Opinion
B229242
01-09-2012
In re FERNANDA A., A Person Coming Under the Juvenile Court Law. LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent, v. S.B., Defendant and Appellant.
John L. Dodd, under appointment by the Court of Appeal, for Defendant and Appellant. Andrea Sheridan Ordin, County Counsel, James M. Owens, Assistant County Counsel, and Tracey F. Dodds, 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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(a). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115(a).
(Los Angeles County
Super. Ct. No. CK73227)
APPEAL from orders of the Superior Court of Los Angeles County, D. Zeke Zeidler, Judge. Orders are affirmed.
John L. Dodd, under appointment by the Court of Appeal, for Defendant and Appellant.
Andrea Sheridan Ordin, County Counsel, James M. Owens, Assistant County Counsel, and Tracey F. Dodds, Deputy County Counsel, for Plaintiff and Respondent.
Appellant S.B. (father) is the biological father of FernandaA. (Fernanda). Father contends that the trial court erred in denying him reunification services before receiving the results of his paternity test in the order dated April 28, 2010; that the trial court abused its discretion in denying his Welfare and Institutions Code section 388 petition, through which he sought reunification services with and custody of Fernanda; and that the trial court's termination of his parental rights without first finding him to be an unfit parent violated due process of law under the United States Constitution.
All section references are to the Welfare and Institutions Code unless otherwise noted.
We disagree. Father waived his right to challenge the order dated April 28, 2010 and the judgment denying him reunification services. The trial court did not abuse its discretion in denying father's section 388 petition because it was reasonable to conclude, based on the evidence in the record, that father failed to show that the change to the order at issue is in the best interests of Fernanda. Finally, the record contains substantial evidence supporting the trial court's finding that father is not a "Kelsey S. father" and therefore a finding of unfitness was not necessary prior to terminating father's parental rights. As a result, we will affirm the trial court's orders.
Our Supreme Court has interpreted the due process requirements of the Fourteenth Amendment to the United States Constitution to require that a trial court find an unwed biological father, who fails to meet the requirements of being a statutorily presumed father but who "promptly comes forward and demonstrates a full commitment to his parental responsibilities," to be unfit as a parent before his parental rights can be terminated. (Adoption of Kelsey S. (1992) 1 Cal.4th 816, 849 (Kelsey S.).) Such a father is referred to herein as a "Kelsey S. father."
FACTUAL AND PROCEDURAL BACKGROUND
The factual and procedural background was taken from the record which consists of two volumes of Clerk's Transcripts and three volumes of Reporter's Transcripts.
Fernanda came to the attention of respondent Department of Children and Family Services (DCFS) by a referral in May of 2009, when Fernanda was six-months old.When responding to a report of a domestic altercation, police officers discovered that Fernanda and her mother, Ana A., (mother) who allegedly engaged in a fight with mother's sister, were living in a trailer behind Fernanda's maternal grandmother's house with no electricity, heat, air conditioning or running water. Officers found no baby food or clothing for Fernanda in the trailer. As a result, DCFS filed a section 300 petition on May 26, 2009 alleging that mother was incapable of providing regular care for Fernanda due to mother's usage of illicit drugs. Mother also has a history of criminal activity and previous DCFS involvement.
Fernanda was born in November 2008.
Mother is not a party to this appeal. Mother's four older children of different fathers, Isaiah A. (born in September 2002), Jose O. (born in April 2005), Christopher O. (born in December 2006) and J.O. (born in December 2007), had previously been declared dependents of the court. Isaiah now resides with his father who has legal and physical custody of him. The other three are in foster care. None of these children is a party to this appeal.
The detention report filed with the petition alleged that father was Fernanda's biological father based on mother's reporting to DCFS that she was dating father when she became pregnant with Fernanda. Mother also reported to DCFS that she terminated her relationship with father when he was arrested prior to Fernanda's birth. When DCFS contacted father on June 2, 2009, he denied being Fernanda's biological father despite acknowledging a sexual relationship with mother at the time Fernanda was conceived. He claimed that he believed mother had many sexual partners at the time, that she was not his "girlfriend" and that he could not have fathered Fernanda because he had testicular surgery as a child and was sterile as a result. Father initially requested a paternity test, but on June 25, 2009, he informed DCFS that he no longer wished to have a paternity test as he was certain that he was not Fernanda's father.
Father has an extensive criminal history dating back to 1997, which includes felony convictions for the manufacture and possession of dangerous weapons and for theft.
