Robert W. v. Superior Court CA2/2

Filed 3/22/23 Robert W. v. Superior Court CA2/2
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION TWO
ROBERT W., B321375
Petitioner, (Los Angeles County
Super. Ct. No. 19CCJP01679B)
v.
THE SUPERIOR COURT OF
LOS ANGELES COUNTY,
OPINION
Respondent;
LOS ANGELES COUNTY
DEPARTMENT OF CHILDREN AND
FAMILY SERVICES,
Real Party in Interest.
ORIGINAL PROCEEDING. Petition for extraordinary
writ. (Cal. Rules of Court, rule 8.456.) Philip L. Soto, Judge.
Petition denied.
Law Office of Rachel Ewing, Cameron Edwards and Rachel
Ewing for Petitioner.
No appearance for Respondent.
Law Office of County Counsel, Dawyn R. Harrison, Interim
County Counsel, Kim Nemoy, Assistant County Counsel, and
Navid Nakhjavani, Principal Deputy County Counsel for Real
Party in Interest.
Children’s Law Center of California – CLC3 and Michael
Ono for Minor.
_______________________________
Robert W. (Robert), petitions for extraordinary relief
pursuant to California Rules of Court, rule 8.452. He seeks
review of an order made during the setting of a permanent plan
hearing under Welfare and Institutions Code section 366.26.1
Robert claims he did not receive a particular form notice at the
outset of the dependency proceeding to alert him that he might
qualify as a presumed father of the child at issue, A.W. Robert
further contends that the juvenile court incorrectly considered
A.W.’s best interests when denying his later section 388 petition,
in which he sought custody. Robert’s petition is opposed by A.W.
and by the Los Angeles County Department of Children and
Family Services (DCFS). We deny the petition.
FACTS AND PROCEDURAL HISTORY2
A.W. was born to a mother who had a considerable history
with the juvenile court. A.W.’s older sibling, Ro.W., had twice
1 All further statutory references are to the Welfare and
Institutions Code unless otherwise indicated.
2 We note from the outset that transcripts of the dependency
hearing, the jurisdictional hearing and the continued
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been the subject of dependency jurisdiction on account of his
mother’s chronic drug use and his father’s – Robert’s – engaging
in physical violence toward the mother and Ro.W. Jurisdiction in
the first dependency proceeding was terminated in favor of an
order granting sole custody of Ro.W. to Robert. In that first
proceeding, the mother was allowed monitored visits with Ro.W.
but with someone other than Robert serving as monitor. The
second dependency proceeding was still pending when A.W. was
born, and family maintenance services were being provided to the
mother, Robert and Ro.W.
At the time of A.W.’s birth, the mother tested positive for
amphetamines and methamphetamines. A.W., too, had those
drugs in her system, and was born several weeks prematurely.
Robert was at the hospital with the mother for the birth, though
the mother stated that Robert was not A.W.’s father. When
asked privately if he was aware he was not the father, Robert
stated that he had requested a paternity test but would not
discuss the issue further. He only said he was there to support
the mother, to whom he was married but was separated. Still, he
was willing to take custody of A.W. if necessary. Robert
expressed frustration with DCFS for, he stated, ruining his
relationship with the mother by making him choose between his
wife and his son.
dispositional hearing are not included in the record. Accordingly,
some of the positions asserted by the parties at those hearings
are unclear. It was Robert’s responsibility to secure a complete
record for review. In the absence of a complete record, we will
presume the juvenile court’s rulings were supported. (In re Angel
L. (2008) 159 Cal.App.4th 1127, 1137; Cal. Rules of Court, rule
8.407(c) [any party may seek to augment record with missing
portions necessary for review].)
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When the time came to consider discharging A.W. from the
hospital, DCFS obtained permission from the juvenile court to
detain the child from the mother. It filed a section 300 petition,
alleging A.W. was at risk of harm due to the mother’s drug use,
which included the mother’s failure to protect sibling Ro.W. for
the same reason. Robert was rejected as a possible placement for
A.W. due to his history of disregarding court orders by allowing
the mother to return to the family home and have unlimited
access to Ro.W., as well as his uncooperativeness with DCFS.
DCFS had also received a 2019 referral alleging general neglect
of Ro.W. while in Roberts’ custody, which appears to have been
addressed in the second, still-pending dependency proceeding
involving Ro.W. Meanwhile, the mother’s on-off companion,
Michael S., had come forward and identified himself as the
father, asking for a paternity test. Michael S.’s mother also
offered to take custody of A.W.
Before A.W. was discharged, a jurisdictional hearing took
place. Both Robert and Michael S. were named as alleged fathers
of the child in a jurisdictional/dispositional report submitted by
DCFS. Both men were served with copies of the report and
notices of the hearing date. Indeed, Robert admitted that he
listened-in on the jurisdictional hearing, which was held remotely
due to the COVID-19 crisis, though he apparently did not identify
himself or otherwise speak. Robert had also failed to respond to
two, pre-hearing messages from DCFS seeking to obtain his
statement for the jurisdictional/dispositional report. The juvenile
court sustained the section 300 petition, declared A.W. a
dependent of the court, and ordered her suitably placed. The
court found Michael S. to be an alleged father but did not address
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Robert. A.W. was placed with her maternal grandfather and his
wife.
