Opinion
D059852 Super. Ct. No. NJ13132B
11-18-2011
In re OLIVIA C., a Person Coming Under the Juvenile Court Law. SAN DIEGO COUNTY HEALTH AND HUMAN SERVICES AGENCY, Plaintiff and Respondent, v. FERNANDO C. et al., Defendants and Appellants.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
APPEALS from an order of the Superior Court of San Diego County, Blaine K. Bowman, Judge. Second appeal dismissed; order affirmed.
Fernando C. appeals from the juvenile court's disposition order denying him reunification services relating to his daughter, Olivia, pursuant to Welfare and Institutions Code section 361.5, subdivision (a). He contends that the juvenile court should have ordered him services because it was in Olivia's best interests to do so. Kevin T. separately appeals from the order, which also denied him reunification services and struck his name from the dependency petition; he asks that we independently review the record for error. (See In re Sade C. (1996) 13 Cal.4th 952.) We decline Kevin's requestand dismiss his appeal; we also reject Fernando's arguments and affirm the order.
All further statutory references are to this code except as otherwise noted.
Kevin's counsel has also requested that we allow Kevin to file a supplemental brief on his own behalf. However, in the absence of a showing of good cause therefore, we decline this request as well. (In re Phoenix (2009) 47 Cal.4th 835, 844-846.)
FACTUAL AND PROCEDURAL BACKGROUND
In December 2010 the San Diego County Health and Human Services Agency (the Agency) received a report that two-year-old Olivia, who was living with her mother, Maria R., in a drug house, was left unattended and seen running around in the street at 11:00 p.m. The following month, Maria's mother reported to police that Maria had abused Olivia. A social worker met with Maria, saw that Olivia was dirty, had matted hair and a scratch mark on her cheek and was underweight. Maria admitted that she had been using methamphetamine and agreed to undertake voluntary services, including an outpatient drug program and drug testing, and to take Olivia to the doctor for examination.
All relevant dates are in 2011 except as otherwise noted.
Unfortunately, Maria did not keep any of the agreements she had made with the social worker and in February, the Agency successfully applied for a protective custody warrant and filed a juvenile dependency petition on Olivia's behalf, alleging that Olivia had suffered, or was at a substantial risk of suffering, harm as a result of Maria's inability to care for her due to Maria's history of drug use and parental neglect of two older children, who had been removed from her care. The Agency detained Olivia in a confidential foster home.
Maria identified Fernando as Olivia's biological father, but indicated that, when she told him during pregnancy that he was Olivia's father, he told her to get an abortion; after Olivia was born, Fernando (who was at that time in jail pending trial on numerous drug- and firearm-related charges) refused to provide any support for Olivia and Maria cut off contact with him. Maria reported that Kevin (whom she had recently married) had cared for and supported Olivia since she was two months old, until he was incarcerated for probation violations.
At the detention hearing, the court found that a continued out-of-home placement was necessary to protect Olivia. It ordered the Agency to provide voluntary services to Maria and Fernando, but emphasized that, based on Olivia's young age, the parents only had six months to make substantial progress with services. (See § 361.5, subd. (a)(1)(B).) It also authorized visitation for Fernando so long as the visits would not be detrimental to Olivia.
In April the Agency placed Olivia with Maria's mother. In preparation for the jurisdictional hearing later that month, the social worker wrote a report indicating that Kevin had four children whom had been declared dependents of the juvenile court, but with whom he failed to reunify. It noted that Fernando had three additional children and that his parental rights to one of those children had been terminated in juvenile dependency proceedings and he was uninvolved in parenting the other two. The report also recounted both men's extensive criminal histories.
Fernando was charged with more than 50 offenses from 1993 to 2011 and Kevin was charged with slightly fewer charges, committed between 1995 and 2010.
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At the jurisdictional hearing, the court declared Fernando to be Olivia's biological father based on DNA test results and entered a judgment of parentage. Based on Kevin's possible interest in being declared Olivia's presumed father, the court asked him to complete a paternity questionnaire; in it, Kevin stated that he had supported Olivia by buying her diapers, clothing and food and that she lived with him from August to November of 2010.
Fernando expressed an interest in visiting with Olivia, but the Agency was unable to arrange visits because of scheduling difficulties with the jail. He also wanted to participate in reunification services, but the social worker concluded that services should not be offered based on his continuing incarceration. Fernando was thereafter sentenced to four years in prison on the pending charges.
