In re Johnnny F.
Filed 9/10/07 In re Johnnny F. CA5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
FIFTH APPELLATE DISTRICT
In re JOHNNY F., a Person Coming Under the Juvenile Court Law. | |
KERN COUNTY DEPARTMENT OF HEALTH SERVICES, Plaintiff and Respondent, v. JOSE C., Defendant and Appellant. | F052184 (Super. Ct. No. JD111522) OPINION |
APPEAL from a judgment of the Superior Court of Kern County. Kenneth C. Twisselman II, Judge.
Lee Gulliver, under appointment by the Court of Appeal, for Defendant and Appellant.
B.C. Barmann, Sr., County Counsel, and Judith M. Denny, Deputy County Counsel, for Plaintiff and Respondent.
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Appellant Jose C. appeals the juvenile courts denial of his request, made at his dispositional hearing, to rescind any responsibility he might have for payment of his attorney fees after the court found he was not the biological father of the dependent child and dismissed him from the case. We find, however, that Jose was not aggrieved by this ruling and so lacks standing to appeal it. Accordingly, we will dismiss the appeal.
FACTUAL AND PROCEDURAL BACKGROUND
On July 26, 2006, the Kern County Department of Human Services (Department) filed a petition under Welfare and Institutions Code section 300, subdivisions (b) and (j)[1]with respect to nearly four-month-old Johnny. The following day, Johnny was ordered detained.
At the August 22, 2006 jurisdictional hearing, Johnnys mother (mother) identified two men as Johnnys possible father, one of whom was Jose. Mother told the court Jose was currently in the state prison in Vacaville. The court added the mens names to the petition as alleged fathers, and continued the jurisdictional hearing. Following the hearing, mother told the social worker a third man might also be Johnnys father and the Department filed an amended petition naming all three men as alleged fathers.
Jose was provided notice at the state prison in Vacaville of the continued jurisdictional hearing set for September 20, 2006. Jose was not present at the continued hearing, as he was not transported, but he was represented by counsel, Mr. D., who waived his appearance.[2] The court found proper notice had been provided to mother, Jose and the other alleged fathers. After mother and one of the alleged fathers who appeared at the hearing submitted on the first amended petition, the court found the first amended petitions allegations true. The court ordered DNA paternity testing be performed on Jose and the alleged father who attended the hearing. The court immediately held the dispositional hearing as to mother only and adjudged Johnny a dependent child, removed him from mothers custody, and ordered mother be provided reunification services. The court continued the dispositional hearing as to the alleged fathers for receipt of the paternity test results.
Jose, who was now at the state prison in Corcoran, received notice of the continued dispositional hearing scheduled for December 12, 2006, but waived his right to appear. Mr. D. appeared at the hearing on his behalf. The court dismissed one of the three alleged fathers after DNA test results showed he was not Johnnys biological father. Joses DNA sample had not yet been taken, so the court continued the hearing for his results. The third alleged father appeared at this hearing, and the court ordered paternity testing for him.
After Jose received notice at the prison in Corcoran of the January 26, 2007 continued dispositional hearing, he waived his right to attend and specifically authorized his attorney of record to appear on his behalf. Mothers attorney, Ms. W., made a special appearance at the hearing on behalf of Joses attorney, Mr. D. The court received the paternity test results for Jose and the third alleged father, which showed neither man was Johnnys biological father. After the court reviewed Joses test results, Ms. W. stated that Mr. D. represented Jose and on his behalf, we are asking that his name be dismissed from the petition. And he is also asking that all fees be rescinded. The following exchange ensued:
THE COURT: Well, the Court will find that Jose C[.] is not the biological father. I will order that he be dismissed from the case. [] Is there some authority to rescind all fees?
MS. W[.]: Well, at least the note I got from Mr. D[.] is asking the Court that all fees be rescinded. Clearly if he is not the father and he should not have been part of the case I think the fees need to be rescinded. I dont have any authority either way.
THE COURT: He also chose to have an attorney. I am not going to rescind the fees. He could have waived an attorney.
The court then reviewed the test results for the third alleged father and dismissed him from the case. The court relieved both mens attorneys, including Mr. D., of their representation of the men.
