Filed 2/25/21 In re N.P. CA3
NOT TO BE PUBLISHED
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 This opinion has not been certified for publication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
THIRD APPELLATE DISTRICT
(San Joaquin)
----
In re N.P., a Person Coming Under the Juvenile Court C092148
Law.
SAN JOAQUIN COUNTY HUMAN SERVICES (Super. Ct. No.
AGENCY, STKJVDP20190000013)
Plaintiff and Respondent,
v.
C.P.,
Defendant and Appellant.
C.P., the biological father of the minor (father), appeals from the juvenile court’s
order terminating his parental rights and freeing the minor for adoption. (Welf. & Inst.
Code, §§ 366.26, 395.)1 He challenges the court’s finding that he was the minor’s
1 Unspecified statutory references are to the Welfare and Institutions Code.
1
biological father and not the minor’s presumed father. He also contends his attorney
rendered prejudicial ineffective assistance of counsel. We will affirm the judgment.
BACKGROUND
The newborn minor N.P. came to the attention of the San Joaquin County Human
Services Agency (Agency) in December 2018, after mother and the minor tested positive
for amphetamines. Mother admitted using methamphetamine two months prior to the
minor’s birth and to using four or five times during pregnancy, and she further admitted
having obtained only limited prenatal care. Father, who mother identified as the minor’s
biological father, stated his name appeared on the minor’s birth certificate, which he
signed.2 Father and mother (parents) were not married. The parents were unable to
verify they had supplies for the newborn minor or a place for themselves and the minor to
stay. The parents signed a safety plan stating that mother would go to Central Intake to
participate in an assessment and do whatever was recommended. However, she failed to
do so.
The parents arranged for the maternal grandmother to care for the minor. The
maternal grandmother informed the social worker that the parents were homeless and
mother was using drugs. The Agency provided the maternal grandmother with resource
family approval (RFA) information.
On January 9, 2019, the Agency filed a dependency petition on behalf of the minor
pursuant to section 300, subdivisions (b) and (g), alleging failure to protect the minor and
failure to provide support for the minor due to the parents’ transient lifestyle. The
petition alleged that mother identified father as the minor’s father and stated he was
present at the minor’s birth and his name appeared on the birth certificate. The petition
2 Father had two other children, both of whom were under the legal guardianship of
the paternal grandmother. Mother had two other children, each of whom was in the care
of a legal guardian.
2
further alleged father reported completing a Prop 36 drug treatment program through
probation approximately three to four years prior to address his use of methamphetamine
and marijuana. Father was aware of mother’s drug use and its detrimental effects on the
minor but failed to address the problem. It was also alleged that father had a pattern of
behavior and criminal convictions beginning in 2006 and continuing through 2018,
placing the minor at increased risk of abuse and neglect.
At the January 10, 2019 detention hearing, the court asked father if he was present
at the time of the minor’s birth, if he signed the birth certificate, and if he signed the
voluntary declaration of paternity or any other documents. Father responded
affirmatively to each of those questions. When father stated he did not bring the
documents with him to court, the court stated, “We need to see those so we can determine
your status.” The Agency stated father provided the same information to the social
worker, but the Agency had not yet seen the documents. The court told father, “At this
point you will remain as alleged father until we see the documentation,” and, “If you
have that, please bring it in or show social worker so we can elevate your status to bio or
presumed father. But I need to see something on that.” The court also indicated it would
hold off on appointing counsel for father “until we get documentation.” The court later
told father, “[W]e will have to wait on you until we get more information, the
documentation I mentioned. As soon as we get that, we can re-visit your status so that
you can fully participate.” The court found father to be an alleged father “until we
receive the documentation” and ordered the minor detained with supervised visits for
mother. At the Agency’s request, the court authorized supervised visits for father at the
Agency’s discretion “if he provides copy of declaration of paternity.”
The parents were not present for the January 24, 2019 jurisdiction hearing and
could not be located or served despite diligent efforts. The court was informed that father
had not yet provided a signed voluntary declaration of paternity or been appointed
3
counsel. The court proceeded in their absence, sustaining the allegations in the petition,
and adjudging the minor a dependent of the juvenile court.
