George C. v. Sup. Ct.

Filed 5/31/07 George C. v. Sup. Ct. CA1/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 TWO

Petitioner George C. seeks review by extraordinary writ, pursuant to California Rules of Court, rule 8.452,[1] of the juvenile courts findings and orders, in which the juvenile court denied petitioners request for presumed father status, pursuant to Family Code section 7611,[2] as to Ethan C. (now one-year-old), and set the matter for a permanency planning hearing, pursuant to Welfare and Institutions Code section 366.26. Petitioner contends there was insufficient evidence to support the juvenile courts finding that he was not Ethans presumed father. We shall deny the petition for extraordinary writ.

FACTUAL AND PROCEDURAL BACKGROUND

On July 5, 2006, the Humboldt County Department of Health and Human Services, Social Services Branch (Department) filed an original petition alleging that Ethan C., then five months old, came within the provisions of Welfare and Institutions Code section 300, subdivision (b). Specifically, the petition alleged that Ethans mother, Heather F. (mother), had failed to provide Ethan with adequate medical care, causing him to suffer serious physical harm or illness. The petition also alleged that mother had failed to adequately supervise Ethan from substance abuse by petitioner, the custodian with whom he had been left, in that [o]n or about 07/01/2006, the mother left the child with George C[.], stating that he was the father and should see his child. Mr. C[.] did not want to provide care for Ethan, and left him with others. Mr. C[.] also stated that he was drunk at the time, and could not provide care for Ethan. The petition further alleged that both mothers and petitioners substance abuse rendered them unable to provide regular care for Ethan, placing him at substantial risk of suffering serious physical harm or illness.

The original petition named petitioner as an alleged father of Ethan.

In the detention report, prepared on July 5, 2006, the social worker reported that petitioner had denied paternity and a genetic test had been scheduled.

On July 18, 2006, the juvenile court ordered Ethan detained, noted that the issue of paternity had been raised and not resolved, and ordered a parent education program, substance abuse assessment and treatment, and visitation for mother and the father.

At the August 4, 2006 jurisdictional hearing, the juvenile court sustained the petition.

In the disposition report, prepared on August 3, 2006, the social worker reported that mother had named petitioner as Ethans father. Petitioner reportedly had denied paternity and was a no-show for genetic testing scheduled in July; the test was rescheduled for August. Petitioner had declined to meet with the social worker about family reunification services and, when asked if he wanted to relinquish his rights to Ethan, he said,  not yet. Though he initially seemed to hold himself out as father of the child, Mr. C[.] has not come forward for services, has since denied paternity, has not completed genetic testing and [has] visited Ethan at the Family Connection Center on only 3 of 18 occasions. According to mother, appellant played well with Ethan, but did not feed, diaper, or provide other care for him.

The Department recommended continued reunification services for mother, but recommended that petitioner not be included in the case plan update and that he be denied reunification services unless paternity were to be confirmed and the court elevated him to presumed father status.

At the August 7, 2006 dispositional hearing, the juvenile court adjudged Ethan a dependent child and ordered that he be placed in foster care, that reunification services be provided to mother, and that visitation be provided to mother and petitioner.

In the six-month status review report, prepared on February 6, 2007, the social worker reported that petitioner had taken a paternity test on August 29, 2006, which showed that he was Ethans biological father. The social worker gave petitioner information on how to establish presumed father status on September 14, 2006, and reminded him about the process on several later occasions. The social worker also provided petitioner with form JV-505 (Statement Regarding Paternity) in September 2006 and, while the social worker had sent him several letters with form JV-505 attached, reminding him about the process for achieving presumed father status, he had not yet returned the form to the social worker.[3] In addition, petitioner was entitled to daily visits with Ethan, but had not visited with him in the past one and one-half months. The Department recommended that petitioner be considered a mere biological father until he initiated judicial action to elevate his status to that of presumed father. The Department also recommended termination of reunification services for mother and the setting of a Welfare and Institutions Code section 366.26 hearing.

At a pretrial hearing held on February 26, 2007, petitioner appeared in this matter for the first time and said he was seeking presumed father status. The court appointed an attorney to represent him and, at the request of the Department, directed petitioner to file a motion for presumed father status. On March 12, 2007, eight months after Ethan was detained, petitioner filed form JV-505, Statement Regarding Paternity, in which he stated that he lived with Ethan from his birth and the next several months, that he had fed, bathed and cared for Ethan, that he had purchased clothes, diapers, etc., and that he was dedicated to fulfilling [his] obligations as Ethans father. On March 14, 2007, petitioner also filed a Supplemental Statement of Paternity, in which he stated that he is the biological father of Ethan, he was with mother during her pregnancy and lived with mother and Ethan for several months after Ethans birth, mother had always agreed that he was Ethans father, he had always acknowledged to friends and family that Ethan was his son, and he had always welcomed Ethan into his home and openly held Ethan out as his child.

