Luis G. v. Superior Court

Filed 1/19/07  Luis G. v. Superior Court CA5

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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  This opinion has not been certified for publication or ordered published for purposes of rule 977.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

FIFTH APPELLATE DISTRICT

THE COURT^*

            ORIGINAL PROCEEDINGS; petition for extraordinary writ review.  Frank Dougherty, Judge.

Linda P. Groth, for Petitioner.

            No appearance for Respondent.

            Ruben E. Castillo, County Counsel, and James B. Tarhalla, Deputy County Counsel, for Real Party In Interest.

-ooOoo-

            Petitioner seeks an extraordinary writ (Cal. Rules of Court, rule 8.450-8.452 [formerly rule 38-38.1]) to vacate the orders of the juvenile court denying him reunification services and setting a Welfare and Institutions Code section 366.26 hearing^[1] as to his infant daughter B.  He argues, as B.'s presumed father, he was entitled to reunification services.  We concur and will grant the petition.

STATEMENT OF THE CASE AND FACTS

            Petitioner is the father of B. born in January 2005 to a woman, Maria, who is not his wife.  Maria has nine children including B.  Only B. was in her custody at the initiation of these proceedings.  Six of the children were in the custody of Maria's mother under a guardianship agreement.  The two youngest of those six children were also fathered by petitioner.  Maria also has a chronic drug problem, which, in January 2006, necessitated B.'s removal from her custody.

            At the time of B.'s removal, Maria identified petitioner as B.'s father.  Maria said petitioner lived with her when she was pregnant with B., was present for the delivery and remained with her and B. until he left in May 2005.  After that, he never returned or contacted her and she did not know his whereabouts. 

            The Merced County Human Services Agency (agency) filed a dependency petition identifying petitioner as B.'s alleged father and alleging under section 300, subdivision (b) that Maria's drug use placed B. at risk of harm (subdivision (b) counts) and under section 300, subdivision (g) that petitioner's whereabouts were unknown and he failed to provide support for B.  The agency also initiated a search for petitioner but was unable to locate him.  Meanwhile, the agency placed B. in a foster home.

            In February 2006, the court conducted the jurisdictional hearing and sustained the petition on the subdivision (b) counts.  The following March, at the dispositional hearing, the court ordered reunification services for Maria and set the six-month review hearing for September 11, 2006.  Meanwhile, petitioner's whereabouts remained unknown and, because he was merely B.'s alleged father, the court did not order reunification services for him.      

            Over the next six months, Maria failed to comply with her court-ordered services.  Consequently, in its report filed on September 8, 2006 for the upcoming six-month review hearing, the agency recommended the court terminate services and proceed to permanency planning.  At the time the report was written, petitioner's whereabouts were still unknown.

            On September 11, 2006, petitioner appeared at the six-month review hearing.  He confirmed that he was living with Maria when B. was born and continued to live with Maria and B. until May 2005.  He also stated that he is listed on B.'s birth certificate.  Based on petitioner's statements, the court elevated him to presumed father status and continued the matter until September 26, 2006.  The court also ordered the agency to provide a report addressing whether services should be provided to petitioner.

            The agency did not file an addendum report concerning services for petitioner.  Instead, on September 26, 2006, at the six-month review hearing, county counsel called petitioner to testify concerning his relationship with Maria and B.  Petitioner acknowledged being B.'s father and stated that he left Maria because they had a strained relationship and because he was ill.  He felt he needed to leave to tend to his health, which he claimed had improved.  After he left Maria, he did not inquire about his two children living with Maria's mother or about B. and did not provide support for them.  When asked why he did not contact B., he stated he believed Maria was taking care of B. and he had no idea the agency was involved.  He admitted knowing Maria is a drug addict but was not asked when he became aware of her drug problem.

            Petitioner further testified he learned of the dependency proceedings when he contacted Maria's mother several weeks before the September 11, 2006, hearing to inquire about his children.  He acknowledged his responsibility for B.'s care and expressed his desire to take care of her.

            Following argument, the court denied petitioner reunification services, concluding it would not be in B.'s best interest.  The court stated petitioner was irresponsible for believing B. would be properly cared for when he knew Maria was a drug addict.  The court also stated petitioner's failure to communicate with B. or involve himself with her demonstrated his lack of interest in her.  The court also terminated Maria's reunification services, denied visitation to both parents and set a section 366.26 hearing for January 24, 2007.  This petition ensued.

DISCUSSION

            Petitioner argues the juvenile court erred in denying him reunification services.  We agree.

As a presumed father, petitioner was entitled to reunification services pursuant to section 361.5, subdivision (a),^[2] absent the applicability of any one of 15 exceptions enumerated in section 361.5, subdivision (b) (subdivision (b)).  The agency did not argue or present evidence that petitioner's circumstances justified a denial of services based on any of the subdivision (b) exceptions.  Therefore, the juvenile court had no statutory authority to deny petitioner reunification services and, absent some other legal grounds for acting as it did, we must find that it erred.

Real party in interest argues the juvenile court was justified in denying petitioner reunification services because he failed to establish his presumed father status before services were terminated for Maria at the six-month review hearing.  For that proposition, real party quotes from In re Zacharia D. (1993) 6 Cal.4th 435 (Zacharia D.) where the court stated: â€