Opinion
B300402
03-27-2020
In re M.A., a Person Coming Under the Juvenile Court Law. LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent, v. C.A., Defendant and Appellant.
Jesse McGowan, under appointment by the Court of Appeal, for Defendant and Appellant. Mary C. Wickham, County Counsel, Kristine P. Miles, Assistant County Counsel, and Brian Mahler, Deputy County Counsel, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Los Angeles County Super. Ct. No. DK20149A) APPEAL from a judgment of the Superior Court of Los Angeles County. Sabina A. Helton, Judge. Dismissed. Jesse McGowan, under appointment by the Court of Appeal, for Defendant and Appellant. Mary C. Wickham, County Counsel, Kristine P. Miles, Assistant County Counsel, and Brian Mahler, Deputy County Counsel, for Plaintiff and Respondent.
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C.A. (mother) appeals from a judgment terminating her parental rights to M.A. (minor, born Oct. 2016), arguing that the juvenile court erred in failing to continue the hearing so that a man making his first appearance in these proceedings, B.V. (Jin), could be genetically tested during the interim period. According to mother, (1) a genetic test could have shown that Jin was minor's biological father, (2) the juvenile court then could have found that Jin was qualified as the minor's presumed father under Adoption of Kelsey S. (1992) 1 Cal.4th 816 (Kelsey S.) because mother withheld minor's existence from him, and (3) Jin's status as a presumed father would have entitled him to family reunification services, thereby forestalling the termination of her parental rights.
We dismiss mother's appeal on the grounds that she lacks standing to challenge the denial of her request for a continuance so that Jin could be genetically tested. While mother's counsel represented to the juvenile court that Jin could be minor's biological father, Jin never personally asserted any parental rights to minor. Thus, no injury arose from the juvenile court's decision to proceed with the permanency planning hearing. Even if mother had standing, the juvenile court did not err with proceeding with the permanency planning hearing and terminating parental rights after finding that Jin was an alleged father at best, as there was no evidence that he was minor's biological father. Finally, even if the juvenile court erred in failing to grant mother's request for a continuance, this error was harmless because there was no evidence that Jin would qualify as minor's presumed father under Kelsey S. even if he were to be found the biological father, meaning that he would not have been entitled to family reunification services.
Accordingly, mother's appeal is dismissed.
FACTUAL AND PROCEDURAL BACKGROUND
Dependency Petition and Detention Hearing (Nov. 1. 2016)
On November 1, 2016, the Los Angeles County Department of Children and Family Services (DCFS) filed a dependency petition on behalf of then one-week-old minor, pursuant to Welfare and Institutions Code section 300. As is relevant to the issues in this appeal, the petition alleged two counts under section 300, subdivision (b)(1), arising out of mother's substance abuse, namely amphetamine and methamphetamine (counts b-1 & b-2). The petition named mother as minor's mother and a man named Manuel T. (Manuel) as minor's alleged father.
All further statutory references are to the Welfare and Institutions Code unless otherwise indicated.
At the detention hearing, Manuel's appointed counsel represented to the juvenile court that Manuel did not believe that he was minor's father; he wanted no involvement in this matter. The juvenile court deferred any action on Manuel's paternity status. It then found that DCFS had made a prima facie case that minor was a person described by section 300 and detained minor from parental custody. Adjudication Hearing (Jan. 10, 2017)
At the January 10, 2017, adjudication hearing, the juvenile court found that Manuel was not minor's alleged, biological, or presumed father. It ordered DCFS to present evidence of a due diligence search for mother and minor's biological father. DCFS conducted these searches and reported that mother was currently in police custody and that the whereabouts of minor's biological father was unknown. Adjudication Report and Hearing (Mar. 23, 2017 & Apr. 13, 2017)
During her interview with DCFS, mother admitted to regularly using methamphetamine, including throughout her pregnancy with minor. Although mother did not know the identity of minor's father, she believed it may have been Manuel or another man named Joseph K. (Joseph), because she had sexual relationships with each of them prior to minor's birth. Mother also stated that Joseph could have been living in a drug treatment program in Pasadena. DCFS subsequently located Joseph and scheduled an interview with him; he failed to appear at the meeting. DCFS also provided Joseph with notice of the rescheduled adjudication hearing.
