In re Jonathan M.

Filed 5/24/06  In re Jonathan M. CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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  This opinion has not been certified for publication or ordered published for purposes of rule 977.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

FOURTH APPELLATE DISTRICT

DIVISION TWO

            APPEAL from the Superior Court of Riverside County.  Timothy J. Heaslet, Judge.  Affirmed.

            Lisa A. DiGrazia, under appointment by the Court of Appeal, for Defendant and Appellant.

            No appearance for Plaintiff and Respondent.

            Appellant in this matter, Abraham M., is the alleged father of the minor Jonathan M., born in 1997, who is the subject of this appeal.  Appellant was convicted in 2000 of attempted murder and is currently serving a sentence of 40 years to life at Pelican Bay State Prison.  Appellant has never seen the minor and is not sure whether or not he is the biological father of Jonathan; he has never been involved in minor's life.

            The Riverside County Department of Public Social Services (the Department) filed a juvenile dependency petition pursuant to Welfare and Institutions Code section 300, subdivisions (b) and (g)^[1] on behalf of Jonathan and his siblings, S.M, M.V., and M.O.^[2]  The three oldest siblings, Jonathan, S.M., and M.V., were not strangers to the Department.  Their mother (Mother) had a history of intervention by the Department dating back to 1997 because of her drug abuse and neglect of these children.  In 1977, Mother had tested positive for methamphetamine at the birth of Jonathan.  In 2000, a referral of neglect involving Jonathan, S.M., and M.V. was substantiated.  A 2001 referral led to the filing of the operative petition for this case.^[3]

            At the time of the filing of the July 2001 petition, Jonathan, S.M., and M.V. had been living with their maternal great-grandmother for more than two years.  Mother had not visited or contacted her three older children since January of 2001.  Mother did not provide the Department with identifying information as to the fathers of the three boys, nor did great-grandmother know the identity of the fathers.  No support had been provided to any of the boys by anyone identifying themselves as a father, nor had there been any requests for contact by anyone identifying themselves as a father.

            At the July 31, 2001, jurisdictional/dispositional hearing, the allegations were sustained, and Mother was granted reunification services, as was M.O.'s father; reunification services were denied for the M. and V. fathers.^[4]  The three boys remained with their great-grandmother.  Mother failed to complete her reunification plan; in January 2002, reunification services were terminated, and a section 366.26 hearing was set.  The Department's May 2002 section 366.26 report recommended appointment of the great-grandmother as legal guardian for the three older boys.  In August 2002, Mother identified S.M., Sr., whose location remained unknown, as the father of Jonathan and S.M.  Mother still had not identified M.V.'s father.

            The children were removed from great-grandmother in March 2003 pursuant to the filing of a section 387 petition.  Subsequently, the children were placed in separate confidential placements with acknowledgment by the Department that the optimum plan would be adoption of the boys as a sibling group. 

            Appellant's name and address at Pelican Bay State Prison appeared in a Department status report in April 2004.  He was listed as Jonathan's alleged father.  The fathers of S.M. and M.V. were also identified in the report.

            The October 13, 2004, status report indicated the three boys had been placed together in a fos/dopt home.  A new section 366.26 hearing was set.  Appellant was provided notice of the October 28, 2004, hearing.  The matter was continued to confirm appellant's location.  On December 6, 2004, the social worker on the case called Pelican Bay State Prison and spoke with appellant.  Appellant stated he was in favor of adoption, confirmed his attempted murder conviction and sentence of 40 years to life, and stated he might be Jonathan's father.  He wanted to be present at the next hearing and requested a DNA test.  Appellant stated Mother had told him he was Jonathan's father.  The court appointed counsel to represent appellant and set a section 366.26 hearing for March 30, 2005.^[5]

            The Department's March 2005 report indicated the placement for S.M. had not been successful.  Jonathan and M.V. had bonded well with the fos/dopt family and stated they wanted to remain in the home forever.  S.M., however, had had a lot of difficulty adjusting and had to be removed after he started hurting his brothers.  Mother had visited once with the children, her first visit in three years.  S.M. was most hurt from the visit and did not want to see her again.  Jonathan and M.V. did not appear bonded to her during the visit.  The Department recommended any further visits with Mother should be terminated.  Paternal visitation and contact had been nonexistent. 

            The adoption assessment report observed the fos/dopt parents would make excellent adoptive parents who would provide Jonathan and M.V. with unconditional love and acceptance while also providing strong boundaries and consistent parenting.  In subsequent status reports Jonathan and M.V. revealed their excitement and happiness in their fos/dopt home.  They were adamant the pending adoption be accomplished.  S.M. wanted his brothers to live with him in his foster care placement, but his brothers did not want to move.  Long-term foster care was the recommendation for S.M.  Mother had renewed her visits with him, and supervised sibling visits and a phone conference were being scheduled for the brothers.

            Appellant was ordered transported for the section 366.26 hearing, which finally took place October 20, 2005.  He did not appear for the hearing, although he was represented by counsel.  Appellant's counsel objected to the Department's recommendation that his parental rights be terminated.  The court terminated both Mother's and appellant's parental rights.  Jonathan and M.V. were freed for adoption, and S.M. was placed in long-term foster care.

            Appellant appealed, and upon his request this court appointed counsel to represent him.  Appellate counsel submitted a brief under the authority of In re Sade C. (1996) 13 Cal.4th 952, People v. Wende (1979) 25 Cal.3d 436, and Anders v. California (1967) 386 U.S. 738 [87 S.Ct. 1396, 18 L.Ed.2d 493] setting forth a statement of the case, a summary of the facts, and potential arguable issues and requesting this court to undertake a review of the entire record.

            We have invited appellant to file a supplemental brief, and he has not done so.

            Even though we are not required to conduct an independent review of the record under In re Sade C., supra, 13 Cal.4th 952, we have done so.  We have completed that review and find no arguable issues.

            The judgment is affirmed.

            NOT TO BE PUBLISHED IN OFFICIAL REPORTS

RICHLI         

                        J.

We concur:

HOLLENHORST              

    Acting P.J.

GAUT          

                   J.

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

            ^[2]             Counsel in her brief asserts that appellant may also be the alleged father of S.M. and M.V.  However, other than the Department's indication in the July 10, 2001, petition that the names of the fathers of these minors were also unknown at the time of the filing of the petition, nothing else in the record would substantiate appellant's assertion as to his status as an alleged father with regard to those two siblings.  In fact, when finally contacted in 2004, appellant's only claim to potential paternity was as to Jonathan.  S.M.'s birth certificate listed a S.M., Sr., as his father, and a J.L. was later referred to as M.V.'s alleged father.  M.O.'s father has always been known to the Department; at the time of the filing of the petition, M.O.'s father was also incarcerated.

            ^[3]             Mother is not a party to this appeal.

            ^[4]             Jonathan and S.M., up until the time appellant's name surfaced in April of 2004, were initially identified as having the same last name, which like appellant's last name started with an M.  At the time reunification services were denied for the M. and V. fathers, appellant's existence and potential status as an alleged father to Jonathan remained unknown. 

            ^[5]             Appellant filed a notice of intent to file a writ petition on December 22, 2004.  His petition was dismissed on February 18, 2005, for failure to file a petition within 10 days of the filing of the record, pursuant to California Rules of Court, rule 38.1(c)(1).