In re David E.

Filed 3/2/07 In re David E. CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FOURTH APPELLATE DISTRICT

DIVISION TWO

APPEAL from the Superior Court of San Bernardino County. Robert G. Fowler, Temporary Judge. (Pursuant to Cal. Const., art. VI,  21.) Affirmed.

Linda Rehm, under appointment by the Court of Appeal, for Defendant and Appellant.

Ruth E. Stringer, Acting County Counsel, Danielle E. Wuchenich, Deputy County Counsel, for Plaintiff and Respondent.

Konrad S. Lee, under appointment by the Court of Appeal, for Minor.

Defendant and Appellant Joe M. (Joe) claims he is the biological and presumed father of one-year-old David E. Joe appeals from the orders and findings of the juvenile court denying him reunification services or visitation with David. Joe claims the court erred in finding that he was not a presumed father and failing to offer him reunification services or visitation with David. As explained below, we reject these contentions and affirm the judgment.

I

FACTUAL AND PROCEDURAL BACKGROUND

On May 17, 2006, the San Bernardino County Department of Childrens Services (DCS) received a referral alleging that Joe M. had told his two older sons to punch each other until bruises appeared and to tell police that Sarah E. (Mother), Joes girlfriend and Davids mother, assaulted them. Joe had indeed called the police to report that Mother had abused the two older boys. The boys confirmed the story with the police. Mother was arrested and detained at Chino Prison on a parole violation as a result of the reported injuries to the boys. It was later discovered that Joe fabricated the story in an attempt to control the outcome of his family law case.

On June 9, 2006, Joe was arrested for procuring another to be charged or arrested for a crime (Pen. Code, 182, subd. (a)(2)). David and Joes three children were taken into protective custody. Joes children were released to their mother, and David was placed in a confidential foster home. Mother was released to a halfway house and continued to be on parole for assault with a deadly weapon until August 2007.

On June 13, 2006, DCS filed a petition on behalf of David pursuant to Welfare and Institutions Code section 300, subdivisions (a), (b), and (g).^[1] The petition noted that Joe was the alleged father of David.

Joe failed to appear at the detention hearing on June 14, 2006, and his counsel submitted on the issue of detention. Joe was ordered to submit to random drug testing, and he was granted supervised visitation. The court emphasized the need to keep Mothers address confidential and ordered Mother to complete the paternity questionnaire and family information sheet, since she and Joe were not married. Upon inquiry, Mother stated that there were no possible fathers other than Joe.

Initially, in the jurisdictional/dispositional report, DCS recommended reunification services to Joe as well as to Mother. Mother was still residing in a halfway house, seeking treatment for domestic violence. The social worker did not know if Mother could protect David from Joe. Mother had intended to leave Joe on several occasions, but she did not and continued to expose David to her violent, destructive relationship with Joe. Joe had a long criminal history of drugs, theft, and violent behavior and was currently incarcerated on theft and additional criminal charges. Joe had a prior substantiated referral for caretaker absence.

Mother claimed that Joe was Davids father; however, Joes name was not listed on the birth certificate. Mother completed the paternity questionnaire and named Joe as the father. Joe also stated that he was the father; however, he called the maternal grandmother and stated that he was not Davids father. Mother and Joe had been together for four years but had never married.

Joe previously had been married for 11 years and had three children from that marriage. According to Joes ex-wife, Joe spent almost two years at the California Youth Authority for shooting someone. She also was a victim of Joes domestic violence, including punctured lungs by an attack from behind, a scar above her right eye from a fight, suffocation by a pillow held over her face, socks wrapped over her mouth, a gun in her face, and her hair pulled.

Joe was present and in custody at the time of the July 5, 2006, jurisdictional/ dispositional hearing. The court ordered separate mediation for Mother and Joe. The court also advised Mother that she could not supervise Joes visitation upon his release from prison.

At a nonappearance review hearing on July 12, 2006, the court ordered David to be placed with Mother in her program under family maintenance. Mother was ordered not to leave her program with her child and not to have any contact with Joe.