At the April 13, 2017, adjudication hearing, the juvenile court found that Joseph was not minor's alleged, biological, or presumed father. It sustained counts b-1 and b-2 of the section 300 petition, removed minor from parental custody, and ordered DCFS to provide mother with family reunification services. Her case plan included a drug treatment program, a parenting program, individual counseling, and monitored visitation. It denied reunification services to minor's unknown biological father, pursuant to section 361.5, subdivision (a). Six- and 12-Month Review Reports and Hearings (Oct. 2017 & Apr. 2018)
For the October 12, 2017, review hearing, DCFS reported that mother was on probation from federal custody, was enrolled in a drug treatment program, and was testing negative for all drugs. The juvenile court found continued jurisdiction was necessary and ordered DCFS to continue to provide family reunification services to mother.
For the April 12, 2018, 12-month review hearing, DCFS reported that mother was in her third drug treatment program since her release from federal custody in September 2017, as she had been discharged from earlier programs due to behavioral issues. Again the juvenile court found continued jurisdiction was necessary and ordered DCFS to continue to provide reunification services to mother. 18-Month Review Report (Oct. 11, 2018)
DCFS reported that in April 2018, mother had been discharged from her third drug treatment program due to having a telephone in violation of her program agreement. In May 2018, mother stated that she had enrolled in her fourth drug treatment program. In June and July 2018, mother disclosed that she was again pregnant and admitted that she had resumed using methamphetamine. At around this time, mother was discharged from her fourth drug treatment program based upon her return to federal custody for violating her probation terms, specifically by cutting off her GPS ankle monitor and having contact with her unborn child's father, Jovan S. (Jovan), who had his own criminal history.
In November 2018, mother was released from federal custody due to time served and was placed on probation. Her probation terms required her to complete an outpatient drug treatment program and drug test.
In December 2018, mother had a monitored visit with minor, who did not engage with mother. Mother had brought Jovan to the DCFS office where the visit occurred, in apparent violation of the terms of her probation.
In January 2019, mother's probation officer reported that mother was attending her drug treatment program through a new agency and was testing negative for all drugs. During this time, minor was receiving therapy for all of his behavioral and speech issues. 18-Month Review Hearing (Feb. 27 & Mar. 5, 2019)
At the 18-month review hearing, the juvenile court granted minor's caregiver de facto parent status, found continued jurisdiction was necessary, terminated mother's family reunification services, and set a permanency planning hearing pursuant to section 366.26.
Mother's Section 388 Petition (May 31, 2019)
On May 31, 2019, mother filed a section 388 petition, asking that the juvenile court return minor to her physical custody or, in the alternative, reinstate her family reunification services, allow for overnight and/or unmonitored visitation, and set a review hearing to consider minor's placement with her. The juvenile court granted mother a hearing on her section 388 petition that would coincide with the permanency planning hearing. Section 366.26 Report
DCFS reported that mother failed to complete any of her programs due to her repeated discharges. She continued to use methamphetamine and returned to federal custody for probation violations. She only had sporadic visits with minor, during which the child appeared anxious and lacked a paternal bond with mother. Finally, mother remained involved with Jovan, who had his own criminal history.
DCFS further reported that the whereabouts of minor's biological father remained unknown and that minor was adoptable based upon her own positive attributes and relationship with her current caregivers.
DCFS recommended that the juvenile court terminate parental rights and free minor for adoption. Section 388 and 366 .26 Hearing (Aug. 28, 2019)
After a hearing, the juvenile court denied mother's section 388 petition.
It then turned to the permanency planning hearing. Various DCFS reports, a caregiver information form, and mother's section 388 petition were admitted into evidence. No other documents were submitted to the juvenile court or asked to be admitted into evidence.
After receiving these documents into evidence, the juvenile court asked the parties for argument. Mother's counsel requested that the matter be continued so that a man who had appeared that day, Jin, could be genetically tested. Mother's counsel stated: "[T]here is a new individual that [mother] has alleged to be the father. From my conversations with [mother] and this individual, it sounds as though they were in a dating relationship prior to [mother] becoming pregnant and prior to her incarceration before [minor] was born. [¶] [Mother], after being incarcerated, did not make contact with [Jin], did not let him know that she had been pregnant, did not let him know that she had given birth, and otherwise did not in any way inform him or apprise him of this case going on or that he may be a father to this child. He has spoken to me today, . . . and I wanted to represent to the court that he does wish to have a DNA test, that he would comply with any orders of the court if he is found to be the biological father, and that he's just asking for the opportunity at the very least to have his voice heard to state to the court that he is interested . . . in being in the child's life, because he does believe a DNA test may reveal he's the father, and [mother] has indicated to [him] a strong belief that the DNA [test] would show that he's the father as well."
