In re C.B.

Filed 10/18/07 In re C.B. CA3

NOT TO BE PUBLISHED

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

THIRD APPELLATE DISTRICT

(San Joaquin)

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Johnny D. (appellant), the father of C.B. (the minor), appeals from the juvenile courts order terminating parental rights. (Welf. & Inst. Code, 366.26, 395.)^[1] Appellant contends adequate efforts were not made to notify him of the dependency proceedings and he erroneously was denied presumed father status. We shall affirm.

Facts and Procedural History

In December 2005, a juvenile dependency petition was filed by the San Joaquin County Human Services Agency (the Agency) concerning the one-month-old minor based on the mothers erratic and bizarre behavior at the time of the minors birth, as well as her history of drug abuse and mental health problems. According to later reports, the mother had previously been diagnosed as a chronic paranoid schizophrenic with a mixed personality disorder. In addition, it was alleged that the mother did not have suitable housing for the minor. Finally, the petition alleged that, nine and a half years earlier, the mothers parental rights to another child were terminated after she failed to complete reunification services for substance abuse and mental health problems. A guardian ad litem appeared with the mother throughout the dependency proceedings.

The petition listed Dominick V[.] as the minors alleged father, although Dominick denied paternity and subsequent paternity testing excluded him as the minors father. According to the petition, the whereabouts of another alleged father, referred to as JD, were unknown. In addition, the mother brought a variety of men into the hospital for paternity testing after the minors birth, reporting that they had fathered the minor, and also reported that her drug treatment counselor might be the father, although she recanted this claim.

In April 2006, the Agency submitted a declaration concerning the efforts it had made to locate the alleged father J.D. The declaration stated the last name of the alleged father was unknown, DA FAMILY SUPPORT had no record, and the individual could not be located to be served by mail or personal service.

Meanwhile, the juvenile court sustained the allegations in the petition, and the matter was continued for disposition.

According to the dispositional report, the mother had named yet another possible father, who the Agency was attempting to locate.

At a hearing in May 2006, the juvenile court found the Agency had used due diligence to attempt to locate the alleged fathers. The mother requested a contested dispositional hearing, and the matter was continued. While the court was setting the date for the hearing, the mother stated that JDs last name was Walker.

Another due diligence declaration from the Agency in June 2006 stated that it had been unable to locate or serve J.D. Walker.

At the dispositional hearing, which went forward in July 2006, the juvenile court denied the mother services based on her failure to reunify with another child. ( 361.5, subd. (b)(10).) The attorney for the Agency informed the court that the Agency had r[u]n another absent parent locator [on J.D. Walker] and was unable to come up with any information. The juvenile court found the Agency had used due diligence in attempting to locate this individual. The court set the matter for a hearing to select and implement a permanent plan for the minor pursuant to section 366.26.

In August 2006, the minor, who had developmental delays, was placed with the maternal aunt and her husband in Colorado, and the couple wanted to adopt him.

Appellant appeared before the juvenile court for the first time in September 2006, while the section 366.26 hearing was pending. The attorney for the Agency informed the court that appellant believed he might be the minors father. Appellant told the court that he could not read or write and was on a fixed income. He explained: I havent seen her [presumably, the mother] in a while. We split up. And then I figured she had the baby in San Joaquin. He provided the court with an address and telephone number and stated, I do want the baby. The court authorized payment for paternity testing and appointed an attorney to assist appellant in obtaining the testing. Subsequently, it was confirmed that appellant is the minors biological father.

In March 2007, appellant filed a request to change the courts order terminating reunification services, in which he asked for presumed father status and reunification services. In an attachment to the request, appellant asserted that he never received notice of the proceedings and was unaware that the minor had been detained until September 2006, when the mother informed him of the pendency of the proceedings. He alleged his due process rights had been violated by the lack of notice throughout most of the proceedings. He noted that his initials are JD and his nickname is Walker.

The Agency filed a response, which reported that appellant had numerous convictions for various types of battery, including spousal or cohabitant battery, between 1981 and 2003, several convictions for obstructing peace officers and a conviction for possession of a controlled substance that resulted in a state prison sentence.