The parents participated in a January 29, 2019 child family team (CFT) meeting
by telephone. It was determined that both parents would benefit from participating in
services related to substance abuse treatment, parenting classes, and individual
counseling. The parents were informed that the Agency would provide them with bus
passes to assist them in getting to those services and were asked to make an effort to
connect with the service providers.
The February 25, 2019 disposition report stated the Agency received the
declaration of paternity reflecting father as father of the minor. The Agency requested
that the court elevate father’s status to biological father. The social worker had
reportedly been unable to meet with the parents due to the parents’ failure and refusal to
appear at scheduled appointments, answer telephone calls, or return voicemail messages
since the CFT meeting on January 29, 2019, or to otherwise remain in contact with the
social worker. Since providing the declaration of paternity on February 1, 2019, father
attended only two of six scheduled visits with the minor. On January 30, 2019, the minor
was assessed and determined to be adoptable.
The report stated section 361.5, subdivision (a) applied to bypass reunification
services to father. The Agency determined it would not be beneficial to the minor to
provide father with services due to father’s failure to remain in contact with the Agency
or regularly attend visitation with the minor. Father had not been responsive to the
Agency’s requests for an interview or to discuss the case to complete family
backgrounds. The report also noted father’s extensive criminal history involving frequent
incarcerations, noting it was not conducive to providing a safe and stable home
environment for the minor. Based on these circumstances, the Agency recommended the
court bypass father for services.
4
At the February 28, 2019 disposition hearing, the court declared father to be the
minor’s biological father and appointed counsel for him. The court ordered both parents
to participate in drug court. Mother submitted to disposition. The court continued the
matter as to father and ordered visitation to continue at the current schedule but noted
visits would be reduced if missed.
At the March 14, 2019 continued disposition hearing, the court reduced the
parents’ visits to once per week and gave the Agency discretion to increase visits.
At the contested disposition hearing on April 18, 2019, the court heard testimony
from father, who stated he signed the declaration of paternity, held himself out as the
minor’s father, and stayed with the minor for several days while mother remained in the
hospital after birth. Father testified he was not allowed to have visitation with the minor
in the beginning of the dependency case unless he brought the declaration of paternity to
court. However, once the maternal grandmother provided the document, father was
granted visitation. He received referrals for parenting classes and individual counseling.
He completed orientation for the parenting class and planned to attend the first of 12
classes that night. He met twice with his counselor. When asked whether there were any
other services the Agency wanted him to participate in, father stated he was to “be there
to support [mother] through her rehab or whatever they were doing with her, the New
Directions,” but mother did not go to rehab. Father testified he already completed “my
Prop 36, chemical dependency counseling centers, all the obstacles that I’ve done
throughout my drug history.” Father testified he was willing to complete his parenting
classes and counseling and participate in visits and would be working on getting a truck
driving job. He stated he was committed to participating in services even if mother did
not, and he was willing to separate from mother if necessary. Father also testified he had
temporary housing.
Father admitted that he never told his social worker that the maternal grandmother
had the signed declaration of paternity. As a consequence, he did not have a formal
5
visitation schedule for the first month and then, once the declaration was provided to the
Agency, visits were scheduled. He admitted he was provided six informal visits in
January but attended only two. He denied reports that he missed a visit on March 16,
2019, and he and mother showed up over 20 minutes late on other visits.
Father testified he completed the Prop 36 drug program approximately eight years
ago. He admitted he had a conviction for possession of a controlled substance within the
last two and a half years and was still struggling with substance abuse. He stated he
completed outpatient drug treatment in late 2017 or early 2018. Father claimed he was
unaware mother was using drugs during her pregnancy even though he was with her
“[t]he whole time.” He testified he used methamphetamine two or three months prior to
the hearing and used marijuana the day prior. He denied the court or the Agency ever
asked him to be assessed for substance abuse treatment. When asked what he was doing
in terms of his drug treatment, he stated, “Staying away. Staying away from the people,
the crowd, the acquaintances that are down there in that tent city.” He stated he was not
going to NA meetings because he was not instructed to do so. When asked if he would
go into residential drug treatment if the court ordered him to do so, father answered, “No.
