In re J.W.-P., a Person Coming Under the Juvenile Court Law. ALAMEDA COUNTY SOCIAL SERVICES AGENCY, Plaintiff and Respondent, v. R.P., Intervener and Appellant.
A156550
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FIRST APPELLATE DISTRICT DIVISION FIVE
Filed 9/8/20
CERTIFIED FOR PUBLICATION; (Alameda County Super. Ct. No. JD-028932-01)
BACKGROUND
A.
In a dependency case, “a man‘s status as a presumed or biological father is critical to whether he retains his rights to his child.” (In re O.S. (2002) 102 Cal.App.4th 1402, 1410 (O.S.); see also In re Paul H. (2003) 111 Cal.App.4th 753, 760 (Paul H.).) A presumed father is one who “receives the child into [the parent‘s] home and openly holds out the child as [the parent‘s] natural child.” (
Despite father‘s consistently stated desire to gain custody of his daughter, he was deemed an “alleged” father at all stages of these proceedings.
B.
After police arrested their mother in October 2017 for being in possession of two stolen vehicles, ten-year-old minor and her two half brothers were found at a homeless encampment and detained by the Agency. The Agency filed a juvenile dependency petition pursuant to
At a detention hearing on November 2, 2017, the trial court conducted a paternity inquiry. Mother testified that father is minor‘s father. Mother and father lived together for approximately four years, starting from before minor was born until she was two years old. During that time, mother and father jointly raised minor, together with mother‘s other children, as a family. Mother and father planned to get married, but they separated in 2009.
Father subsequently participated in child support proceedings in Nevada, acknowledged minor as his child, and was subject to an order to pay child support for her. Father lived in Reno, Nevada, and he arranged visits with minor through her maternal grandfather. Minor had last visited with her father during the summer.
After hearing mother‘s testimony, the court stated that it would make no formal finding regarding paternity that day. The court concluded that the detention of the children was necessary and that the temporary care, custody, and placement of the children would be vested with the Agency.
At an August 30, 2018, hearing, the court granted the children‘s request to terminate reunification services for mother and concluded that the children‘s out-of-home placement with their maternal grandfather continued to be appropriate. The court ordered that a hearing to adopt a permanent plan for the children pursuant to
On December 20, 2018, the court held a hearing pursuant to
On January 31, 2019, the court held a hearing to address the Agency‘s ex parte request that the court terminate the dependency. The Agency sought immediate dismissal of the dependency because financial support for the guardianship was conditioned on dismissal by February 2. The court dismissed the dependency, retaining general jurisdiction.
C.
During the pendency of the proceedings, father maintained his relationship with minor and consistently stated that he wanted custody of her.
Prior to a six-month review hearing in May 2018, the social worker filed a report with the court that detailed the Agency‘s contacts with father. Father had repeatedly contacted the Agency beginning in November of 2017, stating that he was minor‘s father and wanted custody of his daughter. In December, after father stated his desire for custody, the social worker advised him to ask for an attorney to be assigned to him so that he could be represented in court and elevated to presumed father status.
A few weeks later, father contacted the social worker to tell her that he had a birth certificate for minor listing him as her father, and he mailed the birth certificate to the social worker. That same month, he attended a meeting with the social worker in which he stated that, while he agreed that minor should remain with her siblings, he wanted his daughter placed with him and his fiancé.
The social worker‘s report filed in advance of the August 30, 2018, hearing indicated that father “has maintained his desire to have [minor] placed with him[.]”
A December 2018 report by the social worker indicated that minor “sees her father regularly” and that she “has visited with her father on multiple occasions, the last visit being 11/03/2018.” Minor told the social worker that “her parents are important people in her life” and that she “wants to remain . . ., close to her father.” The social worker also reported that minor “has connections with her own father and her extended family members, which seems to help [her] feel emotionally settled.”
D.
The trial court appointed a series of three separate attorneys or legal organizations to represent father between March of 2018 and January of 2019 although, as explained below, father was effectively unrepresented during a critical period.
Father‘s first attorney requested appointment in March 2018 specifically to “address his paternity status” but took no action in court to do so during the five-plus months he represented father. Indeed, at one of the four hearings at which this attorney appeared on father‘s behalf, he remained silent while the attorneys for the fathers of minor‘s half-siblings both asked the court to adjudge them presumed fathers. Ultimately, on August 31, 2018, the court granted the first attorney‘s request to be relieved as father‘s counsel because his contract with Juvenile Dependency Counselors was set to expire, and the court appointed East Bay Family Defenders to represent father.
