In re Matthew O.

Filed 4/24/07 In re Matthew O. CA2/3

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION THREE

ORIGINAL PROCEEDINGS in mandate. Sherri S. Sobel, Temporary Judge. (Pursuant to Cal. Const., art. VI, 21.) Petition denied.

Susanna Warner, under appointment by the Court of Appeal, for Petitioner.

No appearance for Respondent.

Raymond G. Fortner, Jr., County Counsel, Larry Cory, Assistant County Counsel, and Jacklyn K. Louie, for Real Party in Interest.

Nicole Johnson for Minor.

In this juvenile court dependency case (Welf. & Inst. Code, 300 et seq.),[1] Johnny V., the biological father of Matthew G. (Father and Matthew, respectively), has filed a petition for extraordinary writ seeking relief from an order of the dependency court that set as section 366.26 hearing. ( 366.26, subd. (l).) His specific contentions are that the trial court erred when it denied his section 388 petition whereby he sought presumed father status, reunification services, and visitation with the minor child, and his parental rights were thwarted by the dependency system and courts. Our review of the record convinces us his contentions are without merit. We will therefore deny his petition.

BACKGROUND OF THE CASE

1. OrangeCounty Proceedings

a. Section 300 Petition

This case initiated in Orange County. The section 300 petition was filed on November 7, 2005, when Matthew, who was born in January 2005, was nine months old. Matthew was being detained at the Orangewood Childrens Home at the time, having been taken into protective custody on November 4, 2005 by the Huntington Beach Police Department when his mother, Christina T. (Mother), was arrested. The charges against Mother were driving under the influence of alcohol/drugs, driving in that condition with Matthew in her vehicle, possession of controlled substance paraphernalia, and providing false information to a police officer. Besides alleging the arrest of Mother on such charges, the sustained section 300 petition also alleged, among other things, that Matthews alleged father was incarcerated in Corcoran state prison and had failed to maintain a relationship with the child and provide day to day care for him.

b. Detention and Adjudication

A detention report was prepared by the Orange County Social Services Agency, Children and Family Services (the Agency). It lists a Steven G. as Matthews alleged father because Mother represented to the Agency that he is named on the minors birth certificate. (Actually no one is named on the certificate as minors father.) At the detention hearing held on November 8 and 10, 2005, the court found a prima facie case for detaining the minor and placed temporary custody and care with the Agency. Attorneys were appointed for Mother and Steven G. and monitored visitation for them was ordered.

A January 31, 2006 Agency report for the February 1 adjudication hearing states Matthew was placed in a foster home on January 17, 2006. (Matthew has never been replaced from that foster home.) Mothers whereabouts were unknown, and she had still not visited the minor since he was taken into protective custody. Steven G. signed a waiver of his right to be physically present at hearings in this matter.

On March 15, Mother pleaded no contest to the allegations in the petition and the matter was submitted on behalf of Steven G. The court found Matthew is a person described by section 300 and it set a disposition hearing for April 26. Paternity testing and funding were authorized.

c. Disposition

A report from the Agency for the April 26 disposition hearing states Father telephoned the social worker on April 20 claiming to be Matthews father. He stated he dated Mother for a short period of time, was present when Matthew was born, and was not listed on the birth certificate because Mother was angry with him when she completed the form. He also stated he had no contact with Mother since Matthew was born and he was currently a resident, pursuant to court-order, in a drug treatment center in Acton called Acton Drug Treatment. (He contradicted some of those statements by his testimony at hearing held in 2007.) Father also stated he has a drug history dating back 15 years, was sentenced to prison for his drug use and successfully completed parole, and his drug of choice is methamphetamine. He has three other children, by two women, and the youngest of the children is 17 or 18 and lives with the childs mother. The social worker provided Father with the coming court dates and he asked for an attorney for the dependency case.

Mother telephoned the social worker on April 21. Asked about Father, Mother stated her belief that Father is the minors father, and said she dated him approximately seven months. She denied he was present when Matthew was born. She said her relationship with Father was bad, and on several occasions he hit her with his hands and forced her to do things she did not want to do. She stated Father is a drug user and uses methamphetamine frequently, is a long time Rancho San Pedro gang member who goes by the name Bones, and was involved in a double homicide at his parents home in 2004 that was investigated by the Harbor Division of the Los Angeles Police Department. Mother stated she kept Matthew away from Father because she did not want to be involved in his gang activity. She did not respond when asked why she did not provide Fathers name earlier. A counselor at Corcoran prison informed the social worker that said facility did not allow paternity testing and he stated Steven G. could be tested after he was released and on parole.