I will not go,” adding he would not go if it meant he would have to give up trucking
school. He testified he would choose trucking school over getting the minor back
because “my daughter will always be there, I guess, but my career won’t.”
Social worker Claudette Butman testified the Agency informed father “many
times” that it would provide him with bus passes so he could avail himself of services.
Butman informed father about the bus passes at the CFT meeting, at court appearances,
and in a letter sent to him on March 14, 2019, but he never came to pick up the passes.
The March 14, 2019 letter set out the referrals that were being made for services for him,
including parenting classes and individual counseling. Butman spoke with father on the
telephone on March 26, 2019, at which time father confirmed he received the letter but
stated he had not yet done anything regarding those services because he was waiting for
6
mother to engage in her services. Butman also encouraged father to engage in services at
the January 2019 CFT meeting and every time he attended a court hearing. She
confirmed that, during the CFT meeting, father was informed he would need to
participate in a substance abuse treatment program, to which he was opposed.
Butman testified there was an approximate one-month delay in establishing
paternity. However, contrary to father’s statement that the maternal grandmother was in
possession of the paternity declaration, Butman testified the maternal grandmother stated
the declaration was in the parents’ possession and offered to assist them in getting it to
the Agency. At the CFT meeting in late January 2019, the parents were reminded that
father could not participate in visitation until he provided a copy of the declaration.
Butman testified the maternal grandmother obtained a copy of the declaration from the
parents, scanned it, and provided it to the Agency via e-mail. Thereafter, father was not
referred to services until March 2019 due to the time necessary to request financial
agreements and make referrals.
The court noted father had been slow to make his appointments and engage in
services. He had only a handful of visits and was not bonding over the first four months
of the minor’s life. The court also noted father only seemed willing to engage as long as
the services did not interfere with “other things that are on your plate,” and did not find
father was fully committed to reunification or that there was a sufficient likelihood that
father would provide stability for the minor on a regular basis. The court found a
substantial danger to the minor if returned to father and no reasonable means by which to
protect the minor without removal. The court further found that it would not benefit the
minor to provide reunification services to father and bypassed services pursuant to
section 361.5, subdivision (a). The court maintained the current visitation schedule and
encouraged the parents to attend every visit.
The August 2019 status review report stated the parents continued to be transient,
failed to return the social worker’s voicemails to contact her to meet and review their
7
case plan, and failed to attend scheduled visits with the minor. An absent parent locator
revealed an address for the parents in Lodi to which the Agency sent correspondence.
But for one attempt to contact the social worker, father otherwise failed to return
messages or attend any of his scheduled office visits. It was unknown whether father was
employed, and it was noted that he might be incarcerated. Both parents were inconsistent
with visits and on July 20, 2019, due to the parents’ failure to show up on three
consecutive occasions, visits were canceled. It was noted that father had been in and out
of jail making his visits inconsistent. When the parents did visit, the maternal
grandmother3 supervised and noted the parents’ lack of engagement and bonding with the
minor. She also noted the parents were often late and would leave early. Mother fell
asleep numerous times during visits and the maternal grandmother needed to constantly
prompt both parents on what they should do with the minor such as feeding her and
changing her diaper. The maternal grandmother also noted that father became easily
frustrated with the infant minor and, shortly after he was bypassed for services, stopped
visiting the minor altogether. The social worker made attempts to re-engage the parents
in order to restart case plan services and visits, but the parents failed to respond to
telephone calls or make any effort to contact the social worker. The Agency noted that
mother was again pregnant and father was the father. The Agency requested that the
court terminate mother’s reunification services and change the permanent plan of
reunification to adoption by the maternal grandmother.
Neither parent appeared for the August 27, 2019 review hearing. The court
terminated mother’s reunification services and set the matter for a section 366.26 hearing.
The December 2019 section 366.26 report stated the maternal grandmother
notified the social worker that the parents were attending separate drug and alcohol
3 The maternal grandmother’s home was approved as an RFA home on May 14,
2019.
