Filed 9/5/18 In re Wendy G. CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

THE COURT*

APPEAL from an order of the Superior Court of Kern County. Raymonda B. Marquez, Judge.

Alexis C. Collentine, under appointment by the Court of Appeal, for Defendant and Appellant.

Mark L. Nations, County Counsel, and Bryan C. Walters, Deputy County Counsel, for Plaintiff and Respondent.

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INTRODUCTION

Appellant Carlos R. (father) challenges the juvenile court’s denial of reunification services to him. He contends the juvenile court erred when it deemed him an alleged father, instead of a presumed father, and erred in denying reunification services even after elevating him to presumed father status. We agree the juvenile court erred and the error was prejudicial. We reverse.

FACTUAL AND PROCEDURAL SUMMARY

A Welfare and Institutions Code[1] section 300 petition was filed on behalf of Wendy G. on October 12, 2016, by the Kern County Department of Human Services (department). The petition alleged that Wendy came within the provisions of section 300, subdivisions (a), (b), and (g) based upon mother’s conduct; no allegations were made against father in the petition. Father was identified as an alleged father. At the time of intervention, Wendy resided with mother and was four years old. Wendy had an infant brother, C.M., who also was taken into protective custody and a separate section 300 petition was filed on his behalf.[2]

The juvenile court conducted an initial detention hearing on October 12, 2016. Mother provided testimony regarding the paternity of the children. Mother testified that she was residing with father when she became pregnant with Wendy; resided with him during the entire pregnancy; and father was at the hospital when Wendy was born. Father signed the necessary paperwork to be listed as Wendy’s father on the birth certificate; acknowledged he was Wendy’s father; and never denied paternity. Mother and father lived together with Wendy for three years after her birth. Mother testified there were no other possible fathers of Wendy.

As to C.M., mother and father lived together for three months of her pregnancy with this child. Father is not listed on the birth certificate for C.M., but has acknowledged that he is the father of C.M. Father has never lived with C.M.

Mother claimed the last time she saw father was in January 2016. She had no current work or home address for father and did not know father’s current whereabouts. Wendy had told the department her father worked in the “grapes,” but mother claimed that was just something she told Wendy.

At the conclusion of the initial detention hearing, the juvenile court continued to refer to father as an “alleged father” and scheduled a continued detention hearing; there was no finding as to paternity.

At the October 17, 2016 continued detention hearing, the juvenile court announced it would “continue to reserve on paternity matters.” The children were ordered detained from mother. A jurisdictional hearing was scheduled for November 30, 2016.

On November 29, 2016, a paralegal with the department filed a declaration regarding efforts to locate father. The declaration asserts, erroneously, that mother testified she and father were together for only three months. The paralegal stated she had searched the department’s records, Criminal Justice Information System, Department of Corrections website, Federal Bureau of Prisons, Consulate of Mexico, Kern County Sheriff’s website, City of Bakersfield Homeland Security, and various other websites, including Facebook. Father’s name did not appear in these sites.

Mother reported to one of the department’s paralegals that the last time she had contact with father, he was living in Lamont and mother identified the street. Inexplicably, the paralegal attempted to contact father at a different address in Lamont, without success. When the paralegal went to the address identified by mother, the owner stated that father had been living at that address, but father had not been working and she asked him to vacate the premises. The owner had not seen father since he moved out.

At the November 30, 2016 hearing, the matter was continued because mother’s counsel was seeking the appointment of a guardian ad litem for mother. The juvenile court appointed a guardian ad litem for mother.

The social study filed January 24, 2017, reflects father’s whereabouts are still unknown.

At the January 24, 2017 jurisdiction hearing, the juvenile court found the whereabouts of father to be unknown after reasonable efforts to locate father were unsuccessful. The juvenile court continued to refer to father as an “alleged father.” The section 300, subdivision (b) allegations of the petition were found true.

On August 29, 2017, the juvenile court denied reunification services to mother based upon section 361.5, subdivision (b)(2). Reunification services were not to be provided to father because “he is merely an alleged father who has not sought to establish paternity in this matter.” The juvenile court found reasonable efforts had been made to locate father and his whereabouts were unknown. The juvenile court determined that the children were to be returned to a parent or placed for adoption by April 6, 2018.

