L. A. Cnty. Dep't of Children & Family Servs. v. R.C. (In re Isabella M.)

alleged father under section 361.5, subdivision (a). The section 366.26 selection and implementation hearing was scheduled for December 3, 2014. On August 7, 2014 the court clerk served the parties, including R.C., with a copy of the minute order from the hearing, forms for seeking writ review of the order denying services and an advisement of rights for the scheduled section 366.26 hearing.

In the report prepared for the December 3, 2014 hearing, the Department advised the court Isabella was thriving in her placement with the maternal grandmother, who had agreed to adopt both children. The Department requested the section 366.26 hearing be continued to allow completion of the adoption home study. The Department again served R.C. with notice of the hearing (attaching its report) and his new correctional facility with an order for him to appear at the hearing. R.C. did not appear at the hearing. The court found notice had been proper and continued the hearing to February 4, 2015.

Thereafter, the section 366.26 hearing was continued on multiple occasions^[4] due to the Department's need to seek an administrative waiver for approval of the home study.^[5] The Department's February 18, 2015 interim review report advised the court of its receipt of a waiver of appearance for the December 3, 2014 hearing, signed by R.C. and a prison official on November 17, 2014. R.C. did not appear or otherwise respond to other Department notices, although the Department received a December 2014 letter from a program director stating R.C. was participating in a prison substance abuse treatment program.

On March 10, 2016 the Department finally approved the adoption home study for the maternal grandmother and recommended the court terminate parental rights at the hearing scheduled for March 23, 2016. R.C., who had been released from prison, appeared at the hearing and was appointed counsel. At his request, the court ordered a paternity test and continued the hearing to allow R.C.'s counsel to review the record for any notice issues. The court denied R.C.'s request for visitation, citing Isabella's best interest.

The paternity test confirmed R.C. was Isabella's biological father. At the next scheduled hearing R.C.'s counsel requested a continuance to allow him to file a motion on R.C.'s behalf. R.C. filed a section 388 petition on May 9,

^[7] When a proceeding is brought under section 300 to adjudicate whether a child of a prisoner is a dependent child of the court or under section 366.26 to terminate the parental rights of a prisoner, the court "shall order notice of any court proceeding regarding the proceeding transmitted to the prisoner." (

when the moving party presents new evidence or a change of circumstance and demonstrates modification of the previous order is in the child's best interest. ( In re Jasmon O . (1994) 8 Cal.4th 398 , 415, 33 Cal.Rptr.2d 85 , 878 P.2d 1297 ; In re Stephanie M . (1994) 7 Cal.4th 295 , 317, 27 Cal.Rptr.2d 595 , 867 P.2d 706 ; In re Y.M. (2012) 207 Cal.App.4th 892 , 919, 144 Cal.Rptr.3d 54 ; see Cal. Rules of Court, rule 5.570(e) ; Zacharia D., supra, 6 Cal.4th at p. 455, 24 Cal.Rptr.2d 751 , 862 P.2d 751 [" '[s]ection 388 provides the "escape mechanism" that ... must be built into the process to allow the court to consider new information' "].) When, as in this case, a section 388 petition is filed after family reunification services have been terminated, the juvenile court's overriding concern is the child's best interest. ( Stephanie M., at p. 317, 27 Cal.Rptr.2d 595 , 867 P.2d 706 .) The parent's interests in the care, custody and companionship of the child are no longer paramount; and the focus shifts to the needs of the child for permanency and stability. ( Ibid. ; In re Vincent M. (2008) 161 Cal.App.4th 943 , 960, 74 Cal.Rptr.3d 755 .) Because time is of the essence to young children, when it comes to securing a stable, permanent home, prolonged uncertainty is not in their best interest. (See In re Josiah Z. (2005) 36 Cal.4th 664 , 674, 31 Cal.Rptr.3d 472 , 115 P.3d 1133 [" '[t]here is little that can be as detrimental to a child's sound development as uncertainty over whether he is to remain in his current "home," under the care of his parents or foster parents, especially when such uncertainty is prolonged' "]; In re Kimberly F. (1997) 56 Cal.App.4th 519 , 531, 65 Cal.Rptr.2d 495 ["our Supreme Court made it very clear in Jasmon O. [, supra, 8 Cal.4th 398 , 33 Cal.Rptr.2d 85 , 878 P.2d 1297 ] the disruption of an existing psychological bond between dependent children and their caretakers is an extremely important factor bearing on any section 388 motion"].)^[9]

