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Name: In re Christopher M.
Case #: C043514
Court: CA Court of Appeal
District 3 DCA
Opinion Date: 11/10/2003
Subsequent History: None

At the time of the filing of the dependency petition, mother named Roger D. as the minor’s father. Roger D. was present at the birth and signed a voluntary declaration of paternity. Appellant, Albert G., told the social worker shortly after the detention that he believed that he was the father. The juvenile court ordered that he be given information to assist him in establishing paternity. Meanwhile, Roger D. was named the presumed father, and appeared at the next court hearing. Appellant was not present, nor did he appear at any of the subsequent hearings. Jurisdiction was sustained, reunification services were denied, and a 366.26 hearing was set. Just prior to the 366.26 hearing, appellant filed a 388 motion requesting paternity testing and placement of the minor with him if he was determined to be the father. The trial court denied a hearing on the 388 motion, concluding that the paternity issue had already been resolved by the naming of Roger D. as the presumed father, and denied appellant a contested 366.26 hearing. Parental rights were terminated and the minor was adopted. In this appeal, appellant contended that his due process rights were violated when the juvenile court denied his request for a contested 366.26 hearing. The appellate court here disagreed and affirmed. Due process for an alleged father only requires that he be given notice and opportunity to appear and assert a position. Unless appellant could establish he was the presumed or biological father, he was not entitled to a contested 366.26 hearing. Neither reunification nor paternity is an issue before the juvenile court at the 366.26 hearing. Further, the juvenile court did not fail to comply with statutory procedures for determining paternity. The juvenile court’s duty under section 316.2 to conduct an inquiry regarding paternity only arises where parentage has not otherwise been determined. Here, the declaration of paternity executed by Roger D. resolved the issue of paternity. The provisions of section 316.2 for inquiring about paternity and providing notice to alleged fathers therefore did not apply.