A section 366.26 hearing was scheduled for December 7, 2017.[3] On October 17, 2017, the department sought permission to publish notice to father of the proceedings in a newspaper of general circulation, which was granted. As of November 20, 2017, the department was in direct contact with father.

On December 7, 2017, father made his first appearance in the proceedings with counsel. Father filed a JV-140 form that day, setting forth his full street address in Lamont and his telephone number. Father also filed a JV-505 form regarding parentage as to C.M, and requesting DNA testing with C.M.

The department objected to DNA testing, asserting father was only an alleged father, the children had been in foster care since October 2016, and the department was requesting a termination of parental rights.

Counsel for father argued that DNA testing with C.M. should be completed and went on to state: “[A]t this stage, I am new to the case. I have not had the opportunity to review prior discovery to see if [father] received proper notice of prior proceedings; to see if his rights were violated in any fashion in past hearings, or to gather more background information concerning the issue of parentage and his opportunities or lack of opportunities to appear at these hearings.” Father’s counsel requested a continuance.

The juvenile court asked when father’s counsel had been appointed and counsel responded that he received a text message on November 14, stating “12-7, a.m., father [Carlos R.] and a case number.” The text did not indicate the type of hearing or the name of the social worker on the case. He received no other information until the 27th or 28th of November, when he received the section 366.26 report. Counsel stated he was “not waiving the 45 day notice that is required to be given to counsel for a parent” for the “setting of a .26 hearing or for a .26 hearing.”

During the afternoon portion of the December 7, 2017 hearing, counsel for father requested that father be elevated to presumed father status as to Wendy and requested visitation. The juvenile court noted that father was present at Wendy’s birth; was named as her father on the birth certificate; lived with Wendy and mother for three years after Wendy’s birth; held Wendy out as his daughter; and contributed to Wendy’s support.

The department objected to elevating father to presumed father status “at this hearing” because “the Court cannot terminate parental rights in regard to the father unless there’s a showing of detriment, which would then prolong the child’s situation, basically in limbo.”

The juvenile court deferred making a ruling on the issue of presumed father status and visitation and continued the hearing.

At the December 12, 2017 continued hearing, the juvenile court noted that father’s counsel was entitled to 45 days notice of the section 366.26 hearings, so counsel would be provided 45 days from the December 7, 2017 date to prepare. Paternity testing for father and C.M. was ordered.

The department objected to the juvenile court making a finding that father was the presumed father of Wendy. Counsel asked that father be elevated to presumed father status and stated, “a request for services” would be made if father was elevated to presumed status.

The juvenile court found that father “signed the voluntary declaration of paternity at the time of her birth; that the mother testified corroboratively in that respect; that he lived with Wendy and her mother from birth until some point in 2014; that he is Wendy’s presumed father.” The juvenile court ordered that supervised visitation be provided father. The order on parentage was filed December 12, 2017.

The matter was continued to January 22, 2018, for a continued section 366.26 hearing. Father remained after the hearing to meet with the social worker.

At the January 22, 2018 hearing, the juvenile court indicated father’s counsel had filed a section 388 petition as to each of the children.[4] The matter was continued to January 26, 2018.

The purpose of the January 26, 2018 hearing was to conduct a prima facie hearing on the section 388 petitions and a section 366.26 hearing. The DNA testing disclosed that father was the biological father of C.M. The juvenile court elevated father to the status of a biological father of C.M.

The juvenile court indicated that the petitioner in a section 388 petition had the burden of proof. Father’s counsel objected to that characterization, stating that father was the presumed father of Wendy and as such, was entitled to receive services under section 361.5. Counsel argued father was entitled to reunification services, and should not have to establish that providing services was in Wendy’s best interests.

The juvenile court inquired of counsel if it was father’s position that he was “entitled to placement and/or services” and counsel replied in the affirmative. The juvenile court held that the provisions of section 361.2 regarding placement of a child with a parent with whom the child was not residing at removal, applied “only at the time the child is first removed from the custodial parent.” The juvenile court further found that father failed to appear in the case until the section 366.26 hearing. The juvenile court held that if a father fails to achieve presumed father status before the expiration of the reunification period, he is not entitled to reunification services under section 361.5.

