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Name: In re O.S.
Case #: D040033
Court: CA Court of Appeal
District 4 DCA
Division: 2
Opinion Date: 10/23/2002
Subsequent History: 11/6/02 modified without change of judgment

Appellant was identified as the alleged father of a minor who was removed from his mother after birth due to mother’s mental illness. Father was never notified of the detention or jurisdiction hearings. A couple of months after the true finding on the petition, the court ordered the Department to conduct a reasonable search to locate and notify appellant of the proceedings. A month later, the 366.26 hearing was set and the court ordered the Department to continue searching for appellant. That same month, appellant, who was incarcerated in the county jail, asked a jail social worker to find the mother and baby. The social worker advised appellant that the baby was in protective custody and told appellant that a Department social worker would contact him. Appellant was then notified of the 366.26 hearing and an attorney was appointed for him. The attorney did not return appellant’s phone calls. Several months later, at the 366.26 hearing, appellant’s counsel asked the court to continue the hearing and order paternity testing. The court denied the request, found the child adoptable, and terminated parental rights. In a petition for writ of habeas corpus and a consolidated appeal, appellant alleged that he had been denied effective assistance of counsel because his counsel did not object to his lack of notice, nor attempted to establish him as the presumed father. The appellate court here agreed, and reversed the orders, including the judgment and dispositional orders. A reasonably competent attorney knows that notice to an alleged father is critical because it enables him the opportunity to establish his paternal status. Further, counsel did not communicate with appellant in the months between appointment and the 366.26 hearing, so she did not know that he desired to establish paternity, nor did she seek blood tests. Had counsel made a timely request, appellant could have established himself as a biological father and received services.