In an addendum report filed July 25, 2006, DCS recommended that Joe be found to be an alleged father of David and not entitled to services. Joe and Mother had both claimed and disclaimed Joe as the biological father. Joe told a DCS supervisor that he told the maternal grandmother that he was not the biological father but later retracted the statement, claiming he made it out of anger, and now wanted a paternity test. Mother told police when Joe was arrested on June 9, 2006, that Joe was not the biological father, but at the detention hearing and to the social worker she stated that he was.

The social worker opined Joe was of dubious moral character and that his parenting skills might pose a risk to David. David was more strongly attached to his mother than to Joe, and Mother had served as the primary caregiver. Joe only sought possession of David when he was trying to control Mother. In the past, Joe had refused to allow Mother to leave the home with David. Joe took David and withheld contact between Mother and David. Joe later returned David upon Mothers insistence. The day David was returned to Mother, Mother was arrested for child abuse based on Joes fabricated story. Joe had engaged his boys to perpetrate a fraudulent case of child abuse against Mother in an attempt to manipulate the family court into granting him sole custody of David. Attached to the addendum report was the police report that included an interview with Joes daughter, M. She stated that Joe had told her to tell the police that Mother had hit M.s brothers. M. refused and told the police that Joe had told her brothers to hit each other and blame Mother. Joe included his mother in the fraud: the paternal grandmother claimed she witnessed the altercation. M. told the police that her grandmother was not even present at the time.

The jurisdictional/dispositional hearing was held on July 27, 2006, and continued for a contested hearing. Joe was no longer questioning paternity and did not want a paternity test, but he considered himself the biological father. The court advised Joe that even if he were found to be the biological father, DCS was still recommending that services be denied to Joe because it was not in the best interests of the child. Counsel for DCS agreed with the courts assessment.

On August 1, 2006, a pretrial settlement conference was held. Joes attorney requested a paternity test for Joe, but the court advised him it was too late. Joe had withdrawn his request for paternity testing at the last hearing. In addition, Joe had also signed a waiver, which the court advised did not allow Joe to contest the allegations or recommendations. Nonetheless, the court advised Joe that if he changed his mind at the next court hearing date, the court would proceed with the jurisdictional/ dispositional hearing as contested and revisit the issue regarding paternity testing.

At the August 3, 2006, jurisdictional/dispositional hearing, Joe and Mother waived their rights as to jurisdiction, and the court found the admitted allegations true. Joe withdrew his waiver as to disposition, and the contested dispositional hearing was thereafter held. Joe testified that he considered himself to be Davids biological father, even though he was not present at Davids birth. He claimed that he had signed a voluntary declaration of paternity in April 2006, even though David was born in January 2006. He admitted that he never provided a copy of the voluntary declaration of paternity to the social worker, allegedly because he was incarcerated. He stated that Mother had signed the declaration as well, but he was unsure whether she had a copy of it.

Joe further stated that he had supported David, that he resided with David and Mother for about four months (from February 1, 2006 to June 9, 2006), and that he had informed everyone in his family that David was his son. He admitted that he did not request paternity testing earlier, but he had requested testing recently in a letter he sent to DCS in order to lock in visitation rights. He claimed that he had never doubted David was his biological son. Joe also testified that he would be willing to cooperate and attend and participate in any classes or services required of him by DCS. He further stated that if the court made him a presumed father, he would be willing to accept the financial and emotional responsibility for David.

On cross-examination, Joe stated that he had always maintained he was Davids father and denied that the reason he requested paternity testing was because he had doubts about Davids paternity. He acknowledged that his name was not on the birth certificate, that he had never sought a formal judgment of paternity, and that he did not submit to a paternity test.

The social worker testified and explained why he had changed his recommendation from Joe receiving services to Joe having no services. One reason was that Joe was requesting paternity testing, and he and his supervisor determined that it was in Davids best interest that Joe be found to be an alleged father. Other reasons were that Joe had used his two sons to fabricate a conspiracy story against Mother; the statements made by Joes daughter in the police report; statements made by other witnesses who stated that they never saw Mother hit anyone; and Joes prior domestic violence history with his ex-wife. Another reason, the social worker explained, was Joes bonding issues with David. Joes teenage sons and daughter told the social worker that while Mother was in jail, they took care of David because Joe was either not around or just didnt do it.