It is unclear exactly when father was released after his most recent incarceration. DCFS claims to have interviewed him in June of 2009; however father denied that DCFS contacted him because he was in Oklahoma at that time. He later testified on crossexamination that he was released from prison in December of 2009, in direct conflict with his earlier claims. The trial court determined that DCFS had contacted father in June of 2009, finding father's testimony to not be credible.
On July 2, 2009, the trial court adjudged Fernanda a dependent of the court. Mother completed a paternity questionnaire and indicated therein that father is the biological father of Fernanda. DCFS requested that the court make further inquiries regarding Fernanda's paternity based on father's prior statements. The court found that father was the alleged father of Fernanda and, pursuant to section 361.5 ordered that no reunification services be provided to him. However, the court ordered that father was to have monitored visitation at least two times per week if he contacted DCFS to request such visitation.
The paternity questionnaire is not a part of the record.
The DCFS report filed on December 23, 2009 indicated that DCFS had no contact with father since June of 2009. However, father appeared at the six-month December 23, 2009 hearing and again requested a paternity test. The trial court continued the hearing to February 3, 2010 pending the receipt of the test results.
DCFS reported in its last minute information statement on February 3, 2010, that the social worker communicated with father on January 11, 2010 to determine whether he had completed the DNA paternity test as ordered in December. Father stated that his attorney gave him some paperwork to complete for the test, which he had not done. He stated further that the attorney asked father to call LabCorp to make an appointment but he had not done so because he was not given the phone number. The social worker then gave father the phone number and requested that he call her to confirm the date of his appointment or to resolve any problems if there were any. After not hearing from father for a month, the social worker called him on February 1, 2010. Father stated he had not completed the test because LabCorp informed him that the appointment must be made by his attorney or "someone else." He stated further that he did not have his attorney's contact information and no one has called him. The social worker then gave father his attorney's phone number and asked him to call the attorney. She also left an urgent message for father's attorney. On February 3, 2010, the trial court again continued the hearing pending the paternity test results.
On April 28, 2010, the court terminated reunification services for mother and set a section 366.26 hearing for August 31, 2010. Father, who was present at the hearing and represented by counsel, was personally served in court with writ documents. Father completed his paternity test as of May 11, 2010.
On August 31, 2010, DCFS reported in its last minute information for the court that it received the paternity test results on August 12, 2010 which showed that there is a 99.99% probability that father is the biological father of Fernanda. DCFS also reported that as of that date, father had no visits with Fernanda and did not request to see Fernanda despite the knowing that he may be her father. At the hearing on that day, the trial court found that father's paternity test showed that he was Fernanda's biological father and continued the section 366.26 hearing to September 28, 2010. The trial court also granted a hearing on any section 388 petition filed by father and set the hearing for the same date. The trial court ordered DCFS to immediately create a detailed written visitation schedule for father. Father requested a visit with Fernanda after the hearing. Despite living in Arizona, father came to California and visited with Fernanda on September 2, 2010, September 6, 2010, September 20, 2010, September 27, 2010, October 4, 2010, October 18, 2010, and October 25, 2010.
Father filed a section 388 petition on September 13, 2010 seeking to vacate the order setting the section 366.26 hearing and seeking an order for reunification services with and custody of Fernanda. In his petition he claimed that he was found to be Fernanda's biological father on August 12, 2010 and that, as of August 31, 2010, he began visiting with Fernanda on a consistent basis. He claimed that it was his constitutional right to have reunification services. Father and his wife began parenting classes on October 13, 2010.
The section 388 petition states on page 2 that father became aware of his paternity on August 31, 2010. However, later in the petition, he states that he became aware of his paternity on August 12, 2010. We assume that the first date is a typographical error as DCFS's last minute information for the court corroborates the August 12, 2010 date.
Father's later testimony before the trial court at the simultaneous section 366.26 and section 388 hearings, which were continued to November 16, 2010, directly conflicted with his June of 2009 statements made to DCFS. In his testimony, he admitted that he lived with mother and mother was his girlfriend at the time that Fernanda was conceived. Father first testified that he learned of Fernanda's existence when he received notice of the December 2009 dependency hearing. However, he later admitted that he found out mother was pregnant before Fernanda was born from a letter sent to him in prison from a mutual friend of mother's. He admitted that he did nothing to assert his potential paternity of Fernanda until he appeared at the December 2009 hearing and requested a paternity test. DCFS's records show that father did not request visitation with Fernanda until August of 2010, despite his claims to the contrary.
Father's testimony regarding his parole limitations conflicted with DCFS's interim review report dated November 16, 2010, in which it was stated that father's parole officer informed DCFS that father did not have permission to reside in Arizona. Father claimed that he requested and received permission to do so from his parole officer but that "the paperwork didn't go through" and he is moving back to California.
