In re Benito A

Filed 5/16/06 In re Benito A. CA2/4

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION FOUR

APPEAL from an order of the Superior Court of Los Angeles County, Emily A. Stevens, Judge. Affirmed.

Joseph T. Tavano, under appointment by the Court of Appeal, for Defendant and Appellant.

Raymond G. Fortner, Jr., County Counsel, Larry Cory, Assistant County Counsel, and Judith A. Luby, Deputy County Counsel, for Plaintiff and Respondent.

Anna L. Ollinger, under appointment by the Court of Appeal, for Respondent Benito A., Sr.

INTRODUCTION

Ruben C. appeals from an order of the juvenile court determining that another man, Benito A., Sr. (Benito, Sr.), is the presumed father of the dependent child Benito A. (Benito), and that Ruben is not entitled to enjoy presumed father status and the resultant provision of family reunification services. We conclude that the court's order was supported by substantial evidence, and we shall therefore affirm.

factual and procedural background

In June 2005, the Los Angeles Police Department executed a search warrant at the home of Lorenza A., Ruben's sister, and found heroin and drug paraphernalia. Benito (born in Dec. 2000) was living with Lorenza, although the child was not in the home when the search was conducted. Lorenza identified herself as Benito's paternal aunt. Benito had been living with Lorenza for several months. Mother lived a transient lifestyle, and had left Benito with Ruben, who in turn left Benito with Lorenza when he was incarcerated. Mother's whereabouts were unknown.[1]

The Los Angeles County Department of Children and Family Services (DCFS) detained Benito and placed him in foster care. The child said that Lorenza spanked him and called him bad names, and he did not want to be returned to her care.

In 2001, Benito Sr. had notified DCFS that Mother was staying in a hotel and using drugs. He stated that he was Benito's father. DCFS was unable to investigate because Mother's whereabouts were unknown.

In March 2005, a mandated reporter told DCFS that Mother had been arrested. Mother's boyfriend, Ruben, had taken Benito from her and left the child with Ruben's parents. Mother and Ruben had reportedly engaged in domestic violence. Mother's criminal records indicated she was arrested on March 10, 2005. She was found guilty of drug possession and being under the influence of a controlled substance; she was released on probation on March 21, 2005.

DCFS filed a petition pursuant to Welfare and Institutions Code section 300[2] regarding Benito on June 17, 2005, alleging as to Mother that she had a history of substance abuse that rendered her incapable of providing regular care, and that her drug use endangered Benito's physical and emotional health and safety.

DCFS reported that Benito told the social worker his father's name was also Benito. He appeared to be doing well in his foster home. He said he wanted to live with Mother, Benito, Sr., Ruben, or Lorenza.

Benito, Sr. told the social worker that he had not seen Benito for 14 months. Previously, â€