In re Darius S.

Filed 6/20/07 In re Darius S. CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

Appeal from an order of the Superior Court of Orange County, Caryl A. Lee, Judge. Affirmed.

Niccol Kording, under appointment by the Court of Appeal, for Defendant and Appellant.

Benjamin P. de Mayo, County Counsel, Karen L. Christensen and Julie J. Agin, Deputy County Counsel, for Plaintiff and Respondent.

No appearance for the Minor.

Anthony S. appeals from an order, entered after a six-month review, that denied his motion to be declared the presumed father of Darius S. Anthony argues he was denied due process because he was not given certain notices, and the wrong standard was used in denying the motion. We disagree and affirm.

* * *

In February 2006, five-year-old Darius mother (Talesha S.) got into a fight with her long-term, female roommate while he was in the room. The fight turned violent when Talesha began to choke the roommate. A neighbor pulled them apart and called the police, who arrested Talesha for domestic violence and child endangerment.

The Orange County Social Services Agency (SSA) detained Darius. A social worker spoke with the maternal grandmother, who said that Anthony was the childs father and was incarcerated at Pelican Bay State Prison. The grandmother said she had been Darius primary caretaker for most of his life, until Talesha recently took him away. She added the information that Talesha had a long-standing drug problem. The grandmother also said Talesha and her roommate had previously run afoul of the law because of domestic violence. A record check revealed Talesha had several arrests for inflicting corporal injury on a cohabitant, and one for possession of a narcotic controlled substance and possession of controlled substance paraphernalia.

SSA filed a dependency petition that alleged Talesha failed to supervise and protect the child, and she was unable to provide regular care due to substance abuse. (Welf. & Inst. Code,  300, subd. (b).)[1] As to Anthony, the same petition alleged failure to protect the child from Taleshas drug use and violence, inability to provide care or make arrangements for care due to incarceration, and failure to maintain a relationship with the child or provide for him.

At the detention hearing, the juvenile court appointed counsel to represent Anthony. It found he was an alleged father and ordered that he be transported to court to appear for the jurisdiction hearing.

The jurisdiction hearing was held in April 2006. SSA reported that it had sent Anthony notice of the hearing, a copy of the petition and detention report, and several pamphlets about the dependency system and his rights. (It did not send him Judicial Council Form JV-505, Statement Regarding Paternity, which Anthony argues was a due process violation.) The assigned social worker said she had spoken with Anthony, telling him an attorney had been appointed to represent him and asking if he wanted to appear at the jurisdiction hearing. His response was [d]o I have to? Anthony said he had signed a form waiving his right to appear at the hearing, which was subsequently received by SSA.

Anthony told the social worker he had been in a two-year relationship with Talesha. He claimed to be Darius father and thought he was on the birth certificate, although he had been incarcerated when the child was born. Anthony said he last saw Darius in 2003, when the maternal grandmother brought Darius to visit him in prison, and he thought the child knew Anthony was his father. He admitted he had not maintained a relationship with Darius, nor provided for his care. When queried by the social worker, Anthony said no one in his family was willing or able to care for Darius. Anthony said he expected to be released on September 5, 2006.

The social worker also reported speaking with Talesha. Talesha said Anthony, her second cousin, was the childs father. Talesha said she never had a relationship with Anthony, who had taken advantage of her when she was 15, and Anthony was not listed as the father on the childs birth certificate. The juvenile court sustained the petition and set the matter for a disposition hearing.

At the May 2006 disposition hearing, SSA recommended no reunification services be offered to Anthony. Counsel for Anthony submitted without objection or argument. The juvenile court declared Darius a dependent child, removed him from Taleshas custody, and ordered reunification services for Talesha but not Anthony.

The six-month review took place on November 30, 2006. Neither Anthony nor Talesha were present. SSA reported the maternal grandmother had called the social worker on October 2, 2006 to say Anthony had been released from prison and was living with her. The social worker told the grandmother the six-month review was scheduled for October 26, 2006 (it was continued to November 30), and the grandmother said she would pass this information along to Anthony. On October 5, 2006, SSA served notice of the hearing by mail addressed to Anthony at Pelican Bay State Prison. An addendum report, dated November 28, 2006, said Anthony had been arrested on October 11, 2006 for violating parole and was incarcerated at San Quentin State Prison.

