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In Re Delilah H., A Person Coming Under the Juvenile Court v. James N

October 31, 2012

IN RE DELILAH H., A PERSON COMING UNDER THE JUVENILE COURT LAW. PLACER COUNTY DEPARTMENT OF HEALTH AND HUMAN SERVICES, PLAINTIFF AND RESPONDENT,
v.
JAMES N., DEFENDANT AND APPELLANT.



(Super. Ct. No. 53-002866)

The opinion of the court was delivered by: Nicholson , J.

In re Delilah H. CA3

NOT TO BE PUBLISHED

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

James N., the alleged father (hereafter father) of the nearly four-year-old minor, Delilah H., appeals from an order of the Placer County Juvenile Court appointing a legal guardian for the child and dismissing the dependency. On appeal, father contends the juvenile court erred when it refused to appoint counsel to represent him at the selection and implementation hearing. (Welf. & Inst. Code, § 366.26.)*fn1 We affirm the order.

FACTUAL AND PROCEDURAL BACKGROUND

Father has not been married to Shannon S., the mother of Delilah. At the times of Delilah's conception and birth, mother was married to Mike S.

Originating Circumstances

In July 2009, mother was arrested for driving under the influence of a controlled substance while Delilah was in the car. A probation search of mother's residence yielded a controlled substance and paraphernalia.

Petition

The Placer County Department of Health and Human Services (Department) filed a petition pursuant to section 300, subdivisions (b) and (g). The petition alleged that mother abuses controlled substances and drove under the influence with Delilah in the car; and that both mother and father are incarcerated, leaving Delilah without provisions for care and support.*fn2

Detention

Father was not present at the detention hearing. The paternal grandmother, Barbara N., was present. She advised the court that father was incarcerated at Deuel Vocational Institute (DVI).

The juvenile court inquired regarding father's relationship with Delilah. Mother indicated she never was married to father, she was not living with him when Delilah was conceived, and he was not present when Delilah was born.

Mother listed father on paperwork provided by the hospital and thus believed that father was listed on Delilah's birth certificate. Father never lived with Delilah and visited her just once, when mother brought her to see him. Mother acknowledged that she was married to Mike S. when Delilah was conceived and born.

The juvenile court stated it would defer any paternity finding with respect to father. The court advised mother that, when a woman is married to a man and has a child during the marriage, the man is presumed to be the father but that presumption "can be rebutted with other facts." But right now [Mike S.] carries some weight in this case, as does [father]. We will have to sort that out."

The paternal grandmother advised the court that "there is a DNA test in place for this, and my son signed the papers." The court replied that, if "there has been genetic testing that found [father] ...


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