In re A.P. CA4/2

Opinion

Filed 2/27/13 In re A.P. CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FOURTH APPELLATE DISTRICT

DIVISION TWO

In re A.P., a Person Coming Under the Juvenile Court Law.

RIVERSIDE COUNTY DEPARTMENT OF PUBLIC SOCIAL SERVICES, E056277

Plaintiff and Respondent, (Super.Ct.No. RIJ1200331)

v. OPINION

A.P.,

Defendant and Appellant.

APPEAL from the Superior Court of Riverside County. Matthew C. Perantoni,

Temporary Judge. (Pursuant to Cal. Const., art. VI, § 21.) Affirmed.

Jacob I. Olson, under appointment by the Court of Appeal, for Defendant and

Appellant.

Pamela J. Walls, County Counsel, and Carole A. Nunes Fong, Deputy County

Counsel, for Plaintiff and Respondent.

1 I

INTRODUCTION

Father appeals from jurisdictional and dispositional orders and findings in which

the juvenile court denied reunification services and ordered paternity testing. The court

further ordered that, if DNA testing determined that father was not A.P.’s biological

father, the court would vacate all findings and orders as to father. Father contends the

juvenile court erred in delaying compliance with Welfare and Institutions Code section

316.2,1 by not immediately ordering paternity testing, before conducting a contested joint

jurisdictional and dispositional hearing. Father also argues that the juvenile court erred in

denying his request for a continuance of the hearing. We conclude there was no

reversible error and affirm the judgment.

II

FACTS AND PROCEDURAL BACKGROUND

In February 2012, the Riverside County Department of Public Social Services

(DPSS) received a referral that A.P.’s mother (mother) was neglecting A.P., who was

eight months old. On March 15, 2012, a DPSS social worker visited A.P.’s home and

interviewed mother and two of A.P.’s three older, maternal half-siblings.2 Mother said

her home was messy because she was in the process of moving. Mother identified father

as A.P.’s biological father and reported that father was currently incarcerated at the high

1 Unless otherwise noted, all statutory references are to the Welfare and Institutions Code.

2 Mother and A.P.’s half-siblings are not parties to this appeal.

2 desert prison. Maternal grandmother reported mother had a 12-year history of abusing

methamphetamine. On March 15, 2012, mother entered into a safety plan, in which she

agreed to participate in Family Preservation Court services and not use drugs. A week

and a half later a DPSS social worker made another unannounced home visit, during

which mother tested positive for recent marijuana and methamphetamine use. On March

26, 2012, the children were removed from mother’s care and placed with maternal

grandmother.

DPSS filed a juvenile dependency petition under section 300, subdivisions (b) and

(g), alleging mother failed to comply with the safety plan and continued to use drugs, and

father was incarcerated. Father was listed in the petition as an alleged father. The

petition stated and the court found that notice of the detention hearing was given as

required by law. During the detention hearing, father was appointed counsel. Father,

who was not present at the hearing, denied the petition allegations. On April 2, 2012, the

court clerk sent father notice of the contested jurisdictional hearing, along with an

attached copy of the juvenile dependency petition. The notice also advised father that he

was entitled to have a court-appointed attorney. In April 2012, DPSS filed an amended

petition, adding that father had a substance abuse history, which included the use of

methamphetamine. Father remained incarcerated.

DPSS social worker, Yoana Armendariz, reported in the jurisdiction/disposition

hearing report, that she interviewed father by telephone on April 12, 2012, and explained

to him the purpose of the jurisdiction/disposition hearing. Father did not acknowledge he

was A.P.’s father but reported that he and mother had been in a relationship when A.P.

3 was conceived and were living together. Mother and father were also involved with

others as well. Father’s name was not on A.P.’s birth certificate. Father said he was

scheduled to be released from prison on June 10, 2012. He did not wish to visit A.P. or

take a paternity test until after he was released. Father had a 12-year-old daughter but

had not had a relationship with her for over seven years.

The juvenile court held a contested jurisdiction/disposition hearing on May 10,

2012. Father waived his appearance at the hearing. His court-appointed attorney

requested on father’s behalf a continuance of the hearing to June 11th or 12th, to allow

him to undergo paternity testing before the court ruled on jurisdiction and disposition.

Father’s attorney told the court that father was denying paternity and argued that father

would be prejudiced by the court ruling on the petition before father tested for paternity.

Father’s attorney vehemently objected to proceeding with the jurisdiction/disposition

hearing because father might not be A.P.’s father. Nevertheless, the juvenile court denied

a continuance, denied father reunification services under section 361.5, subdivision (a),

and ordered DNA testing for him. The court further ordered that, if the DNA test

determined that father was not A.P.’s biological father, the court would vacate all

findings and orders as to father.