Visitation was ordered for C.M., Wendy, and father. The matter was continued to April 4, 2018, for an evidentiary hearing on the section 388 petitions and a section 366.26 hearing.

On January 29, 2018, father filed a notice of appeal, challenging the denial of his request for reunification services and citing the December 12, 2017, and January 26, 2018, hearings.

DISCUSSION

Father contends the juvenile court erred in not finding him to be a presumed father at detention and in denying him reunification services after he was found to be a presumed father.

1. Parentage

Presumed, Biological, and Alleged Fathers

There are three paternity designations recognized in dependency proceedings: presumed, biological, and alleged. A presumed father is one who satisfies one of the rebuttable presumptions set forth in Family Code section 7611, generally by marrying or attempting to marry the child’s mother; with consent, being named on the birth certificate; or by publicly acknowledging paternity and receiving the child into his home. (Fam. Code, § 7611, subds. (a)-(d).) A biological father is one whose biological paternity has been established, but who has not achieved presumed father status. (In re Zacharia D. (1993) 6 Cal.4th 435, 449, fn. 15. (Zacharia D.).) An alleged father is a man who may be the father of the child, but has not established biological paternity or presumed father status. (Ibid.)

A man’s paternity status is important because it determines his rights vis-à-vis his child. Only presumed fathers enjoy the full array of parental rights. A presumed father is entitled to custody of his child under section 361.2 and reunification services under section 361.5. (Zacharia D., supra, 6 Cal.4th at p. 451.) A biological father has no parental rights but may be offered reunification services if the court finds it would benefit the child. (§ 361.5, subd. (a).) An alleged father has no legal interest in the child until he establishes paternity. (In re O.S. (2002) 102 Cal.App.4th 1402, 1406 (O.S.).)

Establishing Parentage

Section 316.2, subdivision (a) and California Rules of Court[5], rule 5.635(a) and (b) require the juvenile court to inquire of the mother at the detention hearing, or as soon as practicable thereafter, as to the identity and address of all possible presumed fathers. As part of its inquiry, the juvenile court must determine whether parentage has been established through court order or a voluntary declaration under the Family Code. (Rule 5.635(c).)

The juvenile court “must direct the court clerk to prepare and transmit Parentage Inquiry—Juvenile (form JV-500) to the local child support agency requesting an inquiry regarding whether parentage has been established through any superior court order or judgment or through the execution and filing of a voluntary declaration under the Family Code.” (Rule 5.635(d)(2).) The local child support agency must complete and return the form within 25 days, along with certified copies of any voluntary declaration of paternity, or court order or judgment establishing paternity. (Rule 5.635(d)(3).)

If there are no prior determinations of parentage, the juvenile court must take appropriate steps to make such a determination. (Rule 5.635(e).) The court may make its determination of parentage based on testimony, declarations, or statements of the alleged parents. (Rule 5.635(e)(3).)

If after inquiry, an alleged father is identified, the court clerk must provide him a copy of the dependency petition, notice of the next scheduled hearing, and “Statement Regarding Parentage—(Juvenile)” (form JV-505) at his last known address by certified mail, return receipt requested, unless the petition was dismissed, dependency was terminated, the parent denied parentage and waived further notice or relinquished custody of the child. (Rule 5.635(g).)

If a person appears at a dependency hearing and requests a judgment of parentage on form JV-505, the court must determine whether that person is the presumed parent of the child, if that finding is requested. (Rule 5.635(h)(2).)

Analysis

Here, the juvenile court failed to comply with rule 5.635(d)(2) and direct that a JV-500 form be submitted to the local child support agency. The juvenile court did, however, inquire into paternity by accepting testimony from mother at the detention hearing as required by section 316.2. Mother’s uncontroverted testimony at the October 2016 detention hearing was that she was residing with father when she became pregnant with Wendy; resided with him during the entire pregnancy; and father was at the hospital when Wendy was born. Mother testified father signed the necessary paperwork to be listed as Wendy’s father on the birth certificate; acknowledged he was Wendy’s father; and never denied paternity. Mother and father lived together with Wendy for three years after her birth.