At the April 26 hearing, Father appeared and counsel was appointed for him. Although the proceedings were reported, there is no reporters transcript in the record. The court stated it would defer the issue of paternity. The court also stated it would defer visitation as to Father but stated the Agency was authorized to facilitate visitation if possible. (Italics added.) The disposition hearing was continued to May 9 because of the appointment of new counsel.

On May 9, the court found notice was given to all parties. Although the proceedings on that day were recorded, there is no reporters transcript in the record. Fathers attorney made an oral motion for a continuance which was denied. Fathers attorney questioned Mother on the issue of paternity. The court declared Matthew a dependent child, custody was vested in the Agency, and the court set a hearing for June 12 to address the issue of transferring the case to Los Angeles County because of parental address.

2. Los AngelesCounty Proceedings

a. Transfer Hearing

On June 13, 2006, a hearing was held in the dependency court in Los Angeles County and the court accepted transfer of the case. Although Mother and Steven G. were both noticed for the hearing, neither appeared. Each was appointed counsel by the court. Father was apparently not given notice of the hearing and he also did not appear. He had completed his residential drug treatment program approximately three weeks prior to the June 13 hearing. The court ordered Matthew would remain a dependent of the court and suitably placed. Although there was a reporter present, no reporters transcript appears in the record for that hearing.

b. Section 366.21, Subdivision (e) Six-Month Review Hearing

The Los Angeles County Department of Children and Family Services (the Department) filed a report for the July 20 six-month review hearing. It lists Steven G. as Matthews alleged father. It states Matthew continued in his foster placement where he was placed six months earlier and he appeared to be doing fine. Mother and Steven G. were both served with notice of the hearing. Father was not served.

At the July 20 hearing, Steven G. and Father did not appear, nor did Mother because she was pregnant and was about to deliver her baby. The court found Mother was in compliance with her case plan but had not done enough to have the child back full time. As to Mother, the court continued reunification services and set a section 366.21, subdivision (f) 12-month hearing on January 18, 2007.

Regarding Steven G., the court observed he is an alleged father, is in state prison, had done nothing and hasnt even seen the child. The court added it had probably appointed an attorney for Steven G. because the Orange County court appointed one for him. Regarding Father, the court noted Father appeared in court in Orange County on April 26, 2006, represented to the court that he is the minors father, an attorney was appointed for him, and the Orange County court deferred the issue of paternity.

The court ordered the Department to check on the paternity status and determine if paternity tests were done, and it continued the section 366.21, subdivision (e) hearing to August 10, 2006 as to Steven G. and Father for results of DNA testing to determine who is Matthews biological father.

The Departments report for August 10 states Fathers first call to the Department was on August 3, 2006. (A subsequent report, prepared by a different social worker, states Father contacted the Department on July 27, 2006 and expressed an interest in visiting Matthew, whom he identified as his biological child.) When asked by the social worker if he had participated in paternity testing as order[ed] by Orange County Court, Fathers nonresponsive reply was that he had not attended the next hearing because he had been relocating from Lancaster to Chula Vista. He provided an address and telephone numbers for himself and he indicated he would participate in paternity testing. He provided a letter sent to the Harbor Probation Department from the County of Los Angeles Department of Health Services Antelope Valley Rehabilitation Centers which states Father completed a substance abuse program at Acton Rehabilitation Center, which is a residential program that lasts 90 to 120 days. Regarding Steven G., the Department confirmed what the Agency in Orange County had been toldthat the prison where Steven G. is incarcerated does not provide paternity testing. Father, Mother and Steven G. were all noticed for the August 10 continued six-month review hearing.