The trial court denied father's section 388 petition because the best interest of Fernanda would not be promoted by father's proposed change to the order at issue. The court also declared Fernanda free from the custody and control of both mother and father, terminating their parental rights. Father filed a notice of appeal on that same date.
ISSUES ON APPEAL
Father contends that the trial court erred in (1) denying him reunification services before receiving the results of a paternity test to determine whether he is the biological father of Fernanda at the hearing setting the section 366.26 hearing on April 28, 2010; (2) denying his section 388 petition filed after the paternity test confirmed that he is Fernanda's biological father because the test result was new evidence and he demonstrated that he acted reasonably under the circumstances to establish a parental relationship with Fernanda; and (3) terminating his parental rights because, as a biological father, the due process requirements of the Fourteenth Amendment to the United States Constitution, as interpreted by our Supreme Court in Kelsey S., supra, 1 Cal.4th 816, required the trial court to find that he was an unfit parent before it could terminate his parental rights, which it failed to do.
DISCUSSION
1. Father Waived Any Challenge to the Order Denying Reunification Services
Father contends that the trial court erred in denying him reunification services before receiving the results of a test to confirm his paternity of Fernanda at the hearing setting the section 366.26 hearing on April 28, 2010.
Father's first contention is without merit for three reasons. First, section 366.26(l)(1) provides that an order setting a section 366.26 hearing "is not appealable at any time unless . . . [¶] . . . [a] petition for extraordinary writ review was filed in a timely manner. . . . " (See In re Precious J. (1996) 42 Cal.App.4th 1463, 1474, fn. 6 (clarifying that, in enacting section 366.26, subdivision (l), the Legislature abrogated prior Supreme Court authority holding that an order terminating family reunification services contemporaneously made with an order setting a section 366.26 hearing may be reviewed on appeal from a subsequent order terminating parental rights).) Father failed to file any such petition and instead seeks appellate review of the order from April 28, 2010. Thus, his direct appeal of the order is waived.
Father vaguely asserts that he had no standing to file a petition for extraordinary writ review as "he was not 'aggrieved' by the April 28 order terminating reunification services." This assertion is, of course, specious given that father had been participating as a party in the case and was represented by counsel since December of 2009. Additionally, father was personally served in court with writ documents. He also relies on In re Julia U. (1998) 64 Cal.App.4th 532, as authority for his claim that he was not required to file such a petition. In In re Julia U., the respondent argued that the trial court ordered a section 366.26 hearing at the same time it denied the appellant's section 388 petition and therefore, the issues relating to the section 388 petition were foreclosed for review under section 366.26(l). (In re Julia U., supra, 64 Cal.App.4th 532, 539.) However, "[t]he trial court ordered a section 366.26 hearing on May 19, 1997, long before it gave permission to appellant on September 8 to file a section 388 petition. At the hearing denying appellant's section 388 petition, the trial court merely reset the previously ordered section 366.26 hearing," and thus, section 366.26(l) did not apply. Here, the trial court actually set the section 366.26 hearing in the April 28, 2010 order. This point is moot, however, as father's reunification services were not terminated on April 28, 2010.
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Second, the trial court only terminated reunification services with respect to mother in the April 28, 2010 order. Father was denied reunification services in the judgment dated July 2, 2009. That judgment was appealable under section 395. However, the time period during which father could appeal that judgment has long since passed. (See Calif. Rules of Court, Rule 8.406, subd. (a).) As a result, he has waived his right to such appeal.
Finally, "[t]o appeal from a superior court judgment or an appealable order of a superior court, . . . an appellant must serve and file a notice of appeal in that superior court. . . . The notice of appeal must be liberally construed. The notice is sufficient if it identifies the particular judgment or order being appealed. . . . " (Calif. Rules of Court, Rule 8.100, subd. (a); see also, Rule 8.405, subd. (a).) An appellate court's review is limited in scope to the judgment or order specified in the notice of appeal. (Soldate v. Fidelity National Financial, Inc. (1998) 62 Cal.App.4th 1069, 1073.) Neither the April 28, 2010 order nor the July 2, 2009 judgment is included in father's notice of appeal. Because father's notice of appeal is limited to the November 16, 2010 order, our review is limited in scope to that order alone.
2. The Trial Court Did Not Abuse Its Discretion in Denying Father's Section 388 Petition
Father next contends that the trial court abused its discretion in denying his section 388 petition because father had taken sufficient steps under the circumstances to establish a parental relationship with Fernanda. In his section 388 petition, father sought reunification services with and custody of Fernanda.
