San Diego County Department of Social Services v. Ruben S.

Opinion

McDONALD, J. Ruben S. (Ruben) appeals the order terminating his parental rights entered after a Welfare and Institutions Code1 section 366.26 hearing (the .26 hearing). Ruben argues the trial court abused its discretion by denying his request for a continuance of the .26 hearing to permit the completion of paternity testing, and that by preventing him from establishing his paternity he was deprived of his due process right to participate in the .26 hearing.

[810]I. Factual and Procedural Background

In June 1996 Ninfa S. was declared a dependent after the court entered true findings on a petition alleging jurisdiction under section 300, subdivision (b). At the dispositional hearing the court found Ruben was the “natural alleged father” and gave Ruben 60 days within which to show he was a “presumed father.”

From July 1996 through April 1997, Ruben had no contact with Ninfa, made no effort to prove presumed father status, and did not complete paternity testing. After two continuances, the six-month review hearing was held in April 1997. The court terminated reunification services and referred the case to the .26 hearing. This court affirmed that order. (Ruben S. v. Superior Court (July 29, 1997) D028510 [nonpub. opn.].)

The department of social services’ assessment report filed at the .26 hearing stated Ruben had not seen Ninfa since she was placed in foster care and had made no efforts to develop a relationship with her. The report also stated Ninfa was adoptable, 40 to 50 homes were available for a child like her, and her foster parents wished to adopt her.

At the .26 hearing Ruben’s counsel stated Ruben had finally completed the blood draw necessary for paternity testing. He requested a 25-day continuance of the .26 hearing to allow Ninfa’s blood draw and to complete the paternity test. The court denied the continuance. It found that Ninfa would likely be adopted if parental rights were terminated, that none of the statutory exceptions to termination of parental rights applied, and that adoption was in Ninfa’s best interests. The court terminated parental rights. Ruben appeals.

II. The Trial Court Did Not Abuse Its Discretion by Denying the Continuance, Because Establishment of Genetic Linkage Would Have Provided No Information Relevant to the Issues Adjudicated at the .26 Hearing