In re M.L.

Filed 1/29/07 In re M.L. CA2/2

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.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

SECOND APPELLATE DISTRICT

DIVISION TWO

APPEAL from a judgment of the Superior Court of Los Angeles County.

Sherri S. Sobel, Temporary Judge. (Pursuant to Cal. Const., art. VI, 21.) Affirmed.

Rich Pfeiffer, under appointment by the Court of Appeal, for Defendant and Appellant.

Raymond G. Fortner, Jr., County Counsel, Larry Cory, Assistant County Counsel, William D. Thetford, Senior Deputy County Counsel, for Plaintiff and Respondent.

___________________________________________________

Appellant Orlando L., an alleged father incarcerated in Nevada, received notice of a dependency proceeding by certified mail. He did not communicate to the court or the social worker that he wished to participate in the dependency case. The jurisdiction/disposition hearing went forward without appellants participation. We conclude that appellant has no standing to appeal the dispositional order made by the court: he was given notice and an opportunity to be heard, yet failed to take any action to become a party to the proceeding.

FACTS

M. L., born in December 2004, is a medically fragile child and the youngest of eight children born to Eva B. (Mother). M.L. has a life-threatening feeding intolerance, intestinal blockage, and a congenital heart condition that requires a pacemaker. She receives all nutrition intravenously, and is hypersensitive to infection.

M.L. came to the attention of the Department of Children and Family Services (DCFS) in August 2005, when a hotline referral indicated that Mother was not providing appropriate care for M.L. A voluntary agreement was reached that allowed M.L. to remain in Mothers care while DCFS provided medical placement and family preservation services. During this period of voluntary supervision, M.L. was repeatedly hospitalized, suffering from infections. The institutions that provided M.L. with treatment and medical equipment regularly complained that M.L.s life was endangered by Mothers lack of follow-through. Mother was depressed, overwhelmed, and her vitality was compromised by lupus, which constrained her ability to execute all of M.L.s treatments. Due to Mothers neglect of the childs medical needs, M.L. was detained in February 2006.

Mother informed the DCFS social worker that appellant is M.L.s father. She did not know appellants whereabouts or how to reach him. Appellant had been arrested in July 2005, and paroled in January 2006. Mother indicated that appellant uses drugs, is frequently in jail, and never had a job. He generally lives with his own mother. Appellant visited M.L. some 20 times while she was hospitalized.

A petition was filed in the dependency court alleging that Mother failed to protect M.L. by providing the child with specialized medical care, including proper nutrition, which places M.L. at risk of physical and emotional harm, or death. The court found a prima facie case for detaining M.L. DCFS was ordered to provide family reunification services and to give proper notice to appellant.

DCFS was unable to locate appellant. As a result, the social worker did not interview appellant while preparing the jurisdiction report for the court. In her interview, Mother maintained that she took proper care of M.L. However, a hospital social worker stated that Mother was unable to provide appropriate long-term care for M.L. despite repeated teaching sessions at the hospital and during in-home visits. Mother was occasionally too weak to pick up M.L., and infrequently visited M.L. in the hospital.

DCFS concluded that Mother did not demonstrate an ability to utilize the supplies and machines needed to support M.L.s life. The childs continued infections jeopardize her health and life expectancy, and Mother has failed to obtain immediate medical attention when M.L. needs it. Given the severity of M.L.s condition, and Mothers history of inconsistent medical care, DCFS urged the court to place M.L. under its protection to assure her safety.

At a hearing in March 2006, the court inquired about appellants involvement in M.L.s life. Mother represented--though not under oath--that appellant held himself out as M.L.s father, had the child stay in the paternal grandmothers home (where appellant lives), but did not financially support the child. The court found that appellant is an alleged father only. DCFS was ordered to perform a due diligence investigation. M.L. was hospitalized at the time of the hearing. The court directed that she be detained in a foster home for medically fragile infants upon her release.

In April 2006, DCFS reported that appellant had finally been located: he was in jail in Las Vegas, Nevada, where he was arrested in March 2006 on suspicion of burglary and on a warrant issued by his California parole agent. On March 30, 2006, appellant was sent notice of the dependency proceeding by certified mail, to the jail in Las Vegas.

The jurisdiction/disposition hearing was conducted on April 13, 2006. The court found that appellant is the alleged father of M.L. It sustained the amended petition, finding that a substantial danger exists to M.L.s physical health due to her unique medical condition, and there is no reasonable means to protect her without removal from Mothers custody. Mother was unable to provide M.L. with the kind of specialized medical care that the child requires. M.L. was declared a dependent of the court, and placed in the custody of DCFS, in a medical center treatment facility. The court denied family reunification services for appellant. One week after the court made its rulings, appellant filed his notice of appeal.