In addition, mother's counsel asked that the juvenile court continue the permanency planning hearing so that minor's maternal grandmother could be accessed for possible placement, and, if the hearing were to proceed, to find that the beneficial parental relationship exception to adoption (§ 366.26, subd. (c)(1)(B)) applied.
The juvenile court denied mother's request for a continuance so that Jin could be genetically tested. In so ruling, the juvenile court noted that mother had completed a parentage questionnaire on the date of the hearing, in which she asserted: (1) Jin was not present at minor's birth, (2) mother and Jin were never married and never lived together, (3) Jin never held himself out as minor's father, (4) Jin had never received minor into his home, and (5) no paternity test had ever occurred. Based upon these assertions, the juvenile court reasoned that Jin "at best . . . would be an alleged father. Even if he were to do a DNA test and found to be a biological father, it would not elevate him to presumed father status." Ultimately, the juvenile court found Jin to be an alleged father of minor and proceeded with the hearing.
We hereby grant DCFS's motion to augment the record.
Following argument by the parties regarding minor's permanent plan, the juvenile court found that minor was adoptable and that no exception to adoption applied. It terminated parental rights to minor and transferred care, control, and custody of the child to DCFS.
Appeal
On September 3, 2019, mother timely filed a notice of appeal, challenging the order denying her section 388 petition, the finding that Jin was an alleged father, and the order terminating her parental rights to minor.
DISCUSSION
Mother argues that we must reverse the order terminating her parental rights because she was aggrieved by the juvenile court's decision to deny her request for a continuance so that Jin could be genetically tested. According to mother, (1) a genetic test could have shown that Jin was minor's biological father, (2) the juvenile court then could have found that Jin was qualified as the minor's presumed father under Kelsey S., supra, 1 Cal.4th 816 because mother withheld minor's existence from him, and (3) Jin's status as a presumed father would have entitled him to family reunification services, thereby forestalling the termination of her parental rights.
I. Relevant law on fathers
"'In dependency proceedings, "fathers" are divided into four categories—natural [or biological], presumed, alleged, and de facto.' [Citation.]" (In re E.T. (2013) 217 Cal.App.4th 426, 436-437.) "A father's status is significant in dependency cases because it determines the extent to which the father may participate in the proceedings and the rights to which he is entitled. [Citation.]" (In re T.R. (2005) 132 Cal.App.4th 1202, 1209.) Only presumed fathers are entitled to have custody of their children, appointed counsel, and reunification services. (In re Zacharia D. (1993) 6 Cal.4th 435, 451; see also Francisco G. v. Superior Court (2001) 91 Cal.App.4th 586, 596 [distinguishing the greater rights that presumed fathers have as opposed to biological fathers].) Family Code section 7611 sets out several rebuttable presumptions under which a man may qualify for "presumed father" status. (In re J.L. (2008) 159 Cal.App.4th 1010, 1018.) One presumption arises when a man "receives the child into [his] home and openly holds out the child as [his] natural child." (Fam. Code, § 7611, subd. (d).) A man seeking presumed parent status has the burden of demonstrating "an established parental relationship with the minor and commitment to the minor's well-being." (In re Alexander P. (2016) 4 Cal.App.5th 475, 493.)
On occasion, the child's mother or some third party may prevent the purported father from satisfying the factual predicates needed for "presumed father" status, which includes receiving the child into his home and holding the child out as his own. (Kelsey S., supra, 1 Cal.4th at p. 847.) "[A]n unwed biological father who comes forward at the first opportunity to assert his parental rights after learning of his child's existence, but has been prevented from becoming a statutorily presumed father under [Family Code] section 7611 by the unilateral conduct of the child's mother or a third party's interference" acquires a status "equivalent to presumed parent status under [Family Code] section 7611." (In re M.C. (2011) 195 Cal.App.4th 197, 213, 220, superseded by statute on other grounds as stated in C.A. v. C.P. (2018) 29 Cal.App.5th 27, 35.) Thus, an unwed man may have a constitutional right to presumed father status if he "promptly comes forward and demonstrates a full commitment to his parental responsibilities—emotional, financial, and otherwise." (Kelsey S., supra, at p. 849.) The juvenile court refers to those fathers who acquire this status as Kelsey S. fathers.