Anthony moved for an order declaring him a presumed father, arguing he had received Darius into his home and openly held him out as his natural child. (Fam. Code,  7611, subd. (d).) Counsel said she had corresponded with Anthony when he was in Pelican Bay State Prison, and Anthony said he believed his name was on the birth certificate, and he had lived with Talesha and Darius around 2003. SSA opposed the motion, arguing that Talesha told a social worker she and Anthony were not married, they had never lived together, and Anthony was not listed as the father on the childs birth certificate.

The juvenile court denied the motion without prejudice, giving no explanation and authorized funding for paternity testing for Anthony. During argument, the court questioned whether Anthony made any effort to assert paternity in the month between his September 5, 2006 release and October 11, 2006 arrest, and it noted the parties conflicting statements about whether Anthony was on the birth certificate. It also seemed troubled by the absence of any sworn testimony by Anthony, saying Anthony had not filled out a declaration of paternity, although the court recognized the declaration would be invalid without the sworn signatures of both biological parents. Services for Talesha were continued and the matter was set for a 12-month review.

I

Anthony argues he was denied due process because SSA did not send him Judicial Council Form JV-505, Statement Regarding Parentage. We cannot agree.

When the juvenile court has identified an individual as an alleged father, he must be given notice 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).)

Form JV-505 lists six statements regarding paternity, with a box next to each that may be checked. An individual may: (1) deny paternity and waive the right to participate in dependency proceedings; (2) request appointment of an attorney; (3) waive the right to an attorney; (4) state he is uncertain about paternity and consent to and/or request paternity testing; (5) state he believes he is the father and request a judgment of paternity be entered; and (6) state paternity has already been established by a declaration of paternity or judgment of paternity, and attach a copy. The form advises an individual about his rights in the dependency proceeding, the consequences of establishing paternity, the right to a court trial on the issue, and the right to counsel. (In re Paul H. (2003) 111 Cal.App.4th 753, 763-764 [appendix reproducing the complete form].)

Failure to provide JV-505 does not invariably require reversal. Where the form was not provided to an alleged father, and the local social services agency refused to assist him in obtaining paternity testing, an order terminating parental rights was reversed for failure to comply with section 316.2, subdivision (b). (In re Paul. H., supra, 111 Cal.App.4th 753.) The court said the alleged father was denied access to a procedure by which he could have compelled court-ordered paternity testing, as well as assistance from the social services agencies in arranging for such testing. Instead, [the alleged fathers] extensive, if ineffective, efforts to obtain paternity testing on his own were met with repeated roadblocks and, ultimately, were unsuccessful. (Id. at p. 761.) On the other hand, failure to provide the form was held harmless error where the alleged father failed to meet the requirements to be declared a presumed father, and his violent felony conviction preclude[d] any realistic possibility that reunification services could be offered. (In re Kobe A. (2007) 146 Cal.App.4th 1113, 1123.)

In this case, the failure to provide Anthony with form JV-505 was harmless error. The purpose of the form is to alert an alleged father to his rights, allow him to request counsel, claim paternity, and obtain paternity testing. That has been accomplished. Counsel was appointed for Anthony at the dependency hearing. Through counsel he stated his claim to being the childs father, and paternity testing was ordered. Everything JV-505 would have accomplished was done. The failure to send the form to Anthony provides no basis for reversal.

II

Anthony argues he was denied due process when he was not given notice of the six-month review, reasoning that the trial judge denied presumed father status for lack of his sworn testimony, and, with notice, he could have asked to be transported to attend the hearing to testify. The point is totally without merit.

To begin with, the record does not support the argument that the juvenile court denied presumed father status because Anthony was not present to testify. While the court expressed some concern about the absence of sworn testimony during colloquy, it denied the motion without prejudice and without explanation. Nothing suggests the motion was denied for Anthonys failure to testify.

Further, Anthony is mistaken on the law about who is entitled to notice of review hearings and when a prisoner is entitled to attend such a hearing. Anthony did not have a right to notice of the status review hearing. Such notice must be given to a presumed father, or a father receiving services. ( 293, subd. (a)(2).) Anthony was neither. Rather, Anthony was an alleged father who is not entitled to notice of the six-month review hearing.