8
rehabilitation programs, with mother in San Jose and father in Monterey. The maternal
grandmother had not heard from father since November 4, 2019. Mother called the
maternal grandmother on November 18, 2019, and confirmed having recently given birth
to her child, L.P. Mother called back on November 27, 2019, and stated she was able to
keep her newborn as long as she remained in the rehabilitation program. The maternal
grandmother had not heard from the mother since then. On December 11, 2019, both
parents appeared in court and provided updated addresses. According to the maternal
grandmother, the last visit father had with the minor was on June 22, 2019. The minor
was assessed as adoptable on July 25, 2019. The maternal grandmother was an RFA-
approved home and was committed to providing permanency for the minor through
adoption. All of the minor’s needs were being met by the maternal grandmother and she
was thriving in the maternal grandmother’s care. The Agency recommended termination
of parental rights.
The March 2020 status review report stated that father told the social worker on
January 22, 2020, that he left the drug and alcohol rehabilitation program in Monterey
because “I have remained clean” and “it was a non-vocational training program and that
they would not assist him with finding a job.” He admitted he left the program “to move
forward with his career,” stating he was part of the “Vocational Drug Court Training”
and was seeking employment. He also admitted he was residing with his parents where
he planned to remain while seeking employment. Father told the social worker his
parents would not allow mother to stay with them because they did not “see eye to eye.”
He confirmed he was taking care of the newborn, L.P., while mother resided at the
Salvation Army Shelter in Lodi, but mother was welcome to see the baby as often as
possible. The report noted that mother released herself prior to completing her drug and
alcohol rehabilitation program because the program “was no longer working for her” and
she wanted to be closer to her children.
9
The report noted there had been no effort on either parent’s part to visit the minor
since July 6, 2019. On January 25, 2020, the maternal grandmother coordinated a visit at
the maternal aunt’s house. During the visit, mother had very little interaction with the
minor and father spent most of the visit playing games on his phone and interacting very
little with the minor. After the visit was complete, the parents made no effort to initiate
scheduling another visit. The maternal grandmother coordinated a second visit on
February 8, 2020, at a Chuck E. Cheese restaurant. Again, the parents had very little
interaction with the minor during the visit, and after the visit no further visitation was
requested. The Agency recommended termination of parental rights.
Neither parent was present for the March 3, 2020 contested section 366.26
hearing. Father’s counsel requested a continuance. Noting the parents set the matter as
contested and notice was proper, the court denied the request and proceeded with the
hearing. The court found by clear and convincing evidence that the minor was likely to
be adopted and termination of parental rights was in the minor’s best interest. The court
further found that none of the exceptions to adoption existed and terminated parental
rights, ordering adoption as the permanent plan.
DISCUSSION
I
No Presumed Father Status
Father contends the juvenile court erred when it treated him as a biological father
and did not find he rose to the status of a presumed father. As we shall explain, the claim
lacks merit.
“An unwed father’s rights and duties under the Uniform Parentage Act of 1973
(UPA), adopted by our Legislature as Family Code section 7600 et seq., substantially
depend on whether he is a ‘presumed father’ within the meaning of Family Code section
7611.” (In re Tanis H. (1997) 59 Cal.App.4th 1218, 1228.) “Whether a biological father
is a ‘presumed father’ . . . is critical to his parental rights.” (Adoption of Kelsey S. (1992)
10
1 Cal.4th 816, 823.) Only “presumed fathers” are entitled to custody and reunification
services. (In re P.A. (2011) 198 Cal.App.4th 974, 980; In re Zacharia D. (1993)
6 Cal.4th 435, 448-449.) “The statutory purpose is to distinguish between those fathers
who have entered into some familial relationship with the mother and child and those
who have not. [Citations.]” (In re Sabrina H. (1990) 217 Cal.App.3d 702, 708.)
“A presumed father is a man who meets one or more specified criteria in [Family
Code] section 7611.” (In re P.A., supra, 198 Cal.App.4th at p. 979; see Francisco G. v.