In response to the courts question of whether paternity testing would change the social workers recommendation, the social worker testified that whether or not Joe was found to be the biological father, the social worker would still recommend no services based on the best interests of the child. The social worker explained that there was no real bond between David and Joe; that Joe was very manipulative and controlling; and that Joe lacked good parenting skills, as evidenced by his ordering his sons to come up with a fabricated story to get Mother arrested. The social worker acknowledged that Joe was attentive and appropriate to David on a supervised visit. The social worker also testified that Joe questioned his need to take domestic violence and parenting classes, because he had taken those classes in the past and did not think he needed them again. He also was resistant to taking the 52-week parenting and domestic violence classes. In addition, the social worker admitted that he assumed Joe lived in the home at the time of Davids conception and admitted that Joe was in jail at the time David was born.

Following argument from counsel, and after the court reviewed the requirements of Family Code section 7611, which discusses parentage, the court found that there was no marriage, no attempt to solemnize the marriage, and no presence at birth. The court concluded there was no presumption of fatherhood; the court found that Joe was Davids alleged father and therefore not entitled to services. The court ordered no visitation between David and Joe. This appeal followed.

II

DISCUSSION

Joe argues that the juvenile court erred in finding that he was not a presumed father and failing to offer him reunification services or visitation with David.

Dependency law recognizes four types of fathers: presumed, alleged, biological, and de facto. (In re Zacharia D. (1993) 6 Cal.4th 435, 449, fn. 15; In re Jerry P. (2002) 95 Cal.App.4th 793, 801; In re Crystal J. (2001) 92 Cal.App.4th 186, 190.) A presumed father is a man who meets one or more statutorily specified criteria under Family Code section 7611.^[2] That section provides several different scenarios under which a man may achieve presumed-father status, including the more typical situation where the man is the presumed father of a child because he receives the child into his home and openly holds out the child as his natural child. ([Fam. Code,] 7611, subd. (d).) (In re Liam L. (2000) 84 Cal.App.4th 739, 745.) A biological father is one whose paternity of the child has been established but who has not established that he qualifies as the childs presumed father. (In re Zacharia D., supra, 6 Cal.4th at p. 449, fn. 15.) An alleged father is a man who may be the father of the child but who has not established biological paternity or presumed-father status. (Ibid.) An alleged father has fewer rights than biological and presumed fathers because his paternity has not been established, and he does not have a current interest in the child. (In re O.S. (2002) 102 Cal.App.4th 1402, 1406.) However, he does have the opportunity to appear and assert a position, including his paternal status. (Id. at p. 1408.)

Only a presumed father has a right of custody and a right to reunification services as necessary to regain custody of a dependent child (In re Zacharia D., supra, 6 Cal.4th at p. 451), although the juvenile court may provide services to a biological father if it determines that the provision of services will benefit the child. (Welf. & Inst. Code, 361.5, subd. (a).) In general, a presumed father is one who promptly comes forward and demonstrates a full commitment to his paternal responsibilities â€‘‑ emotional, financial, and otherwise[,] or who has either married or attempted to marry the childs biological mother. (In re Jerry P., supra, 95 Cal.App.4th at pp. 801-802, fn. omitted; see also Fam. Code, 7611, subds. (b), (c).) The purpose of Family Code section 7611 in dependency proceedings is to determine whether the alleged father has demonstrated a sufficient commitment to his parental responsibilities to be afforded rights not afforded to natural fathers â€‘‑ the rights to reunification services and custody of the child. (Jerry P., at p. 804.) One who claims he is entitled to presumed-father status has the burden of establishing, by a preponderance of the evidence, the facts supporting that entitlement. (In re Spencer W. (1996) 48 Cal.App.4th 1647, 1653.)

Since the record is clear that Joe never married Mother, and the record contains no evidence that they attempted to marry, Joes claim to presumptive-father status rests exclusively on fulfillment of the Family Code section 7611, subdivision (d) requirement that he receive[d] the child into his home and openly h[eld] out the child as his natural child. Joe bears the burden of proof by a preponderance of the evidence on both receiving the child into his home and holding the child out as his own. (Glen C. v. Superior Court (2000) 78 Cal.App.4th 570, 585-586.)