At the jurisdictional hearing on May 18, the court made a true finding on the dependency petition. It also set a contested dispositional hearing regarding Kevin's request to be designated as Olivia's presumed father and both Kevin's and Fernando's requests for reunification services and visitation.
At the dispositional hearing, the parties stipulated that Maria would have unsupervised visitation with Olivia on the condition that Kevin not be present. The Agency and Olivia's counsel argued that the court should deny services to Fernando because Olivia did not view him as her father (as she did Kevin), he had a significant criminal history, his incarceration was likely to last during the entire reunification period, he had originally declined Maria's request for assistance with Olivia's support and he had failed to reunify with his other children. Olivia's counsel supported continued visitation with Fernando, however.
Fernando's counsel argued that the court should authorize services, in addition to visitation, for his client because Olivia's young age provided the opportunity for Fernando to be "reintroduced to her life" and that it was in her best interests for that to happen. Counsel also pointed out that, although Fernando had originally not provided support for Olivia, since the outset of these proceedings he had requested DNA testing, a judgment of paternity, visitation and services.
The court found that Kevin was not a presumed father, noting that he had been incarcerated for a significant portion of Olivia's life, denied provision of reunification services to him and struck his name from the dependency petition. It also denied reunification services for Fernando based on the absence of an existing relationship with Olivia, his extensive criminal history and his current incarceration. It ordered liberal supervised visitation for him so long as the visits were not detrimental to Olivia.
DISCUSSION
1. Denial of Reunification Services
A biological father is entitled to reunification services only if he also meets the criteria for a presumed father. (In re Zacharia D. (1993) 6 Cal.4th 435, 451.) This ensures that parental rights will generally be conferred only a man who has a connection to the mother and/or child through marriage (or attempted marriage) or through a commitment to the child. (Ibid. [recognizing that otherwise reunification services would automatically be provided to biological fathers who were rapists or anonymous sperm donors].) However, even though a biological father who does not qualify as a presumed father is not entitled to reunification services, the juvenile court may order such services for him if it finds that doing so will benefit the child. (§ 361.5, subd. (a); In re Vincent M. (2008) 161 Cal.App.4th 943, 954.)
The juvenile court has broad discretion in deciding whether to order services for a biological parent. (See In re William B. (2008) 163 Cal.App.4th 1220, 1229.) We will not disturb its decision unless the court exceeded the limits of legal discretion by making an arbitrary, capricious or patently absurd determination. When two or more inferences reasonably can be deduced from the facts, we have no authority to reweigh the evidence or substitute our judgment for that of the trial court. (In re Stephanie M. (1994) 7 Cal.4th 295, 318-319; In re Tanis H. (1997) 59 Cal.App.4th 1218, 1226-1227.)
Here, the evidence showed that Fernando was a biological father who had met Olivia on several occasions, but had not made an effort to visit or develop a relationship with her prior to the commencement of these proceedings. Fernando's commitment to his daughter consisted of establishing his biological paternity and expressing a willingness to participate in court-ordered services. However, given Fernando's existing incarceration pursuant to a newly-imposed four year sentence, the court reasonably found that he was not likely to be able to even begin to reunifying with Olivia before the expiration of the limited amount of time available before it would be required to make a decision about Olivia's permanent plan. (§ 361.5, subd. (a)(1)(B).)
Implicitly recognizing these circumstances, Fernando nonetheless argues that the juvenile court abused its discretion in denying him services because, after Kevin was stricken from the petition, he was Olivia's only possible father and in light of Maria's success with her case plan, the case had the potential to proceed to a 12- or 18-month review period, which might extend beyond his incarceration. However, he cites no authority to establish that the juvenile court was required to provide him with reunification services in this situation.
In fact, as a biological father who did not qualify as a presumed father, Fernando was not entitled to reunification services and the juvenile court could have reasonably concluded that Fernando's efforts were too late, given his incarceration and the limitations it imposed on his ability to develop a relationship with Olivia. (See In re Zacharia D., supra, 6 Cal.4th at p. 452 [recognizing that once a child is the subject of a dependency proceeding, a biological father's failure to "develop a parental relationship with that child must necessarily occur at the risk of ultimately losing any 'opportunity to develop that biological connection into a full and enduring relationship.' "].) The court acted well within its discretion in concluding that providing reunification services to Fernando would not benefit Olivia.
DISPOSITION
Kevin's appeal is dismissed. The order is affirmed.
O'ROURKE, J. WE CONCUR: HUFFMAN, Acting P. J. NARES, J.