DISCUSSION

1. Sufficiency of the Notice of Appeal

The County argues that this Court has no jurisdiction to consider the appeal because appellant did not specify what he was challenging in his notice of appeal. The notice of appeal indicates that appeal is taken from the courts declaration of dependency pursuant to Welfare and Institutions Code section 360.^[1] The dispositional order is the first appealable order in the dependency process. (In re Sheila B. (1993) 19 Cal.App.4th 187, 196.)

The notice of appeal is adequate to confer appellate jurisdiction. It is properly taken from the dispositional order. The notice must be construed liberally, particularly because it was prepared by appellant, acting in propria persona, without the benefit of an attorney. (In re Josiah (2002) 102 Cal.App.4th 403, 418.) Although the notice of appeal does not mention the courts ruling on appellants status as an alleged father, or its denial of reunification services due to appellants status, these rulings are part of the order being appealed. Because the liberally construed notice of appeal encompasses the findings of the juvenile court, the finding that appellant is an alleged father with no right to reunification services is reviewable. (See In re Baby Boy V. (2006) 140 Cal.App.4th 1108, 1115 [alleged fathers handwritten, pro se notice of appeal does not restrict the scope of appellate review because it plainly challenged the dependency court findings, among which was the courts refusal to grant a request for a paternity test].)

2. Standing to Appeal

The County argues that appellant lacks standing to appeal. An alleged biological father who appears at the earliest practical point and attempts to join the dependency proceeding has standing to appeal. (In re Baby Boy V., supra, 140 Cal.App.4th at pp. 1115-1117.) The alleged father may attempt to join the proceeding by promptly asking the dependency court for a finding of paternity, blood testing, reunification, or any other relief. (In re Joseph G. (2000) 83 Cal.App.4th 712, 714.)

In re Paul H. (2003) 111 Cal.App.4th 753 illustrates the measures an alleged father must take to achieve standing in a dependency case. There, the alleged father addressed the court at the jurisdiction hearing and indicated that he might be the minors father. He then worked diligently to try to establish paternity. Without considering the alleged fathers efforts, the court terminated parental rights. (Id. at pp. 756-758.) The appellate court found that the alleged father had standing to appeal because he appeared at the hearing and asserted a position, i.e., his possible paternity. He took immediate steps to become a party once he was notified of the dependency proceedings. He contacted the social worker, appeared at the next court hearing, communicated to the court that he might be the minors father and attempted to complete paternity testing. Under such circumstances, appellant has standing on appeal to raise issues concerning his parental interest in the minor. (Id. at p. 759.)

In the instant case, appellant did nothing to suggest, prior to or at the jurisdiction hearing, that he wanted to become involved in the case. He did not take immediate steps to become a party. He did not contact the social worker, communicate to the court that he might be M.L.s father, or attempt to have paternity testing. By failing to timely react to the notice of the dependency proceeding, appellant did not become a party to this action. An alleged father is not a party to a dependency proceeding until he appears in the action. (In re Claudia S. (2005) 131 Cal.App.4th 236, 248. ) Until he appears and asserts a position, an alleged father is simply an interested person entitled to notice of the proceedings. (In re Emily R. (2000) 80 Cal.App.4th 1344, 1356.) Notice alone does not make him a party. (Id. at p. 1357.) At this point, appellants interest in M.L. is no more than a potentiality. Without a current interest in M.L. and without being a party to the dependency proceeding, appellant lacks standing to pursue this appeal.

Appellant complains that he was deprived of adequate notice. Due process requires notice reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity present their objections. (Mullane v. Central Hanover Bank & Trust Co. (1950) 339 U.S. 306, 314 [ ]. (In re Claudia S., supra, 131 Cal.App.4th at p. 247.) In this case, appellant received a Notice of Hearing on Petition by certified mail, 10 days before the hearing. The notice advised appellant that he had the right to be present at the hearing, and to be represented by appointed counsel.

Upon receiving the notice of hearing, appellant did not assert a position by advising the court that he wished to participate and seek presumed father status, nor did he ask the court to appoint counsel to represent him at the hearing. Instead, appellant allowed the hearing to go forward without his participation or objection. Because appellant received written notice of the hearing, and was given an opportunity to be heard, he cannot claim that his due process rights were violated.