Section 388 provides that a "parent or other person having an interest in a child who is a dependent child of the juvenile court . . . may, upon grounds of change of circumstance or new evidence, petition the court . . . for a hearing to change, modify, or set aside any order of court previously made . . . . " A section 388 petition "is addressed to the sound discretion of the [trial] court and its decision will not be disturbed on appeal in the absence of a clear abuse of discretion." (In re Jasmon O. (1994) 8 Cal.4th 398, 415.) "The denial of a section 388 motion rarely merits reversal as an abuse of discretion. [Citation.]" (In re Amber M. (2002) 103 Cal.App.4th 681, 685-686.) " 'The appropriate test for abuse of discretion is whether the trial court exceeded the bounds of reason. When two or more inferences can reasonably be deduced from the facts, the reviewing court has no authority to substitute its decision for that of the trial court.' [Citations.]" (In re Stephanie M. (1994) 7 Cal.4th 295, 318-319.)
At a section 388 hearing, the moving party must prove (1) that there are changed circumstances and/or new evidence; and (2) that the change to the order at issue is in the best interests of the child. (In re Stephanie M., supra, 7 Cal.4th at p. 317.)
It is undisputed that the confirmation of father's status as Fernanda's biological father constitutes new evidence on which the section 388 petition is based. Therefore, we only review whether father satisfied the second requirement under section 388.
With respect to the second requirement, father specifically asserts that the change to the order is in Fernanda's best interest because he has developed a positive relationship with Fernanda since he discovered that he was her biological father. Father relies heavily on the holding of In re Julia U., supra, 64 Cal.App.4th 532, as authority for his assertions.
The In re Julia U. court reversed the trial court's denial of that appellant's section 388 petition because it found that the "trial court's refusal to allow appellant the opportunity to prove his presumed father status and his fitness as a parent contravene[d] the statutory dependency scheme." (In re Julia U., supra, 64 Cal.App.4th at p. 544.) In that case, the "appellant had no more than a casual relationship with [the mother] and they had sexual intercourse only twice. Before becoming pregnant with [the child], [the mother] was engaging in multiple acts of sexual intercourse with varying persons. She named three males as . . . alleged father[s]. Based on [the mother's] promiscuity and appellant's casual relationship with her, the evidence is weak that he had reason to expect his sexual activity with [the mother] would result in her pregnancy. [Appellant knew the mother] was pregnant, but believed the father was Jose U. Moreover, [the mother] did not inform anyone of appellant's possible parentage until it was determined that Jose U. was not [the child's] father." (In re Julia U., supra, 64 Cal.App.4th at p. 541.)
Further, in In re Julia U., the "[a]ppellant was the only alleged father who did not deny or reject his paternity. From his initial contact with respondent, he publicly expressed his desire to establish a relationship with [the child] if the paternity test showed he was her biological father. [¶] [He] did not delay in asserting his interest . . . [and] . . . [he] alleged without contradiction that respondent denied his requests for visitation. . . . [T]he record shows appellant was in contact with respondent . . . only a few weeks after respondent's failure to reach him at his mother's address. [Two weeks later] appellant had left Arizona to live with his mother in Oceano, and was in court asserting his commitment to a parental relationship with [the child]. Despite his interest, appellant did not receive appointed counsel before his paternity test. . . . [¶] The record does not establish that appellant was indifferent to [the child's] existence; quite the contrary. He had no opportunity to develop a parental relationship with [the child]; visitation with her was denied both by respondent and the trial judge." (In re Julia U., supra, 64 Cal.App.4th at p. 541-542.)
The In re Julia U. court found that respondent's delay in establishing appellant's paternity was unreasonable and that "[a]ppellant's recognizable interest in his parentage was overlooked." (In re Julia U., supra, 64 Cal.App.4th at p. 543.) "Respondent's delay in ascertaining appellant's existence and paternity began when test results showed Jose U. was not [the child's] father. It took respondent three months . . . to inform the court." (Id., at p. 542.) Respondent made no attempts to contact appellant until two months after the mother informed respondent that appellant could be the child's father despite knowing appellant's mother's name and address. (Id., at pp. 542-543.) Respondent delayed three to four-months in scheduling a paternity test despite appellant's repeated requests and calls. (Ibid.)Finally, the In re Julia U. court stated that "[d]ue to [appellant's] young age and lack of finances, appellant reasonably may have been precluded from participating in the case until . . . appointed counsel for him was first allowed to be present in court." (In re Julia U., supra, 64 Cal.App.4th at p. 542.)