On August 10, Father appeared at the hearing and counsel was appointed to represent him. There is no reporters transcript although a reporter was present. The court made an order for appointment of an expert under Evidence Code section 730 for paternity testing with the report to be filed on or before January 18, 2007, the date set for the section 366.21, subdivision (f) 12-month hearing, and continued the case to that date.

c. The Section 366.21, Subdivision (f) 12-Month Permanency
Hearings

(i) January 18, 2007

The Departments report for the January 18, 2007 12-month permanency review hearing states the social worker at the foster family agency reported Matthew was doing well in his foster home and the foster parents were willing to adopt him. Mother was visiting him twice a month and was loving, affectionate and playful with him, and cared for his needs and safety. Mother stated she could not visit him more because of caring for her newborn and her transportation restrictions. She had been discharged from Tarzana Drug Treatment Program on October 10 because of inconsistent attendance, failure to participate in group and individual counseling, and failure to drug test. Mother moved from San Pedro to Needles and on December 21, Mother told the social worker she realized she needed to reenter a drug treatment program.

Regarding Father, the report states that since the August 10 hearing, the social worker had telephone contacts with Father on August 22 and November 22, 2006. Father told the social worker on November 22 that he was having a difficult time living his own life and so he simply wanted visitation rights with Matthew. Mother told the social worker that at her last contact with Father, which she stated occurred about six months earlier, Father told her that if he could not have a relationship with her, he did not want one with Matthew and he would not provide any support for the minor or visit him.

Social workers attempted to call Father on December 16 and January 16 to discuss his interest in visitation but the two telephone numbers for Father were not in service. A separate one-page report from the Department for the January 18 hearing states that Father contacted the social worker on January 17 to inquire about the paternity test results and he was advised that he is the biological father of Matthew. Once advised of his biological status, Father requested family reunification services, stated he was interested in securing custody of Matthew, and said he would engage in drug testing and visitation with the minor to build a parent-child relationship.[2]

At the January 18, 2007 hearing, Father appeared, Mother did not. The court ordered that Father and the paternal grandmother (PGM) could have monitored visits with Matthew once a week, with a Department approved monitored, but the subject of paternity could not be discussed with the minor. The section 366.21, subdivision (f) permanency hearing was continued to February 6, for a contest.

(ii) February 6, 2007 Report

The Departments report for the continued section 366.21, subdivision (f) hearing recommended that no reunification services be provided to Father. The report contains differing statements from Mother and Father regarding Fathers involvement in Mothers and Matthews lives. Additionally, Fathers own statements differ from those he made to the Orange County Agency social worker. As noted above, a report for the April 26, 2006 disposition hearing held in Orange County states Father telephoned the social worker there on April 20 and asserted he is Matthews father. He also told the Agency social worker he was present when Matthew was born and he had no contact with Mother since then. In contrast, Father told the Department social worker on January 24, 2007 that he was not sure Matthew was his son until the DNA test indicated he is the father, and he indicated that after Matthew was born, Mother moved back in with Father for three months. Thus, there are at least two inconsistencies between his statements to the social workers in the different counties. Father also stated to the Department social worker that he sold drugs because he had no job and money to support Mother and Matthew, and after he was arrested for drug trafficking, he was sentenced to prison for two years and released on probation after serving 12 months, and will be on probation until 2008.

Mothers version of Fathers involvement in her and Matthews lives is that Father was not present when the minor was born, he has never provided financial support for the child, and he physically abused her during the time she and he lived together. She stated the abuse was recorded in Harbor Division police reports. She left Father when she was two months pregnant because she was afraid of him, and she is still afraid of him. She stated Father uses and sells drugs, and when she and he were together, he lived off his parents rather than work, and spent his time using drugs and alcohol and engaging in gang violence. She stated she does not want him to have any contact with Matthew and wants him to leave her and the minor alone. The MGM stated that when Father learned Mother was pregnant, he denied he is the minors father and he did not support her.

Despite his statement that he was with Mother when the minor child was born, Father stated in a section 388 petition he filed on February 5, 2007 that Mother called him and asked him if he wanted to see Matthew being born but he could not be there when the minor was born because he was out of town. Despite his statement to the Department social worker that he and Mother lived together for three months after Matthew was born until he went to jail, in his section 388 petition, he stated he and Mother and Matthew lived together until he went to [his] program. He stated that because the three of them lived together, he and Matthew developed a father-son relationship. He stated it was the birth of Matthew that motivated him to change [his] ways of living and he moved to Chula Vista to be away from his friends, and he is now living a good life and wants the minor to be a part of it. These representations were made by Father in a handwritten unsworn statement filed in support of his section 388 petition.

By his section 388 petition, Father sought status as a presumed father, reunification services, and an order for visitation. The petition states this would allow father to continue to maintain and strengthen his relationship with his son, and to reunify with his son. The child would benefit in that he would have a relationship with his natural father and the opportunity to be placed with his father at the conclusion of reunification services.