In determining whether a father qualifies as a Kelsey S. father, the juvenile court must consider the father's conduct "both before and after the child's birth. . . . 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 permit. In particular, the father must demonstrate 'a willingness himself to assume full custody of the child—not merely to block adoption by others.'" (Kelsey S., supra, 1 Cal.4th at p. 849.) Additionally, the juvenile court should "consider the father's public acknowledgement of paternity, payment of pregnancy and birth expenses commensurate with his ability to do so, and prompt legal action to seek custody of the child." (Ibid.)
II. Standing
Before we turn to the merits of mother's argument, we first consider whether she has standing to advance this argument on appeal.
A. Relevant Law
"Whether a person has standing to raise a particular issue on appeal depends upon whether the person's rights were injuriously affected by the judgment or order appealed from. [Citation.] A person does not have standing to urge errors on appeal that affect only the interests of others. [Citation.] Accordingly, a parent is precluded from raising issues on appeal which do not affect his or her own rights." (In re A.K. (2017) 12 Cal.App.5th 492, 499; see also In re K.C. (2011) 52 Cal.4th 231, 236-237.)
B. Analysis
Here, the juvenile court's decision to proceed with the permanency planning hearing (and not continue the matter) did not affect mother's rights. Jin never personally asserted any parental rights to minor. Specifically, he did not submit a JV-505 form (Statement Regarding Parentage) or otherwise assert that he was minor's father. He also did not request a judgment of parentage and/or a genetic test. (See also Cal. Rules of Court, rule 5.635(e)(1) [where there is no prior determination of paternity, "[a]ny alleged father and his counsel must complete and submit [a JV-505 form]"].) Therefore, the juvenile court did not need to determine whether Jin was any type of father to minor. (See Cal. Rules of Court, rule 5.635(h)(2) [court only needs to determine paternity in a dependency matter if a person appears at a hearing and requests a judgment of parentage on a JV-505 form]; see also § 316.2, subd. (a) [requiring the juvenile court to inquire regarding the identity of all presumed or alleged fathers at the detention hearing or as soon as practicable]; In re B.C. (2012) 205 Cal.App.4th 1306, 1311 [California Rules of Court, rule 5.635 "implements the provisions of section 316.2"].) Because he did not take any prompt steps to assert parentage over minor, mother was not affected by the juvenile court's denial of her request for a continuance. It follows that mother lacks standing to raise this argument on appeal.
Mother asserts that she does have standing because if Jin turned out to be minor's biological father, he could have secured services as a Kelsey S. father and thereby forced the juvenile court to vacate the permanency planning hearing. In other words, according to mother, "[b]ecause requiring the juvenile court to determine biological paternity advances [her] argument against terminating [parental] rights, she has standing to raise the paternity issue." We disagree.
As set forth in sections III and IV of our Discussion, there is no indication that even if Jin turned out to be minor's biological father, he would be entitled to services as a Kelsey S. father. After all, there is no evidence that he came forward promptly to assert his parentage, and there is no evidence that mother prevented him from learning of minor. Thus, mother's request for a continuance does not "advance[ her] argument against terminating parental rights." (In re K.C., supra, 52 Cal.4th at p. 238.) It follows that she does not have standing to raise this objection on appeal. III. Even if mother has standing, the juvenile court did not err when it terminated parental rights after finding that Jin was an alleged father at best
A. Relevant Law
"An alleged biological father in dependency proceedings is a man who may be the father of a child, but whose biological paternity has not been established." (In re Joseph G. (2000) 83 Cal.App.4th 712, 715.) "Alleged fathers have [fewer] rights in dependency proceedings than biological and presumed fathers. [Citation.] An alleged father does not have a current interest in a child because his paternity has not yet been established. [Citation.]" (In re O.S. (2002) 102 Cal.App.4th 1402, 1406.) "As such, an alleged father is not entitled to appointed counsel or reunification services. [Citations.]" (In re Paul H. (2003) 111 Cal.App.4th 753, 760.)
We review a paternity determination for substantial evidence. (In re Cheyenne B. (2012) 203 Cal.App.4th 1361, 1371.)
We review denials of continuance requests for abuse of discretion (In re Giovanni F. (2010) 184 Cal.App.4th 594, 602), keeping in mind that a juvenile court may continue a hearing upon a showing of good cause if the resulting delay would not be contrary to the child's best interest (§ 352, subd. (a)). In deciding whether to grant a request for a continuance, the juvenile court must give substantial weight to the child's need for the prompt resolution of her custody status. (§ 352, subd. (a).)
