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Name: In re J.W.-P.
Case #: A156550
Court: CA Court of Appeal
District 1 DCA
Division: 5
Opinion Date: 09/08/2020
Summary

Where father was prejudiced by the trial court’s failure to send statutory notice of the procedures to assert paternity, reversal of an order setting the 366.26 hearing was required. A dependency action was initiated following mother’s arrest and incarceration. Mother testified in the dependency proceedings that R.P. was the minor’s father, had lived with and cared for his daughter during the first two years of her life, and was subject to a child support order. R.P. also maintained his relationship with his daughter and consistently stated that he wanted custody of her. R.P. contacted the social worker and requested custody, and he visited the minor. The social worker told him he should ask for an attorney. A series of attorneys were appointed who did not ask for presumed father status. No attorney represented R.P. at the time that the permanent plan was chosen, and a 366.26 hearing was set. The trial court clerk at no point provided R.P. with notice of the procedures to establish paternity and protect his parental rights, as required by section 316.2, subdivision (b). The appellate court held that the trial court erred by failing to send R.P. a crucial statutory notice advising him of the process for elevating his status from alleged father, and the consequences of not doing so. The error was not harmless. Had R.P. received the requisite notice and submitted form JV-505, the court would have been obligated to make a determination as to his paternity. Attaining presumed father status would have allowed him to seek custody and protect his parental rights. The facts underscored the necessity of direct notice to the parent mandated by section 316.2 even where counsel has been appointed. No appointed counsel here took the necessary steps to establish R.P.’s paternity status and protect his rights. Direct notice would have made all the difference to R.P. in this case. Therefore, the order setting the 366.26 hearing was vacated, and the trial court was instructed to comply with the provisions set forth in section 316.2.

The full opinion is available on the court’s website here: https://www.courts.ca.gov/opinions/documents/A156550.PDF