The question of how to prove that a man has receiv[ed] a child into his home and openly h[eld] out the child as his own is a complex one. Courts have looked to such factors as whether the father sought to have his name placed on the birth certificate; whether and how long the father cared for the child; unequivocal evidence that the father had acknowledged the child; the number of people to whom the father had acknowledged the child; whether the father provided for the child after it no longer resided with him; whether the father actively helped the mother in prenatal care; whether, if the child needed public benefits, the father had pursued completion of the requisite paperwork; and whether the fathers care was merely incidental. (See, e.g., Adoption of Kelsey S. (1992) 1 Cal.4th 816, 849; In re Tanis H. (1997) 59 Cal.App.4th 1218, 1228-1230; In re Sarah C. (1992) 8 Cal.App.4th 964, 974-975; In re Spencer W., supra, 48 Cal.App.4th at pp. 1653-1654.)

Upon review of the juvenile courts determination of presumptive fatherhood, we review the facts most favorably to the judgment, drawing all reasonable inferences and resolving all conflicts in favor of the order. We do not reweigh the evidence but instead examine the whole record to determine whether a reasonable trier of fact could have found for the respondent. [Citation.] (Miller v. Miller (1998) 64 Cal.App.4th 111, 117-118, quoting In re Spencer W., supra, 48 Cal.App.4th at p. 1650.)

Joe contends that he met the criteria of a presumed father because he received David into his home and openly held David out as his natural child. We conclude that substantial evidence supported the juvenile courts finding that Joe was the alleged, rather than the presumed, father. In order to demonstrate a full commitment to his parental responsibilities, the biological father must promptly attempt to assume full parental responsibilities as soon as he reasonably knows of the pregnancy. (In re Julia U. (1998) 64 Cal.App.4th 532, 541.) The record fails to show that Joe offered emotional or financial support to Mother before or during her pregnancy or assisted her during or after Davids birth. Joe presented no evidence that he gave Mother any prenatal support. Rather, the evidence showed that Joe and Mother had a continuously violent relationship; that Mother was being controlled by Joe and was not allowed to leave the house with David; that Joe used David to control Mother; and that Joe was very verbally abusive toward Mother. Though there was evidence that Mother and Joe were together for four years and that Mother was again pregnant, possibly with Joes baby, there was no evidence that Joe was living with Mother when David was conceived, nor was he present at the hospital when David was born. Additionally, the living arrangements of Joe and Mother are unclear. At the time of the detention hearing, Mother was living in a halfway house, seeking treatment for the domestic violence between Joe and Mother, and Joe was free on bail awaiting his surrender hearing. He had been in jail at the time of Davids birth and was released on February 1, 2006. David was born January 2006. Joe testified that he had lived with Mother and David until he was arrested and incarcerated again on June 9, 2006. In his letter to the social worker, however, Joe stated his mother (the paternal grandmother) was caring for his children and David until Mother was released from prison. He also testified that when Mother was arrested, even though he (Joe) was not in jail at the time, David was placed with the maternal grandmother. Joe made no effort to explain why he was not caring for David or to what extent he provided for David, either emotionally or financially. On the other hand, Joes children told the social worker that while Mother was in jail, they took care of David because Joe was either not around or just didnt do it. Joe provided no proof that he supported David financially, either. Joe had been on disability since the early 1990s, and relied on family members for his support system. Prior to his incarceration, he received food stamps and welfare.

Furthermore, there was no evidence that Joe held David out as his natural child. Joe was not present at Davids birth; he did not have his name on the birth certificate; he never sought a formal judgment of paternity; he did not provide a completed and signed copy of the voluntary declaration of paternity to the social worker or the court; and he wavered on taking a paternity test. Additionally, Joe told a DCS supervisor that he had told the maternal grandmother that he was not the biological father. Joe also informed the social worker that he sometimes questioned the paternity of the child because friends had commented to Joe that the childs skin color may be too light. Essentially, Joes acknowledgment was equivocal. Mother also told a police officer that Joe was not the biological father. Joes daughter told the officer that Mother told Joe that he was not Davids father. It appears that, though both Mother and Joe at times stated that Joe was Davids biological father, they kept changing Joes fatherhood status based on whim, advantage, or necessity. Other than his self-serving testimony, Joe provided no evidence showing that he held David out to be his son.