Appellants request was set for a hearing but was continued because appellant was in jail on the date of the hearing. At the hearing, which occurred in April 2007, appellant testified he had been with the mother and knew she was pregnant. He testified that the mother left him and he went looking for her but was unable to find her. According to appellant, he heard when the minor was born in November 2005, but he did not know about the dependency proceedings until September 2006, when he immediately went to court.

Regarding appellants criminal problems, he initially testified that he was currently in custody on [s]ome hearsay stuff and driving on [a] suspended license but, when confronted, he admitted he had pleaded guilty to possession for sale of cocaine. He anticipated he would be released from custody in early July. Appellant maintained that his criminal record was way back when [he] was younger and now that he was 48 years old, he was over all that. When asked specifically about his convictions for domestic violence, appellant responded: Oh, hearsay, whatever. Yeah, some stuff like that when I used to . . . be with her. Appellant maintained that he had changed and was trying to do the right thing now.

Following testimony, appellants attorney argued that the information provided to the Agency by the mother was sufficient to locate appellant had the Agency been diligent because [t]he initials []JD[] that were given are obviously [appellants] initials and appellant had been living with the mother before the minor was born. The attorney maintained that, with a little bit of investigation, the Agency could have determined who the mother was living with at the time of conception and located appellant. The attorney argued that appellant has not been given the opportunity to be declared a presumed father or to be given services and asked the court to give appellant the chance to reunify with the minor.

The juvenile court found that appellant was given notice as soon as reasonably practical. The court also found that appellant did not come within the definition of a presumed father. Consequently, the court denied appellants request to change the courts order terminating services. Following these findings and orders, the court terminated parental rights and ordered a permanent plan of adoption.

Discussion

I

Appellant contends the Agency failed to exercise due diligence to identify him as an alleged father and provide him with notice of the proceedings. We conclude this claim is without merit.

The interest of a parent in the companionship, care, custody, and management of his children is a compelling one, ranked among the most basic of civil rights [citations][.] [T]he state, before depriving a parent of this interest, must afford him adequate notice and an opportunity to be heard. (In re Arlyne A. (2000) 85 Cal.App.4th 591, 598 (Arlyne A).)

The child welfare agency must act with diligence to locate a missing parent. (In re Justice P. (2004) 123 Cal.App.4th 181, 188.) Reasonable diligence denotes a thorough, systematic investigation and inquiry conducted in good faith. (Arlyne A., supra, 85 Cal.App.4th at p. 598.) [I]n the case of persons missing or unknown[,] employment of an indirect and even a probably futile means of notification is all that the situation permits and creates no constitutional bar to a final decree foreclosing their rights. (Mullane v. Central Hanover Bank & Trust Co. (1950) 339 U.S. 306, 317 [94 L.Ed. 865].)

In the present matter, the mother identified numerous individuals as possible fathers of the minor. One of the alleged fathers was identified only as JD, although the mother later provided the last name Walker for this individual. Even assuming that this information related to appellant, at no time did the mother provide a correct last name for him or any other information that might lead to his whereabouts. Under such circumstances, the Agency cannot be faulted for failing to provide appellant notice of the proceedings.

Appellant argues that the Agencys failure to follow up with the hospital staff regarding the men brought in by the mother showed a lack of due diligence. Even assuming the hospital had additional information concerning these individuals, appellants testimony that he had lost track of the mother while she was still pregnant until shortly before his first appearance in court precludes the possibility that he was one of the individuals who had been brought to the hospital for paternity testing.

Appellant also claims the Agency should have attempted to contact friends or family of [the] mother who could elaborate on J.D.s identity. However, there is no evidence in the record that the mother had friends or family who could have proved productive in uncovering appellants identity and whereabouts. (See In re Emily R. (2000) 80 Cal.App.4th 1344, 1353 [no evidence that checking school or DMV records would have disclosed alleged fathers whereabouts].) The only relatives referred to in the record are an aunt and uncle who were granted legal guardianship in 1994 of one of the mothers other children with whom the mother had not had contact since and the aunt who lived in Colorado with whom the minor had been placed. There is no basis to believe that either of these relatives would have any information concerning appellants identity.

