Opinion
NOT TO BE PUBLISHED
Appeal from a judgment of the Superior Court of Orange County No. AD77917 Renee E. Wilson, Temporary Judge. (Pursuant to Cal. Const., art. VI, § 21.) Affirmed.
Matthew I. Thue, under appointment by the Court of Appeal, for Defendant and Appellant.
Sarieh Law Offices and Wail Sarieh for Plaintiff and Respondent.
BEDSWORTH, J.
Bradley R. appeals from a judgment terminating his parental rights over one-year-old Matthew N. He contends the court should not have terminated his rights without conducting a hearing to determine whether he was Matthew’s natural father. We agree with the trial court: because Bradley failed to file a paternity action in the proceeding, no such hearing was required. Therefore, we affirm the judgment.
FACTS
Bradley and Matthew’s mother Samantha N. were previously married. They divorced in 2001, and the following year, Samantha married David N., respondent herein. David then adopted a son Samantha and Bradley had together while they were married.
In March 2009, Samantha flew to Florida and renewed a romantic relationship with Bradley. It did not end well. Bradley stole money and jewelry from Samantha, she pressed charges, and he ended up going to jail. He is now on probation and living in Florida. As part of the criminal case, he is required to pay Samantha over $75,000 in restitution, and he cannot come within 100 yards of her, due to a protective order.
In February 2010, Samantha gave birth to Matthew in Orange County. Five weeks later, David filed a request in superior court to adopt the baby. He also filed a petition to terminate Bradley’s parental rights. In the petition, David alleged that because he and Samantha were married at the time Matthew was born, he was Matthew’s presumed father. He also alleged Samantha was prepared to consent to his adoption of Matthew.
In conjunction with his petition, David also filed notice that Bradley is or may be Matthew’s natural father. The notice stated that if Bradley wished to establish he is Matthew’s natural father, he was required to bring an action to establish his paternity within 30 days after receiving the notice. Bradley was personally served with the notice, along with David’s two other filings, on March 19, 2010.
On April 29, 2010, David’s attorney Wail Sarieh filed points and authorities in support of the petition to terminate Bradley’s parental rights. She stated Bradley had failed to bring an action to establish his paternity, and therefore the court was authorized to grant the petition.
On April 30, Bradley filed a response to David’s petition. In it, he stated he opposed the proposed adoption and wanted to become an active participant in Matthew’s life. However, because of the protective order stemming from his criminal case, he has been unable to do so.
Along with his response, Bradley also submitted a letter to the court. In the letter, Bradley alleged he had mailed his response to the court via express mail on April 13, and it was received the following day. However, it was returned to him on April 20 because it was not properly filed. He then resubmitted the response again, and as noted above, it was eventually filed on April 30. Bradley stated he was unable to afford an attorney, and when he called the Orange County Legal Aid Society about his case, they turned him down because David had already contacted them.
A hearing on the matter was held on May 7. At the outset of the hearing, the court asked Sarieh why she filed a petition to terminate Bradley’s parental rights if David was Matthew’s presumed father. She said she did so “just to circumvent any future filing.” At that point, Bradley, who was appearing by telephone, asserted that David could not be Matthew’s presumed father because he had had a vasectomy. After Sarieh conceded that was true, the court ruled David “no longer stands as [the] presumed father.”
The court then asked Bradley why he had not filed a paternity action in the case. He said he had been having trouble filing his paperwork with the court, but that he intended to mail the requisite paperwork (i.e., a petition for paternity) to the court the following day.
Sarieh argued that while Bradley had the right to file a paternity action after the 30-day deadline, and the court was empowered to consider such a filing before Bradley’s parental rights were terminated, the court also had the authority to terminate his parental rights based on his failure to file within the 30-day deadline. The court was generally receptive to this argument. However, out of an abundance of caution, it appointed Attorney J. Michael Hughes to represent Bradley and continued the matter until June 11. In so doing, the court told Hughes that while it appeared Bradley was trying to assert his parental rights in the matter, he had yet to file a petition for paternity. The court also told Hughes that while he was free to advise Bradley about that issue, he could not actually represent Bradley in any paternity action if one was filed.
At the next hearing on June 11, Hughes requested a paternity test at Bradley’s expense. The court denied the request and reminded Hughes it was incumbent upon Bradley to file a paternity action in the case. Referring to the papers Bradley filed on April 30, Hughes argued Bradley did “try to protect his rights.” However, the court was troubled by the fact Bradley never actually filed an action for paternity, even after being given an extension of time to do so. The court stated, “[A]ll things considered, it’s now two months, he had all of May. If he attempted to file in April, he had May and almost half of June. And he still has not proceeded to file anything pursuant to the statute.” Therefore, the court terminated Bradley’s parental rights and determined his consent was not necessary for David to adopt Matthew.
DISCUSSION
Bradley contends the court erred in terminating his parental rights without conducting a paternity hearing. However, because Bradley never filed a paternity action in the proceeding, we find no such hearing was required. Under the circumstances presented, the court was fully justified in terminating his parental rights and finding his consent was not required for the proposed adoption.