B. Analysis
Here, Jin made his first appearance in this matter at the permanency planning hearing, at which he did not submit a JV-505 form. Additionally, neither he nor mother sought to offer any testimony, declarations, or other evidence in support of a position that Jin was minor's biological father. Although mother's counsel represented to the juvenile court that mother and Jin had told him that they were in a dating relationship before mother became pregnant with minor, such statements by counsel are not evidence, and mother had the right to submit additional evidence as opposed to merely relying upon her attorney's alleged "offer of proof." (In re Zeth S. (2003) 31 Cal.4th 396, 413-414, fn. 11.) Moreover, mother's earlier statements to DCFS conflicted with her counsel's representation in court, as mother had previously identified only two men, Manuel and Joseph, who could have been minor's biological father. Finally, mother completed a parentage questionnaire on the date of the hearing in which she asserted that (1) Jin was not present at minor's birth, (2) mother and Jin were never married and never lived together, (3) Jin never held himself out as minor's father, (4) Jin had never received minor into his home, and (5) no paternity test had ever occurred. Taken together, all of this evidence supports the juvenile court's finding that Jin was an alleged father at best, as there was no evidence in the record that he could be minor's biological or presumed father. It follows that the juvenile court did not abuse its discretion when it denied mother's request for a continuance of the section 366.26 hearing.
IV. Harmless error
Even if mother has standing and the juvenile court erred when it denied her request for a continuance (which it did not), any alleged error was harmless. "The California Constitution prohibits a court from setting aside a judgment unless the error has resulted in a 'miscarriage of justice.' (Cal. Const., art. VI, § 13.) We have interpreted that language as permitting reversal only if the reviewing court finds it reasonably probable [that] the result would have been more favorable to the appealing party but for the error. [Citation.] We believe it appropriate to apply the same test in dependency matters." (In re Celine R. (2003) 31 Cal.4th 45, 59-60.)
Here it is not reasonably probable that mother's parental rights would not have been terminated had the juvenile court granted her request for a continuance. Even assuming mother's counsel's representation that Jin agreed to submit to a DNA test was true and Jin would have followed through, there is no evidence that he would have qualified as a Kelsey S. father. There is no evidence that mother engaged in unilateral conduct that prevented him from becoming a presumed father. (Kelsey S., supra, 1 Cal.4th at p. 849.) And there is no evidence that once he became aware of the minor, he promptly came forward and demonstrated a full parental commitment to minor. It follows that there was no reasonable probability that Jin would qualify as a Kelsey S. father entitled to family reunification services. (In re Zacharia D., supra, 6 Cal.4th at p. 451.)
For these reasons, mother's reliance upon In re Baby Boy V. (2006) 140 Cal.App.4th 1108 is misplaced. In that case, the appellate court reversed orders made at a permanency planning hearing that denied a man's request for a paternity test and terminated parental rights. (In re Baby Boy V., supra, at pp. 1110, 1119.) The appellate court first determined that the man, Jesus, had standing because he had "appeared and asserted a position—that he believed he was the father, wanted to confirm his belief with a paternity test, and wanted to know and support his son." (Id. at p. 1117.) The appellate court next determined that the evidence was undisputed that Jesus qualified as a Kelsey S. father: "On the record before us, it is undisputed that Jesus, a nonoffending, stable, employed, and financially responsible adult, came forward at the earliest possible moment and when the baby had been in foster care for only eight months. It is undisputed that the only reason Jesus did not come forward at an earlier date is that he did not know of the existence of the baby. It is undisputed that the mother would not disclose his identity to the court or to the Department, and that he was thereby prevented from receiving the baby into his home and holding himself out as the baby's father. (Fam. Code, § 7611, subd. (d).) For these reasons, Jesus is entitled to presumed father status. [Citation.]" (In re Baby Boy V., supra, at p. 1117.)
In contrast, Jin here has not asserted a position that he is minor's father. And, there is no evidence that mother prevented Jin from receiving minor into his home or that Jin came forward at the earliest possible moment to assert paternity. And, notably, the appellant in In re Baby Boy V. was Jesus, the man asserting his parental status. (In re Baby Boy V., supra, 140 Cal.App.4th at p. 1115.) Here, mother, not Jin, is challenging the juvenile court's order and judgment. It follows that any alleged error in denying mother's request for a continuance was harmless as a matter of law.
DISPOSITION
Mother's appeal is dismissed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.
/s/_________, J.
ASHMANN-GERST We concur: /s/_________, P. J.
LUI /s/_________, J.
HOFFSTADT