Filed 5/27/14 In re J.C. CA1/4
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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
FIRST APPELLATE DISTRICT
DIVISION FOUR
In re J.C., a Person Coming Under the
Juvenile Court Law.
CONTRA COSTA COUNTY CHILDREN
AND FAMILY SERVICES BUREAU,
A140254
Petitioner and Respondent,
v. (Contra Costa County
Super. Ct. No. MSJ1200844)
M.K.,
Objector and Appellant.
I.
INTRODUCTION
Appellant M.K., the alleged father of three-year-old J.C. (the minor), contends the
juvenile court erred in failing to continue a hearing to terminate his parental rights
pursuant to Welfare and Institutions Code section 366.26,1 in order to give him the
opportunity to establish his paternity by completing genetic testing. We find no abuse of
discretion. Accordingly, we affirm the order terminating appellant’s parental rights
thereby freeing the minor for adoption.
1
All statutory references are to the Welfare and Institutions Code. We note at the
outset the minor’s mother is not a party to this appeal. Consequently we omit
nonessential facts with regard to her participation in these proceedings.
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II.
FACTS AND PROCEDURAL HISTORY
On May 29, 2012, the Contra Costa County Children and Family Services Bureau
(the Bureau) filed a juvenile dependency petition on behalf of the then-11-month-old
minor. Among other things, the petition alleged the minor’s 17-year-old mother had a
substance abuse problem that impaired her ability to care for the infant.
A report prepared for the jurisdictional hearing indicated mother cared for the
minor while living in a foster home. On May 23, 2012, mother took the minor to a park
but did not return to the foster home. The foster mother found mother and the minor
sometime after 8:00 p.m. Mother became belligerent and appeared intoxicated. When
mother eventually returned to the foster home, Fairfield Police arrived and tested
mother’s blood-alcohol level, which was recorded at .104 percent.
Mother identified appellant as the minor’s alleged father. According to mother,
appellant “refused to have any contact with mother and the [minor].” The court detained
the minor on May 30, 2012, and ordered no visits between the parents and the minor. On
July 12, 2012, the court assumed jurisdiction over the minor pursuant to section 300,
subdivision (b). In the disposition report, appellant is described as the minor’s “absent
alleged father.” The report also indicates appellant was released from Santa Rita Jail in
Alameda County on February 14, 2012, after serving one and one-half years for several
offenses in which mother was the victim, i.e., oral copulation of a minor and child
pornography. Appellant was also convicted of two counts of human trafficking of two
other girls. Appellant had not yet contacted the Bureau “and he would need to present
himself to the social worker and Court in order to request paternity testing, counsel, and
possible reunification services.”
At the conclusion of the disposition hearing, the court granted mother reunification
services and allowed her supervised visits with the minor. The court denied appellant
reunification services and visitation until he contacted the social worker and presented
himself to the court.
2
The report prepared for the six-month review hearing states that while the Bureau
still had no contact with appellant, a representative was able to speak with his mother, the
minor’s paternal grandmother. She claimed to have no contact information for appellant.
However, the paternal grandmother reported that appellant doubted he was the minor’s
father and they did not want to be involved because “they blame . . . mother for sending
[appellant] to Santa Rita Jail.”
Although neither parent had shown any interest in doing what was necessary to
reunify with the minor, mother requested an additional six months of reunification
services so she could begin working to regain custody of the minor. The court continued
family reunification services to mother and scheduled the next review hearing for
June 20, 2013.
The Bureau filed a report dated June 20, 2013, stating appellant had made contact
with the Bureau. He indicated he was living with his mother and was not in a position to
raise the minor himself. Appellant did fill out and return a Judicial Council Form JV–505
to the Bureau requesting genetic testing to determine if he was the minor’s biological
parent. Appellant indicated on the form that if he was determined to be the minor’s
biological parent, “I’m giving custody to my auntie . . . until I’m stable.”
The court ordered genetic testing for appellant and referred him to an attorney. A
hearing was scheduled for July 8, 2013. Appellant failed to appear for the hearing, failed
to contact legal counsel, and failed to keep the genetic testing appointment.