Superior Court (2001) 91 Cal.App.4th 586, 595.) Those criteria include the following:
the presumed parent and the child’s mother are or have ever been married and the child is
born during the marriage or within 300 days after the marriage is terminated; the
presumed parent and the child’s mother attempted to marry before the birth of the child;
the presumed parent and the child’s mother marry or attempted to marry after the birth of
the child; and the presumed parent “receives the child into their home and openly holds
out the child as their natural child.” (Fam. Code, § 7611, subds. (a)-(d).)
Family Code section 7611 also provides that a person “is presumed to be the
natural parent of a child” if the person meets the conditions provided in section 7570, et
seq., which address the establishment of paternity by voluntary declaration. In particular,
Family Code section 7573 provides that “a completed voluntary declaration of parentage
that complies with this chapter and that has been filed with the Department of Child
Support Services is equivalent to a judgment of parentage of the child and confers on the
declarant all rights and duties of a parent.” (Fam. Code, § 7573, subd. (d); see In re
Raphael P. (2002) 97 Cal.App.4th 716, 722-723; accord, In re Liam L. (2000)
84 Cal.App.4th 739, 747.)
Father argues the court’s refusal to make a paternity finding until he produced a
copy of the declaration was error. Not so. Family Code section 7573 provides that a
voluntary declaration of parentage “takes effect on the filing of the document with the
[Agency].” (Fam. Code, § 7573, subd. (c); see also Cal. Rules of Court, rule 5.635(c)
11
[declaration of paternity establishes parentage if it “has been executed and filed with the
[Agency]”], italics added.) Prior to that occurring, the father is a mere biological father in
which case the court merely has discretion to offer reunification services based on a
finding that it would benefit the minor. (§ 361.5, subd. (a); In re Zacharia D., supra,
6 Cal.4th 435 at p. 451; In re Joshua R. (2002) 104 Cal.App.4th 1020, 1025.)
Here, father told the court on January 10, 2019, that he signed the declaration of
paternity. However, he was unable to produce a copy of the signed document at that
time. The court informed father he would need to bring the signed document to court or
provide it to the Agency in order to elevate his status to presumed father and appoint
counsel on his behalf. At the CFT meeting on January 29, 2019, father had yet to
produce a copy of the declaration and was reminded he could not participate in visitation
until he provided one. As father correctly notes, once a party provides “prima facie proof
that he signed a voluntary declaration of paternity,” he is entitled to rely on the
presumption of Evidence Code section 664 to establish that the document was properly
filed. (In re Raphael P., supra, 97 Cal.App.4th at p. 738.) However, unlike the appellant
in Raphael P. who provided prima facie evidence in the form of a copy of the birth
certificate showing his name, father and mother claimed father signed the declaration but
provided no such prima facie evidence to support that claim. While the court may
determine parentage based on the statements of the parents, it is not required to do so.
(Cal. Rules of Court, rule 5.635(e)(3).)
Father argues the court failed its duty to obtain the declaration of paternity through
inquiry of the Agency pursuant to California Rules of Court, rule 5.635(d)(2), which
provides: “The court must direct the court clerk to prepare and transmit Parentage
Inquiry—Juvenile (form JV-500) to the local child support agency requesting an inquiry
regarding whether parentage has been established through any superior court order or
judgment or through the execution and filing of a voluntary declaration under the Family
Code.” However, any such inquiry would have been futile since the declaration of
12
paternity was not yet filed and, as confirmed by the maternal grandmother, was in the
parents’ possession.
In any event, the maternal grandmother eventually obtained the declaration of
paternity from the parents and provided it to the Agency on February 1, 2019. As social
worker Butman subsequently testified, there was an approximate one-month delay in
establishing paternity because, contrary to father’s statement that the maternal
grandmother was in possession of the paternity declaration, it was the parents who were
in possession of the document and who had neither informed the Agency of that fact nor
produced the document. The declaration was finally provided to the Agency once the
maternal grandmother obtained it from the parents, scanned it, and e-mailed it to the
Agency. Thereafter, on February 28, 2019, the court declared father to be the minor’s
biological father and appointed counsel for him.