(iii) February 6, 2007 Hearing

The February 6, 2007 hearing addressed both the continued 12-month permanency hearing and Fathers section 388 petition. Father appeared at the hearing, Mother did not. The court observed the case was at 15 months and Mother had dropped out of all of her programs and hasnt seen the child since last October. Both Father and the Departments then-current case social worker testified at the hearing.

Asked if he was at the hospital when Matthew was born, Father testified he was not. He was staying with the MGGM at that time in Riverside and he had no means of transportation to San Pedro where Matthew was born. However he went to the hospital the next day. Father added that because the minor had to remain in the hospital for a month because he had pneumonia, Father went to the hospital every day to see the child. Mother was there too. Father did not speak to the doctors or nurses. He stated the child was on a breathing machine at the hospital and was still using the machine after he left the hospital and so Father learned how to operate the breathing machine for Matthew. Mother took Matthew to the MGMs house when the minor was discharged but two weeks later Father and Mother decided to get back together on a trial basis and so Matthew and Mother came to live at the PGMs house. Father administered the breathing machine for the minor and assisted in the childs care every day. He supported Mother and Matthew by renting a room for them from his Mother. His mother supplied food. That living arrangement ended when Father was taken into custody and then later placed into the program in Acton. He stated he was in custody for approximately four months and then in the program for approximately six months. (The letter from Acton states he was in the program for four months.)

Father stated he believed that Matthew was his son. He asked Mother to put his name on the minors birth certificate but Mother ignored him. At the hospital, Mother introduced him as the minors uncle and he objected to that. There was no reason for him to believe the minor was not his child because he and Mother planned to have this baby together.

Father testified he found out from a friend that Matthew had been detained by the dependency court. He needed permits to leave his residential drug treatment program and so after the first time he went to the dependency court in Orange County, he never went back to that court because he would be put out of the program if he left and did not have a pass. (Father never actually said that he was denied a pass to attend the subsequent Orange County hearings.) After he completed his program he contacted his attorney in Orange County and was informed the case had been transferred to Los Angeles. He did not have contact with Matthew at that time because when he came to court in Los Angeles and asked to be recognized as Matthews father, no visitation orders were made. He had his blood drawn immediately after the August 10, 2006 order for DNA testing was made but it took a long time for the testing to be finished. (Actually, the record shows that Fathers blood was drawn on November 17, Matthews was drawn on December 6, and the laboratory results were completed by mid‑December.)

Father stated that although the court made a visitation order for him on January 18, 2007, as of the day he was testifying (February 6), he still had not visited with Matthew. Asked why there had been no visits, Father stated the social worker told him he could not visit the minor until after the social worker interviewed and tested Father to determine Fathers recovery, and that would occur after the February 6 hearing. Asked if he had attempted to visit, Father stated he had been trying to call and had been calling and calling the social worker. He thought the name of the social worker was Outs or Ouks. Asked where he would live if he reunified with the minor, Father stated he would live with the PGM in San Pedro. He stated he had a relationship with Matthew. He taught Matthew how to play patty cake, and Matthew got to know me as daddy. That was at a time when Matthew was not walking; he was just barely sitting up.

Asked whether he provided Mother with funds to assist her during her pregnancy, Father gave a nonresponsive answer, but when he was asked the same question by the court he answered no. He did not know whether Mother had medical care when she was pregnant. During Mothers pregnancy he purchased a pacifier, bibs, diapers and stuff like that for Matthew, as well as a dresser and a bunny rabbit. He gave those things to Mother. He told the PGM, the PGGM, and two of his friends that he was expecting a child. He stated Mother left him because Mother had a drug problem and when he quit selling drugs Mother left to go find them.

Department social worker Leakhena Pel testified he began working on this case on December 21, 2006. However, he also stated he first spoke with Father in early December. Pel denied telling Father he could not visit with Matthew until after the February 6 hearing date. Instead, he encouraged Father to visit the child. Although he told Father to contact him when he wanted to see Matthew and the visits would be arranged for him, Father never contacted him. Father appeared to be discouraged that he could not tell Matthew he is his father. Asked why he recommended, in his one page information for court officer filed for the January 18 hearing that Father be given reunification services, and then later decided that Father should not be given such services, Pel stated he changed his mind because after interviewing Father, Mother and the MGM, he decided Father did not meet the definition of a presumed father.

