L. A. Cnty. Dep't of Children & Family Servs. v. R.C. (In re Isabella M.)

10 Cal.App.5th 535

216 Cal.Rptr.3d 504

IN RE ISABELLA M., a Person Coming Under the Juvenile Court Law.

Los Angeles County Department of Children and Family Services, Plaintiff and Respondent,

v.R.C., Defendant and Appellant.

B277142

Court of Appeal, Second District, Division 7, California.

Filed March 13, 2017

Liana Serobian, Glendale, under appointment by the Court of Appeal, for Defendant and Appellant.

Mary C. Wickham, County Counsel, R. Keith Davis, Assistant County Counsel, and Kimberly Roura, Deputy County Counsel, for Plaintiff and Respondent.

PERLUSS, P.J.

R.C., the alleged father of Isabella M., was incarcerated from the time of her birth until she was 20 months old. The juvenile court denied R.C.'s petition to adjust his parental status from alleged to presumed father and thereafter terminated his parental rights. R.C. appeals from both orders. We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

Isabella was born in June 2014 to Bridgett M., whose 16–month-old son, Andrew M., had been detained in July 2013 by the Los Angeles County Department of Children and Family Services (Department) based in part on Bridgett's illicit drug use. In detaining Isabella under Welfare and Institutions Code section 300, subdivision (b)(1),¹ the Department alleged that Bridgett had a history of substance abuse and was a current abuser of methamphetamine, which she had used consistently while pregnant with Isabella,² and that Andrew was a current dependent of the juvenile court for similar reasons. The petition did not identify R.C. as an offending parent. At the June 25, 2014 detention hearing the juvenile court found R.C. to be Isabella's alleged father and issued a statewide jail removal order to allow R.C. to attend the jurisdiction hearing scheduled for August 6, 2014. Isabella was placed with Bridgett's mother, with whom Andrew had also been placed.

R.C.'s name was not included on Isabella's birth certificate. Bridgett told a Department social worker she had begun living with R.C. in July 2013, became pregnant in September 2013 and broke up with R.C. in December 2013. She knew R.C. had been arrested in February 2014 and had received a multi-year sentence, but did not know where he had been incarcerated. Bridgett reported that R.C. had other children and had told her he did not want to be involved in Isabella's life.

The Department located R.C. at a Vacaville correctional facility and served him by certified mail with notice of the August 6, 2014 hearing and a copy of the petition. The Department also sent an order for R.C.'s appearance at the hearing to the warden of the correctional facility. R.C. did not appear at the hearing and did not execute and return a waiver for his appearance.³ The court found notice had been proper, sustained the section 300 petition and declared Isabella a dependent of the court. The court denied reunification services to Bridgett with respect to Isabella (§ 361.5, subd. (b)(13)) and terminated them with respect to Andrew. The court denied reunification services to R.C. as an alleged father under section 361.5, subdivision (a). The section 366.26 selection and implementation hearing was scheduled for December 3, 2014. On August 7, 2014 the court clerk served the parties, including R.C., with a copy of the minute order from the hearing, forms for seeking writ review of the order denying services and an advisement of rights for the scheduled section 366.26 hearing.

In the report prepared for the December 3, 2014 hearing, the Department advised the court Isabella was thriving in her placement with the maternal grandmother, who had agreed to adopt both children. The Department requested the section 366.26 hearing be continued to allow completion of the adoption home study. The Department again served R.C. with notice of the hearing (attaching its report) and his new correctional facility with an order for him to appear at the hearing. R.C. did not appear at the hearing. The court found notice had been proper and continued the hearing to February 4, 2015.

Thereafter, the section 366.26 hearing was continued on multiple occasions⁴ due to the Department's need to seek an administrative waiver for approval of the home study.⁵ The Department's February 18, 2015 interim review report advised the court of its receipt of a waiver of appearance for the December 3, 2014 hearing, signed by R.C. and a prison official on November 17, 2014. R.C. did not appear or otherwise respond to other Department notices, although the Department received a December 2014 letter from a program director stating R.C. was participating in a prison substance abuse treatment program.

On March 10, 2016 the Department finally approved the adoption home study for the maternal grandmother and recommended the court terminate parental rights at the hearing scheduled for March 23, 2016. R.C., who had been released from prison, appeared at the hearing and was appointed counsel. At his request, the court ordered a paternity test and continued the hearing to allow R.C.'s counsel to review the record for any notice issues. The court denied R.C.'s request for visitation, citing Isabella's best interest.