Next, father claims the fact that he executed a voluntary declaration of paternity at
the hospital when the minor was born presumptively established that he was the minor’s
presumed father. The fact that father executed a voluntary declaration of paternity
entitled him to a presumption of parentage of the minor pursuant to Family Code section
7573, subdivision (c) and California Rules of Court, rule 5.635(c). It did not entitle him
to presumed father status. (In re Jovanni B. (2013) 221 Cal.App.4th 1482, 1492.)
Presumed father status is concerned with the issue of “ ‘whether a man has promptly
come forward and demonstrated his “ ‘full commitment to his parental responsibilities—
emotional, financial, and otherwise.’ ” [Citation.]’ ” (Ibid.)
While father was present at the birth of the minor and signed the paternity
declaration, he did little else to demonstrate his full commitment to his parental
responsibilities prior thereto or throughout the dependency proceedings thereafter. For
example, prior to the birth of the minor, father was aware of mother’s drug use but
“look[ed] the other way” and did nothing to intervene. After the minor’s birth, father
failed to attend court hearings, failed to appear for scheduled appointments with the
13
social worker or answer or return her telephone calls, and failed to maintain contact with
the social worker. He was not responsive to the Agency’s requests for an interview or to
provide information. He continued to use drugs despite having previously completed a
Prop 36 drug program, including using methamphetamine as recently as January or
February 2019 and regularly using marijuana, and he admitted he was still struggling
with substance abuse. Yet he stated with certainty that he would not go into court
ordered residential drug treatment if it meant he would have to give up trucking school
noting, “my daughter will always be there, I guess, but my career won’t.” He eventually
participated in drug treatment but left the program early. Father did not avail himself of
bus passes to enable him to participate in services, and delayed participating in services
claiming he was waiting for mother to engage in her services. Father attended only two
of six scheduled visits with the minor early on. Thereafter, his visits were inconsistent
and, when he did visit, the maternal grandmother noted he became easily frustrated with
the minor and did little to engage or bond with the minor. Once father was bypassed for
services, he stopped visiting the minor altogether.
In short, father failed to establish facts demonstrating he fully committed to his
parental responsibility over the minor. Thus, he was, as the court determined, a
biological father not a presumed father and, based on his lack of engagement as described
above, the court determined it was not in the minor’s best interest to offer reunification
services to father.
Finally, father claims he suffered prejudice because his rights to due process,
counsel, visitation, and reunification services were delayed and ultimately denied. As
previously discussed, father’s failure to produce the signed declaration of paternity
resulted in an initial one-month delay. Once the maternal grandmother obtained the
declaration from the parents and provided it to the Agency on February 1, 2019, father
was provided visitation with the minor. He attended just two of the six scheduled visits.
14
In the interim, the parents failed to appear for the January 24, 2019 jurisdiction
hearing and could not be located. Father argues he was denied the opportunity to contest
jurisdiction because, even if he had been present, the court maintained he had no rights
until he produced the declaration of paternity. Father mischaracterizes the court’s
statements. At the initial detention hearing, the court stated it needed to see the
declaration of paternity “so we can determine your status” and father would “remain as
alleged father until we see the documentation,” and asked father to show the signed
declaration to the social worker or bring it to court “so we can elevate your status to
bio[logical] or presumed father.” The court also informed father it would hold off on
appointing counsel for him “until we get documentation,” and stated it would have to
wait until the documentation was produced so that it could “re-visit your status so that
you can fully participate.” At no time did the court state or suggest that father had “no
rights” unless and until he produced the declaration of paternity. Further, we will not
speculate as to what might have occurred had father appeared at the jurisdiction hearing.
He did not.
The parents did participate by telephone in the January 29, 2019 CFT meeting
during which it was determined that both would benefit from participating in services
related to substance abuse treatment, parenting, and individual counseling. The parents
were informed that bus passes were available and were asked to make an effort to
connect with service providers. They failed to remain in contact with the social worker,
utilize the bus passes, appear at scheduled appointments, or answer the social worker’s
telephone calls or return her voicemail messages.
