Filed 4/21/16 Jose E. v. Superior Court CA6 NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or or dered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SIXTH APPELLATE DISTRICT

J OSE E.,
Petitioner,

v.
THE SUPERIOR COURT OF MONTEREY COUNTY, Respondent;

MONTEREY COUNTY DEPARTMENT OF SOCIAL SERVICES, Real Party in Interest. No. H043293 (Monterey County Super. Ct. No. J48283)

Petitioner Jose E. challenges by writ petition the juvenile court’s February 2016
order denying him reunification services and setting a Welfare and Instituti ons Code
section 366.26 1 hearing for June 2016 . He claims that the court erred in finding that one

year

- old M.L. ( the child ) would not benefit from a grant of reunification services to him. We reject his contention and deny his petition.

1 Subsequent statutory references are to the Welfare and Institutions Code unless otherwise specified.2 I. Background
The child was born in late December 2014 to A.L. (the mother)

. In January 2015, the Monterey County Department of Social Services (the Department) filed a section 300 petition asking the court to take dependency jurisdiction over the child

. The child was not detained; she continued to reside with the mother , who entered a residential drug treatment program after the Department learned that she had given birth to the child

. The mother had an extensive child welfare history arising largely from her sub stance abuse , and she did not have custody of any of her five older children. The mother named Jose as the alleged father of the child.
Jose was incarcerated when the child was born and remained incarcerated when
the petition was filed

. He had been se ntenced in September 2014 to 28 months in jail,
and he had an extensive criminal history , including convictions for burglary, receiving stolen property, and possession of a controlled substance. Jose sought a paternity test,
and t he court ordered one

. On March 11, 2015, paternity testing was conducted, and it established that Jose was the child’s biological father.
Jose was present in custody at the uncontested March 24, 2015 jurisdictional/dispositional hearing. He informed the Department at the hear ing that he might be released in July 2015 and wanted to reunify with the child. T he court took jurisdiction over the child, declared Jose to be the child’s biological father, ordered services for Jose, and continued the child’s placement with the mother with family
maintenance services

. The court ordered no visitation between Jose and the child until he could be assessed by the Department

. At a May 2015 review hearing, Jose ’s trial counsel told the Department that Jose hoped to be released soon, and she explained that she had told him “that he needed to contact the social worker right away and comply with the case plan, so he can have visits3

with his daughter.” Jose was released from jail on June 26, 2015 , but he had no contact with the Department pr ior to the August 2 5 , 2015 six

- month review hearing

. Jose was present at the August 2 5 , 2015 six

- month review hearing

. T he Department asked the court to terminate Jose’s services , and Jose did not oppose that request

. Jose’s trial counsel informed the court that Jose was participating in an inpatient drug treatment program, “and what is really important to him is visitation.” Jose had not yet contacted the Department to be assessed for visitation. The court found that Jose had made no progress, and i t terminated his services but continued services to the mother. The court declared Jose to be “for all purposes the legal father” of the child. The court ordered that Jose have no visitation with the child until the Department could determine
whether vis itation would be safe for the child. At some point after the August 2 5 , 2015 hearing , Jose contacted the Department. Visits were scheduled, but Jose did not attend the scheduled visits , resulting in the suspension of visitation . The Department later l earned that Jose “was having visitation outside of the Department.” At some tim e between July 2015 and December 2015, the
mother had begun allowing Jose to visit the child on a weekly basis at her residence without the Department’s knowledge. I n December 2015, the Department took the child into protective custody and filed a section 387 supplemental petition after the mother relapsed and became uncooperative with the Department and service providers.
Jose was present at the December 16, 2015 detention hearing. The child was
det ained and placed in foster care

. The court granted Jose weekly supervised visits with the child beginning in December 2015, and these visits were “described to go well.” In early February 201 6 , b oth parents were order ed to submit to drug testing. Jose tested negative. The mother tested positive. The jurisdictional/dispositional hearing on the supplemental petition was held in late February 2016. The Department recommended that Jose be denied reunification
service s under section 361.5, subdivisions (a) [court may grant services to biological4

father if it will benefit the child ] and (b)(12) [services may be bypassed if the parent has been convicted of a violent felony]

. It asserted that Jose ’s prior burglary convic tion was a violent felony under Penal Co de section 667.5, subdivision (c )(21). The Department had “concerns” about Jose’s desire to reunify with the child because “he is currently focusing on his recovery.” The Department argued that the child “shouldn ’ t have to
wait ” because she “ needs to have stability.”
Jose , who remained in an inpatient treatment program at the time of the hearing, sought reunification services and “expressed interest in caring for” the child. He explained that he had not seen the need for services when the mother had the child in her custody, but he now wanted reunification services since the mother was not able to care
for the child. Jose challenged the Department’ s assertion that he had suffered a violent felony conviction and asserted that he would be able to reunify with the child if he w ere granted six months of reunification services. Jose’s trial counsel conceded that “at this point he is an alleged father,” but she asserted that he could become a presumed father by

m aking “a declaration of paternity.” She asked the court to grant Jose services “so that he can attempt to reunite with [the child] and demonstrate that he is and can be an appropriate parent, and he wants to be assessed for placement once he gets into a

r esidence that would be appropriate for a child, because he is not in a residence right

now

. ” Jose asserted that he would “be able to get a job” in three months. The court explained that “[a] big issue for the Court today is looking to the best
interest of [the child].” “[I]t does not appear to be in the best interest of the child at this point” to extend services to either parent . “T his is a six