DISCUSSION
Jose contends the juvenile court committed legal error when it refused to rescind his liability for legal fees. Jose argues the record does not support the juvenile courts finding that he chose to have an attorney or could have waived one, because counsel was appointed without his request, knowledge or consent. Jose further asserts there is no statutory authority for the assessment of fees against him for legal services because he is not a person liable for attorney fees under section 903.1[3], as he is neither Johnnys father nor a person liable for his support, and even if he potentially were liable for fees under section 903.1, he should not have to pay them because he never was provided notice of financial liability for appointed counsel as required by section 332, subdivision (h).[4]We do not even reach these issues, however, since we conclude Jose fails to show he has been aggrieved by the ruling, which is an essential element of appellate standing. (In re Marriage of Behrens (1982) 137 Cal.App.3d 562, 571.)
To have standing to appeal, an appellant must be a party of record and legally aggrieved. (In re Joseph G. (2000) 83 Cal.App.4th 712, 715-716; In re Frank L. (2000) 81 Cal.App.4th 700, 703.) The Department contends Jose is not a party of record because he is not a parent within the meaning of California Rules of Court, rule 5.585(b), which provides in pertinent part that the petitioner, child, and the parent or guardian each has the right to appeal from any judgment, order, or decree specified in section 395. In dependency proceedings, a party of record is a person named as a party to the proceedings or one who takes appropriate steps to become a party of record in the proceedings. (In re Joseph G., supra, at p. 715.) An alleged father becomes a party to dependency proceedings when he has entered an appearance in the action and has asserted his interest in the child. (In re Claudia S. (2005) 131 Cal.App.4th 236, 248; In re Emily R. (2000) 80 Cal.App.4th 1344, 1356, 1358.) Here, Jose is a party to the proceedings because he appeared at the jurisdiction and disposition hearings through his attorney and sought to establish his paternity. The question is whether he is aggrieved by the courts refusal to rescind his liability for attorney fees.
To be aggrieved, a party must have a legally cognizable interest that is injuriously affected by the courts decision. [Citation.] The injury must be immediate and substantial, and not nominal or remote. (In re L.Y.L. (2002) 101 Cal.App.4th 942, 948.) Jose contends he is aggrieved by the juvenile courts order for payment of attorneys fees because that order is binding on him and its effect is immediate, pecuniary and potentially substantial. We disagree for the simple reason that the court never ordered him to pay attorney fees. As we read the courts statement, it merely denied his request for an order that attorney fees be rescinded. The court, however, never affirmatively ordered him to pay attorney fees. Instead, the court dismissed him from the case. We note that pursuant to section 903.45, in counties with a county financial evaluation officer, the juvenile court is required, at the close of the disposition hearing, to order any person liable for the cost of legal services provided for in section 903.1 to appear before the financial evaluation officer for a financial evaluation of his or her ability to pay those costs. ( 903.45, subd. (b).) While the court made such an order with respect to Johnnys mother, it never made such an order with respect to Jose or any of the other alleged fathers. Jose fails to explain how he can be held responsible for attorney fees when he was never ordered to pay them or how such fees can be assessed against him when the court failed to order him to appear for a financial evaluation before he was dismissed from the case.
Since Jose has failed to show an immediate and substantial injury from the courts refusal to rescind attorney fees, we conclude he is not an aggrieved party and therefore lacks standing. Because Jose lacks standing, we must dismiss the appeal.
DISPOSITION
The appeal is dismissed.
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Gomes, J.
WE CONCUR:
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Vartabedian, Acting P.J.
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Levy, J.
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[1]All statutory references are to the Welfare and Institutions Code unless otherwise noted.
[2]This was Mr. D.s first appearance on Joses behalf. The record is silent as to how he came to represent Jose.
[3]Section 903.1, subdivision (a) provides in pertinent part: .The father, or other person liable for the support of a minor shall also be liable for any cost to the county of legal services rendered directly to the father, or any other person liable for the support of the minor, in a dependency proceeding by the public defender or other public attorney appointed pursuant to an order of the juvenile court, or by an attorney in private practice appointed pursuant to order of the juvenile court.
[4]Section 332, subdivision (h) provides in pertinent part: A petition to commence proceedings in the juvenile court to declare a child a dependent child of the court shall be verified and shall contain all of the following: [] (h) A notice to the father, or other person liable for support of the child, of all of the following: (2) Section 903.1 makes that person, liable for the cost to the county of legal services rendered to the child or the parent by a private attorney or a public defender appointed pursuant to the order of the juvenile court; .