East Bay Family Defenders was unable to represent father because it was already representing three other parties in the dependency proceedings—a fact that the court learned months later. Father was unrepresented from August 31, 2018 (the day after the court set a hearing to adopt a permanent plan) to January 31, 2019 (the hearing to dismiss the dependency). No attorney appeared on father‘s behalf at the December 20, 2018, hearing in which the court adopted the permanent plan.
The court located and appointed a third attorney during the dismissal hearing on January 31, 2019. At the beginning of the hearing, the court noted
About a week later, after father received the minute order dismissing the action, he located the attorney who represented him at the dismissal hearing (her name was on the minute order) and told her that he wanted custody of his daughter, had told this to the Agency, and had provided the Agency a copy of minor‘s birth certificate stating he is her father. Counsel later said that her telephone call with father “disturbed me greatly” and that she had relied on “inaccurate and incomplete information” when she submitted to the dismissal.
DISCUSSION
A.
As an initial matter, the Agency asserts that father does not have standing to appeal because he is an alleged father who never personally appeared in the dependency proceedings. (See In re Emily R. (2000) 80 Cal.App.4th 1344, 1356-1357 [to become a party, an alleged father must appear and take a position].) We disagree.
The Agency provides no reason why father‘s appearances through counsel should be deemed insufficient to establish standing, and we can think of none. Ordinarily, in civil proceedings, personal appearance by a party is not required, and “appearance by an attorney is sufficient and equally effective.” (In re Dolly D. (1995) 41 Cal.App.4th 440, 445.) Father, who lived in Nevada, instructed an appointed attorney to represent him in the proceeding and to “address his paternity status and related issues.” He repeatedly told the social worker that he wanted custody of his child, and he provided a birth certificate naming him as the father. Father has standing. (See Paul H., supra, 111 Cal.App.4th at p. 759 [alleged father had standing where he contacted social worker, communicated to court he might be the father, and tried to complete paternity testing].)
B.
Before we turn to the merits, we must also resolve whether father‘s appeal is timely. We conclude that it is.
Father asserts the trial court erred in failing to provide him with notice regarding the procedure he should follow to obtain a judgment of parentage from the court. (See
Ordinarily, a party seeking review of an order setting a
The Agency concedes that the clerk of the court failed to provide the requisite notice to father.
2.
When, as here, the trial court fails to notify a party of the need to file a writ petition, the party‘s failure to file a writ petition is excused, and the party may seek review on appeal from the disposition following the
C.
On the merits, we hold that the trial court erred by failing to send father a crucial statutory notice advising him of the process for elevating his status from alleged father and the consequences of not doing so.
each alleged father shall be provided notice at his last and usual place of abode by certified mail return receipt requested alleging that he is or could be the father of the child. The notice shall state that the child is the subject of proceedings under Section 300 and that the proceedings could result in the termination of parental rights and adoption of the child. Judicial Council form Paternity-Waiver of Rights (JV-505) shall be included with the notice.
(See also
“Section 316.2 is designed to protect the alleged father‘s limited due process rights.” (In re Eric E. (2006) 137 Cal.App.4th 252, 257, citing Paul H., supra, 111 Cal.App.4th at p. 760; see also In re Kobe A., 146 Cal.App.4th 1113, 1120 (Kobe A.).) The notice required in
The Agency concedes that the trial court never provided the requisite notice. During the pendency of this appeal, the trial court clerk searched the record, as well as the records in the cases associated with minor‘s step-siblings, and confirmed that he was unable to locate proof that father received the notice required by
Contrary to the Agency‘s argument, the error here was not harmless. (See, e.g., Kobe A., supra, 146 Cal.App.4th at pp. 1122-1123 [applying harmless error analysis]; Paul H., supra, 111 Cal.App.4th at p. 761 [same].) Throughout the proceedings, father consistently maintained that he wanted custody of his daughter. Had he received the requisite notice, and submitted form JV-505, the court would have been obligated to make a determination as to his paternity. (
Finally, the facts in this case underscore that the direct notice to the parent mandated by
We conclude that father was prejudiced by the trial court‘s failure to provide him with the notice mandated by
DISPOSITION
The portion of the juvenile court‘s August 30, 2018, order setting a
BURNS, J.
We concur:
JONES, P.J.
NEEDHAM, J.
A156550
Alameda County Superior Court, Case No. JD-028932-01, Hon. Arturo Castro
S. Lynne Klein, Appointed by the Court of Appeal, for Intervener and Appellant.
Office of the County Counsel, Alameda County, Donna R. Ziegler, County Counsel, and Samantha N. Stonework-Hand, Senior Deputy County Counsel, for Plaintiff and Respondent.