After hearing argument from the attorneys, the trial court denied Fathers section 388 petition, finding that Fathers activities did not show that he rose to the status of a presumed father, and that granting reunification services to Father would not promote Matthews best interests.[3] However, the Department was given discretion to permit Father some monitored contact with the minor, so long as the foster parents assented to such visits.

The Department was ordered to provide permanent placement services in the case, and a section 366.26 hearing was set for June 5, 2007. Thereafter, Father filed notice of his intent to file a petition for extraordinary writ.

ISSUES RAISED BY FATHER

Father contends his section 388 petition should have been granted. He asserts he was seriously thwarted in his efforts to promptly establish his paternity and his commitment to Matthew, and he contends his right to reunite with Matthew and parent him was not facilitated and protected by the dependency court.

DISCUSSION

1. Presumed Father Status

Dependency courts are concerned with natural, alleged, and presumed fathers. A natural father is one whose biological paternity is established but who has not achieved the status of a presumed father. An alleged father is a man whose biological paternity has not been established, or who has not achieved presumed father status. Presumed father status (presumed to be the natural father) is determined pursuant to Family Code section 7611, under which marriage with the mother, attempted marriage with the mother, and treating a child as his own are factors to consider in determining whether a man has a presumed father status.[4]

Presumed fathers are accorded greater rights than men who are merely natural fathers, including reunification services and custody. (In re Zacharia D. (1993) 6 Cal.4th 435, 439, 448-450.) In the instant case, the only provision in Family Code section 7611 that is applicable here is subdivision (d), which provides that presumed father status may be obtained by a man who receives the child into his home and openly holds out the child as his natural child. A reviewing court applies the substantial evidence test to determine challenges to a trial courts determination of presumed father status. (In re A.A. (2003) 114 Cal.App.4th 771, 782.)

2. Section 388 Motions

A section 388 motion is used to modify or set aside orders made from the time the minor is made a dependent of the court. The petition must be based on new evidence or a change in circumstances, and the trial court determines whether it is in the childs best interests to grant the petition. A reviewing court uses the abuse of discretion standard in examining the trial courts decision on a section 388 motion. (In re Jasmon O. (1994) 8 Cal.4th 398, 414-415.)

Here, by his section 388 petition, Father sought presumed father status and reunification services based on his having been determined to be Matthews biological father. We find no abuse of discretion in the trial courts not granting Fathers section 388 petition.

3. Analysis of Fathers Petition

a. Unwed Father Seeking Presumed Father Status

In In re Julia U. (1998) 64 Cal.App.4th 532, 540-541, the court was presented with a Family Code section 7611, subdivision (d) case such as is present here. Noting that the appellant in that case was an unwed biological father, the court stated: If an unwed, biological father promptly comes forward and demonstrates a full commitment to his parental responsibilities, his federal constitutional right to due process prohibits the termination of his parental relationship absent a showing of his unfitness as a parent. [Citation.] [] In determining whether a biological father has demonstrated such commitment, the fathers conduct both before and after the childs birth must be considered. [Citations.] Once the father knows or reasonably should know of the pregnancy, he must promptly attempt to assume his parental responsibilities as fully as the mother will allow and his circumstances will permit. [Citation.] In particular, the father must demonstrate a willingness himself to assume full custody of the childnot merely to block adoption by others. [Citation.] A court should also consider the fathers public acknowledgement of paternity, his payment of pregnancy and birth expenses commensurate with his circumstances, and prompt legal action to seek custody of the child. [Citation.]

In the instant case, Father did not demonstrate his commitment to Matthew to establish himself as Matthews presumed father. Instead, he let the reunification time slip away. Providing him with additional time would not further Matthews best interests.

b. Evidence Respecting Presumed Father Status

The evidence in the record regarding whether Fathers actions elevate him to the status of presumed father under Family Code section 7611, subdivision (d) is mixed. At the February 6, 2007 hearing Father testified he and Mother planned to have Matthew, he had no reason not to believe the child is his son, he asked to be identified as the childs father on the birth certificate, and he told two family members and two friends that he was expecting a child. Additionally, the evidence shows that Father contacted the Agency in Orange County and the Department in Los Angeles County and informed the social workers that he is Matthews father. However, that testimony must be contrasted with his testimony that he did not provide Mother with funds during her pregnancy, his financial support during the pregnancy was limited to buying some things for the minor, and he did not know whether Mother had prenatal care.

