Opinion
E041603
4-30-2007
In re JAMES S., JR., a Person Coming Under the Juvenile Court Law. RIVERSIDE COUNTY DEPARTMENT OF PUBLIC SOCIAL SERVICES, Plaintiff and Respondent, v. JAMES S., Defendant and Appellant.
Jennifer Mack, under appointment by the Court of Appeal, for Defendant and Appellant. Joe S. Rank, County Counsel, and Carole A. Nunes Fong, Deputy County Counsel, for Plaintiff and Respondent. Ellen L. Bacon, under appointment by the Court of Appeal, for Minor.
NOT TO BE PUBLISHED
James S., Sr. (hereafter James Sr.), the alleged father of James S., Jr. (hereafter James Jr.), appeals an order terminating his parental rights. He contends that the juvenile court violated his constitutional and statutory rights by failing comply with notice requirements and failing to order a paternity test, and that it abused its discretion in denying his request for a continuance of the selection and implementation hearing to afford him the opportunity to file a petition for modification. Finding no error or abuse of discretion, we affirm the order.
FACTUAL AND PROCEDURAL HISTORY
James Jr. was born on June 11, 2005. His mother, Nancy, had had no prenatal care and smoked methamphetamine during her pregnancy. James Jr. was premature and tested positive for amphetamine. The mother was homeless. She reported that James Sr. was the childs father, and that he was incarcerated at Delano. She was not married to James Sr.
On June 15, 2005, James Jr. was ordered detained in foster care. An attorney was conditionally appointed for James Sr., and the Department of Public Social Services (DPSS) initiated efforts to locate him. On or about June 24, 2005, DPSS learned that James Sr. was incarcerated at the Donovan Correctional Facility in San Diego. He was serving a two-year sentence for burglary. The social worker wrote him a letter concerning the pending proceedings but did not receive a response. On July 18, 2005, the court issued an order directing the warden at Donovan to produce James Sr. at the jurisdiction and disposition hearing, which was set for August 31, 2005. Notice of the hearing was mailed to James Sr. on July 28, 2005. The social worker spoke to James Sr. by telephone on July 26, 2005. He informed her that he was not the father of James Jr. He admitted that he had lived with the mother until his recent incarceration, however.
The jurisdiction and disposition hearing was held on August 31, 2005. James Sr.s attorney had received a waiver of appearance from James Sr., and submitted the matter. The court ordered reunification services for the mother but denied services for James Sr., as the alleged father.
DPSS received a letter from James Sr., dated October 26, 2005, in which he stated that he believed James Jr. was his child, but that he would like a paternity test to make sure.
The six-month review hearing was held on February 14, 2006. James Sr. was not present. His attorney submitted on the social workers report, which recommended terminating services to the mother and establishing a permanent plan of adoption. The court made the required findings as to the mother and terminated services. It ordered adoption as the permanent plan. It set the selection and implementation hearing pursuant to Welfare and Institutions Code section 366.26 for June 12, 2006. (All citations to statutes refer to the Welfare and Institutions Code.)
Notice of the section 366.26 hearing was served on James Sr., as was a notice of continuance of the hearing. He and his attorney were present at a review hearing on August 9, 2006. James Sr. had been released from prison and was living in a residential drug treatment program in Vista, California. He had met with the social worker and had received a copy of the review report. He had told her that he planned to attend the review hearing and request placement of James Jr. At the hearing, however, he did not request placement but submitted on the report.
James Sr. had a supervised visit with James Jr. on August 22, 2006. He told the social worker that he did not want James Jr. to be adopted. She told him to contact his attorney to clarify his rights. He had a second supervised visit with James Jr. on September 15, 2006. On that date, he told the social worker that he could not work during the first four months of his residential drug treatment program.
On September 12, 2006, James Sr. told the social worker that he believed he was the father of James Jr. but again asked for a paternity test in order to be sure. The social worker submitted a request for paternity testing on that date.
James Sr. was present at the section 366.26 hearing on October 10, 2006. He had been served with notice that the subject of the hearing was termination of parental rights and possibly freeing James Jr. for adoption. He appeared at the hearing and requested a continuance so that he could file a petition seeking placement of James Jr. with him and so that he could receive the results of the paternity test. The court denied the continuance. It terminated parental rights and ordered DPSS to proceed with the planned adoption. James Sr. filed a timely notice of appeal.
