A.H. v. Super.
Filed 6/20/13 A.H. v. Super. Ct. CA1/1
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opinion has not been certified for publication or ordered published for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.
IN
THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST
APPELLATE DISTRICT
DIVISION
ONE
A.H.,
Petitioner,
v.
THE SUPERIOR
COURT OF MARIN
COUNTY,
Respondent;
MARIN
COUNTY HEALTH & HUMAN
SERVICES et al.,
Real Parties in Interest.
A138389
(Marin
County
Super. Ct.
No. JV25733A)
By
way of this writ proceeding, A.H. challenges the dependency court’s
jurisdiction and disposition orders, and its order setting a selection and
implementation hearing pursuant to Welfare and Institutions Code section
366.26.
ruling he is the “biological,†not the “presumedâ€, father of M.H. and contends
the conclusive presumption of paternity set forth in Family Code
section 7540 applies. The County
of Marin does not dispute A.H. made
the requisite showing to trigger the presumption—that is, that when M.H. was
born, her mother and A.H. were married and cohabitating, and A.H. was not then
impotent or sterile. (Fam. Code,
§ 7540.) The county maintains,
however, the court properly found, as a matter of public policy, the
presumption should not apply in this case.
While
we agree with the county the record in this case raises grave concerns about
the safety of M.H. if custody is awarded to A.H., and we have serious doubts
reunification services would be utilized by A.H. and, even if they were, they would
repair what appears to be a non-existent familial relationship between A.H. and
his daughter, these concerns should have been addressed in the context of
determining custody and the provision of reunification services, not through
the expediency of disregarding the conclusive presumption set forth in Family
Code section 7540. We therefore grant
the writ petition in part, order the court’s disposition order and order
declaring A.H. to be only a “biological†father vacated, and remand for further
proceedings.
Factual Background
Because
this writ proceeding turns on a single question, whether the conclusive
presumption set forth in Family Code section 7540 applies, we need not and do
not discuss the facts of the underlying dependency proceeding at length.
M.H.
was born in
in January 1997. Soon thereafter, her
parents took her to Bahrain. Her mother died when she was four months
old. A.H. asked his parents to care for
M.H. They agreed to do so, and returned
with M.H. to Marin County
and acted as her parents. A.H. did not
return, and during M.H.’s childhood had contact with her only rarely. As of the time of the detention hearing, M.H.
was 16 years old and had not seen A.H. for seven years. A.H. never expressed any interest in knowing
M.H., did not telephone her or send her birthday cards, and did not contribute
financially to her support.
As
M.H. grew older, there was significant conflict between her and her
grandparents. This ultimately resulted
in her half brother being appointed her guardian. Conflict continued in her brother’s
household, leading to his refusal to continue the guardianship and triggering
the underlying dependency proceedings.
On
February 13, 2013,
section 300 dependency petition alleging, inter alia, failure or inability
of a parent or guardian to supervise or protect M.H.
Because
the guardianship had not yet been terminated, the legal guardian, and not A.H.,
addressed the allegations of the petition at the detention hearing on February
14, waived rights and did not dispute that a prima facie showing had been made
for detention and placement outside the home of the guardian. The court ordered M.H. detained and placed
under the care of the county child and family services agency. Counsel for A.H. also appeared at the hearing
and claimed presumed father status under Family Code section 7540. The court took the issue under
submission.
Five
days later, on February 19, the court issued an order denying A.H.’s request to
be deemed the presumed father. Citing
both Family Code sections 7540 and 7611, subdivision (a), it recounted the lack
of A.H.’s interest in and contact with M.H.
It also referenced the report of the social worker that in a telephone
conversation A.H. stated that he was very upset with M.H., that she needed to
be sent to Bahrain, that the United States should have no further involvement
with her, that he would get her to behave and, if she failed to do so, he had
the right to disown her. The court
concluded that while A.H. may be the biological father, he “has not yet made
much of a commitment to his parental responsibilities for the minor†and
therefore had “not met the requisite burden of proof that he is the presumed
father.
On
March 7, A.H. moved for reconsideration of his status, asserting the trial
court had erred in refusing to heed the conclusive presumption set forth in
Family Code section 7540. He
attached a copy of M.H.’s birth certificate, showing him to be the father.
