54 Cal.App.5th 298
Cal. Ct. App.2020Background:
- Minor was detained after mother’s arrest; Alameda County Social Services filed a dependency petition and named R.P. as an alleged father.
- Father lived with mother during minor’s first two years, later acknowledged paternity in Nevada and was subject to a child-support order; he consistently sought custody and maintained contact and visits.
- Court held multiple dependency hearings, set a § 366.26 permanency hearing (Aug 30, 2018 → Dec 20, 2018), and ultimately dismissed the dependency (Jan 31, 2019) while the guardianship was in place.
- Father had appointed counsel at times, but counsel withdrew or were unable to represent him; he was effectively unrepresented for about five months, including at the § 366.26 hearing.
- The trial court clerk never served the statutory § 316.2 notice (Judicial Council form JV-505) informing father how to seek a parentage determination; the Agency conceded lack of proof of service.
- The Court of Appeal held the failure to provide the § 316.2/JV-505 notice prejudiced father, vacated the orders (Aug 30, Dec 20, Jan 31), and remanded for compliance with § 316.2 and Cal. Rules of Court, rule 5.635(g).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether alleged father had standing to appeal | Father’s appearance through counsel and contacts with social worker suffice for standing | Agency: alleged father must personally appear to be a party | Court: counsel appearances and father’s efforts gave him standing |
| Timeliness of challenging the Aug 30, 2018 order setting § 366.26 | Father: clerk failed to notify him of need to seek immediate writ; excuse for not filing | Agency: challenge to Aug 30 order is untimely | Court: clerk’s failure to provide required notice excuses writ filing requirement; appeal may reach Aug 30 order |
| Whether court/ clerk violated § 316.2 and rule 5.635(g) by not serving JV-505 | Father: no statutory notice; deprived him of procedure to seek parentage/presumed status | Agency conceded clerk did not provide notice but argued harmlessness | Court: statutory notice required; failure prejudicial because father likely could have been presumed parent; error not harmless |
| Remedy for failure to provide notice | Father seeks vacatur and remand for compliance | Agency opposed broad relief given guardianship and contacts | Court vacated the relevant orders and remanded for compliance with § 316.2 and rule 5.635(g) |
Key Cases Cited
- In re O.S., 102 Cal.App.4th 1402 (2002) (distinguishing rights of presumed, biological, and alleged fathers)
- In re Paul H., 111 Cal.App.4th 753 (2003) (failure to serve JV-505 can prejudice alleged father’s statutory rights)
- In re Marcos G., 182 Cal.App.4th 369 (2010) (JV-505 explains alleged parent’s limited rights and how to seek parentage determination)
- In re Kobe A., 146 Cal.App.4th 1113 (2007) (§ 316.2 notice protects alleged father’s due process rights)
- In re Frank R., 192 Cal.App.4th 532 (2011) (court’s failure to notify party of writ procedure excuses failure to file writ; review on appeal permitted)
- In re Zacharia D., 6 Cal.4th 435 (1993) (requirements and remedies when a man fails to achieve presumed father status before reunification period expires)
- In re Emily R., 80 Cal.App.4th 1344 (2000) (appearance by counsel ordinarily sufficient to make an alleged father a party)