LEGAL ANALYSIS
FAILURE TO GIVE NOTICE PURSUANT TO SECTION 316.2
James Sr. contends that he was denied due process and prejudiced by the courts failure to comply with section 316.2. Subdivision (a) of section 316.2 requires the juvenile court to make inquiries at the detention hearing or as soon thereafter as practicable to determine who is, or might be, the father of a child subject to section 300. Subdivision (b) of section 316.2 provides that if, after court inquiry, one or more men are identified as an alleged father, each alleged father must be given notice at his last and usual place of abode that he is, or might be, the father of the child, and that the dependency proceedings could result in the termination of parental rights and the adoption of the child. Subdivision (b) requires that Judicial Council form JV-505 (Paternity — Waiver of Rights) be served on the alleged father along with the notice described above. Form JV-505 allows the alleged father to deny that he is the childs father and state that he does not wish to participate in the dependency proceedings; indicate that he does not know whether he is the father and request genetic testing to determine whether he is the father; state that he believes he is the father and ask the court to enter a judgment of paternity; or indicate that he has already established paternity. The form informs the alleged father that he has the right to a trial on the issue of paternity, and that if his paternity is established, the court may order reunification services, but is not required to do so. The form instructs the alleged father to sign and return the form if he wants the court to determine his paternity. (See In re Paul H. (2003) 111 Cal.App.4th 753, 763-764.)
Notice and service of form JV-505 as provided for in section 316.2 serves to facilitate the exercise of the limited due process rights accorded to alleged fathers. For an alleged father, due process "requires only that [he] be given notice and `an opportunity to appear and assert a position and attempt to change his paternity status. [Citations.] [Citation.]" (In re Paul H., supra, 111 Cal.App.4th at p. 760.)
Here, although the record does not show that notice as prescribed by section 316.2 and form JV-505 were served on James Sr., it also does not show that the notice and the form were not served on him. An appellant has the burden of producing a record which affirmatively demonstrates error. (Aguilar v. Avis Rent A Car System, Inc. (1999) 21 Cal.4th 121, 132.) The fact that the record fails to show service of the required notice does not, in itself, affirmatively demonstrate that the notice was not served. Moreover, James Sr. never objected to the proceedings below on the ground that he was not given adequate notice of the dependency proceedings or of his possible paternity. Generally speaking, a partys failure to make an objection or raise an issue in the dependency court precludes him or her from raising the issue on appeal. (See, e.g., In re Lorenzo C. (1997) 54 Cal.App.4th 1330, 1338-1339; In re S.B. (2004) 32 Cal.4th 1287, 1293.) For both of these reasons, any claim based on lack of notice or failure to serve form JV-505 on James Sr. is forfeited.
In any event, there was no violation of James Sr.s right to due process. Due process requires only sufficient notice to afford a meaningful opportunity to be heard. (Fuentes v. Shevin (1972) 407 U.S. 67, 80.) James Sr. was given notice of his putative paternity within a few weeks after the detention hearing, as soon as DPSS obtained information which allowed it to locate him. He was represented by counsel from the date of the detention hearing. He was served with notice of the jurisdiction and disposition hearing, and the court issued an order to the warden to produce him for that hearing. If he had wished to assert paternity, he had sufficient notice and opportunity to have done so at the jurisdiction and disposition hearing. Instead, he chose to deny paternity at that time, and he waived his appearance at the jurisdiction and disposition hearing.
Furthermore, James Sr. has not demonstrated any prejudice resulting from any violation of his statutory right to notice. Violations of statutory rights, such as the rights to notice and to service of form JV-505 provided for in section 316.2, are reviewed for harmless error pursuant to People v. Watson (1956) 46 Cal.2d 818, 836. (In re Jesusa V. (2004) 32 Cal.4th 588, 624-625; In re Kobe A. (2007) 146 Cal.App.4th 1113, 1122.) James Sr. contends that if he had been served with form JV-505, he could have returned the form, asking that the court order paternity testing. However, we see no reasonable probability that the court would have ordered reunification services for James Sr. even if he had established his biological paternity at an early point in the proceedings.