The termination of parental rights in adoption proceedings is governed by Family Code section 7660 et seq. Family Code section 7662 states that if a mother proposes to consent to the adoption of a child who does not have a presumed father, the prospective adoptive parent is required to file a petition to terminate the parental rights of the father unless one of the following has occurred:
“(1) The father’s relationship to the child has been previously terminated or determined not to exist by a court.
“(2) The father has been served as prescribed in Section 7666 with a written notice alleging that he is or could be the natural father of the child to be adopted or placed for adoption and has failed to bring an action for the purpose of declaring the existence of the father and child relationship pursuant to subdivision (c) of Section 7630 within 30 days of service of the notice or the birth of the child, whichever is later.
“(3) The alleged father has executed a written form... to waive notice, to deny his paternity, relinquish the child for adoption, or consent to the adoption of the child.” (Fam. Code, § 7662, subd. (a).)
In this case, it is undisputed the second exception applies, in that Bradley was served with written notice alleging he could be Matthew’s father, and he thereafter failed to bring an action to declare the existence of a father/child relationship with him, i.e., a paternity action. Bradley argues that failure merely obviated the need for David to file a petition to terminate his parental rights. However, considering the nature of the above-quoted exceptions to the petition requirement, we believe that when they apply, they do more than just dispense with the need for a termination petition.
The first and third exceptions deal with the situation where the alleged father’s rights have already been terminated or have been waived. In those situations, it would not serve any purpose to require the court to conduct a paternity hearing before deciding issues bearing on the child’s adoption. Likewise, it would not serve any purpose to require a paternity hearing when, as here, the alleged father has been notified he has to file a paternity action to protect his rights, and he fails to do so. Such failure amounts to a relinquishment of the alleged father’s rights, as the case of In re Andrew V. (1991) 232 Cal.App.3d 1286 makes clear.
At the time Andrew V. was decided, the statutes governing the termination of parental rights in adoption proceedings were housed in the Civil Code. (See Stats. 1990, ch. 1363, § 9, pp. 6105-6107.) In 1994, those statutes were repealed and reenacted without substantive change in the Family Code. (See Fam. Code, § 7660 et seq.; Adoption of Michael H. (1995) 10 Cal.4th 1043, 1049, fn. 1.)
Andrew V. held the 30-day deadline for filing a paternity action is not jurisdictional, and therefore the trial court has the authority to consider the issue of paternity if the alleged father petitions for paternity after such deadline, but before his parental rights have been terminated. (In re Andrew V., supra, 232 Cal.App.3d at pp. 1290-1292.) However, the Andrew V. court also noted that if an alleged father fails to file within the 30-day deadline, the person seeking to adopt “may proceed to terminate parental rights without the necessity of a hearing on whether the alleged natural father of the minor is such and therefore entitled to a court declaration of the existence of a father-child relationship. In other words, if an alleged natural father does not bring a [paternity] action within 30 days of service of notice, he has failed to appear in response to the notice of proceedings... and his parental rights with reference to the minor will be terminated by the court....” (Id. at p. 1291; see also Adoption of Aaron (2000) 84 Cal.App.4th 786 [alleged father’s parental rights terminated where he failed to file paternity action within 30 days of receiving notice of proceedings].)
Here, Bradley not only failed to bring a paternity action within 30 days of receiving notice, he failed to file a paternity action altogether. Therefore, a paternity hearing was not required.
Bradley argues his filings with the court should be construed as a paternity action. In his papers, Bradley did say he opposed the proposed adoption and wanted to become an active participant in Matthew’s life. However, he never requested any sort of hearing or determination on the fundamental issue as to whether a father and child relationship existed between him and Matthew. This failure is striking when we consider what occurred at the May 7 hearing.
The main point of discussion at that hearing was the lack of a paternity action. After David’s attorney brought it up, the court expressed great concern about it. In fact, the court discussed this issue with Bradley personally, after which Bradley assured the court he was going to send the requisite paperwork to the court the following day. To assist Bradley in his efforts, the court even appointed him an attorney. While the court did prohibit Attorney Hughes from actually representing Bradley in any paternity action, it did encourage him to talk to Bradley about his rights and responsibilities. Since Hughes was present at the hearing, we may presume he understood the lack of a paternity action was a vital issue in the case; there was nothing stopping him from helping Bradley file such an action.
Indeed, that was the very reason the court continued the matter on May 7. The record is clear that in so doing the court was going out of its way to allow Bradley yet one more chance to get his act together and finally file the requisite action for paternity. Remarkably, however, he failed to do so. Despite being given nearly a two-month extension of the 30-day deadline, Bradley simply was unable to do the one thing the court asked him to do. Under these circumstances, the court was not required to conduct a hearing into the issue of paternity. Instead, it was entirely justified in terminating Bradley’s parental rights and finding his consent was not required for David’s adoption of Matthew to go forward.
DISPOSITION
The judgment is affirmed.
WE CONCUR: RYLAARSDAM, ACTING P. J., MOORE, J.