Mother’s uncontroverted testimony establishes that father met all the requirements of Family Code section 7611, subdivision (d) to be the presumed father of Wendy, by receiving the child into his home and holding the child out as his natural child. Because mother’s uncontroverted testimony establishes the rebuttable presumption, that presumption may be rebutted only by clear and convincing evidence. (Fam. Code, § 7612, subd. (a).) Father did not have the burden of producing more evidence, or taking further steps, to establish his presumed father status as to Wendy. (In re Liam L. (2000) 84 Cal.App.4th 739, 746-747.) Father did not have to be present at the detention hearing for the juvenile court to find he was Wendy’s presumed father. (In re Korbin Z. (2016) 3 Cal.App.5th 511, 514; In re Briana V. (2015) 236 Cal.App.4th 297, 303.)

Having concluded the trial court erred in not finding father to be Wendy’s presumed father at the detention hearing, we assess the prejudicial effect of that error.

2. Prejudicial Effect

The initial detention hearing was October 12, 2016. The juvenile court erred in not finding father to be the presumed father of Wendy on that date. We apply a harmless-error analysis in reviewing the error. (See In re Jesusa V. (2004) 32 Cal.4th 588, 624; In re Marcos G. (2010) 182 Cal.App.4th 369, 383.)

Here, the juvenile court conducted a continued disposition hearing in this case on August 29, 2017, and made a ruling on reunification services. Reunification services were denied to mother based upon section 361.5, subdivision (b)(2). Reunification services were not to be provided to father because “he is merely an alleged father who has not sought to establish paternity in this matter.”

The juvenile court also found that reasonable efforts had been made to locate father and his whereabouts were unknown.[6] Even if father had been elevated to presumed father status prior to this hearing, the juvenile court would have denied reunification services to father pursuant to section 361.5, subdivision (b)(1), which provides that reunification services need not be ordered for any parent whose whereabouts are unknown if reasonable efforts have been made to locate the parent.

If reunification services are denied a parent because the parent’s whereabouts are unknown, the juvenile court must set a six-month review hearing. (In re Jonathan P. (2014) 226 Cal.App.4th 1240, 1257 (Jonathan P.).) The purpose of this requirement is to provide a parent whose whereabouts are initially unknown, but who desires to reunify with a child, the opportunity to do so if the parent’s whereabouts become known within a reasonable period. (Ibid.)

Less than three months after the continued disposition hearing at which reunification services were denied, and well before the April 6, 2018 date set by the juvenile court for return of Wendy to a parent or placement for adoption, father was in contact with the department. As of November 14, 2017, counsel received a text message about representing father. By mid-November 2017 when father’s whereabouts became known, had father been elevated to presumed father status at the detention hearing, he would have been entitled to invoke the procedures of section 361.2, subdivision (a), as a noncustodial, nonoffending parent and assume custody of Wendy unless placement with father could be shown by the department to be detrimental to the safety, protection, or physical or emotional well-being of the child. (Rules 5.708(g), 5.710(a)(2); Jonathan P., supra, 226 Cal.App.4th at p. 1254.)

“A nonoffending parent has a constitutionally protected interest in assuming physical custody, as well as a statutory right to do so, in the absence of clear and convincing evidence that the parent’s choices will be detrimental to the safety, protection, or physical or emotional well-being of the child.” (In re A.A. (2012) 203 Cal.App.4th 597, 605.) Although section 361.2 is generally invoked when a juvenile court assumes jurisdiction over a child, “its procedures can be invoked at the six-month and 12-month review hearings.” (Rules 5.708(g), 5.710(a)(2); Jonathan P., supra, 226 Cal.App.4th at p. 1254.) Consequently, the juvenile court’s conclusion that the provisions of section 361.2 applied only at initial removal is erroneous.

Furthermore, as a presumed father whose whereabouts became known prior to the expiration of six months after reunification services presumptively were denied pursuant to section 361.5, subdivision (b)(1), father would be entitled to reunification services. (See Jonathan P., supra, 226 Cal.App.4th at p. 1257.) Father’s whereabouts were known to the department at least by November 14, 2017, which is well before the expiration of six months from August 29, 2017.