3. Absence of Reversible Error

The dependency process did not have to be suspended, and the courts rulings cannot be overturned, merely because appellant failed to receive a judicial council form regarding paternity (Form JV-505), which should be included with the notice of the dependency hearing. ( 316.2, subd. (b); Cal. Rules of Court, rule 5.635(g) [former rule 1413(g)].) Form JV-505 allows an alleged father to check boxes next to preprinted statements through which he may indicate his position with regard to paternity and representation by counsel, and contains an advisement to alleged fathers regarding reunification, the right to a court trial to determine paternity and the right to be represented by counsel at such trial. (In re Paul H., supra, 111 Cal.App.4th at p. 761.)

Although the County and the court clerk were remiss in failing to mail Form JV-505 to appellant, their failure did not constitute a due process violation. Due process for an alleged father requires only that the alleged father be given notice and an opportunity to appear and assert a position and attempt to change his paternity status. (In re Paul H., supra, 111 Cal.App.4th at p. 760.) As stated above, appellant received notice of the dependency proceeding. However, unlike the alleged father in Paul H., appellant did not communicate to the court at or prior to the jurisdiction hearing that he wished to assert paternity. The circumstances that were present in Paul H. are not present here. (Id. at p. 759.)

While the failure to provide appellant with Form JV-505 was an error, we disagree with the dissents conclusion that it amounts to reversible error. The state constitution expressly limits reversals in the event of a procedural error: No judgment shall be set aside, or new trial granted, in any cause . . . for any error as to any matter of procedure, unless, after an examination of the entire cause, including the evidence, the court shall be of the opinion that the error complained of has resulted in a miscarriage of justice. (Cal. Const., art. VI, 13.)

Reversal is not required merely because a statutory procedure was not followed. The Supreme Court instructs us to apply a harmless-error analysis when a statutory mandate is disobeyed, except in a narrow category of circumstances when we deem the error reversible per se. (In re Jesusa V. (2004) 32 Cal.4th 588, 624.) In Jesusa V., the issue was whether an incarcerated biological father had a right to personally attend the hearing at which the juvenile court adjudicated the dependency petition. (Id. at p. 621.) The Supreme Court found that the biological father had a right to attend the hearing: the controlling statute requires both the prisoner and the prisoners attorney be present before the juvenile court may adjudicate the dependency petition. (Id. 622.) As a result, the juvenile court erred in proceeding without the biological fathers presence. (Id. 624.)

Continuing with its analysis, the Supreme Court in Jesusa V. determined that any error resulting from the involuntary absence of the biological father was harmless. No constitutional provision or rule required the fathers presence at the dependency hearing. (Ibid.) Moreover, there was no showing that a different outcome would have resulted, had the error not been made. (Id. at p. 625.) The legislative requirement that dependency actions be resolved expeditiously would be thwarted if the proceeding had to be redone without any showing the new proceeding would have a different outcome. (Ibid.)

Even if appellant had been served with Form JV-505, it would not have changed the outcome of the jurisdiction/disposition hearing. At best, appellant would have completed the form and requested a paternity test. But, [u]nless and until appellant was able to elevate his status to that of a biological or presumed father, the only issues on which he was entitled to assert a position concerned his parental status and his intent and desires regarding the minor if his paternal status became more than just a potentiality. (In re Christopher M. (2003) 113 Cal.App.4th 155, 160.)

Appellants parental status was no more than a potentiality at the time of the jurisdiction/disposition hearing. Without a current parental interest in the issues then pending before the court, appellant could not have prevented the court from finding that a substantial danger exists to M.L.s physical health due to her unique medical condition. Appellant could not have prevented M.L. from being placed in a medical center treatment facility. Finally, even if he had received Form JV-505 and had requested paternity testing, appellant would not have been entitled to reunification services at the time of the disposition hearing, due to his status as an alleged father. (In re Paul H., supra, 111 Cal.App.4th at p. 760.)

In short, any error resulting from the failure to serve appellant with Form JV-505 was harmless. (See In re Kobe A., 2007 Cal.App. Lexis 53 (Jan. 17, 2007, B190595) __ Cal.App.4th. __ [2007 Cal.App. Lexis 53].) Appellants presence at the hearing was not required by constitutional provision or rule. It was not reasonably probable the result would have been more favorable to the appealing party but for the error. (In re Celine R. (2003) 31 Cal.4th 45, 60.) M.L.s life is endangered by her medical condition, and the juvenile court was obliged to proceed expeditiously, without awaiting any future resolution of appellants status. The outcome of the jurisdiction/disposition hearing was unaffected by appellants nonreceipt of Form JV-505.

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.