- month case” (due to the child’s age), and “[s]ix months is not enough time for either parent” to demonstrat e that they can appropriately parent the child

. T he court removed the child from the mother’s custody , found that it would be detrimental to the child to place her with Jose, and denied reunification services to both parents. The court found that Jose wa s “not entitled to family reunification services because the provision of services to him would not benefit5

the child.” It also made a written finding “[b]y clear and convincing evidence” that Jose “has been convicted of a violent felony, as defined in Pe nal Code Sec. 667.5(c)

. . . .”
The court set a section 366.26 hearing for June 14, 2016. Jose timely filed a notice of intent to file a writ petition.

II. Discussion
Jose contends that he was entitled to reunification services as a matter of right because the court made a finding that he was the “legal father” of the child

. “[W] henever 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 chi ld’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. ” (§ 361.5, subd. (a) , italics
added .) Although a presumed father is entitled to reunification services, a biological father
is not entitled to reunificatio n services but may be afforded services in the juvenile court’s discretion only if the court “determines that the services will benefit the child.” (§ 361.5, subd. (a).) Jose’s reliance on In re Jesusa V. (2004) 32 Cal.4th 588 ( Jesusa ) is misplaced becau se the California Supreme Court stated in that case that “[a] declaration
of presumed fatherhood entitles the presumed father to reunification services and custody
of the child

. . . .” ( Jesusa , at p. 610 , italics added .) The juvenile court never declare d Jose to be the presumed father of the child. Indeed, Jose never asserted in the juvenile

court that he was the child’ s presumed father (Fam. Code, § 7611) , and his trial counsel conceded that his status was merely that of an “alleged father.” Consequen tly, Jose was not entitled to reunification services as a matter of right.6

Since Jose was a biological rather than presumed father, t he juvenile court had
discretion to afford Jose services if it found that such services would benefit the child.
T he juvenile court expressly found that the child would not benefit from granting services
to Jose because six months would not be enough time for him to reunify with the child

. We review this finding for abuse of discretion. ( In re Elijah V. (2005) 127 Cal. App.4th 576, 589 .) Jose knew that he was the child’s biological father in March 2015, when the child
was less than three months old. He was granted services at that time and told how important it was for him to contact the Department as soon as he was released in order to pursue reunification with the child. Despite this admonition, Jose ma de no effort to contact the Department or engage in services for months after his release. He did not contest the termination of his services in August 2015, and he made no subsequent efforts to demonstrate to the Department that he was committed to developing a relationship with the child. Instead, Jose waited until the child was detained in December 2015 before beginning Department

- supervised weekly visits with th e child. Although these visits went well, the child was now a year old, and her n eed for permanency had become acute. Jose continued to live at a residential drug treatment program, and he conceded that he could not provide a home for the child. Under t hese circumstances, the juvenile court did not abuse its discretion in concluding that it would not benefit the child to delay permanency for six months or more so that Jose would have an opportunity to utilize
services that he had chosen not to utilize si x months earlier.
Jose challenges the juvenile court’s written finding that he had suffered a “ violent felony ” conviction

. Reunification services need not be pro vided to a parent if “ the parent or guardian of the child has been convicted of a violent f elony, as defined in subdivision (c) of Section 667.5 of the Penal Code. ” (§ 361.5, subd. (b) (12).) The Department claimed that Jose’s prior burglary conviction was a “violent felony” under Penal Code section 667.5, subdivision (c)(21). A burglary convi ction is a “violent felony” under that7

provision only if it is “ burglary of the first degree, as defined in subdivision (a) of Section 460, wherein it is charged and proved that another person, other than an accomplice, was present in the residence during the commission of the burglary. ” (Pen. Code, § 667.5, subd. (c)(21 ) .) The juvenile court’s “violent felony” finding is not supported by any evidence in
the record. The documents produced by the Department did not demonstrate that either of Jose’s burglary convictions was a first degree burglary conviction let alone that in either proceeding it had been “charged and proved that another person, other than an accomplice, was present in the residence during the commission of the burglary. ” Nevertheless, the juvenile court’s erroneous finding had no impact on the result in this
case. The juvenile court did not mak e a “violent felony” finding at the hearing, where its
decision not to grant Jose reunification services depended entirely on its finding that
services would not benefit the child . Since the re is no indication that the court’s subsequent erroneous written finding (in orders prepared by the Department) played any
role in the court’s discretionary decision at the hearing, we are satisfied that the court’s
denial of reunification servi ces to Jose was based solely on the lack of benefit to the
child. Thus, the juvenile court did not abuse its discretion.

III. Disposition
The petition is denied.8 _______________________________ Mihara, J.

WE CONCUR:

_____________________________ Elia , Acting P. J.

_____________________________ Bamattre

- Manoukian , J.

Jose E. v. Superior Court H0 43293