At the March 14, 2007 six-month review hearing, after hearing arguments from counsel, the juvenile court denied presumed father status to petitioner and found that, as a mere biological father, reunification services would be denied. The court explained: In regard to the issue of presumed status, I dont think that the burden has been made in this portion of the proceedings in the timeframe. At least from what I can tell in review of the file is that the paternity was established in August of 2006 and that he was told on a number of occasions what to do to perfect status within the court. And that to do so isthats whats consistent with holding out a child as your own and doing everything that you can as it relates to that.

I think that he has not throughout time demonstrated that full and complete responsibility that the law protects under presumed status, and that there arent any constructive applications that would make that so. I think thateven making that finding of non-presumed status, I do agree with the pleadings that even if the Court did grant presumed status, that it would not extend the services.

But I think the correct legal determination in weighing all the factors in this case, in light of the time lines and the delays which were completely within Mr. C[.s] control and nobody elses, does not lead the Court to reach the conclusion of presumed status.

The court also terminated reunification services as to mother and set the matter for a Welfare and Institutions Code section 366.26 hearing.

This petition followed. Pursuant to rule 8.452, we issued an order to show cause and put the case on calendar for oral argument.[4]

DISCUSSION

In dependency proceedings, fathers are divided into four categories: de facto fathers, alleged fathers, natural fathers and presumed fathers. . . . . [] Presumed father status ranks highest. Only a statutorily presumed father is entitled to reunification services under Welfare and Institutions Code section 361.5, subdivision (a) and custody of his child under Welfare and Institutions Code section 361.2. (In re Jerry P. (2002) 95 Cal.App.4th 793, 801-802.)

A man can qualify for presumed father status pursuant to one of the provisions of section 7611, under which [a] man is presumed to be the natural father of a child if, inter alia, he and the mother execute a voluntary declaration of paternity ( 7611, 7573); he marries the childs mother ( 7611, subd. (a)); attempts to marry the childs mother ( 7611, subds. (b), (c)); or receives the child into his home and openly holds out the child as his natural child ( 7611, subd. (d)).

Once the alleged father establishes his entitlement to presumed father status, that presumption can be rebutted, pursuant to section 7612, which provides in relevant part: (a) Except as provided in Chapter 1 (commencing with Section 7540) and Chapter 3 (commencing with Section 7570) of Part 2 or in Section 20102, a presumption under Section 7611 is a rebuttable presumption affecting the burden of proof and may be rebutted in an appropriate action only by clear and convincing evidence.

(b) If two or more presumptions arise under section 7611 which conflict with each other, the presumption which on the facts is founded on the weightier considerations of policy and logic controls.

(c) The presumption under Section 7611 is rebutted by a judgment establishing paternity of the child by another man.

Before a rebuttable presumption will arise under section 7612, an alleged father has the burden of establishing, by a preponderance of the evidence, the facts supporting his entitlement to presumed father status. (See  7611; In re Spencer W. (1996) 48 Cal.App.4th 1647, 1652-1653.) We review for substantial evidence a juvenile courts determination as to whether an alleged father has qualified as a presumed father. (In re A.A. (2003) 114 Cal.App.4th 771, 782; In re Spencer W., at p. 1650.)

Here, petitioner contends he established both elements of presumed father status under subdivision (d) of section 7611, in that his Statement Regarding Paternity and his Supplemental Statement of Paternity provided undisputed evidence that he received Ethan into his home and openly held Ethan out as his natural child. Petitioner further argues that mothers counsels statement in court that [t]he mother indicates that [petitioner] has welcomed Ethan into his home[,] [a]nd at least to her and all of their friends, he has held himself out as Ethans father, provides additional evidence of petitioners presumed father status under section 7611, subdivision (d).[5]

Petitioner also asserts that the Department failed to address the presumed father issue and thus did not rebut the presumption that he is Ethans father by clear and convincing evidence, as required by section 7612. Finally, he claims that the juvenile courts findings were based on facts that are irrelevant to whether petitioner received Ethan into his home and held him out as his natural child. (See  7611, subd. (d).)