The facts in this case are substantially different than those in In re Julia U. Here, father lived with mother and referred to her as his girlfriend, having a sexual relationship with mother when Fernanda was conceived. The relationship between father and mother was not merely a couple of casual encounters. He knew mother was pregnant with Fernanda before Fernanda was born and he knew or should have known he was potentially the child's father. Mother specified that father was the biological father of Fernanda since the section 300 petition was filed in late May of 2009. No other man was the presumed father of Fernanda. A week after mother informed DCFS that father was Fernanda's likely biological father, DCFS contacted father but he vehemently denied it. Despite originally requesting a paternity test, he subsequently withdrew his request because he claimed he could not possibly be Fernanda's father. Unlike the appellant in In re Julia U., father his not a minor and has been represented by counsel since his first appearance in December of 2009, when he then again requested a paternity test. Father was given paperwork to complete in order to obtain the paternity test, but delayed in completing his portion of the paternity test for nearly five months after the court ordered such testing despite repeated inquiries from DCFS. He requested no visitation with Fernanda, despite the court's ordering that he be given visitation on July 2, 2009, until August 31, 2010, when Fernanda had reached nearly two years of age.
In summary, despite knowing of Fernanda's existence since late 2008, father did nothing to establish a relationship with her until August 31, 2010, when he requested his first visit. Father admitted this in his testimony. The trial court could reasonably conclude that father was not denied the opportunity to develop a parental relationship with Fernanda by mother or any third party. And that father's delay in asserting paternity followed by only two to three months of visits on a once-weekly basis did not establish that it would be in Fernanda's best interest for the trial court to modify its earlier order and grant him reunification services with and custody of Fernanda. The trial court did not abuse its discretion in denying father's section 388 petition.
3. Substantial Evidence Supports the Trial Court's Finding that Father is Not a Kelsey S. Father, and Therefore, the Trial Court Need Not Find Him Unfit Prior to Terminating His Parental Rights.
Finally, father seeks a reversal of the termination of his parental rights at the section 366.26 hearing on the basis that his due process rights were violated. Specifically he contends that he is a Kelsey S. father and, therefore, the trial court erred in terminating his parental rights without making a finding that he is an unfit parent.
Our Supreme Court held in Kelsey S., supra, 1 Cal.4th at pp. 849-850, that, our adoption statutory scheme "violates the federal constitutional guarantees of equal protection and due process for unwed fathers to the extent that the statutes allow a mother unilaterally to preclude her child's biological father from becoming a presumed father and thereby allowing the state to terminate his parental rights on nothing more than a showing of the child's best interest. If an unwed father promptly comes forward and demonstrates a full commitment to his parental responsibilities - emotional, financial, and otherwise - his federal constitutional right to due process prohibits the termination of his parental relationship absent a showing of his unfitness as a parent. Absent such a showing, the child's well-being is presumptively best served by continuation of the father's parental relationship. . . . "
"A court should consider all factors relevant to that determination. The father's conduct both before and after the child's birth must be considered. 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. . . . ' A court should also 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. . . . [¶] . . . [T]he trial court must consider whether [the father] has done all that he could reasonably do under the circumstances." (Kelsey S., supra, 1 Cal.4th at pp. 849-850.)
Our Supreme Court extended this holding to the dependency context in In re Zacharia D. (1993) 6 Cal.4th 435, 451, stating that due process concerns arise with respect to "a biological father who is precluded from attaining presumed father status by the mother or a third party, but who comes forward early in the dependency process, and who displays a commitment consistent with the standard set forth in Kelsey S."
The trial court's ruling terminating parental rights is reviewed to determine whether it is supported by substantial evidence. (In re B.D. (2008) 159 Cal.App.4th 1218, 1235.) The evidence in the record is viewed most favorably to the prevailing party, indulging in all legitimate and reasonable inferences in order to uphold the trial court's ruling. (Ibid.)
As noted above, despite knowing of Fernanda's existence since late 2008, father requested only a paternity test in December of 2009 and did nothing else to establish a relationship with her until August 31, 2010, when he requested his first visit. The record is replete with evidence supporting the trial court's finding that father failed to promptly attempt to assume parental responsibilities for Fernanda, and therefore he did not qualify as a Kelsey S. father such that a finding of unfitness prior to terminating his parental rights was not required.
DISPOSITION
The trial court's orders are affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
CROSKEY, Acting P. J.
WE CONCUR:
KITCHING, J.
ALDRICH, J.