BOREN, P.J.

I concur:

CHAVEZ, J.

DOI TODD, J.Dissenting

Because I disagree with the majority opinion on the issues of appellants standing and the sufficiency of the notice of the hearing that was provided to appellant, I dissent.

An alleged biological father who appears at the earliest practical point and attempts to join the dependency proceeding has standing on appeal. (In re Baby Boy V. (2006) 140 Cal.App.4th 1108, 11151117.) The alleged father may attempt to join the proceedings by promptly asking the dependency court for a finding of paternity, blood testing, reunification, or any other relief. (In re Joseph G. (2000) 83 Cal.App.4th 712, 714; In re Paul H. (2003) 111 Cal.App.4th 753, 759.)

To assist an alleged father in joining the dependency proceedings, DCFS must give adequate notice. Due process for an alleged father requires only that the alleged father be given notice and an opportunity to appear and assert a position and attempt to change his paternity status. (In re Paul H., supra, 111 Cal.App.4th at p. 760.) The notice must state that the child is the subject of dependency proceedings, and a Judicial Council form Paternity-Waiver of Rights (form JV-505) shall be included with the notice. ( 316.2, subd. (b), italics added.) Likewise, rule 1413(g) of the California Rules of Court requires that the court clerk provide form JV-505 to each alleged father by certified mail.

Form JV-505 contains an advisement to alleged fathers regarding reunification, the right to a court trial to determine paternity and the right to be represented by counsel at such trial. (In re Paul H., supra, 111 Cal.App.4th at p. 761.) It instructs the alleged father: If you wish the court to determine paternity or if you wish to admit that you are the father of the child, complete this form according to your intentions. (Ibid.) And it allows an alleged father to check boxes next to preprinted statements through which he may indicate his position with regard to paternity and representation by counsel.

There is no dispute that the County failed to provide appellant with form JV-505 when he was notified of the dependency proceeding. The County argues that this error was harmless because appellant was incarcerated in the State of Nevada at the time of the jurisdiction and disposition hearings . . . . (RB 1-2) I would conclude that this error was particularly harmful because appellant was incarcerated out of state. Surely an incarcerated alleged father is precisely the person the Legislature intended should receive this form when it enacted section 316.2, subd. (b). As such I find unpersuasive the Countys contention that appellants incarceration somehow rendered unnecessary his right to receive, complete, and return the statement of paternity.

The procedures set forth in section 316.2, subdivision (b), and rule 1413 provide an alleged father with the notice to which he is entitled and the means by which to assert a position and attempt to change his paternity status. (In re Paul H., supra, 111 Cal.App.4th at p. 761; accord, In re Claudia S. (2005) 131 Cal.App.4th 236, 248, and In re Eric E. (2006) 137 Cal.App.4th 252, 257: Each alleged father is entitled to notice that the child is the subject of dependency proceedings. [Citation.] Section 316.2 is designed to protect the alleged fathers limited due process rights. [Citation.] An alleged father is entitled to notice so that he can challenge his paternity status.) By failing to send appellant the statutorily required form, he was denied access to a procedure by which he could have compelled court-ordered paternity testing, as well as assistance from the social services agencies in arranging for such testing. (In re Paul H., supra, at p. 761.)

Furthermore, under the circumstances here, I cannot conclude that appellant waived his right to assert his desire to participate in the proceedings because he was dilatory. Appellant was incarcerated out of state when he was sent notice of the proceeding on March 30, 2006 for the hearing set on April 13. And while the notice form does advise the recipient of his right to be represented by an attorney, the notice alone does nothing to advise the person of how to proceed. That is precisely the purpose of form JV-505.

Although appellant did not participate in the proceedings on April 13, just one week later he filed his notice of appeal from the orders of the court. Had he had form JV-505, he would have had a far greater opportunity to timely communicate his interest and intentions with respect to the proceedings; the county would have satisfied its obligations, and the court would have been in a position to consider his position on the merits.

Unfortunately, neither the County nor the court clerk satisfied the mandates of section 316.2 and rule 1413 by giving the required notice to appellant, as the alleged father. The error was not waived by appellants incarceration, and it is not harmless, inasmuch as it prevented appellant from changing his paternity status and participating as a party of record in the dependency proceeding.^[2] As such, I would reverse the portion of the order of April 13, 2005 denying appellant reunification services and remand the case for further proceedings.

______________________________, J.

DOI TODD

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

^[2] Even if appellant manages to obtain presumed father status, he is not assured of reunification services due to his incarceration. ( 361.5, subd. (e)(1).)