In claiming that the evidence shows he was entitled to presumed father status under section 7611, subdivision (d), petitioner ignores the abundant evidence in the record to the contrary. First, the dependency petition was filed after petitioner refused to provide care for Ethan and left him with a friend. Moreover, the social worker noted that, although petitioner initially seemed to hold himself out as Ethans father, he had thereafter denied paternity and not shown up for a scheduled paternity test. He also refused to meet with the social worker about reunification services and, by early August 2006, had visited Ethan on only three out of 18 possible occasions. Even after genetic testing showed that he was Ethans biological father, petitioner took no steps to achieve presumed father status, despite repeated reminders from the social worker, until just before the six-month review hearing, some eight months after Ethan was taken into protective custody.[6] Furthermore, petitioner failed to appear in these dependency proceedings until the pretrial hearing for the six-month review, even though he had been given notice of the detention, jurisdiction, and disposition hearings.

Petitioners statements, on form JV-505 and the Supplemental Statement of Paternity, do not counter this evidence in the record showing that petitioner did not act promptly to be recognized as Ethans father. That petitioner lived with Ethan for several months after his birth does not satisfy the requirements of section 7611, subdivision (d), in light of his subsequent refusal to care for Ethan (which led to the filing of the dependency petition), his denial of paternity, his disinterest in reunification services, his limited visitation with Ethan, and his long delay in taking steps to become a presumed father. (See In re A.A., supra, 114 Cal.App.4th at p. 786; In re Sarah C. (1992) 8 Cal.App.4th 964, 973.) Moreover, petitioners statement that he fed, bathed, and cared for Ethan was contradicted by the mothers statement, reported in the disposition report, that appellant played well with Ethan, but did not feed, diaper, or provide other care for him. Petitioner also stated that he had purchased clothes and diapers for Ethan, but made no showing that he had otherwise helped to support Ethan, for example by paying rent. (See In re Spencer W., supra, 48 Cal.App.4th at p. 1653.)

In addition, although petitioner may have initially told some friends and family that he was Ethans father, once the question of paternity and family support came up, the evidence shows he first denied paternity; delayed taking a paternity test; declined to discuss reunification services; and then, once paternity was established, repeatedly delayed initiating the process of establishing presumed father status. (See In re Spencer W., supra, 48 Cal.App.4th at pp. 1653-1654 [while biological father claimed paternity to his friends and family, he was unwilling to proclaim paternity when there might have been some cost to him].) Finally, after Ethan entered the dependency system, petitioners visits were sporadic, and he failed to visit Ethan at all in the one and one-half months before the six-month status review report was prepared in February 2007.

In light of this abundant evidence that petitioner failed to receive Ethan into his home and, in particular, failed to openly and publicly hold Ethan out as his natural child, substantial evidence supports the juvenile courts finding that petitioner did not meet his burden of establishing, by a preponderance of the evidence, that he was entitled to presumed father status, pursuant to section 7611, subdivision (d). (See In re A.A., supra, 114 Cal.App.4th at p. 782; In re Spencer W., supra, 48 Cal.App.4th at p. 1650.)[7] Since petitioner did not meet his burden of showing entitlement to presumed father status, there was no presumption that the Department needed to rebut. (See In re Spencer W., at pp. 1653-1654.)

DISPOSITION

The petition for extraordinary writ is denied on the merits. Our decision is final as to this court immediately. (Rule 8.264(b)(3).)

_________________________

Kline, P.J.

We concur:

_________________________

Haerle, J.

_________________________

Lambden, J.

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[1] All further rule references are to the California Rules of Court.

[2] All further statutory references are to the Family Code unless otherwise indicated.

[3] On November 27, 2006, petitioner signed a JV-505 form, but took the original document with him, saying he needed to get the information to complete the form. Although the social worker followed up with petitioner twice, he did not return the form.

[4] The parties have waived oral argument in this matter.

[5] We observe that mothers counsels comments do not constitute evidence.

[6] The Department notes that, under Welfare and Institutions Code section 361.5, subdivision (a), petitioners failure to achieve presumed father status prior to the expiration of the six-month review period, means that, even had he been given presumed father status, he would not be entitled to reunification services because the reunification period had ended. (See In re Zacharia D. (1993) 6 Cal.4th 435, 453.) The juvenile court alluded to this when it stated, in denying presumed father status to petitioner, I do agree with the pleadings that even if the Court did grant presumed status, that it would not extend the services.

[7] Petitioner is incorrect when he avers that the juvenile courts findings were not based on the requirements of section 7611, subdivision (d). Although the courts language may not have precisely tracked that of the statute, its findings plainly reflect its belief that petitioners lengthy delay in coming forward to establish his entitlement to presumed father status was not, as the court stated, consistent with holding out a child as your own and doing everything you can as relates to that.