Nor did Anthony have a right to attend the six-month review hearing. A prisoner with a child involved in juvenile dependency proceedings has the right to be transported to attend the jurisdiction hearing and, if the case gets that far, the permanency planning hearing. (Pen. Code,  2625, subds. (b), (d).) In all other proceedings, the trial judge has discretion whether to order the prisoner transported to appear in court (Pen. Code,  2625, subd. (e)), and the hearing may proceed without the prisoner. (In re Jesusa V. (2004) 32 Cal.4th 588, 599.) So even with notice, the most Anthony could have done was ask to attend the hearing. The failure to give Anthony notice of the six-month review was not a denial of due process.

We must add two observations. First, the lack of notice argument is rather strained quite apart from the fact that it has no support in the law since Anthony chose not to attend the jurisdiction hearing that he was entitled to attend ([d]o I have to?). Second, and more important, Anthonys whereabouts are now known. Regardless of what SSA does, his counsel can notify him of the next scheduled review hearing, he may move anew for presumed father status, and he may request the juvenile court to order him transported to appear. If the request is denied, the court still has the discretion to determine parentage without Anthonys sworn testimony, since [T]he court may make its determination of parentage or nonparentage based on the testimony, declarations, or statements of the alleged parents. (Italics added.) (Cal. Rules of Court, rule 5.635 (e)(3).)

III

Finally, Anthony argues the juvenile court used the wrong standard in denying presumed father status, and the evidence does not support the finding. Once again, Anthony is clutching at straws.

Anthony moved for presumed father status under Family Code section 7611, subdivision (d). It provides a man is presumed to be the father of a child if [h]e receives the child into his home and openly holds out the child as his natural child. (Ibid.)

The claim that the juvenile court used the wrong standard is that it denied the motion for lack of a paternity declaration, or paternity testing, even though neither is required by Family Code section 7611, subdivision (d). But the record is otherwise. While there was some discussion between the court and counsel about whether Anthony could execute a declaration of paternity, it was just that discussion. At the close of the hearing, counsel for Anthony objected to any suggestion that Anthony needs to be biological in order to be presumed, because I dont think biology is a defining factor. The juvenile court responded [a]bsolutely not. And Anthony overlooks the fact that it was his counsel who asked the court to order paternity testing. The motion was not denied for lack of a declaration of paternity or paternity test results.

Anthonys substantial evidence argument is that the evidence is insufficient because the juvenile court never said it did not believe his offer of proof,[2] and it never expressly found he failed to hold himself out as Darius father. But that reflects a misunderstanding of the rules of appellate review.

No express finding as to credibility was necessary, since a reviewing court will infer any fact finding warranted by the evidence that is necessary to support an

order or judgment. (Matthew Zaheri Corp. v. New Motor Vehicle Bd. (1997) 55 Cal.App.4th 1305, 1313.) Here, denial of the motion implies the juvenile court did not believe Anthony, and further implies that it found he failed to prove he was a presumed father. There was conflicting evidence on Anthonys relationship with Darius, and whether he was listed on the childs birth certificate. Talesha told a social worker that Anthony was not on the birth certificate, and they never had a relationship. Anthonys letter to counsel, as counsel described it, said he was on the birth certificate and had lived with Talesha and Darius for some time in 2003. It was for the juvenile court to decide who to believe. Denial of the motion implies the court believed Talesha and found Anthony did not receive Darius into his home and openly hold him out as his natural child. The evidence supports that implied finding.

At the end of the day, of course, the fact remains that the motion for presumed father status was denied without prejudice. If Anthony is serious about establishing paternity, nothing prevents him from obtaining the birth certificate to back up that claim, or from submitting a more detailed explanation of the facts showing his relationship with Darius, either in a written statement or, preferably but not required, a declaration under penalty of perjury. And there is also the possibility of calling third-party witnesses to show that relationship. In saying this, we do not mean to say these are the only ways to attempt to prove presumed father status, nor that proceeding in this manner will be or should be successful. Rather, we mean only to underscore the point that Anthony still may seek presumed father status.

Since Anthony was not denied due process, the juvenile court correctly applied the applicable law, and the evidence supports the order denying presumed father status, the order appealed from is affirmed.

BEDSWORTH, ACTING P. J.

WE CONCUR:

OLEARY, J.

FYBEL, J.

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

[2] No formal offer of proof was made. Counsel for Anthony said I would ask that . . . the court consider his statements to me in his writing. [] And all I can say as an officer of the court is that I have a letter, in response to my letter sent to him, answering specific questions from me which were, is your name on the birth certificate and were you married and did you live with the child.