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Court of Appeal, Fifth District, California.



Decided: January 19, 2011

A.D., in pro. per., for Petitioner.   No appearance for Respondent.   Office of the County Counsel, County of Kern, for Real Party in Interest.



Petitioner seeks an extraordinary writ (Cal. Rules of Court, rule 8.452) from the juvenile court's order setting a Welfare and Institutions Code section 366.26 1 hearing as to his son, A. We will deny the petition.


Petitioner is the presumed father of A. who has been removed twice from parental custody.   He was first removed in September 2008 at the age of three from the custody of his mother, Regina, after Regina's live-in boyfriend, L.C., placed A. into scalding hot water, resulting in second and third-degree burns on his feet and legs.   L.C. also punched A. in the eye, resulting in bruising.   Regina did not seek medical treatment for A.'s burns and provided false information to law enforcement.   She also continued to live with L.C. and denied the severity of the burns.   The juvenile court exercised its dependency jurisdiction and, in December 2008, denied Regina reunification services and awarded petitioner physical custody of A. At the time, petitioner was unemployed because of what the social services department believed was a mental health disability involving depression.   The department had concerns about petitioner's alcohol consumption, but he denied drinking “that much” and there was no evidence he was impaired or could not take care of A.

These dependency proceedings arose from A.'s second removal.   In November 2009, he was removed from petitioner's custody after petitioner was arrested for public intoxication and child endangerment.   He and A. were spotted walking along a heavily traveled highway.   Petitioner was swaying and stumbling and carrying a wine bottle.   Petitioner's father said petitioner had a serious problem with alcohol and drank to intoxication every day.

The department filed a dependency petition alleging petitioner has a history of abusing alcohol dating back to 2004 and consumed alcohol on a regular basis.   The juvenile court ordered A. detained pursuant to the petition and the department placed A. with his maternal grandmother.   At the jurisdictional hearing in December 2009, the court found the allegations true and appointed psychologist Dr. Middleton to perform a psychological evaluation to determine if petitioner had any psychiatric conditions and whether he could meaningfully participate in reunification services with A.

In January 2010, Dr. Middleton interviewed petitioner and administered psychological testing.   Petitioner told Dr. Middleton that he had a long history of alcoholism and suffered a stroke in May 2009.   He also disclosed that he was taking medication for a variety of conditions including cirrhosis of the liver, depression, and seizures.   The psychological tests revealed severe impairment in petitioner's executive functioning.   Dr. Middleton concluded, based on the results of the evaluation, that petitioner suffered from a severe mental disorder and ongoing alcohol dependence.   He opined that petitioner could not meaningfully participate in reunification services.

The juvenile court also appointed psychologist Dr. Little to evaluate petitioner.   Dr. Little also concluded petitioner could not benefit from reunification services.

In April 2010, the juvenile court denied petitioner and Regina reunification services pursuant to section 361.5, subdivisions (b)(2) and (b)(10), respectively.   The court also set a section 366.26 hearing.   Neither parent filed a writ petition challenging the court's orders.

In July 2010, the juvenile court conducted the section 366.26 hearing and ordered A. into a planned permanent living arrangement as his maternal grandmother was not then prepared to assume legal guardianship.   The court set a status review hearing for October 2010.

In October 2010, at the status review hearing, the juvenile court set a section 366.26 hearing to consider a permanent plan of legal guardianship for A. with his maternal grandmother.   This petition ensued.


Petitioner contends the juvenile court erred in not recognizing his proper paternity designation and not assisting him in gaining custody of A. With respect to his paternity, petitioner does not understand the significance of being A.'s presumed father.   He complains that the juvenile court mistakenly regarded him as such and wonders why the court did not settle the matter of his paternity by ordering paternity testing.   In dependency proceedings, the presumed father is accorded the greatest paternity rights;  most notably custody absent a finding of detriment and reunifications services.  (In re Zacharia D. (1993) 6 Cal.4th 435, 451.)   Consequently, the presumed father's rights to his child are superior to the rights of the biological father.   (Ibid.) Therefore, there was no need for the juvenile court to order paternity testing for petitioner when petitioner, as A.'s presumed father, was enjoying all the rights afforded him under the dependency statutes.

Further, as A.'s presumed father, petitioner was in the best position to gain custody of A. Ordinarily, the juvenile court would order services to a presumed father with the objective of successfully returning the child to parental custody. (§ 361.5, subd. (a).)  However, the juvenile court must, at all times, weigh the best interests of the child and, at no time, return a child to parental custody when to do so would place the child at risk of detriment.   In this case, two psychologists determined that petitioner has a mental disability that renders him incapable of utilizing reunification services.   Under those circumstances, the juvenile court can, as it did in this case, deny reunification services under section 361.5, subdivision (b)(2).   In doing so, the court recognized that petitioner could not safely parent A. and that A.'s best interest lies in placing him in the custody of another.

Petitioner also contends his attorney told him at the hearing in October 2010 that he would send him documents in the mail that would explain how to regain custody of A., but he did not receive them.   Petitioner does not identify the documents and there is no record of what his attorney said to him.   We note that petitioner was given a copy of the notice of intent to file the writ petition (JV-820) and the writ petition (JV-825) in court, which he filed.   However, we cannot even speculate as to what documentation he may have been promised, but did not receive.   Nevertheless, the record reflects that, at the conclusion of the October 2010 hearing, the plan was not to return A. to petitioner's custody.   Having reviewed the record in light of petitioner's contentions, we find no error and will deny the petition.


The petition for extraordinary writ is denied.   This opinion is final forthwith as to this court.



FN1. All further statutory references are to the Welfare and Institutions Code, unless otherwise indicated..  FN1. All further statutory references are to the Welfare and Institutions Code, unless otherwise indicated.