The
legal guardian appeared at the jurisdiction hearing on March 11, again waived
rights and submitted to the jurisdiction of the court. On the basis of the jurisdiction report filed
by the county, the court sustained the “g-1†allegation of the petition.
referrals regarding the family. These
included two reports (as to which an “inconclusive†determination was made) of
severe abuse of M.H.’s younger half brother by A.H. while in Bahrain and Saudi
Arabia, one report (“substantiatedâ€) of abuse of her older half brother by
A.H., one report (“inconclusiveâ€) of emotional abuse and neglect of the younger
half brother by the paternal grandmother that noted the brother was repatriated
to the United States after severe abuse by A.H. in Bahrain, and one report
(“inconclusiveâ€) of emotional abuse of M.H. by the paternal grandparents, and
several reports (“inconclusive,†“substantiated,†and “evaluated outâ€) of
general neglect of M.H. by her older half brother during the guardianship. M.H.’s older half brother and then legal
guardian also told the social worker that for seven years he did not speak to
his father and had not wanted anything to do with him. He reported abuse, including being made to
“sign a contract†he would “not touch his father or anything in his father’s
home and was then made to live in a guest house where he had very little to
eat.†He also reported severe abuse of
his younger brother. He contacted his
father to advise him of the guardianship and refused to send M.H. to him in
Bahrain “ ‘because of what happened to me.’ †As for A.H.’s motion for reconsideration of
the court’s ruling on his fatherhood status, the court found proper notice had
not been given, and continued the matter to the next hearing.
Two
weeks later, on March 29, A.H. filed a “supplemental motion†for a
determination of paternity under Family Code section 7540.
On
April 2, the county filed a disposition report, again reciting the prior child
welfare history, including that the U.S. Embassy had become involved with the
abuse of M.H.’s younger half brother and A.H. had shown “ ‘little or no
remorse for the beatings and admitted that such beatings have occurred on multiple
occasions.’ †M.H.’s older half
brother also sought help from the embassy, stating he had been “put out†of the
family home two weeks earlier and had not eaten or slept in three days. A.H. told embassy personnel the son was no
longer welcome in his home and he considered him to be the embassy’s
responsibility. The report also
recounted A.H.’s conversation with the social worker that M.H. is a
“ ‘disturbed person and a trouble maker,’ †that she should be sent
to Bahrain, and “ ‘we can write her off and let her go to hell’ †if
she continues to misbehave. If M.H.
“ ‘doesn’t want to listen we have full right to disown her so she does not
ruin the [family] name.’ †The
report summarized: “[A.H.] has an
extensive history of severe physical abuse and neglect of [M.H.’s] older
siblings. He has not shown any interest
in raising any of his children long-term and has not made any effort to have a
relationship with [M.H.]†The report therefore
concluded, “it is not in [M.H.’s] best interest to be sent to live with her
father.â€
By
the time of the disposition hearing, on April 3, the guardianship had been
terminated. Accordingly, the court first
considered A.H.’s pending motions regarding his fatherhood status. The court heard argument, including by
counsel representing M.H., who vigorously opposed A.H. attaining presumed
father status. The court took the issue
under submission and continued the hearing.
At
the continued hearing on April 8, the court affirmed its prior decision that
A.H. was only the “biological†father and was not entitled to “presumed†father
status. Stating it had reviewed the
history of the family relationship as set forth in the reports, the court
“[did] not find it in the best interests of the minor that he be determined to
be the presumed father with custody of [M.H.]â€
It found, “her safety and well-being will be jeopardized by such a Court
order.â€
The
court then proceeded with the disposition hearing, approved nonparent placement
and set the matter for a selection and implementation hearing on July 29.
This
dependency proceeding illustrates the potential tension between the goals and
objectives of the juvenile dependency scheme and those of the paternity
statutes. “ ‘The objective of the
dependency scheme is to protect abused or neglected children and those at
substantial risk thereof and to provide permanent, stable homes if those
children cannot be returned home within a prescribed period of time.’ [Citation.]
The underlying purpose of dependency law is to protect the welfare and
best interests of the child.†(
Cal.App.4th 586, 597.) The paternity
statutes, in turn, reflect the historic view the family unit is vital to
societal health, and children born during a marriage should be presumed
legitimate offspring of the union. (
1109, 1114 (Kiana A.); see also
Cal.4th 932, 945–946 (J. Kennard, concurring); In re Lisa R. (1975) 13 Cal.3d 636, 649–650 (
As
we have discussed, the record here indicates significant risk to M.H.’s health
and wellbeing if the conclusive presumption of paternity set forth in Family
Code section 7540 is recognized and that were to lead to custody by A.H. It further reflects the family unit
disintegrated years ago, so the family-preservation policy the paternity
presumption seeks to advance is non-existent.
The
county is correct that courts have, in some cases, refused to apply the
conclusive presumption set forth in Family Code section 7540. These cases, however, are grounded on the
theory the presumption must give way to paramount constitutional due process
rights, generally the right of a “biological†father to parent his child. (See,
e.g., Lisa R., supra, 13 Cal.3d
at p. 640 [holding “that under the due process clause of the Fourteenth
Amendment . . . appellant does have standing to offer evidence that he is the
natural father of the minor childâ€];
Kiana A., supra, 93 Cal.App.4th at pp. 1114–1115 [“Where the [paternity
statute] unduly impinges a biological father’s constitutional right to parent a
child, we apply traditional substantive due process principles and balance the
biological father’s interest against those of the state. [Citations.]