Father testified he visited the minor every day at the hospital, and the trial court specifically stated it believed Fathers testimony about that. Piecing together information about when he was taken into custody, it appears from some of his testimony that he lived with the child and Mother for approximately five months between when Matthew was released from the hospital and Father was taken into custody to jail and then to the drug rehabilitation program in Acton. On the other hand, he told the Department social worker he lived with Mother and Matthew for three months after the child was born. Thus, assuming his representations are true that he, Mother and Matthew lived together, they did so for between three and five months. Although Father testified that they lived together in the PGMs home because he rented a room from the PGM, he also stated that arrangement terminated when Father was taken into custody. He did not explain why the PGM did not provide a home for her grandchild and Mother after Father was gone. Further, he had previously told an Agency social worker that he had no contact with Mother after Matthew was born, thus contradicting his testimony that they lived together with Matthew for awhile.

There is no indication he was engaged in any typical parental activities, either through his own family or Mothers family, during the time he was in jail and in the rehabilitation program, such as inquiring of the childs well being, sending him cards, and talking to him on the telephone. It was only when his friend happened to tell him that Matthew was detained by the court in Orange County that he indicated an interest in Matthew by calling the Agency on April 20, 2006 and stating he is the minors father. That can be interpreted as Father developing an interest in Matthew when it became evident that Matthew might be adopted through the dependency systeman attempt to block adoption rather than a true interest in fathering the minor.

Additionally, the Departments report for the January 18, 2007 12-month review hearing states that Father told the social worker in November 2006 that he only wanted visitation with Matthew because he was having a difficult time living his own life. Mother reported that Father had told her if he could not have a relationship with her, he did not want one with Mathew, would not visit the minor and would not support him.

Further, Father did not keep the Department apprised of how it could contact him, thus demonstrating a lack of interest in the case. Fathers interest only picked up when he was informed that the DNA test confirmed he is the minors biological father. At that point he asked for family reunification services, said he would engage in drug testing, and would visit the minor to build a parent-child relationship. Moreover, assuming Father did live with Matthew and Mother for a few months, the record shows that Father had absolutely no contact with Matthew at any time after Father was released from the drug rehabilitation program in May 2006.

Applying the substantial evidence test, we find that the whole of this evidence would support a finding that Fathers conduct did not rise to that of a presumed Father.[5] Moreover, as discussed below, we reject the notion that Fathers rights were thwarted by the dependency system. Thus, we cannot say the trial court abused its discretion when it denied the section 388 petition.

4. The Evidence Does Not Support Fathers Assertion
His Rights Were Thwarted

After he contacted the Agency in Orange County to state that he is Matthews father, Father attended one hearing in Orange County. It was on April 26, 2006. When asked why he did not attend others there, he stated he needed passes to leave the residential treatment program. Apparently his answer was meant to imply (since he did not affirmatively so state), that he did not attend other hearings in Orange County because he could not obtain such passes. However the reality is that he was discharged from his program on May 25, 2006, just 30 days after the April 26 Orange County hearing that he attended, a hearing at which counsel was appointed for him. Thus, he had a contact attorney for the case in Orange County, he knew who to contact at the Agency, and he could have contacted them to learn the status of his case and attend the hearing on June 12 that the Orange County court set regarding transferring the case. Moreover, there is no evidence that his Orange County attorney did not keep him apprised of the status of the case there.

At the April 26 hearing, the court stated it would defer the issue of visitation as to Father but the court also stated the Agency was authorized to facilitate visitation if possible. Thus, Father heard the court state that visitation was permitted if it could be facilitated. There is no reason stated in the record for why Father did not contact the Agency or his attorney to partake of visitation when he was released from his program on May 25. Indeed, the Agencys report for the next (May 9) hearing states arrangements were made for Mother to visit the minor once a week.

At the May 9 hearing, the Orange County court found notice was given to all parties. The court set a hearing for June 12 to address the issue of transferring the case to Los Angeles County, and although he had been released from his program on May 25, Father did not attend that hearing.