We review the juvenile court's order for abuse of discretion and may disturb the exercise of that discretion only in the rare case when the court has made an arbitrary, capricious or "patently absurd" determination. ( In re Stephanie M., supra, 7 Cal.4th at p. 318, 27 Cal.Rptr.2d 595 , 867 P.2d 706 .) We do not inquire whether substantial evidence would have supported a different order, nor do we reweigh the evidence and substitute our judgment for that of the juvenile court. ( Ibid. ) We ask only whether the juvenile court abused its discretion

presumed father under Family Code section 7611" at any point in the dependency proceeding. ( In re Kobe A. (2007) 146 Cal.App.4th 1113 , 1122, 53 Cal.Rptr.3d 437 .) R.C. was not married to Bridgett and did not appear on Isabella's birth certificate. Because Isabella was born after he was incarcerated and he made no effort to assert his paternity or engage his family in Isabella's care and support, he could not have demonstrated he had earned presumed parent status by receiving her into his home and providing for her needs. As Justice Croskey explained in Marcos G ., supra , 182 Cal.App.4th 369 , 105 Cal.Rptr.3d 505 , "Merely being a biological father is not sufficient. If a man has not legally married or attempted to legally marry the mother of his child, he can only be a presumed father if he has received the minor into his home and openly held the child out as his natural child." ( Id. at p. 383, 105 Cal.Rptr.3d 505 .)

Equally problematic for alleged fathers like R.C., the dependency scheme does not wait for them to belatedly assert their intent to form a parental relationship with their children. As the Supreme Court has explained, "[T]he Legislature has statutorily limited reunification services to 'a maximum time period not to exceed 12 months,' which, under certain circumstances, may be extended to 18 months. (§ 361.5, subd. (a).) [^[10] ] The 18-month period is not tolled by the parents' physical custody of the child, or by

R.C., the alleged father of Isabella M., was incarcerated from the time of her birth until she was 20 months old. The juvenile court denied R.C.'s petition to adjust his parental status from alleged to presumed father and thereafter terminated his parental rights. R.C. appeals from both orders. We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

Isabella was born in June 2014 to Bridgett M., whose 16-month-old son, Andrew M., had been detained in July 2013 by the Los Angeles County Department of Children and Family Services (Department) based in part on Bridgett's illicit drug use. In detaining Isabella under Welfare and Institutions Code section 300, subdivision (b)(1),^[1] the Department alleged that Bridgett had a history of substance abuse and was a current abuser of methamphetamine, which she had used consistently while pregnant with Isabella,^[2] and that Andrew was a current dependent of the juvenile court for similar reasons. The petition did not identify R.C. as an offending parent. At the June 25, 2014 detention hearing the juvenile court found R.C. to be Isabella's alleged father and issued a statewide jail removal order to allow R.C. to attend the jurisdiction hearing scheduled for August 6, 2014. Isabella was placed with Bridgett's mother, with whom Andrew had also been placed.

R.C.'s name was not included on Isabella's birth certificate. Bridgett told a Department social worker she had begun living with R.C. in July 2013, became pregnant in September 2013 and broke up with R.C. in December 2013. She knew R.C. had been arrested in February 2014 and had received a multi-year sentence, but did not know where he had been incarcerated. Bridgett reported that R.C. had other children and had told her he did not want to be involved in Isabella's life.

The Department located R.C. at a Vacaville correctional facility and served him by certified mail with notice of the August 6, 2014 hearing and a copy of the petition. The Department also sent an order for R.C.'s appearance at the hearing to the warden of the correctional facility. R.C. did not appear at the hearing and did not execute and return a waiver for his appearance.^[3] The court found notice had been proper, sustained the section 300 petition and

could result in the termination of parental rights and adoption of the child. The court^[6] is further required to include with the notice Judicial Council form JV-505, entitled "Statement Regarding Parentage." As explained in In re Marcos G. (2010) 182 Cal.App.4th 369 , 105 Cal.Rptr.3d 505 ( Marcos G. ), "Form JV-505 contains important information for an alleged father. Among other things, it tells him that as an alleged father he will not receive reunification services and will not 'automatically get the child to live with you or your relatives.' He is also told that he can have a trial on the issue of parentage and an attorney may be afforded him if he cannot afford one for himself, and if he wants the court to decide if he is the minor's parent he should fill out form JV-505." ( Id. at p. 384, 105 Cal.Rptr.3d 505 ; see In re Jesusa V. (2004) 32 Cal.4th 588 , 601, 10 Cal.Rptr.3d 205 , 85 P.3d 2 ( Jesusa V. ) ["due process entitles a biological father [to] a meaningful opportunity to qualify as a presumed father"].)