This case is nothing like the situation in In re Jerry P., supra, 95 Cal.App.4th 793. In that case, the nonbiological father held the child out as his own; paid for vitamin supplements, bus fare, and medications during the mothers pregnancy; visited and held the child every day at the hospital after he was born; searched for the child after his detention; consistently visited the child during his detention; established a very good relationship with the child, who referred to him as daddy; and completed classes in parenting and CPR as required by the Department. (Id. at pp. 797-800.) None of those factors exist here. Further, the constitutional analysis touched on by the court concerned a nonbiological fathers liberty interest in his relationship with the child and is not relevant here. (See id. at p. 816.)

[T]he burden of proof rested on [Joe] to show that he received the child into his home and that he openly and publicly acknowledged paternity. It was for the trier of fact to determine whether the foundational facts were established by a preponderance of evidence. [Citation.] (In re Spencer W., supra, 48 Cal.App.4th at p. 1653.) The record shows that Joe did not offer substantial evidence to establish either of these requirements. He therefore failed to meet his burden, and the juvenile court correctly found that he was not a presumed father.

We conclude the juvenile court did not err in denying presumptive-father status to Joe as well as denying Joe reunification services and visitation.

Joe also apparently asserts that if the court had ordered a paternity test early in the proceedings, he would have been found to be Davids biological father, and therefore he could have received services if doing so was in the childs best interests. ( 361.5, subd. (a)). However, as counsel for DCS notes, even if the court erred in not ordering a paternity test, the error was harmless, since it was not in Davids best interest to provide reunification services to Joe.

A court has discretion to offer a biological father reunification services under section 361.5, subdivision (a). Nonetheless, it can only do so if (1) a court has declared the fathers paternity and (2) the court determines that the services will benefit the child. ( 361.5, subd. (a); see In re Zacharia D., supra, 6 Cal.4th 435, 451.) Even if a paternity test had established Joe as the biological father and the court had declared Joes paternity, it was not in Davids best interest to provide services to Joe. The social worker testified that he would not recommend services to Joe whether or not Joe was the biological father, for reasons we have stated, ante.

David (who was merely four months old when he was taken into protective custody) appeared happy in his mothers care. It appeared that Joe only took possession of David when he wanted to control Mother or when seeking revenge. Efforts to reunite David with Joe would have been counterproductive, not beneficial, because they would have diverted David from his most realistic chance for a stable, permanent home through family maintenance with his mother.

Joes inability to qualify for reunification services makes his claim that the court erred in not ordering visitation with David a moot point. Without any possibility of reunification, there would have been no point in ordering visitation, especially given Joes incarceration and his history of lack of contact with David.

Accordingly, even if the juvenile court erred in not ordering a paternity test, the error is harmless since it was not in Davids best interest to provide Joe with reunification services.

III

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

RICHLI

J.

We concur:

RAMIREZ

P.J.

HOLLENHORST

J.

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^[1] All future statutory references are to the Welfare and Institutions Code unless otherwise stated.

^[2] Family Code section 7611 provides, in pertinent part: A man is presumed to be the natural father of a child if he meets the conditions provided in Chapter 1 (commencing with Section 7540) or Chapter 3 (commencing with Section 7570) of Part 2 or in any of the following subdivisions: [] (a) He and the childs natural mother are or have been married to each other and the child is born during the marriage, or within 300 days after the marriage is terminated by death, annulment, declaration of invalidity, or divorce, or after a judgment of separation is entered by a court. [] (b) Before the childs birth, he and the childs natural mother have attempted to marry each other by a marriage solemnized in apparent compliance with law, although the attempted marriage is or could be declared invalid, and either of the following is true: [] (1) If the attempted marriage could be declared invalid only by a court, the child is born during the attempted marriage, or within 300 days after its termination by death, annulment, declaration of invalidity, or divorce. [] (2) If the attempted marriage is invalid without a court order, the child is born within 300 days after the termination of cohabitation. [] (c) After the childs birth, he and the childs natural mother have married, or attempted to marry, each other by a marriage solemnized in apparent compliance with law, although the attempted marriage is or could be declared invalid, and either of the following is true: [] (1) With his consent, he is named as the childs father on the childs birth certificate. [] (2) He is obligated to support the child under a written voluntary promise or by court order. [] (d) He receives the child into his home and openly holds out the child as his natural child. . . .