Likewise, contrary to appellants suggestion, there is no evidence in the record that question[ing] case workers at appellants mental health housing program would have led to information concerning appellants identity. The mother was homeless at the time of the minors birth, and the record does not indicate that she was living in a mental health facility when the minor was conceived. To the contrary, when the Agencys efforts to locate JD Walker were described at the dispositional hearing, the mother stated [t]hats who I was living with, presumably referring to when she became pregnant.

Appellant cites In re DeJohn B. (2000) 84 Cal.App.4th 100 to support his claim that the Agency did not put forth an adequate effort to locate him. However, in that case, the mothers identity was known, and she was eventually located through the maternal grandmother. The appellate court concluded that, under such circumstances, the failure of the social services agency to do anything to attempt to locate the mother mandated reversal. (Id. at pp. 108-110.)

The present matter is distinguishable. The mother identified appellant only as JD at first, and later offered an erroneous last name for him. He was one of numerous other alleged fathers who had been identified by the mother. The record contains no evidence of other viable leads for identifying and locating appellant. Given the dearth of information concerning appellants identity and whereabouts, the Agencys failure to provide him notice was not error.

II

Appellant also contends the juvenile court erred by finding that he was not the minors presumed father under Family Code section 7611, subdivision (d). Again, we disagree.

Family Code section 7611, subdivision (d), provides that, if a man has never married or attempted to marry the mother of a child and has not signed a voluntary declaration of paternity, he may still be considered a presumed father of that child if he receives the child into his home and openly holds out the child as his natural child.

Appellant does not contend he fell within the statutory definition of a presumed father. Instead, he maintains he qualifies as a presumed father under In re Baby Boy V. (2006) 140 Cal.App.4th 1108, 1117, which held that the alleged father was entitled to presumed father status because he was a nonoffending, stable, employed, and financially responsible adult, [who] came forward at the earliest possible moment after being prevented by the mother from accepting the child into his home. Baby Boy V. relied on Adoption of Kelsey S. (1992) 1 Cal.4th 816, 849 (Kelsey S.), in which the California Supreme Courtheld that, absent a showing of unfitness, due process and equal protection prohibit the termination of parental rights of a father who has been prevented by the mother from receiving his child into his home and who steps forward at the earliest possible time and demonstrates a full commitment to his parental responsibilities.

However, appellant did not argue this theory before the juvenile court. As a general rule, a new theory may not be presented for the first time on appeal unless it raises only a question of law and can be decided based on undisputed facts. (In re P.C. (2006) 137 Cal.App.4th 279, 287; accord, In re Dakota H. (2005) 132 Cal.App.4th 212, 222.)  In particular, an alleged fathers failure to ask the court to find he was a father within the meaning of Kelsey S. . . . waive[s] his right to raise the issue [on appeal]. (In re Elijah V. (2005) 127 Cal.App.4th 576, 582.) [A] party seeking status as a father under Kelsey S. must be clear he wants to be so declared. (Ibid.)

Although appellants request to change the juvenile courts order sought to have his status . . . elevated from biological father of the [minor] to the status of presumed father, his argument addressed only notice issues. Similarly, at the hearing on appellants request, appellants attorney argued that the Agency had received sufficient information to provide appellant with notice and that appellant ha[d] not been given the opportunity to be declared a presumed father or to be given services to allow him to reunify with [the minor]. Appellant never asked to be considered a Kelsey S. father, and the facts were not fully developed in this regard. For example, appellant was required to show that his attempts to achieve presumed father status were thwarted by the mother and that he is prepared to make a full emotional and financial commitment to his parental responsibilities and to assume full custody of the minor. (Kelsey S., supra, 1 Cal.4th at p. 849.) The record does not reveal any details concerning the efforts taken by appellant to locate the minors mother during her pregnancy or after the minors birth or whether appellant--who has a significant criminal record, cannot read or write and is on a fixed income--is in a position to assume physical, emotional and financial responsibility for the minor.

Accordingly, we reject appellants claim that he was entitled to presumed father status.

Disposition

The juvenile courts orders are affirmed.

DAVIS, Acting P.J.

We concur:

RAYE , J.

BUTZ , J.

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^[1] Hereafter, undesignated section references are to the Welfare and Institutions Code.