The court declared father to be the minor’s biological father and appointed counsel
for him on February 28, 2019. At that time, the court ordered father into drug court. The
court further ordered father’s visitation to continue at the current schedule but noted visits
would be reduced if missed. Visits were indeed reduced by the court on March 14, 2019,
15
presumably due to missed appointments.4 Social worker Butman testified that father was
not officially referred to services until March 14, 2019, due to the time necessary to
request financial agreements and make referrals. By March 26, 2019, father had yet to
engage in services, telling Butman he was waiting for mother to engage in hers. Butman
referred father to services, made bus passes available to him to get to those services, and
encouraged father to engage in services each time she saw him. He received referrals for
parenting classes and individual counseling, completed orientation for the parenting class,
and met twice with his counselor. However, despite having been informed at the CFT
meeting that he would have to participate in a substance abuse treatment program, he
failed to engage and stated adamantly that he would not participate in court ordered
residential substance abuse treatment if it conflicted with truck driving school. He
continued to use marijuana regularly. He failed and refused to remain in contact with the
Agency. He also failed to regularly attend visits with the minor and, when he did attend
(sometimes over 20 minutes late), he failed to engage or bond with the minor. Once he
was bypassed for services, he ceased visiting the minor altogether.
The record makes plain that, after a brief delay due at least in part to father’s own
failure to produce the signed declaration of paternity or inform the court or the Agency of
its whereabouts, father was found to be the minor’s biological father and was appointed
counsel and provided with reunification services and visitation. However, father
demonstrated a lack of interest in or outright opposition to engaging in services, visiting
or developing a bond with the minor, or participating in the dependency proceedings such
that the court determined it was not in the minor’s best interest to provide him additional
services and eventually terminated parental rights. We conclude there was no error.
4 The record does not contain a reporter’s transcript of the March 14, 2019 hearing.
16
II
No Ineffective Assistance of Counsel
Father contends his various attorneys rendered prejudicial ineffective assistance of
counsel due to their failure to advocate for and protect his rights as a presumed father. In
particular, he argues that, had any one of his three appointed counsel acted competently,
he would have been recognized as the minor’s presumed father and would have received
visits and reunification services.
A parent claiming ineffective assistance of counsel has the burden of showing that
counsel failed to act in a manner to be expected of reasonably competent counsel and that
“counsel’s representation fell below an objective standard of reasonableness.”
(Strickland v. Washington (1984) 466 U.S. 668, 688 [80 L.Ed.2d 674]; In re Emilye A.
(1992) 9 Cal.App.4th 1695, 1711.) The parent must also show prejudice, that is, “a
reasonable probability that, but for counsel’s unprofessional errors, the result of the
proceeding would have been different. A reasonable probability is a probability
sufficient to undermine confidence in the outcome.” (Strickland, at p. 694; People v.
Ledesma (1987) 43 Cal.3d 171, 217-218.)
“Reviewing courts will reverse . . . on the ground of inadequate counsel only if the
record on appeal affirmatively discloses that counsel had no rational tactical purpose for
his [or her] act or omission.” (People v. Fosselman (1983) 33 Cal.3d 572, 581.) When
the record is silent on the reasons that counsel acted as they did, the case must be
affirmed, “unless counsel was asked for an explanation and failed to provide one, or
unless there simply could be no satisfactory explanation.” (People v. Pope (1979)
23 Cal.3d 412, 426, abrogated on other grounds as acknowledged in People v. Berryman
(1993) 6 Cal.4th 1048, 1081, fn. 10.) “[I]ncompetent counsel does not mean the parent
was in fact harmed as a consequence.” (In re Meranda P. (1997) 56 Cal.App.4th 1143,
1152.)
17
As previously discussed, the record does not support father’s claim that he was a
presumed father. Thus, his counsel’s representation did not fall below an objective
standard of reasonableness for electing not to pursue a claim of presumed parentage.
Even assuming counsel should have done so, father cannot demonstrate that there was a
reasonable probability of a more beneficial outcome given that father’s actions did not
demonstrate he was fully committed to his parental responsibility over the minor and, in
any event, he received reunification services and visitation but failed to fully or
consistently engage in either. Father has not demonstrated that counsel’s representation
was inadequate.
DISPOSITION
The juvenile court’s order is affirmed.
/s/
BLEASE, Acting P. J.
We concur:
/s/
HULL, J.
/s/
MURRAY, J.
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