In the meantime, the Bureau’s report noted the minor was moved to a
“fost/adopt” home on April 11, 2013, shortly before he turned two years old. The
placement was going very well, and the Bureau’s report describes the minor as being
“well cared for, very happy, and delightful in his current home setting.”
The contested 12-month review hearing was held on July 15, 2013. Neither parent
appeared for the hearing. The court terminated reunification services to mother and
scheduled a section 366.26 hearing for termination of both parents’ parental rights.
The Bureau’s report for the section 366.26 hearing recommended terminating
parental rights. The report indicated the minor’s foster mother was willing to provide the
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minor with a “safe, nurturing and permanent home” through adoption. The report
indicated the minor’s mother had not visited with him for about five months, and appellant
had never shown any interest in the minor. Consequently, the report concluded “severing
parental rights in order for the child to be adopted will not interfere with an existing
parent/child relationship.”
The section 366.26 hearing was held on November 7, 2013. Mother was not in
attendance. Appellant was at the hearing and stated at the outset of the proceedings, “I’m
here for the DNA test.” The court refused to continue the section 366.26 hearing in order
for appellant to have testing conducted, observing appellant was “a little late in the
game.” The court then made the following comments directed at appellant: “The Court
had referred you to Legal Aid so that you can be represented by an attorney in these
proceedings. And you then failed to contact Legal Aid and then failed to appear at the
subsequent court date that I gave you so that counsel can be appointed to represent you.
[¶] So your request to continue it to allow for the DNA testing is denied . . . .”
The court terminated both parents’ parental rights, stating “there is no reason . . .
to continue to deny [the minor] permanency, because that’s what a child his age
absolutely deserves.” Appellant filed this appeal.
III.
DISCUSSION
Appellant sets out the sole issued raised on appeal as follows: He “requested a
paternity test on the JV–505 form that was filed with the juvenile court. Determination of
paternity was therefore mandated. The juvenile court erred when it did not continue the
section 366.26 hearing to receive the results of the DNA testing.”
As explained in In re Ninfa S. (1998) 62 Cal.App.4th 808, in dependency
proceedings, continuances are discouraged. (Id. at p. 810.) A continuance is to be
granted only upon a showing of good cause, and must be denied if it is contrary to the
child’s best interests. (Id. at p. 11.) The court is required to give substantial weight to the
child’s need for prompt resolution of his or her custody status, the need to provide the
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child with a stable environment, and the damage to a child which may result from a
prolonged temporary placement. (Ibid.)
In claiming the trial court abused its discretion in refusing to continue the 366.26
hearing so that paternity testing could be conducted, appellant principally relies on
subdivision (h) of California Rules of Court, rule 5.635 (Rule 5.635), as interpreted by
In re Baby Boy V. (2006) 140 Cal.App.4th 1108 (Baby Boy V.) Rule 5.635 states: “If a
person appears at a hearing in [a] dependency matter . . . and requests a judgment of
parentage on form JV–505, the court must determine: [¶] (1) Whether that person is the
biological parent of the child; and [¶] (2) Whether that person is the presumed parent of
the child, if that finding is requested.”
The case of Baby Boy V., supra, 140 Cal.App.4th 1108, considered these
provisions and concluded a juvenile court is required to determine biological paternity of
a dependent child if such a determination is requested. “This is a mandatory, not a
discretionary, rule.” (Id. at p. 1118 [error for court to deny alleged father’s request for a
paternity test to determine biological parentage]; In re Vincent M. (2008) 161
Cal.App.4th 943, 959 [dependency court has a duty to determine the biological parentage
of a child when a man appears at a dependency hearing and requests a paternity finding];
In re Paul H. (2003) 111 Cal.App.4th 753, 761 [ reversal of termination of parental rights
where alleged father was “denied access to a procedure by which he could have
compelled court-ordered paternity testing”].) The court in In re B.C. (2012) 205
Cal.App.4th 1306, 1313 (B.C.), admonished “[n]othing in rule 5.635 limits the juvenile
court’s obligation to determine biological paternity to situations in which the alleged
biological father might thereafter qualify as a presumed father”].)