At a continued disposition hearing almost three months
later, it was noted that A.W. was doing well in her placement,
though she had experienced some medical difficulties that
required further hospitalization. Michael S. was found not to be
A.W.’s father based on DNA testing, so was dismissed from the
proceeding. DCFS reported that the mother had been sporadic in
her visits with A.W. and had not undertaken her case plan. On
one visit to A.W. that the mother did attend, as monitored by the
social worker, Robert accompanied the mother to take pictures.
A.W.’s caregiver, the maternal step-grandmother, reported to the
social worker that she believed the mother was living with Robert
and Ro.W., again against court orders in the parallel dependency
proceeding. That was later corroborated by information that the
mother only sporadically stayed at the address in Bishop,
California that she had provided to DCFS as her residence, that
she missed a visit with A.W. because she and Robert were
preparing their tax return together, that the mother remained on
Robert’s insurance, and that the mother had directed A.W.’s
medical provider to send correspondence to Robert’s address.
At a six-month review hearing, the court declined to make
a paternity finding as to Robert because the mother reported that
he was not the father. She still had not provided any information
as to who the father might be. The mother remained inconsistent
in her visits and DCFS reported her to be non-compliant with her
case plan. DCFS recommended termination of reunification
services for the mother. Nevertheless, after a contested hearing,
the juvenile court found the mother to be in partial compliance
with her case plan and granted another period of reunification.
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That additional period was not successful. By the time of a 12-
month review, the mother was still not compliant with her case
plan and was evading DCFS’s efforts to verify that she had her
own, permanent residence in which to receive A.W. Robert was
attending sibling visits between A.W. and Ro.W. even when
mother failed to appear. Robert was provided notice of the 12-
month review hearing and a copy of DCFS’s report, in which
DCFS again recommended termination of the mother’s
reunification services.
On the eve of the 12-month review, Robert formally
appeared in the proceeding for the first time. He filed a section
388 petition seeking to be declared A.W.’s father as a result of the
marital presumption and to obtain custody of A.W. because, he
explained, it would be healthy for her to develop in a loving home.
The juvenile court set the petition for a hearing and appointed
counsel for Robert. All pending hearings were continued to a
single date, including a hearing on a motion filed by the maternal
grandparents seeking de facto parent status. In the end, the
juvenile court denied Robert’s section 388 petition, even as it
recognized him as the legal father, because he had never
developed a relationship with A.W. during the 14 months that
the case had been pending. The court also found that it would be
detrimental to A.W. to change the custody arrangement she had
enjoyed since she was discharged from the hospital. The court
noted that even after Michael S. had been ruled out as a father
almost a year earlier, Robert had participated in hearings and
the mother’s visits with A.W. but failed to come forward. The
court granted the paternal grandparents’ motion to be declared
de facto parents of A.W., inasmuch as they had been caring for
A.W. for most of her life and she had bonded with them. After
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conducting the 12-month review, the court terminated mother’s
reunification services due to her failure to make adequate
progress in her case plan and to alleviate the conditions that led
to dependency jurisdiction. The court set a section 366.26
hearing to consider a permanent plan for A.W. Still, the court
ordered continued visitation for the mother and sibling visits for
Ro.W.
The mother and Robert each filed notices of intent to seek
writ review of the juvenile court’s order. The mother failed to
follow through with filing a petition and so she was dismissed
from the appellate proceeding. Robert filed the instant petition,
seeking to have the juvenile court’s order denying his section 388
petition reversed and remanded.
DISCUSSION
Due Process
Robert begins with a contention that his due process rights
were violated because he was not served with a JV-505 form at
the outset of the dependency proceeding. A JV-505 form is
entitled a “Statement Regarding Parentage,” and can be used to
either disavow parentage and relinquish any right to participate
in dependency proceedings, or to assert parental interests in a
child. (In re Paul. H. (2003) 111 Cal.App.4th 753, 761.) That
form is provided to any alleged parent of a child subject to
dependency proceedings, along with other notices. (Welf. & Inst.
Code, § 316.2, subd. (b); Cal. Rules of Court, rule 5.635(g).)
Robert claims that because he never received that form, he did
not understand he could assert parentage of A.W.
However, Robert never complained to the juvenile court
that he was deprived of due process on account of lack of notice
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via a JV-505 form or any other notice. Not even after counsel
was appointed for him on his section 388 petition was the issue
raised. Having thus frustrated the juvenile court’s ability to
correct any such error, Robert cannot be heard to complain in the
appellate court. (In re S.B. (2004) 32 Cal.4th 1287, 1293.) His
contention therefore fails from the outset.