III

NOTICE AND PATERNITY

Father contends DPSS violated his due process rights by failing to comply with

notice and paternity testing requirements under section 316.2 and California Rules of

4 Court, rule 5.635.3

The Family Code and the Welfare and Institutions Code differentiate between

“alleged,” “natural” or “biological” and “presumed” fathers. A man who may be the

father of a child but whose biological paternity has not been established and who has not

achieved presumed father status is an alleged father. (In re Paul H. (2003) 111

Cal.App.4th 753, 760 (Paul H.); see also In re Kobe A. (2007) 146 Cal.App.4th 1113,

1120 (Kobe A.).) Only a presumed father is statutorily entitled to reunification services.

As an alleged father, father was not entitled to services. (Ibid.) However, the juvenile

court may order services for a man determined to be the child’s biological father, if the

court finds that services will benefit the child. (§ 361.5, subd. (a).) Consequently, father

had a due process right to notice and an opportunity to change his status to that of

biological father. (Paul H., at p. 760; see also Kobe A., at p. 1120.)

Section 316.2, subdivision (b) requires that, when any man has been identified as

an alleged father, “each alleged father shall be provided notice at his last and usual place

of abode by certified mail return receipt requested alleging that he is or could be the

father of the child. The notice shall state that the child is the subject of proceedings under

Section 300 and that the proceedings could result in the termination of parental rights and

adoption of the child. Judicial Council form Paternity-Waiver of Rights (JV-505) shall

be included with the notice.”

3 All references to rules are to the California Rules of Court.

5 Rule 5.635, which implements section 316.2, provides in relevant part that, if one

or more persons are identified as alleged parents of a child for whom a petition under

section 300 has been filed, “the clerk must provide to each named alleged parent, at the

last known address, by certified mail, return receipt requested, a copy of the petition,

notice of the next scheduled hearing, and Statement Regarding Parentage (Juvenile)

(form JV-505) . . . .” (Rule 5.635(g).)

Although the record on appeal shows father received notice of the detention,

jurisdiction, and disposition hearings, along with a copy of the juvenile dependency

petition, and also received notice of the right to court-appointed counsel, it appears from

the record that father was not provided notice by certified mail, return receipt requested,

or served with a Statement Regarding Parentage (Juvenile) (form JV-505), as required

under section 316.2.

Form JV-505 provides an alleged father the opportunity to deny parentage of a

child, to request an attorney, to request or consent to a paternity test, to consent to a

judgment of paternity, to provide evidence of a declaration of paternity, to provide proof

of marriage to the mother, to show indicia of presumed paternity, and other similar

matters. The form also advises the alleged father of his rights and options. (Kobe A.,

supra, 146 Cal.App.4th at p. 1121.)

Although DPSS and the court clerk were remiss in failing to mail form JV-505 to

father, this did not constitute a due process violation and was harmless error. (Kobe A.,

supra, 146 Cal.App.4th at p. 1122; Paul H., supra, 111 Cal.App.4th at p. 760.) “Due

process for an alleged father requires only that the alleged father be given notice and ‘an

6 opportunity to appear and assert a position and attempt to change his paternity status.’”

(Paul H., at p. 760.) As stated above, father received notice of the dependency

proceedings and a copy of the juvenile dependency petition. The petition put father on

notice that he was an alleged father and entitled to a court-appointed attorney, but there

appears to have been no formal notice under section 316.2 that father had a right to

attempt to change his paternity status.

The record, however, shows that father was aware he could test for paternity and

was provided with a court-appointed attorney to represent him at the detention and joint

jurisdiction/disposition hearings. About a month before the jurisdiction/disposition

hearing, a DPSS social worker explained to father the purpose of the joint

jurisdiction/disposition hearing. Father said that he did not want to test for paternity or

visit A.P. until after he was released from prison, which was after the joint

jurisdiction/disposition hearing. Furthermore, at the joint jurisdiction/disposition hearing,

father, through his attorney, denied he was A.P.’s father. Under these circumstances, in

which father was aware of his rights and options to test for paternity, receiving form JV-

505 would not have resulted in any change in the ultimate result. Even if father had

received form JV-505, he would not have agreed to test for paternity before the joint

jurisdiction/disposition hearing.