California Rules of Court, rule 5.635 implements section 316.2. Rule 5.635(h) requires, if an alleged father appears in a dependency case and requests a finding of paternity through Judicial Council form JV-505, that the court 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 court may make the required parentage determination by ordering blood testing and considering testimony, declarations or statements by the mother and alleged father. (Cal. Rules of Court, rule 5.635(e)(2) & (e)(3) ; In re D.P., supra, 240 Cal.App.4th at p. 696, 193 Cal.Rptr.3d 1 ; In re B.C. (2012) 205 Cal.App.4th 1306 , 1311-1312, 140 Cal.Rptr.3d 881 .) Thus, section 316.2, subdivision (b), and rule 5.635 provide an alleged father with the notice and procedural means to attempt to change his paternity status. ( In re O.S ., supra , 102 Cal.App.4th at p. 1408, 126 Cal.Rptr.2d 571 .)

In addition to these provisions, Penal Code section 2625 governs notice of dependency proceedings to incarcerated parents.

Pen. Code, § 2625, subd. (b).) Pursuant to subdivision (d), if an incarcerated parent indicates a desire to be present during these proceedings, "the court shall issue an order for the temporary removal of the prisoner from the institution, and for the prisoner's production before the court.... [N]o petition to adjudge the child of a prisoner a dependent child of the court pursuant to subdivision (a), (b), (c), (d), (e), (f), (i), or (j) of Section 300 of the Welfare and Institutions Code may be adjudicated without the physical presence of the prisoner or the prisoner's attorney, unless the court has before it a knowing waiver of the right of physical presence signed by the prisoner or an affidavit signed by the warden, superintendent, or other person in charge of the institution, or his or her designated representative stating that the prisoner has, by express statement or action, indicated an intent not to appear at the proceeding."

Subdivision (e) of Penal Code section 2625 provides that "[i]n any other action or proceeding in which a prisoner's parental ... rights are subject to adjudication, an order for the prisoner's temporary removal from the institution and for the prisoner's production before the court may be made by the superior court.... A copy of the order shall be transmitted to the warden, superintendent, or other person in charge of the institution not less than 15 days before the order is to be executed." "Thus, only in proceedings to adjudicate a child of a prisoner a dependent of the juvenile court or to terminate parental rights must a court order production of a prisoner for the hearing. For all other proceedings, the trial court has discretion whether to order removal from the institution of a prisoner-parent." ( Marcos G., supra, 182 Cal.App.4th at p. 386, 105 Cal.Rptr.3d 505 , citing Jesusa V., supra , 32 Cal.4th at p. 599, 10 Cal.Rptr.3d 205 , 85 P.3d 2 .)

b. Relief under section 388

When an alleged father claims a lack of notice of the proceedings caused him to fail to achieve presumed father status prior to expiration of the reunification period, "[h]is only remedy ... [is] to file a motion to modify [prior orders] under section 388."^[8] ( In re Zacharia D. (1993) 6 Cal.4th 435 , 453, 24 Cal.Rptr.2d 751 , 862 P.2d 751 ( Zacharia D. ); accord, In re Justice P. (2004) 123 Cal.App.4th 181 , 189, 19 Cal.Rptr.3d 801 [§ 388 motion "proper vehicle to raise a due process challenge based on lack of notice"]; Marcos G., supra, 182 Cal.App.4th at p. 380, fn. 8, 105 Cal.Rptr.3d 505 ["a challenge to a dependency judgment on lack of due process/notice grounds is properly made by means of a section 388 petition"].)

the parents' absence or incarceration. (§ 361.5, subds. (a), (d) & (e)(1).) [¶] What all of these express nontolling events have in common is that they prevent a parent's unilateral action from impeding a child's permanent and timely placement. We conclude that the 18-month period is therefore also not extended ... by an alleged father's own failure to ascertain the existence of his child, or by his decision to wait until the 18-month hearing to assert his paternity claim." ( Zacharia D., supra, 6 Cal.4th at p. 452, 24 Cal.Rptr.2d 751 , 862 P.2d 751 ; see Marcos G. , supra, 182 Cal.App.4th at p. 391, 105 Cal.Rptr.3d 505 ["Had the trial court ... not made adjudication and disposition orders and findings at the hearing in March 2007 but instead continued that hearing over and over and over until such time as Father decided to participate in the case and counsel could be appointed for him, the record shows that Marcos would have waited a very, very long time. The law does not require children to wait so long for parents to become sufficiently interested in dependency proceedings."].)^[11]

Like the alleged fathers in Zacharia D. and Marcos G ., R.C. waited more than 20