Even if the issue had been properly preserved, Robert
would not have been able to show prejudice from the alleged
error. (In re Christopher L. (2022) 12 Cal.5th 1063, 1083 [lack of
notice in dependency proceedings does not constitute error per se
but is subject to a harmless error analysis].) Robert had actual
notice of A.W.’s dependency proceeding from day one. Robert was
with the mother when DCFS first contacted the family. When
approached by a social worker at the hospital after A.W.’s birth,
Robert stated that he had requested a paternity test and relayed
that he was married to the mother, but he would not otherwise
communicate with the social worker. Thereafter, DCFS left
messages for Robert seeking his input for its
jurisdictional/dispositional report to the juvenile court, but
Robert never responded. Robert was served with the
jurisdictional/dispositional report and listened in on the remote
hearing, yet he remained in the background. He did not even
speak up when another man stepped forward to claim paternity.
Nor did he express an interest in parentage or custody three
months later when that man was excluded as A.W.’s father and
dismissed from the proceeding. It was not until a year later,
after Robert was served with a 12-month review report
recommending termination of the mother’s reunification services,
that Robert sought a change in the juvenile court’s orders. Even
then, he did not complain of lack of notice as a basis for such a
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change. Instead, Robert pointed out that no paternal
determination had been made and so he wished to assert the
presumption that, as a result of his marriage to the mother, he
was A.W.’s father and could take custody of her.
In short, Robert had full notice of the ongoing proceedings
and multiple opportunities to participate in them, but he
refrained. He was served with copies of reports by DCFS, was
interviewed by social workers, and was included in the mother’s
and Ro.W.’s visits with A.W. Robert was assessed for placement
of A.W. early in the proceedings but was ruled out on account of
his failure to follow court orders during the dependency
proceedings involving Ro.W. Indeed, Robert was no novice when
it came to dependency proceedings, having been involved in two
prior cases. Robert demonstrated his understanding of how to
assert his paternity status by advancing the marital presumption
as the basis for his long-delayed section 388 petition, even before
he was provided with counsel. Robert cannot now claim the
failure to provide him with a single form explaining his options
with regard to paternity so fatally infected the proceedings with
error that the court’s orders had to be altered at the last minute.
Robert compares himself to the father in the recent decision
of In re Mia M. (2022) 75 Cal.App.5th 792 (Mia M.), but his
actions wholly distinguish him from that parent. In Mia M., the
alleged father had moved from California to Oklahoma before the
dependency proceedings at issue commenced. Though the
maternal grandmother, the mother and the child alerted DCFS
that the alleged father lived in Oklahoma, DCFS failed to search
for him there. Instead, it searched for him on California and
federal databases. Nevertheless, the juvenile court accepted that
search as exhibiting due diligence in efforts to locate the father.
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(Id. at pp. 797-799, 801.) It was not until a year into the
dependency proceedings that the alleged father learned of the
matter and contacted the social worker, leading to information
that the mother had been actively concealing the situation from
the alleged father. (Id. at pp. 799-800, 803, 805.) Because the
father had been left entirely out of the dependency proceedings
and never had a chance to participate, the court in Mia M. agreed
that the father could utilize section 388 to seek a change in
orders, even on the eve of the permanency planning hearing. (Id.
at p. 810; see also, in In re A.H. (2022) 84 Cal.App.5th 340, 348,
363 [DCFS’s pervasive failure to seek out parent and provide
notices regarding dependency proceedings was cumulatively
unfair]; In re Daniel F. (2021) 64 Cal.App.5th 701, 713 [same].)
That is in stark contrast to Robert’s reluctance to become
involved with A.W.’s case even as he watched others engage in
reunification efforts.
Best Interests of the Child
Robert goes on to attack the juvenile court’s considering
A.W.’s best interests when ruling on his section 388 petition.
Again, Robert reaches for Mia M., pointing out that the standard
best-interests inquiry utilized in evaluating section 388 petitions
was excused in the circumstances of that case. (Mia M., supra,
75 Cal.App.5th at pp. 810-811.) As has been discussed, Robert
does not stand in a similar position to the father in Mia M., so the
consideration provided to the alleged father there is unjustified in
this case. Moreover, Robert’s appointed counsel specifically
argued to the juvenile court that it would be in A.W.’s best
interests to grant the section 388 petition, and that was the
reasoning advanced in Robert’s section 388 petition. Robert
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cannot now reverse field and assert that consideration of A.W.’s
best interests was improper. (In re S.B., supra, 32 Cal.4th at p.
1293; cf. In re G.P. (2014) 227 Cal.App.4th 1180, 1193-1194.)
DISPOSITION
For the foregoing reasons, the petition for extraordinary
relief is denied. This opinion shall become final immediately
upon filing. (Cal. Rules of Court, rule 8.490(b)(2)(A).) The stay of
proceedings issued by this court on January 27, 2023, is
dissolved.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.
_____________________, P. J.
LUI
We concur:
_____________________, J.
ASHMANN-GERST
_____________________, J.
CHAVEZ
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