Furthermore, even if father had received and filled out form JV-505, and had been

able to establish biological paternity, the test results would not have materially altered the

case. The request for a paternity test is not an end in itself: The purpose of paternity

testing generally would be to receive reunification services as a presumed father. The

7 order here denying reunification services would not have been changed, even if paternity

testing had been ordered. The evidence indicated that, even if father was AP’s biological

father, the juvenile court would not have found he was a presumed father because he was

not listed on A.P.’s birth certificate; he had never married mother; he had never lived in

the home with A.P.; he had been incarcerated since the inception of the juvenile

dependency proceedings and was not scheduled to be released until after the

jurisdiction/disposition hearing; father had provided no care or support for A.P.; he had,

through his attorney, denied paternity at the jurisdiction/disposition hearing; and, in short,

father had nothing to do with A.P.

Even if father had been sent form JV-505, declared paternity, and requested and

received paternity testing showing him to be A.P.’s biological father, there would have

been no change in the ultimate result: By clear and convincing evidence it would have

been detrimental to A.P., who was an infant, to provide reunification services to father.

Furthermore, there was no prejudice because, during the jurisdiction/disposition hearing,

the juvenile court ordered DNA testing for father, with the provision that, if the DNA test

determined that father was not A.P.’s biological father, the court would vacate all

findings and orders as to father. Because father has failed to show that the error in failing

to provide him with form JV-505, resulted in a miscarriage of justice, reversal is not

required.

8 IV

HEARING CONTINUANCE

Father contends the trial court abused its discretion in denying his request to

continue the jurisdiction/disposition hearing a month, until after he was released from

prison in June 2012. Father wanted a continuance so that he could test for paternity

before the court ruled on jurisdiction and disposition. We conclude the trial court’s

denial of father’s request to continue the jurisdiction/disposition hearing was not an abuse

of discretion and, even if the denial was error, it was harmless. (In re Ninfa S. (1998) 62

Cal.App.4th 808, 810-811 (Ninfa S.).)

Under section 352, the juvenile court may grant a continuance “beyond the time

limit within which the hearing is otherwise required to be held, provided that no

continuance shall be granted that is contrary to the interest of the minor. In considering

the minor’s interests, the court shall give substantial weight to a minor’s need for prompt

resolution of his or her custody status, the need to provide children with stable

environments, and the damage to a minor of prolonged temporary placements. [¶]

Continuances shall be granted only upon a showing of good cause and only for that

period of time shown to be necessary by the evidence presented at the hearing on the

motion for the continuance.” (§ 352, subd. (a).) Such a request for a continuance must

be requested by written notice, “filed at least two court days prior to the date set for

hearing, together with affidavits or declarations detailing specific facts showing that a

continuance is necessary, unless the court for good cause entertains an oral motion for

continuance.” (§ 352, subd. (a).) “Continuances are discouraged [citation] and we

9 reverse an order denying a continuance only on a showing of an abuse of discretion

[citation].” (Ninfa S., supra, 62 Cal.App.4th at pp. 810-811.)

Subdivision (b) of section 352 further provides that, “Notwithstanding any other

provision of law, if a minor has been removed from the parents’ or guardians’ custody,

no continuance shall be granted that would result in the dispositional hearing, held

pursuant to Section 361, being completed longer than 60 days after the hearing at which

the minor was ordered removed or detained, unless the court finds that there are

exceptional circumstances requiring such a continuance.” The disposition hearing

therefore had to be conducted on or before May 28, 2012, within 60 days after the

detention hearing on March 29, 2012, absent a showing of exceptional circumstances.

Here, father did not establish exceptional circumstances for continuing the

jurisdiction/disposition hearing from May 10, 2012, to June 11th or 12th. Also, father did

not file the requisite written notice of his continuance request or show good cause for

bringing an oral continuance motion. In the instant case, there was substantial evidence

that, even if a paternity test established that father was A.P.’s biological father, father was

not a presumed father. A.P. was an infant and father had had no relationship with him.

Therefore, it was highly unlikely that the juvenile court would have found that father was

a presumed father or that he would have been entitled to reunification services.

Continuing the jurisdiction/disposition hearing would have merely delayed the

proceedings, which was not in A.P.’s best interest. In addition, the trial court ordered

paternity testing for father and also ordered that, if father was found to be A.P.’s

biological father, the court would vacate all findings and orders as to father. Under such

10 circumstances, the trial court did not abuse its discretion in denying the continuance and,

even if there was error, it was harmless. (Ninfa S., supra, 62 Cal.App.4th at pp. 810-811;

In re Karla C. (2003) 113 Cal.App.4th 166, 179-180.)

V

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

CODRINGTON J.

We concur:

HOLLENHORST Acting P. J.

McKINSTER J.