continue the matter to the 12-month permanency hearing and order reunification services for Father. Thus, our review effectively turns on whether the court erred because it failed to find that the Bureau had not provided him with reasonable servicesin that he was improperly denied any services before the six-month status review hearingand whether it erred because it made the negative finding that there was not a substantial probability the minors could be returned to his custody within six months.

We have summarized in some detail the circumstances relevant to this review. They show Father was incarcerated at the outset of these proceedings and was thus not a custodial parent living together with Mother. Although he and the minors shared the same surname, he and Mother did not. While Mother consistently stated that she and Father had been married for many years and that he was the father of all six children, Mother had been unable to tell the case worker even the date of their marriage. Moreover, the original case worker noted numerous previous referrals, dating back to the month of Joyce L.s birth, which described events involving Mother and the minors but made no mention of Father. Thus she concluded it was unclear when or how often Mother and Father had lived together. It is true that, at the hearing on April 11, 2006, the Bureau failed to mention, in detail, the letters Father had written the previous month. But there is no indication that this failure was due to a deliberate effort to conceal from the court information relevant to Fathers status. While Father expressed in these letters an interest in obtaining custody of the minors, he had also executed, around the same time he wrote the letters, a waiver of his appearance at the April 11 hearing. By this waiver he indicated a contradictory, and arguably superseding, lack of interest in the minors disposition. If Father executed the waiver due to a misunderstanding, neither the Bureau nor the court was aware of his misunderstanding at the time of the hearing on April 11. In addition, the court noted Fathers evident lack of interest in maintaining contact with his five daughters during his incarceration. It also made credibility determinations when it rejected his testimony both with regard to his excuse for signing the waiver and his subsequent efforts to contact the Bureau and the public defenders office to further his assertion of paternity and his interest in obtaining custody. Such determinations are reserved exclusively for the juvenile court, as the trier of fact. (See, e.g., In re Jasmine C. (1999) 70 Cal.App.4th 71, 75.) In light of all these circumstances, we conclude that the juvenile court did not err when it found that Fathers status as a presumed father was not a slam dunk, and it did not err when it made the attendant, if implicit, determination that the Bureau did not act improperly when it classified Father as an alleged father prior to the date he successfully elevated that status.

At the detention hearing, or as soon thereafter as practicable, the court shall inquire of the mother and any other appropriate person as to the identify and address of all presumed or alleged fathers. ( 316.2, subd. (a).) This inquiry must include questions about whether a judgment of paternity already exists, whether the mother was married or believed she was married, whether she was cohabiting with a man at the time of the minors conception, whether she has received support payments or promises of support, whether any man has declared his possible paternity, whether paternity tests have been administered and the results of any such tests, and whether any man otherwise qualifies as a presumed father under the Family Code. (Ibid.)

While the record indicates the juvenile court failed to conduct this inquiry either at the detention hearing or afterward, this failure is subject to a harmless error analysis. (See In re Kobe A. (2007) 146 Cal.App.4th 1113, 1122.) Here the jurisdictional/ dispositional hearing was held April 11, 2006, only a month and one day after the detention hearing. The report prepared for that hearing identified Father as an alleged father and provided his correct address, and it stated Mothers claim that she was married to Father and had lived with him throughout the years during which she conceived all six minors. Given the record before us, it does not appear likely she could have provided additional, significant information had the court questioned her at either hearing. Father was not at the detention hearing and waived his appearance at the hearing on April 11. Thus he could not have added to Mothers information had the court conducted the inquiry at either hearing. We find the error in this instance was not prejudicial.[5]

In sum, we conclude there was substantial evidence to support the trial courts implied finding that Father was not improperly denied reunification services before October 12, 2006, the date when the court raised his status to a presumed father.

Perhaps more importantly, we also conclude there was substantial evidence to support the courts express, negative finding, that there was not a substantial probability that the children could be returned to Fathers custody if the cases were continued to the 12-month permanency hearing so that he could receive services and engage in a court-ordered reunification plan. (See In re Shaundra L. (1995) 33 Cal.App.4th 303, 316.) As we have noted, Father admitted at the six-month status review hearing that he had been unemployed since his release. He also admitted an extensive criminal history including several periods of confinement, and displayed an evident disinterest in maintaining contact with his five older children. On the other hand, he presented no evidence of affirmative efforts to demonstrate his present or anticipated ability to care for his six children, one of whom is less than a year old.

Finally, we note that, because the children were all members of a sibling group described by section 361.5, subdivision (a)(3), the juvenile court had discretion to limit Fathers reunification services to a period no longer than six months from the time the court completed its jurisdictional findings on April 11, 2006.[6] ( 361.5, subd. (a)(3); see also 361.5, subd. (e)(1) (services for incarcerated parent are subject to the time limitations imposed under 361.5, subd. (a)).) This period had lapsed by October 12, 2006, when Father first became eligible for services. Given the totality of the relevant circumstances, we see no abuse of that discretion.

Disposition

The petition for extraordinary writ is denied on the merits. (See Cal. Const., art. VI,  14; Kowisv. Howard (1992) 3 Cal.4th 888, 894; Bay Development, Ltd.v. Superior Court (1990) 50 Cal.3d 1012, 1024.) This decision is final in this court immediately. (Rule 8.264(b)(3).)

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[1] All further statutory references are to the Welfare and Institutions Code. References to rules are to the California Rules of Court.

[2] Section 366.26, subdivision (l)(1)(A), bars review on appeal if the aggrieved party has not made a timely writ challenge to an order setting a hearing for selection and implementation of a permanent plan. The statute also encourages the appellate court to determine all such writ petitions on their merits, as we do here. ( 366.26, subd. (l)(4)(B).)

[3] In this letter the case worker asked Father to complete two forms. One of these was a notification of mailing address, which Father completed on March 25, 2006, providing the Alameda County jail address. The Bureau filed this notification with the court on April 11, 2006.

[4] The report prepared for the hearing had previously recommended as to Father a minimum of two supervised one-hour visits per month.

[5] The record does not indicate whether the juvenile court provided Father with the notice and Judicial Council form (JV-505) required under section 316.2, subdivision (b). (See also rule 5.635(g).) Father, however, has not raised that issue and did not raise it below, and we accordingly deem it forfeited. (See In re S.B. (2004) 32 Cal.4th 1287, 1293.)

[6] The six-month period began when the children entered foster care, which is defined as the earlier date of the jurisdictional hearing or the date 60 days after their initial removal from their Mothers physical custody. ( 361.5, subd. (a)(3).)