The paternity test confirmed R.C. was Isabella's biological father. At the next scheduled hearing R.C.'s counsel requested a continuance to allow him to file a motion on R.C.'s behalf. R.C. filed a section 388 petition on May 9, 2016, alleging the court had violated his due process rights by adjudicating the section 300 petition in his absence. He acknowledged he had received notice of the jurisdiction and disposition hearings but claimed he had not waived his presence and had not been provided with counsel or brought to court to enable him to establish presumed father status. He attended the first hearing he could after his release from custody and argued Isabella (now almost two years old) deserved to be raised by her nonoffending parent. He asked that the court hold new jurisdiction and disposition hearings and place Isabella in his custody or provide him with reunification services. The court scheduled a hearing on the petition for June 16, 2016.

On June 16, 2016 R.C. appeared and requested a continuance to allow him to hire private counsel. The court granted the request and continued the section 388 and section 366.26 hearings to August 3, 2016.

The court informed R.C. that, if he did not appear with new counsel on July 1, 2016, the case would proceed on August 3, 2016 with appointed counsel.

R.C. did not appear on July 1, 2016 or August 3, 2016. Having been unable to contact his client, his appointed counsel requested a continuance, which was denied for lack of good cause. Following argument the court denied the section 388 petition, finding R.C. had not shown that granting the petition would be in Isabella's best interest. The court also found R.C. had been provided with adequate notice through the course of the dependency proceedings but had failed to contact anyone with the Department. The court then relieved his counsel on the ground R.C. remained an alleged father and proceeded to the section 366.26 hearing. The court terminated parental rights as to Isabella and Andrew and designated the maternal grandmother as the children's prospective adoptive parent.

DISCUSSION

1. Governing Law

a. Statutory and due process rights of incarcerated alleged fathers

The Uniform Parentage Act (UPA) (Fam. Code, § 7600 et seq. ), which governs parentage determinations (Elisa B. v. Superior Court (2005) 37 Cal.4th 108, 116, 33 Cal.Rptr.3d 46, 117 P.3d 660 ), identifies "the parent and child relationship" as "the legal relationship existing between a child and the child's natural or adoptive parents." (Fam. Code, § 7601.) In determining whether a person qualifies as a natural parent, the dependency courts recognize and differentiate among three categories of parents: an alleged parent, a biological parent and a presumed parent. ( In re H.R. (2016) 245 Cal.App.4th 1277, 1283, 200 Cal.Rptr.3d 93 ; accord, In re D.P. (2015) 240 Cal.App.4th 689, 695, 193 Cal.Rptr.3d 1.)

A presumed parent "ranks highest" of all three categories and enjoys a full panoply of rights attendant to parenthood, including entitlement to appointed counsel, custody (assuming the court has not made a detriment finding) and reunification services. (In re H.R., supra , 245 Cal.App.4th at p. 1283, 200 Cal.Rptr.3d 93 ; In re D.P. , supra, 240 Cal.App.4th at p.695, 193 Cal.Rptr.3d 1 ; see generally In re Nicholas H. (2002) 28 Cal.4th 56, 65, 120 Cal.Rptr.2d 146, 46 P.3d 932 [presumed parent status is intended to preserve the important relationship created between an alleged parent and child when the alleged parent has treated that child as a son or daughter].) A natural mother attains presumed parent status by giving birth to the child. (Fam. Code, § 7610, subd. (a).) A person who may be the biological father of a child but has not achieved presumed parent status is an alleged father. (In re H.R ., at p. 1283, 200 Cal.Rptr.3d 93 ; In re J.O. (2009) 178 Cal.App.4th 139, 146–147, 100 Cal.Rptr.3d 276.)

An alleged father has a narrow range of rights in dependency proceedings, generally limited under the due process clause to notice of the proceedings so that he may appear and have the opportunity to challenge his parentage status. (In re D.P., supra , 240 Cal.App.4th at p. 695, 193 Cal.Rptr.3d 1 ; In re J.H. (2011) 198 Cal.App.4th 635, 644, 130 Cal.Rptr.3d 389 ; In re O.S. (2002) 102 Cal.App.4th 1402, 1408, 126 Cal.Rptr.2d 571.) An alleged parent is not entitled to appointed counsel, custody or reunification services. (In re H.R. , supra , 245 Cal.App.4th at p. 1283, 200 Cal.Rptr.3d 93 ; In re D.A. (2012) 204 Cal.App.4th 811, 824, 139 Cal.Rptr.3d 222.) A biological father who has established paternity but has not achieved presumed parent status is still an alleged father, but with the additional opportunity for reunification services if the court determines such services will benefit the child. (§ 361.5, subd. ...