On June 13, 2006, a hearing was held in the dependency court in Los Angeles County and the court accepted transfer of the case. Once again, although he was out of his program by then, Father did not attend the hearing. Instead, he learned from his Orange County attorney that the case had been transferred to Los Angeles. A section 366.21, subdivision (e) six-month review hearing was set for July 5 but was continued to July 20. At the July 20 hearing, which Father also did not attend, the court noted that Father appeared in court in Orange County on April 26, 2006, he represented to the court that he is the minors father, an attorney was appointed for him, and the Orange County court deferred the issue of paternity. The Los Angeles court ordered the Department to check on the paternity status and determine if paternity tests were done, and it continued the section 366.21, subdivision (e) hearing to August 10, 2006 as to both Steven G. and Father for results of any DNA testing that had been accomplished.

Although Father argues he did not appear at the initial hearings in Los Angeles County (June 13 and July 20) because he was not served with notice of them, the record is clear that he was able to learn of hearings on his own, as he did with the April 26 hearing in Orange County, he had access to his attorney in Orange County whom he could have contacted for an update, and the record does not indicate that he objected to the lack of notice.

A Department report for the August 10 hearing states Father contacted the Department on July 27, 2006 and expressed an interest in visiting Matthew. A different portion of that report states Father did not call the social worker until August 3, 2006. In any event, on his own he contacted the Department, learned of the August 10 hearing and appeared at that hearing, where counsel was appointed to represent him and an order for DNA testing was made, with the report to be filed on or before January 18, 2007. Thus, the reality is that Father let Matthews dependency matter slide from the April 26 hearing he attended in Orange County until at least the end of July, nearly three months.

Our review of the minute order for the first hearing Father attended in Los Angeles County (August 10), shows no orders were made for visitation. That indicates on its face that visitation was not requested at that time. Moreover, the Orange County court had indicated it was amenable to Father having visitation, and thus had Father pursued visitation in the Orange County court after he completed his program, visitation would have been an ongoing thing when the case was transferred to Los Angeles. We also observe that although the Los Angeles court made its DNA testing order on August 10, 2006, Father did not have his blood drawn for the test until November 17, letting another three months go by. The laboratory results were then completed within a month. Moreover, Father told the social worker on August 22, 2006 that he had no intention of engaging in the standard activities for parents with substance abuse historiescounseling, parenting classes, and drug treatment and testing.

This review of the record shows Fathers right to parent his child was not thwarted. What it does show is that essentially, Fathers interest in Matthew was an on again, off again situation. There is no factual basis for his assertions now that he was never truly permitted to try to develop a relationship with his son during the entire pendency of the case and [t]he court had no evidence of a parent-child relationship, because neither the Orange County court nor the Los Angeles County court ever allowed [Father] to try to develop one. When Father found out that Matthew had been taken into protective custody and was in the dependency system, he went to a hearing in Orange County. He did this on his own. Without notice and without an attorney. This demonstrates that he was able to fend for himself when he wanted to. Father spent much of the dependency case time in jail and the residential drug rehabilitation program, something for which he cannot blame the courts, the Department and the Agency. After his release from the program, he let the dependency matter fall by the wayside for two three-month periods. He simply was not driven to a long-term pursuit of a parental relationship with Matthew, and he now seeks to blame others for his lack of ongoing concern. Dependency proceedings are proceedings of an ongoing nature. (In re Marilyn H. (1993) 5 Cal.4th 295, 307.) They do not wait for parents to decide whether they want to seriously pursue the issues of visitation, paternity and reunification. The time between when he contacted the Agency in Orange County (April 20, 2006) and the day he filed his section 388 petition seeking presumed father status and reunification services (February 5, 2007) was ten months. Attorneys were appointed for him on April 26, 2006 and August 10, 2006. Yet by February 6, he still had not commenced visiting Matthew, and the case was at the 15-month point when the trial court denied the section 388 petition and terminated the reunification period. We find no evidence that Father was thwarted in his attempts to attain presumed father status and reunify with Matthew. Father simply did not make the attempt very well. [6]

DISPOSITION

Father petition for extraordinary writ is denied.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

CROSKEY, Acting P. J.

We Concur:

KLEIN, P. J.

KITCHING, J.

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[1] Unless otherwise indicated, all references herein to statutes are to the Welfare and Institutions Code.