Thus, a court may refuse to apply the conclusive presumption when its
underlying policies are not furthered.â€]; Comino
v. Kelley (1994) 25 Cal.App.4th 678 [conclusive presumption not applied to
bar biological father, who had extensive relationship with child in early years
before mother restricted access, from seeking custody rights].)
Even
then, the courts have not readily disregarded the presumption. “[W]hen there is no existing relationship
between the claimed biological father and the child, courts must defer to legislative
choices reflected in paternity statutes.â€
(Lisa I. v. Superior Court (2005)
133 Cal.App.4th 605, 620 (Lisa I.).)
In
County of Orange v. Leslie B. (1993)
14 Cal.App.4th 976, which the county cites several times, the district attorney
filed a complaint against two men to determine paternity for child support
purposes. While neither gentleman was
seeking to assume parental obligations, and thus there was no contest between
them as to parental status, the case nevertheless involved the resolution of
parental status as between a former husband subject to the statutory
presumption and the biological father.
The Court of Appeal concluded failure to apply the presumption did not
impair the biological father’s due process rights, and affirmed the trial
court’s refusal to allow the biological father to avoid support obligations to
his child by raising the statutory presumption.
(Id. at pp. 979–982.)
The
county has not cited any case in which there was no competing claim of
entitlement to parental status and the conclusive statutory presumption was
nevertheless disregarded. While we
appreciate that the historic underpinnings of the presumption of paternity set
forth in Family Code section 7540 may not coincide with the state of the modern
family, it is clear the courts have carefully limited the circumstances in
which this “conclusive†presumption can be disregarded by the courts. Moreover, were that not the case and the
courts could freely determine on a case by case basis that “public policyâ€
weighed against application of the presumption, the declared conclusiveness of
the statute would be severely undermined.
That goes beyond the proper role of the courts. (Cf. Lisa
I., supra, 133 Cal.App.4th at p. 620
[where no cognizable due process interest, courts “must defer to legislative
choices reflected in paternity statutesâ€].)
We
therefore conclude the dependency court erred in disregarding the conclusive
presumption set forth in Family Code section 7540 and denying A.H. presumed
father status and deeming him, on ostensible public policy grounds, only a
biological father.
This
does not mean, however, that A.H. is entitled to custody, in Bahrain, of
M.H. A.H. is a “noncustodial†parent,
and the court must consider whether placement with him “would be detrimental to
the safety, protection, or physical or emotional well-being of the child.†(§ 361.2, subd. (a).) At the continued jurisdiction hearing, the
court made such a finding on the record.
(the county jurisdiction and disposition reports) supported such a finding on
the basis of clear and convincing evidence.
However, at that point, the court had ruled (a second time) that A.H.
was only a biological father.
Consequently, he did not have an opportunity to participate
substantively in the proceedings and attempt to rebut the county reports that
appear to make very clear his custody of M.H. in Bahrain would be perilous to
her safety, protection, or physical or emotional wellbeing. We therefore have no choice but to reverse
and remand the matter for a hearing under section 361.2, subdivision (a).
We
note that section 361.2 is not a “removal†statute. “[R]ather it is one of the statutes that
guides the court and the Agency in determining the child’s placement after
removal from the custodial parent pursuant to section 361. Under section 361, the court removes children
from the physical custodial parent. (See
In re Terry H. (1994)
27 Cal.App.4th 1847, 1856 . . . .)[
parent, the court did not and was not required to remove the children from him
under any statute. Once removal from the
custodial parent under section 361 has occurred, section 361.2 requires the
court to evaluate placement with the noncustodial parent based on
detriment.†(Luke M., supra, 107 Cal.App.4th at pp. 1422–1423.) Moreover, “[a] detriment evaluation requires
that the court weigh all relevant factors to determine if the child will suffer
net harm.†(Id. at p. 1425.) Thus, while
“a jurisdictional finding is predicated on parental conduct, a detriment
finding for purposes of deciding placement with a noncustodial, nonoffending
parent need not be.†(
The court must also keep in mind “the fundamental premise that the
underlying purpose of dependency law is to protect the welfare and best
interests of the dependent child†and “the purpose of any dependency hearing is
to determine and protect the child’s best interests.†(Id. at
pp. 1424–1425.)
As
for reunification services, the record before us does not indicate whether M.H.
is even seeking such services, let alone what the court may determine in this
regard. (§§ 361.2, subd. (b)(3),
361.5, subd. (b); see In re Adrianna P.(2008)
166 Cal.App.4th 44, 55–59 [applying section 361.5, subdivision (b), to
noncustodial parent who sought, but was denied, custody].)
We
deny A.H.’s writ petition to the extent it challenges the court’s
jurisdictional order. We otherwise grant
the petition, order the court’s disposition order and order deeming A.H. only a
biological father vacated, and remand for a hearing under section 361.2
and new disposition hearing.
_________________________
Banke,
J.
We concur:
_________________________
Margulies, Acting P. J.
_________________________
Sepulveda, J.
Welfare and Institutions Code unless otherwise indicated.
2013.