James Sr., who had been incarcerated since before James Jr.s birth, was not the childs presumed father. He was not married to James Jr.s mother and had never taken the child into his home or held him out to be his natural child. (Fam. Code, § 7611, subds. (a) & (d).) He had never provided support for the child, or in any manner embraced his parental responsibilities so as to qualify as a presumed father. (In re Zacharia D. (1993) 6 Cal.4th 435, 449-450; Adoption of Kelsey S. (1992) 1 Cal.4th 816, 825, 849.) As a biological, but not presumed father, James Sr. would have had no right to reunification services. Rather, the court had the discretion to order reunification services if it found that such services would benefit the child. (§ 361.5, subd. (a).) Because James Jr. was less than three years old when he entered foster care, the court could order services only for six months. That period began on August 14, 2005. The court could extend services for an additional six months only if the court found that there was a substantial probability that James Jr. could be placed in James Sr.s custody within that six-month period. (§ 366.21, subd. (e).) James Sr. was due to be released from prison on July 29, 2006, and would have had less than a month after his release to take James Jr. into his custody without exceeding the statutory time limits. However, he was to be confined to a residential drug treatment program for six months after his release, and was not permitted to work for the first four months. There is thus no evidence that he would have been able to provide a home for James Jr. within the six-month extension period. Given those circumstances, there is no reasonable probability that the court would have ordered reunification services for James Sr. even if he had established his biological paternity. Accordingly, James Sr. was not prejudiced by any failure to serve him with the notice required by section 316.2. (In re Kobe A., supra, 146 Cal.App.4th at pp. 1122-1124.)
Section 361.5, subdivision (a) provides that the date the child entered foster care is deemed to be the earlier of the date of the jurisdiction hearing or the date that is 60 days after the child was initially removed from the physical custody of his parent or guardian. James Jr. was ordered detained on June 15, 2005, and the jurisdiction hearing was held on August 31, 2005. Therefore, he is deemed to have entered foster care on August 14, 2005.
FAILURE TO ORDER PATERNITY TESTING
For the same reasons, James Sr. was not prejudiced by the courts failure to order paternity testing at the section 366.26 hearing, as he asserts. The statutory period for reunification had run out, and there is no reason to believe that James Sr. would have been able to take custody and provide a home for James Jr. even if more time were available.
Moreover, as county counsel points out, James Sr. never asked the court to determine his paternity, either at the permanency planning hearing or at any prior time. James Sr. relies on former California Rules of Court, rule 1413(h) (now rule 5.635(h)), which at the time of the section 366.26 hearing in this case provided, "If a man appears at a hearing in a dependency matter . . . and requests a finding of paternity . . . the court must determine whether he is the biological father of the child." (Emphasis added.) However, as James Sr.s attorney informed the court at the section 366.26 hearing, a paternity test had already been scheduled. James Sr. merely requested a continuance in order to take the test and obtain the results. In the absence of a request for a finding of paternity, the court had no duty to order paternity testing.
DENIAL OF CONTINUANCE
James Sr. contends that the court abused its discretion when it denied his request for a continuance of the section 366.26 hearing. He requested the continuance so that he could file a section 388 petition after he obtained the results of the paternity test. However, as county counsel points out, a juvenile court may continue a dependency hearing only upon a showing of good cause. (§ 352, subd. (a).) The sole purpose of a section 366.26 hearing is to select and implement one of the three possible permanent plans for a dependent child — adoption, guardianship, or long-term foster care. (§ 366.26, subd. (b); In re Christopher M. (2003) 113 Cal.App.4th 155, 160.) A return to parental custody is not an option at that point (In re Marilyn H. (1993) 5 Cal.4th 295, 304), and neither reunification nor paternity is an issue before the court at a section 366.26 hearing. (In re Christopher M., supra, at p. 160.) Therefore, James Sr.s desire to establish his paternity did not constitute good cause to grant a continuance, and the court did not abuse its discretion by denying the continuance.
Section 388 provides that any person having an interest in a dependent child of the juvenile court may petition for modification of an existing order upon a showing of changed circumstances or new evidence.
DISPOSITION
The order terminating James Sr.s parental rights and freeing James Jr. for adoption is affirmed.
We concur:
Richli, J.
Miller, j.