[2] Although the Departments report states Father was ordered to enroll in drug counseling, drug testing, and parent education, states this order was made on May 31, 2006, and states the social worker had no information that Father attempted to comply with the court order, the record does not contain such an order, which would have been made while the case was pending in Orange County. Reference to such order is made at other portions of the record, including the trial courts discussion of the case on February 6, 2007.

The record also indicates in various places (Department reports and reporters transcripts for Los Angeles hearings), that Father was ordered by the court in Orange County to participate in paternity testing. However, the record does not contain that order either.

Additionally, the report states Father told the social worker on August 22, 2006 that he did not agree with the case plan for him and so he did not engage in counseling, parenting classes, and drug treatment and testing. However, the record does not contain a copy of an order setting out a case plan.

[3] In addressing the section 388 petition the trial court spoke briefly about finding detriment and parental unfitness. Whatever the appropriateness of those terms, the record clearly shows that the court based its decision to deny Father reunification services on what would be in Matthews best interests.

[4] A fourth category is the Kelsey S. father. (Adoption of Kelsey S. (1992) 1 Cal.4th 816, 849.) These are unwed biological fathers who have been precluded from becoming a presumed father due to third party interference, including interference by the childs mother. As we analyze infra, we agree with the trial court that Father is not a Kelsey S. father.

[5] In analyzing the evidence regarding presumed father status, the court observed that while Fathers activities towards achieving presumed father status were affected by his relationship with Mother and he and Mother have been trying to determine whos on top, Matthews foster parents were the people who were actually parenting him and [a]t no time did this father actually parent this child.

Father contends this statement by the trial court indicates the court based its decision to deny the section 388 motion on the basis that the minor child was bonded to his foster family, and consideration of such bonding is not permitted when the court is deciding whether to termination reunification services and set a section 366.26 hearing (Rita L. v. Superior Court (2005) 128 Cal.App.4th 495, 498, 507-508). We do not read the trial courts statement that way. We take it at its face value and find no error in it.

[6] Citing In re Jonathan B. (1992) 5 Cal.App.4th 873, 876-877, where the court applied a harmless error test, Father contends that while it is true that a dependency courts orders must be affirmed if correct for any reason regardless of the grounds articulated by the trial court for its decision, here the trial court misunderstood the record and absent the misunderstanding, the outcome in the hearing on his section 388 petition would have been different. While we acknowledge that the trial court made statements about the record that cannot be verified, we do not find the statements constitute harmful error.

At the hearing on February 6, the court spoke of Father having been ordered by the court in Orange County to engage in DNA testing. However the minute orders from Orange County do not show Father was ordered to DNA testing. The record reflects the following The March 15, 2006 minute order states the Orange County court authorized paternity testing for Steven G. The report for the April 26 disposition hearing states Corcoran State Prison informed the social worker the prison did not permit paternity testing there and Steven G. could test when he was released from prison. At the only appearance Father made in Orange County (April 26), the court stated it would defer the issue of paternity. At the July 20 hearing in Los Angeles County,, the court noted Father appeared in court in Orange County on April 26, 2006, represented to the court that he is the minors father, an attorney was appointed for him, and the Orange County court deferred the issue of paternity. The court ordered the Department to check on the paternity status and determine if paternity tests were done, and it continued the section 366.21, subdivision (e) hearing to August 10, 2006 as to Steven G. and Father for results of DNA testing. On August 10, Father appeared at the hearing and counsel was appointed to represent him. The court made an order for appointment of an expert under Evidence Code section 730 for paternity testing.

The trial court also stated at the hearing on February 6 that it had appointed counsel for Father as soon as the case was transferred to Los Angeles County. Actually however, counsel was appointed for Father on August 10, at Fathers first appearance in the Los Angeles court. There had been two Los Angeles court dates prior to thatJune 13 when the court accepted the transfer and July 20 which was the six‑month review hearing.

Lastly, the court stated Father had been ordered by the Orange County court on May 31 to engage in drug counseling and testing and parenting classes. The court added that on August 22, Father told the social worker that he did not agree with the case plan and so he did not participate. There is no indication in the record that the Orange County court set up a case plan for Father. However, the record is clear that whether a plan was ordered or not, Father told the social worker he was not going to engage in the typical case plan ordered for parents with a history of substance abuse.

We do not find that the trial courts errors in reciting what occurred in this case are harmful errors such that without them, Fathers section 388 petition would have been granted. We have recited evidence that supports the trial courts decision to not find he is a presumed father and not order reunification services for him.