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Name: In re Kobe A.
Case #: B190595
Court: CA Court of Appeal
District 2 DCA
Division: 4
Opinion Date: 02/17/2007

Appellant, the minor’s biological father, was incarcerated two days after the minor’s birth, and remained in prison throughout the proceedings. The minor and his sibling were removed from mother due to her substance abuse. Appellant was not served with form JV-505, as is required by statute and court rule. The notice of the proceedings he was served with by the Department did not provide him with information about seeking an adjudication of his paternity nor advise him that he could seek appointment of counsel to assist him. On appeal from the 366.26 hearing, appellant claimed he was denied due process because he was not provided mandatory notice of the proceedings, and an opportunity to appear and assert his paternity status. The Department argued that appellant suffered no prejudice from the lack of proper notice because he waived his appearance at the jurisdictional hearing, indicating disinterest. The appellate court rejected the Department’s position, noting that since he was not informed of the proceedings, it is “troublesome” to presume disinterest in them. However, the error was harmless under any standard. Even if he had been fully informed, appellant could not have been able to establish his status as a presumed father, since he was not married to mother, did not attempt to marry her, did not attempt to support her or the minor, and did not receive the child into his home. He was incarcerated throughout, and his criminal history left the court with limited discretion to provide him reunification services. There was no realistic possibility that the court would have found reunification services to father would have been in the minor’s best interest. Therefore, the error was harmless. Further, since there was no prejudice from the inadequate notice, the related claim that counsel was ineffective for failing to raise the notice deficiencies also failed.