The department argues in this appeal that Wendy was part of a sibling group pursuant to section 361.5, subdivision (a)(1)(C) with her brother, C.M., and that father’s first appearance before the juvenile court occurred after the expiration of the maximum time period during which reunification services could be offered, thus no reunification services could be provided father. The department calculates the last date upon which reunification services could be provided as December 5, 2017. The department is mistaken.

Pursuant to section 361.49, Wendy would be deemed to enter foster care on December 5, 2016. The limitation on reunification services when the child is under three years, as C.M. was, is six months from the dispositional hearing, but no longer than 12 months from the date the child entered foster care as defined by section 361.49 “unless the child is returned to the home of the parent or guardian.” (§ 361.5, subd. (a)(1)(B).) Father was in contact with the department before the expiration of the 12-month maximum period the department claims applies in this case, and that contact triggered the department’s obligation to immediately seek a modification of the prior order and begin providing reunification services to father. (Jonathan P., supra, 226 Cal.App.4th at p. 1258.)

In addition, pursuant to section 361.5, subdivision (a)(1)(C), the juvenile court may limit the reunification period for some or all of the siblings in a sibling group to the lesser time period; it is not required to do so. Father’s constitutional right to the custody of his daughter Wendy cannot be adversely affected by deeming her to be part of a sibling group where father did not achieve presumed father status as to the sibling. (In re A.A., supra, 203 Cal.App.4th at p. 605; In re Valerie A. (2007) 152 Cal.App.4th 987, 1009, fn. 9.)

Furthermore, notwithstanding statutory time limitations, the juvenile court may continue reunification services for any child up to 18 months after the child was initially removed from parental custody. (§ 361.5, subd. (a)(3).) Eighteen months from initial removal in October 2016 would be April 2018, and April 6, 2018, was the date set by the juvenile court for return of Wendy to a parent or placement for adoption. Had father been accorded status as a presumed father at the detention hearing, he would have been entitled to services for a period of about four months from when he first appeared in juvenile court with counsel, before reaching the April 6, 2018 date.

The juvenile court erroneously determined that father did not assert his paternity until the section 366.26 hearing, and that father had the burden to establish, pursuant to section 388, that placement with father and reunification services to father were in Wendy’s, or the children’s, best interests, instead of placing the burden on the department to establish detriment. As addressed previously, father should have been elevated to presumed father status as to Wendy at the detention hearing and the presumption under section 361.2 applied to father’s request. Had father been elevated to presumed father status, there would have been a review hearing, not a section 366.26 hearing, and father would have been entitled to reunification services without the need to file a section 388 petition.

Moreover, a noncustodial parent makes a prima facie case of best interests under section 388 when the noncustodial parent requests custody post-disposition, as father did here. (In re Liam L. (2015) 240 Cal.App.4th 1068, 1085.) When there is a nonoffending, noncustodial parent requesting custody, “the standard of detriment is very high.” (In re Patrick S. (2013) 218 Cal.App.4th 1254, 1263.)

Conclusion

Here, the juvenile court’s denial of reunification services stems from its failure to elevate father to presumed father status at the detention hearing and apply the statutory and procedural provisions applicable to presumed fathers. Had father properly been accorded presumed father status of Wendy at the detention hearing, he would have presumptively been entitled to custody and reunification when he appeared in the proceedings, unless it was shown by the department to be detrimental to Wendy. (Rules 5.708(g), 5.710(a)(2); Jonathan P., supra, 226 Cal.App.4th at p. 1254.)

At the time of removal from mother’s custody, Wendy was four years old. Father had lived with Wendy for the first three years of her life. We cannot conclude under the facts of this case that erroneously depriving father of presumed father status at the detention hearing was harmless error; the juvenile court applied statutes and rules applicable to an alleged father to father, instead of according father the rights of a presumed father. This error led to the denial of reunification services and to requiring father to establish a right to reunification by way of a section 388 petition.

DISPOSITION

The order denying custody of Wendy and/or reunification services to father with Wendy is reversed. Upon remand, the juvenile court shall conduct a hearing in Wendy’s case applying the provisions of Welfare and Institutions Code section 361.2 to father.