Here, appellant stresses he filed a JV–505 statement requesting genetic testing to
determine whether he is the minor’s biological father. He also emphasizes the trial court
refused to continue the proceedings and authorize testing when he personally appeared at
the section 366.26 hearing and indicated his willingness to take a paternity test.
However, he completely ignores the fact that in compliance with Rule 5.635, the court
ordered genetic testing for appellant four months earlier. He also neglects to mention that
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he failed to follow up in securing legal counsel, missed his appointment for a paternity
test, failed to reschedule, and has never offered any excuse for waiting until the eleventh
hour of the minor’s dependency to ascertain his paternity status.
On these facts, we refuse appellant’s invitation to attribute fault to the trial court
for the fact that appellant’s paternity still had not been established by the time of the
section 366.26 hearing. The court made all the required orders and arrangements as
required by Rule 5.635 and related case law. It was appellant himself who refused to take
the steps necessary to substantiate his paternity at a much earlier stage in the proceedings.
Under these circumstances, we see no abuse of discretion in the juvenile court’s refusal to
continue the section 366.26 hearing to reschedule paternity testing.
Moreover, any error with respect to the court’s failure to continue the hearing was
manifestly harmless because the paternity test results could not have changed the
outcome of this case. At most, a paternity test might show that appellant is the minor’s
biological father, which has the salutary effect of providing the minor access to the
medical history of appellant’s family. (B.C., supra, 205 Cal.App.4th at p. 1314.) But
such a result would not have qualified appellant as a presumed father entitled to
reunification services. (Id. at p. 1311, fn. 3, citing In re Zacharia D. (1993) 6 Cal.4th
435, 451.)
It is undisputed that appellant never visited the minor, offered to support him
financially, or even so much as inquired about his well-being. Appellant’s total failure to
demonstrate a “full commitment to his parental responsibilities––emotional, financial and
otherwise” precluded him attaining presumed father status; and a determination of
biological paternity would not have sufficed to elevate him to that status. (Adoption of
Kelsey S. (1992) 1 Cal.4th 816, 849.)
While section 361.5, subdivision (a) does allow the juvenile court to offer a
biological father reunification services, such services can be ordered only if the court
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determines such services would benefit the child.2 In refusing to continue the section
366.26 hearing, the court made an express finding that even if appellant was determined
to be the minor’s biological father, the child would not benefit from continuing the
proceedings any longer so that reunification services could be offered to appellant.
The court stated: “[G]iven the circumstances of the relationship between
[appellant] and the mother in this case, quite frankly, I’m not sure that [appellant] would
prevail on raising his status to presumed father nor do I believe it would be in the best
interest of [the minor] to delay these proceedings and allow [appellant] an attempt to do
so and then at some point delay it even further by offering services to [appellant]. There
does not seem any basis to do that. And I think it would actually be quite detrimental to
the child to cause him to continue in a state of limbo.” The record in this case fully
supports the juvenile court’s findings.
Consequently, any error is manifestly harmless. Nothing in this record suggests
that continuing the hearing so that appellant could establish his biological tie to the minor
might have “initiat[ed] a relationship that could lead to presumed father status.” (In re
Joshua R. (2002) 104 Cal.App.4th 1020, 1027.)
IV.
DISPOSITION
The juvenile court’s order terminating appellant’s parental rights is affirmed.
2
Section 361.5, subdivision (a) reads in relevant part, “whenever a child is
removed from a parent’s or guardian’s custody, the juvenile court shall order the social
worker to provide child welfare services to the child and the child’s mother and
statutorily presumed father or guardians. Upon a finding and declaration of paternity by
the juvenile court or proof of a prior declaration of paternity by any court of competent
jurisdiction, the juvenile court may order services for the child and the biological father,
if the court determines that the services will benefit the child.” (Italics added.)
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_________________________
RUVOLO, P. J.
We concur:
_________________________
REARDON, J.
_________________________
RIVERA, J.
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